The First Appointment after Aid is Granted
Arranging the appointment
If not in custody, your client should contact you to make an appointment. They have been asked to do so in our letter to them.
If your client is in custody at the time of applying for aid, we do not ask them to make an appointment to see you, but ask you to arrange to see them.
Collecting the client's contribution
You are not obliged to start work under a legal aid grant until the client has paid their initial contribution. However, if the contribution is more than the client can readily pay in one payment, you may care to discuss payment by instalments.
If your client is in custody and cannot pay, they may ask that payment be deferred until their release and we will consider this. If a contribution will create serious hardship for your client, they may write to us requesting waiver and we will consider this. Please have your client notify us of their new address when they are released. We may also ask for an update of their financial circumstances at that time.
Further information about client contributions is set out in Conditions.
Explaining to the client about legal aid
Few clients of the legal system have any real idea how legal aid works. We do our best to explain it in the conditions of aid, which we print in the application form and also send to successful applicants.
However, it is still wise to prepare your client, at the earliest opportunity, for certain features of the system which can be of major importance in their decision-making throughout the case, to correct certain common misconceptions, and to warn them of conditions they might otherwise not expect.
Legal aid is not free
It is a widespread misconception that legal aid is free. In fact
- your client will usually have to pay a contribution
- they may have to pay further contributions if the case becomes protracted or expensive
- if their means change, their original contribution can be reassessed and may increase
- if your client receives any money from the case, they will have to pay legal aid back, to the full extent of those funds
- we will also take a statutory charge over any interest your client or their financially associated person may have in real estate, if the cost of the case is more than $2,250. The charge secures the eventual full repayment of the whole grant of aid (including the first $2,250), and also entails a fee. Many clients are very worried about this, and are anxious for you to tell them if their costs approach this amount. You should take care to comply with any such request, as failure to do so is a common source of client complaint. For further information, see Statutory charges over real estate. You may also find it useful to give your client a copy of our brochure on Statutory Charges (included in the Forms). If you have a query in a particular case, phone our statutory charges officer.
- the statutory charge entails an administration fee of $300.
All these costs conditions are set out in detail in Conditions.
Please note that you should give your client costs advice in a legally aided matter just as you would in any other. A sample costs advice you may wish to use is included in Forms.
Legal aid can be stopped at any time
Some clients may assume that once they have a letter advising of a grant of aid, the aid will continue throughout the case. This is quite wrong. Aid is always under review, and may be stopped at any time. For example, aid may be stopped if any of the following occurs:
- we think that the case no longer has reasonable prospects of success, is no longer a proper use of public funds, will not produce any worthwhile benefit to the client or otherwise fails to meet our merits test
- your client's means change and we consider that he or she can pay privately
- your client forms a financial association such that they should be able to pay privately
- it becomes apparent that an award of money such as damages, compensation, property settlement or costs may accrue to your client, such that he or she should be able to pay privately
- the other party makes a reasonable offer to settle
- your client refuses to accept your advice
- we learn that your client's financial circumstances are not as they have told us
- the funding cap is reached (see also detailed information under Eligibility: Funding caps)
- the forum changes. In that case, you may need to apply to the legal aid commission in the new jurisdiction (see Funding Criteria: Forum test)
- your client tells us that they no longer want aid, or will not accept the conditions on which aid is offered (for example, they refuse to sign the consent to the statutory charge)
These are just examples of situations where aid can be stopped. The list is not exhaustive.
Termination of aid gives rise to a right of appeal.
Aid is granted only for the purpose specified in the letter
A grant of aid will not necessarily cover everything that your client wants to do in the case. For example, in a family case, we may fund an application for contact orders, but not fund applications to punish contraventions of these orders, particularly if these are minor. In a criminal case, we may fund a bail application, but if bail is refused, we will not necessarily fund a bail review, even though your client may instruct you that this is their wish.
There is a monetary limit on the grant of aid
Monetary limits (caps) apply to all grants of aid. Once the cap is reached, aid stops. Even if the case is at the court door, or halfway through trial, there will be no more aid.
The present caps in State criminal matters are
- $50 000 in a criminal matter involving one defendant
- $100 000 in matters involving multiple defendants
- however , if costs exceed $90 000, then aid will not be granted for an appeal.
In Commonwealth matters, the present caps are
- in family matters where aid is first granted after 4 April 2005,
- $15 000 per party and $18 000 for a child representative (see Commonwealth Family Law Guideline 12 in the Appendix for full details). It is important to remember that in family matters the cap is Australia-wide, ie legal aid expenditure in other States/Territories is counted towards the cap, and applies until the child reaches age 18. So long as the case is the same matter, no fresh cap arises.
- in criminal matters, where costs are to exceed $40 000 per applicant alternative means of funding must be considered (see the Commonwealth Criminal Law Guideline 11 for full details).
It is helpful to warn your client about the cap from the outset. Also, it can often help them to concentrate on confining the case to the most important issues and not pursuing unnecessary applications.
However, be careful not to give your client the impression that they are in fact entitled to receive aid up to the cap. It is misleading to tell the client at the outset 'You are entitled to $15 000', because this may not be true. Aid can be stopped at any time (see above). The cap is the maximum possible amount of aid, not necessarily the amount your client will receive. Indeed, of course, most ordinary cases are disposed of for much less than the cap.
The Commission may secure its costs by a statutory charge over property
Mention the charge to your client, even if he or she does not have any interest in real estate, because
- they might acquire an interest during the grant, for example by inheritance, or
- they might form a financial association during the grant with a person who has an interest.
- The charge will apply to an interest which arises during the grant, just as it would to an interest existing at the outset.
- More information about the statutory charge is given in Conditions , and in Forms there is a brochure explaining how the charge works, which you are welcome to copy for your client. Please note that there is an administration fee of $300 with the charge.
Because the charge also applies to the interest of a financially associated person, you should consider whether you have a duty to advise them about their liability in this regard and also whether they require independent advice.