4.5 Disbursement assistance
This section deals with two matters relevant to disbursements:
Court and tribunal fees — exemption and waiver for pro bono matters
Firms undertaking litigious pro bono matters should consider whether exemptions or waivers are available in respect of court or tribunal fees, such as filing fees and, in some cases, setting down and daily hearing fees.136 The Acts, regulations or rules for some courts and tribunals expressly provide for fee exemption, waiver, remittal or postponement of fees. Even if there is no express provision, a waiver may nonetheless be available. For example, the Supreme Court of South Australia has no express fee waiver provisions in its Act or Rules, but people may apply to the court for waiver, using prescribed forms.
Persons liable to pay fees in Commonwealth courts (the High Court, the Federal Court of Australia, the Federal Magistrates Court and the Family Court) and the Administrative Appeals Tribunal are eligible for an exemption from those fees if they:
If none of the above applies, a person may nevertheless apply to the registrar for waiver of fees. Fees can be waived if the registrar (or another authorised officer) is of the opinion that payment of the fee would cause financial hardship, having regard to the applicant’s income, day-to-day living expenses and liabilities and assets.137
As mentioned above, some state and territory courts and tribunals, upon application (generally accompanied by a supporting affidavit or statement of financial affairs), provide for waiver of the payment of fees, either pursuant to a general discretion or specifically in the case of financial hardship.138 Each court and tribunal has its own criteria for assessing applications for waiver and they generally have their own application forms. For example, in the Supreme Court of South Australia, an application for a fee waiver must set out, among other things, whether assistance might be available from friends or relatives and provide details of any requests that have been made in that regard.
In New South Wales, in addition to general waiver provisions, pro bono-specific provisions have been inserted in regulations for the Supreme Court, Land and Environment Court, District Court and Local Court.139 Pursuant to these provisions, the payment of fees by ‘a pro bono party’ is postponed until judgment is given, and fees are not payable at all if:
A ‘pro bono party’ is defined as a person who is being represented under a pro bono scheme of the Law Society of New South Wales, the New South Wales Bar Association, or a pro bono scheme established by rules of court. The solicitor or barrister acting for the party must certify in writing to the relevant court that the party is being so represented and undertake to pay certain fees in the event that the concession does not apply.
Information and forms for fee exemption and/or waiver can be obtained from court and tribunal registries. The following resources may also be helpful:
Disbursement assistance schemes
(Section last updated January 2013)
There is limited disbursement assistance available for pro bono matters. Here is an outline of the existing disbursement support schemes.
Commonwealth law matters
On 1 July 2012, the Commonwealth introduced a new disbursement support scheme for Commonwealth, non-criminal law matters. The scheme is not available in state or territory or overseas legal matters. Assistance will not generally be granted to persons who can meet their overall legal costs without incurring serious financial difficulty or where legal aid or other legal financial assistance from the Attorney General's Departmnet is available.
The scheme will reimburse such costs as counsel’s opinion on the merits, fees for expert reports in litigation, expert witness fees, travel and accommodation costs associated with pro bono legal work, court transcripts and interpreters fees provided an application for approval is made before the costs are incurred.
To apply for assistance under the disbursement support scheme, total disbursement costs must be $500 or more. There are maximum allowable amounts for certain disbursement items, such as expert medical reports, interpreter costs, document searches etc. and certain fees are specifically excluded such as counsel’s representation/appearance fees, court filing fees or the cost of a report from an anthropologist.
Application Forms and further details are available on the A-G’s website here.
The disbursement support scheme is one of many that are administered under new guidelines from 1 July 2012: the Commonwealth Guidelines for Legal Financial Assistance 2012.
State and Territory Schemes
Relevant state and territory schemes are outlined below. A number of schemes are limited to providing assistance in relation to cases handled on a ‘no win – no fee’ basis and which are likely to result in payment of compensation or damages.
Firms should of course check if the client may be eligible for legal aid (see 4.3 Legal aid). Grants of legal aid generally cover disbursements as well as costs. In some jurisdictions a grant of aid just for disbursements (provided the client is eligible for aid) might be possible.
Australian Capital Territory
There is no scheme in the Australian Capital Territory offering disbursement assistance.
New South Wales
Pro Bono Disbursement Trust Fund
The Pro Bono Disbursement Trust Fund provides disbursement assistance by way of reimbursement in approved matters. The fund will reimburse most disbursements, including medical reports, searches, registration fees and translator fees. A receipt must be provided and the disbursement must be considered necessary before it will be reimbursed under the fund. Court filing fees will only be reimbursed if the applicant was unsuccessful in obtaining a waiver or postponement. The total repayment of disbursements will not exceed $7500 for Supreme Court and District Court actions, $3750 for Local Court actions and $5500 in other jurisdictions. The maximum reimbursement for an expert report is $550 ($750 for medical reports), although an amount greater than this limit may be repaid if the trustees are satisfied that the greater expense was necessary. If the client is successful in their action and recovers costs, the monies are to be repaid to the fund. An application to the fund must include the client’s signature, unless exceptional circumstances prevent the signature from being obtained.
The fund only provides assistance for matters conducted on a free or substantially reduced cost basis and which have been referred through either the Law Society’s Pro Bono Scheme, the Bar Association’s Legal Assistance Scheme, or through the Public Interest Advocacy Centre (which includes the Public Interest Law Clearing House). The fund will not reimburse Counsel fees. To retain Counsel on a pro bono basis, apply to the NSW Bar Association's Legal Assistance Referral Scheme. If practitioners want to do a matter on a pro bono basis and have access to the Disbursement Trust Fund they should contact the Pro Bono Solicitor at the Law Society to obtain an application form to have the matter formally referred to them under the scheme.
Application forms for the fund can be obtained from the Law Society of New South Wales. Enquiries should be directed to: Pro Bono Scheme, Law Society of New South Wales, (02) 9926 0364.
Northern Territory Contingency Legal Aid Fund
This fund is available to provide disbursement assistance to eligible persons to enable them to bring or defend civil proceedings in the Northern Territory in which an award of damages or compensation is likely. The fund is administered by the Northern Territory Legal Aid Commission. (A person may also apply to the Legal Aid Commission for a grant of assistance to fund initial inquiries in the matter such as obtaining medical reports or counsel’s opinion.) The fund will reimburse the assisted person’s solicitor for approved disbursement-related expenses, as they arise. Reimbursable expenses include stamp duty, service fees, expert witness reports, expert witness court attendance fees and travel expenses. The fund does not pay solicitors’ professional fees and would not usually cover counsels’ fees or reimburse general office expenses such as photocopying, telephone or facsimile charges unless specific authorisation had previously been obtained.
Applications are means tested. Assistance will only be granted to applicants unable to reasonably meet the cost of expected disbursements. The applicant may be required to make a contribution towards the costs of the disbursements and if it appears that the applicant may be entitled to legal aid the application may be rejected or postponed until the applicant has lodged an application for legal aid. Applications must be made on the prescribed form and be accompanied by a letter from the applicant’s solicitor141 detailing matters such as the merits and prospects of success of the proposed proceedings, the expected quantum and the nature and anticipated cost of likely disbursements. There is an application fee of $200 (plus GST) although the fund manager has the discretion to waive part or all of this fee, or defer payment until the successful conclusion of the matter, where payment would involve undue hardship to the applicant. Where financial assistance is granted, a loan contract will be offered to the assisted person that will specify the terms and conditions of assistance, the type of expenses that will be covered as well as the maximum amount of the fund’s liability for those expenses.
The applicant’s solicitor is required to undertake not to recover any professional or counsel's fees from the applicant until the matter is concluded. Whether or not the litigation is successful, the applicant has an obligation to repay to the fund all monies advanced by the fund, and will also be liable to pay his or her solicitor’s and counsel’s fees (if any). If the litigation is successful, the applicant must, in addition to reimbursing the fund, pay to the fund a pre-determined percentage of the monies actually advanced by the fund during the course of the litigation.
Further information and application forms are available from the fund manager at the Northern Territory Legal Aid Commission on (08) 8999 3000.
Civil Law Legal Aid Scheme
The Civil Law Legal Aid Scheme (CLLAS) was created in 1993 in response to a change to legal aid policy in 1992, whereby Legal Aid Queensland (LAQ) ceased funding civil law matters where there is a power of a court or tribunal to award costs. Funds for cases approved under the CLLAS are provided by the Public Trustee of Queensland and administered by LAQ.
CLLAS provides assistance with disbursements associated with civil claims approved under the scheme’s guidelines and in some circumstances contributes towards the solicitor’s professional costs. All civil litigation cases are potentially within the ambit of the scheme, including business and commercial disputes, but priority may be given to funding personal injury cases. In recent years CLLAS has expanded its guidelines to include aid for public interest and test cases.
CLLAS maintains a list of legal practitioners who have agreed to accept the scheme’s guidelines 142 and who have relevant experience. Aid under the scheme is only granted to applicants if they are represented by a practitioner on the scheme’s list. Practitioners can apply to join the scheme’s list.143
Requests for aid under the CLLAS are determined by an advisory committee which considers the legal merits of the case, the nature and extent of any benefit the applicant will gain if aid is granted, and the detriment the applicant will suffer if aid is refused. The scheme will consider aid for public interest or test case matters. Applications are also subject to the LAQ means test.
It is a condition of the grant of aid that both the solicitor and counsel speculate their professional fees and undertake not to recover their fees until the matter is successfully concluded. For matters where aid is approved to progress to trial, the solicitor shall, upon certification that work to the value of the claim has been carried out, be entitled to claim professional fees to the amount of $2000 in cases in the District and Supreme Court and $500 in the Magistrates Court. These sums will be subsequently deducted from any costs recoverable by the solicitor and be refunded to the scheme.
More information about the scheme is available either by contacting the Coordinator, Civil Law Legal Aid Scheme on 1300 651 188 or by going to the Legal Aid Queensland website at www.legalaid.qld.gov.au/services/Pages/Civil-Law-Legal-Aid-Scheme.aspx.
QPILCH maintains a small fund to contribute to disbursements for indigent claims being approved by QPILCH members or other CLCs. Firms or CLCs must apply to QPILCH before incurring the expense. The fee must be repaid if the applicant obtains a costs order from the other party. For more information contact email@example.com.
The Disbursements Only Fund
The Disbursements Only Fund (DOF) is an adjunct to the Legal Assistance Fund (which covers both costs and disbursements, see below). The DOF provides disbursement assistance for civil and commercial matters (excluding family law matters and de facto property claims) being handled on a contingency fee basis.
The DOF operates as follows: the trustee undertakes to pay the disbursements of the solicitor, the solicitor agrees to complete the work involved on the basis of a contingency agreement (under which the client is charged fees only in the event the action is successful) and the assisted person agrees, in the event of success, to repay the total disbursements funded and a Fund fee of 25 to 100% of the value of the total disbursements funded. If the assisted person’s action is successful, the solicitor will be entitled to charge a solicitor–client fee up to double the fees the solicitor would be entitled to according to the scale contained in Schedule 1 to the Rules of the Supreme Court. If the litigation is unsuccessful, the assisted person remains liable for the party/party costs of the other party.
Applicants must satisfy a means test, namely, whether or not the assets and income available to them are insufficient to meet the expected costs of the litigation. Except in unusual circumstances where the litigation is considered to be in the public interest, the matter must be one where it is possible for damages or property to be recovered sufficient to cover the Fund fee. There must also be a good chance of recovery. Assistance will not be provided to enable a person to defend a claim unless there is a counter claim exceeding the value of the plaintiff’s claim.
The Fund will pay for court filing fees, medical and other expert reports, interpreters’ fees, conduct money, witness expenses, transcript fees, trial fees, solicitors’ travelling and accommodation expenses and photocopying applicable to the other party, for example, on discovery. The Fund will not pay solicitors’ costs or barristers’ fees or reimburse general office expenses. The Fund Manager’s approval must be obtained before a disbursement of $1,00 or greater is incurred. The applicant will generally have to apply for an extension of assistance as their matter moves from one stage of litigation to the next. (There are four such stages under the Fund: the investigation of claim to drafting of summons with statement of claim; filing of summons to pre-trial conference; the trial; and post trial procedures.)
The application forms and rules are available from the Law Society of South Australia and may be downloaded from www.lawsocietysa.asn.au. There is an application fee of $100, or $250 if urgent. An application fee is not required if the applicant is the holder of an Automatic Issue Health Care Card or a Pensio Card. As part of the application process, the applicant’s lawyer must provide details of how the claim will be proved, how any defence will be answered, the amount of damages sought and how damages will be proved, and an estimate of legal disbursements.
Further enquiries should be directed to the Fund Manager, on (08) 8231 0740 or (08) 8110 5263.
Litigation Assistance Fund
The Litigation Assistance Fund differs from the Disbursements Only Fund (DOF) in that it covers both costs and disbursements. The Fund aims to assist people who, although unable to obtain legal aid, cannot meet the costs of litigation. Assistance is available for civil and commercial matters (excluding family law matters and de facto property claims). The Fund will pay the reasonable legal costs and disbursements of an approved matter. If successful, the assisted person must reimburse any costs paid by the Fund and pay a Fund fee of 15 per cent of the damages or value of property recovered.
The application forms and rules are available from the Law Society of South Australia, and can be downloaded from www.lawsocietysa.asn.au. There is an application fee of $100, or $250 if urgent. An application fee is not requierd if the applicant is the holder of an Automatic Issue Health Care Card or Pension Card. As part of the application process, the applicant’s lawyer must provide details of how the claim will be proved, how any defence will be answered, the amount of damages sought and how it will be proved and an estimate of legal costs. A means test and merits test apply. Except in unusual circumstances where the litigation is considered to be in the public interest, the matter must be one where it is possible for damages or property to be recovered sufficient to cover the Fund fee. There must also be a good chance of recovery.
Further enquiries should be directed to the Fund Manager on (09) 8231 0740 or (08) 8110 5260.
Civil Disbursement Fund
The Civil Disbursement Fund set up in April 2004, and run by the Legal Aid Com-mission of Tasmania, provides disbursement funding for Tasmanians requiring assistance for their civil cases, not just those who would be eligible for legal aid. The fund will initially provide assistance for serious personal injury claims, workers -compensation claims and professional negligence claims with other cases set against competing resources and priorities.
Applications are assessed by a Committee in accordance with published guidelines144 having regard to the means of the applicant, and the merits of the matter. If successful in their claim, the applicant must repay the fund the costs of the disbursements plus a premium fixed at up to 100% of the amount of the disbursement paid out.
The fund does not include assistance in criminal, family law/de facto matters, amongst others. Those matters are covered by legal aid grants for representation, subject to normal means and merits tests. The Commission also makes legal aid grants for civil matters not involving claims for damages or compensation, in circumstances where the granting of aid could assist justice, where the result of the matter could achieve some community benefit, or where the applicant could be assisted to achieve a beneficial result that would otherwise not be attainable.
Further enquiries about the fund should be directed to Norman Reaburn, Director, Legal Aid Commission of Tasmania on (03) 6236 3800.
The Law Aid scheme provides disbursement funding for solicitors in Victoria who represent clients in civil litigation cases (excluding family law) that are conducted on a pro bono or no win – no fee basis and in which an award of damages or compensation is likely, for example, personal injury, professional negligence and wills and estates claims. In addition, Law Aid has recently expanded its eligibility to include public interest matters that will not result in the payment of compensation but are considered to have real merit. For example, Law Aid recently made grants of aid in respect of court fees in a small number of refugee cases.
Applications are assessed having regard to the applicant’s financial means and the merits of the matter. Application forms can be obtained from Law Aid and must be accompanied by a non-refundable application fee of $150. Disbursements covered by Law Aid may include experts’ fees, travelling and accommodation expenses, witness fees and court fees.
Monies paid by Law Aid must be refunded if the case is successful but not otherwise. In addition, if successful, the client is required to pay 5.5 per cent of the award or settlement to Law Aid.
Further enquiries should be directed to The Manager, Law Aid, on (03) 9225 6703
Civil Litigation Assistance Scheme
The Civil Litigation Assistance Scheme (CLAS) has been established by Legal Aid Western Australia to assist plaintiffs who are unable to pay the costs of civil proceedings and are otherwise ineligible for a grant of legal aid. This includes funding for representation in meritorious appeals from decisions of the Western Australian Supreme Court or District Court. Funding covers both professional legal fees and disbursements, although disbursement only grants are unavailable. Matters for which funds may be granted include personal injury claims, medical negligence, public liability, dependency/inheritance claims, breach of contract and insurance. Funding does not cover family or criminal law matters, immigration matters, commercial disputes, environmental matters, defamation, prerogative writs and workers compensation matters, amongst others.
Eligibility is determined by a means test and merits test. Under the former, the applicant’s gross family income should not exceed $80,000 per annum and their assets must be of ‘reasonable value’. Under the latter test, consideration is to be given, amongst other things, to the likelihood of success of the applicant’s claim and the ability of the defendant to pay any awarded damages and costs. In addition, legal assistance will only be granted where the cause of action arose in Western Australia and where the original proceedings were or will be commenced in Western Australia.
Applications may only be made by private legal practitioners acting on behalf of applicants. The Director of Legal Aid assesses the applications, through discretionary consultation with the CLAS Advisory Panel. Determinations are made pursuant to the CLAS Conditions of Assistance. Funding is approved in stages that are indicated on the grant of assistance letter. Once all work authorised under a stage has been completed, the legal practitioner can submit a lump sum account for payment along with a progress report.
Applicants who are successful in their claim are required to pay to the Legal Aid Commission both the entirety of recovered costs including GST, and a Conditional Fee ordinarily fixed at 20% of the judgment amount (excluding special damages). Applicants who are unsuccessful do not need to pay the Scheme, however they may be required to pay the other party’s costs.
Further enquiries about the scheme should be directed to the Administrator, Civil Litigation Assistance Scheme, at firstname.lastname@example.org. Applications may be downloaded at www.legalaid.wa.gov.au/LegalAidServices/specialist/Pages/CivilLitigationAssistanceScheme.aspx.