This chapter discusses the legal issues relating to costs awards in litigious pro bono matters and options for meeting internal and external disbursements.

• 1.12.1 Costs
• 1.12.2 Recovery of costs
• 1.12.3 Disbursements
• 1.12.4 Disbursement assistance

1.12.1 COSTS

---

Most firms include a requirement within their definition of pro bono that the work be done either at no cost to the client, or at a significantly reduced fee. All standard definitions of pro bono legal work exclude work done on a speculative or contingency basis (‘no win, no fee’), under which, in the event of a successful litigation outcome, the firm charges the client a commercial fee. The Australian Pro Bono Centre’s definition for the purpose of the National Pro Bono Target and 2020 National Law Firm Pro Bono Survey states that pro bono legal work is ‘giving legal assistance for free or at a substantially reduced fee’ and excludes ‘contingency fee arrangements or other speculative work which is undertaken with a commercial expectation of a fee’.^[1]

These definitions of pro bono legal work do not deal with the issue of costs orders made by courts in favour of pro bono clients, or provision for legal fees in settlements. Some firms may choose not to seek to recover their costs through these cost orders (in the limited range of pro bono matters where costs orders can be made) but most take the view that failing to do so merely unduly advantages the other party.

The key issue is not so much the actual recovery of costs but ensuring that a level playing field exists for all parties in relation to their exposure to the risk of paying the other party’s costs. Without this level playing field, the party being represented on a pro bono basis is at a significant disadvantage when it comes to negotiating a settlement offer.

Firms that wish to be able to recover costs through a costs order or settlement may state in their policy that pro bono legal work includes work done ‘without expectation of payment by the client’, meaning that fees may be recovered from the other side but not from the client. Where pro bono legal work is done on a ‘conditional’ cost basis, no fees are charged unless costs are recovered by the client pursuant to a court or tribunal order or as part of a settlement. In that event, the firm is entitled to an amount up to the amount recovered by the client.

If the matter is litigious and the firm intends to seek a costs order, this must be communicated clearly to the client at the engagement stage and should be dealt with in the letter of engagement.^[2]

1.12.2 RECOVERY OF COSTS

---

COSTS AGREEMENTS AND THE INDEMNITY PRINCIPLE

The purpose of a costs order is to compensate the successful party in litigation for those costs necessarily incurred to obtain justice (the indemnity principle). However, as a point of general law the indemnity principle can only operate where a successful litigant is under an obligation to pay their lawyer.

Where a party to an action has an agreement with their legal adviser that they do not have to pay any costs, then the general law principle states that that party cannot recover party – party costs against their adversary.^[3]

This is a key concern in the context of pro bono representation since the successful party does not need to be compensated where no loss has been incurred. Although all courts have a broad discretion as to whether to make costs orders, a court may order that a litigant who is represented pro bono cannot recover their costs even if their claim is successful, whilst still being liable for the other party’s costs if their case is unsuccessful. Conversely, an opponent of a litigant who is represented pro bono may benefit from not having to pay their opponent’s costs even if they are unsuccessful.^[4] This creates an uneven playing field and puts the party who is represented on a pro bono basis at a disadvantage in negotiations and settlements. Recovery of costs is an access to justice issue, as it encourages the provision of pro bono services by lawyers.^[5]

In a number of proceedings, the issue has arisen as to whether, in view of the indemnity principle, the terms of the pro bono client’s representation enabled the court to make costs orders in the client’s favour. Costs agreements between pro bono clients and their lawyers often include a ‘condition subsequent’, under which the client only has to pay the lawyer if they are able to recover costs from the other party. However, the indemnity principle operates to award costs only if, at the time of judgment, the client already has an obligation to pay costs that will be incurred, as a ‘condition precedent’ to the solicitor acting. Following the judgment of Basten JA in the NSW Court of Appeal case of Wentworth v Rogers,^[6] the Queensland Court of Appeal held in King v King (‘King’)^[7] that a clause in a pro bono costs agreement which provided for costs to be waived by the firm unless the client was successful (in which case the firm was authorised to seek recovery from the other side) was invalid as it was a condition subsequent.

Following King, some firms varied their engagement letters or costs agreements to provide for costs to be payable unless the client was unsuccessful, while others took the view that their letters should be in the form required for conditional costs agreement for the purpose of the legal profession regulatory provisions in each State.^[8]

In 2014 the Victorian Court of Appeal in Mainieri v Cirillo^[9] (‘Mainieri’) upheld a pro bono costs agreement that provided for the recovery of costs under an order made if the client was successful, stating that the distinction between a condition precedent and a condition subsequent was ‘a triumph of form over substance’.^[10] The decision in Mainieri was confirmed in 2016 by the Victorian Supreme Court in Mourik v von Marburg (‘Mourik’).^[11] In this case, the relevant terms of the costs agreement stated: ‘Where you [the client] are the beneficiary of such an order [i.e., a costs order], we may give you an invoice for our charges, including our professional fees, to an amount no greater than the amount recovered from the other party’.^[12] The VSC found that this wording meant the client’s liability to pay arose after the time for taxation, and therefore costs could not be claimed without breaching the indemnity principle: ‘…you cannot tax your costs entitlement from the other party until you have a liability to pay your own practitioner for them’.^[13]

Since the decision in Mainieri, lawyers have sought to overcome the difficulties posed by the indemnity principle through the use of a particular form of conditional fee arrangement whereby the client is required to contractually agree to be bound to pay their lawyer in the event of being successful and being awarded a costs order.^[14] Mourik confirmed that the wording of these agreements must mean the client becomes liable to pay fees when the costs order is made, rather than the obligation arising only on the recovery of costs.  The experience of the Australian Pro Bono Centre is that these costs agreements have generally been successful in establishing an indemnity relationship sufficient for the court to make a costs order. For example, a pro bono costs agreement requiring the client to pay costs in the event of a successful outcome and a costs order in their favour was held to be valid and not breach the indemnity rule in Mansfield v Townend (No 2).^[15] Wilson DCJ noted that ‘… there is a public policy issue underlying awarding costs in the circumstances. Not only are lawyers who are prepared to provide their services on a pro bono basis assisting parties to litigation who may otherwise be unrepresented, they also provide invaluable assistance to the Courts in New South Wales in the administration of justice generally’.^[16]

Cases such as Mainieri, Mansfield and Mourik are a positive development insofar as they provide examples of the technical requirements for obtaining costs orders in pro bono matters. However, the law on this point still remains uncertain given the fact-specific nature of each case, particularly as the decisions turn on the wording of engagement letters. This may leave lawyers unsure as to whether to expect a costs order to be made in favour of a successful pro bono litigant. This in turn creates an uneven playing field in negotiations between the parties. It would be desirable for legislation to clarify the court’s power to award costs in pro bono matters, regardless of whether the client has contractually indemnified the lawyer for costs. Legislation would also reinforce the distinction between matters taken pro bono and matters taken on a speculative/no-win-no-fee basis.^[17]

Legislative reform in this area has already taken place in the United Kingdom. ‘Pro bono costs orders’ may be made by the courts in the UK that require the other party to make a payment, which is ‘in respect of’ the successful litigant’s pro bono representation, to a charity prescribed by the Lord Chancellor.^[18] The prescribed charity has been The Access to Justice Foundation since its establishment in 2008. From June 2022, this rule has been extended to allow UK tribunals, as well as courts, to award pro bono orders. The Access to Justice Foundation enables the provision of more legal services through distributions to Regional Legal Support Trusts, national pro bono organisations, and strategic projects. The UK approach balances competing policy considerations. The spirit of pro bono is maintained because lawyers who agree to work pro bono do not end up receiving a fee, while the deterrent value of costs is also maintained as unsuccessful litigants are not relieved of the obligation to compensate the successful party.

In 2017, Victoria enacted legislation to clarify the situation in relation to pro bono costs orders. Order 63.34.2 of the Supreme Court (Chapter 1 Recovery of Pro Bono Costs Amendment) Rules 2017, which amended the Supreme Court (General Civil Procedure) Rules, states: ‘If a legal practitioner provides legal assistance to an assisted party in a proceeding on a pro bono basis, the Court may make, in favour of the assisted party, any order for the recovery of the costs of the legal assistance that the Court might have made had the legal assistance been provided not on a pro bono basis’. This indicates a positive step towards clarifying the pro bono costs question and improving accessibility of litigation.

WHAT TO DO WITH RECOVERED COSTS

Some firms, particularly those with a strict financial pro bono budget, will re-allocate recovered costs to the pro bono budget, allowing for more pro bono legal work to be done in total. Other options include allocating the funds to paying disbursement costs for future pro bono clients, or donating the money to the client (often a charity) or to another community legal organisation dedicated to pro bono legal work.

Following consultation with firms on this issue, the Australian Pro Bono Centre suggested in a submission to the Productivity Commission’s Access to Justice Arrangements inquiry^[19] the introduction of a self-regulatory protocol, to which pro bono providers would subscribe, which might indicate that recovered monies should be:

• used to pay counsel’s fees and other disbursements;
• reinvested into a firm’s pro bono practice; and/or
• donated to a charity or community organisations of choice (which might be the applicant organisation in the litigation, or a co-counsel organisations such as a CLC or Referral Organisation).

The rules of several Australian courts establishing court-based referral schemes explicitly entitle a practitioner to recover costs and disbursements if a costs order is made in favour of the pro bono client, and ‘to the extent that the party against whom the order for costs is made in fact pays the costs’.^[20] These provisions apply only if a referral is made under the relevant court’s scheme.

1.12.3 DISBURSEMENTS

---

The cost of disbursements incurred when carrying out pro bono legal work can act as a significant barrier to undertaking pro bono legal work, especially in smaller firms.

Types of disbursement costs which may become prohibitive include travel, interpreters and retaining experts. A matter that requires significant amounts in these categories may be unattractive for a pro bono practice.

Firms should decide on a policy position for charging for internal disbursements (such as postage or photocopying) and external disbursements (such as court filing fees), in pro bono matters, and should state this position in the firm’s pro bono policy and procedure documents (as well as the client engagement letter or costs agreement). Even if the firm’s policy is that decisions on disbursements are to be made on a case-by-case basis by the supervising partners, this should be reflected in the firm’s policy and procedures documents so that all staff are aware of this position. Firms should also be aware of the available disbursement assistance schemes and exemptions: see 1.12.4 Disbursement Assistance.

Firms may decide on a number of ways of handling disbursements. In some firms this may change from matter to matter, depending on the ability of the client to bear those costs. Approaches include:

• charging no disbursements (meeting the cost of both internal and external disbursements);
• not charging for internal disbursements and charging only for external disbursements (for example, court filing fees);
• charging for internal disbursements and/or external disbursements only above a certain cap; or
• charging for both internal and external disbursements.

In some costs agreements for litigious matters, provision may be made for disbursements to be payable only if there is a successful outcome and they are covered by the costs order.

As with costs, the arrangements for disbursements should be communicated clearly to the client, and set out in the letter of engagement or costs agreement. Firms should explain to the client what kind of costs are disbursements, and whether the pro bono client will be responsible for these. It is important that the pro bono client be consulted about, and agree to, any liability for disbursements as they arise. The client should be informed whether the firm considers that such expenses are necessary for the continuation of the matter.

Ideally firms should consider maintaining a degree of flexibility as regards the payment of disbursements. For example, many firms in their pro bono policies choose to confer a discretion on the pro bono committee, pro bono manager or supervising partner to pay for a client’s disbursements in cases where the client is not in a position to pay for them and there is no disbursement funding available.

TYPES OF DISBURSEMENTS

The top-three categories of disbursements, as constraints on pro bono work, have varied from survey to survey. In the 2020 National Law Firm Pro Bono Survey, search costs, filing fees and interpreters’ fees were nominated by the largest number of firms.^[21] Each of these costs are explained in further detail below.

Search costs

In the 2020 National Law Firm Pro Bono Survey, ‘search costs’ was the highest-ranking disbursement in terms of cost, nominated by 17 firms (out of 26) including 9 mid-sized firms.^[22] Search costs include fees for land and property searches, company and business searches, insolvency searches and court file searches. These fees are incurred in many types of pro bono matters in areas such as employment law, commercial agreements, governance, housing/tenancy, wills/probate, debt, incorporations, consumer law, discrimination and intellectual property.

Filing fees

In the 2020 National Law Firm Pro Bono Survey, ‘filing fees’ was nominated as a top-3 disbursement by 13 firms out of 26 (50%).^[23]  Filing fees are required in litigious matters in all Australian courts and in many tribunals. Substantial fees apply even in modest matters: for example, filing an originating process in a NSW Local Court matter costs an individual $105 in the Small Claims Division and $257 in the General Division.^[24]

Travel and accommodation

Although technology is used to some extent to communicate with pro bono clients in remote locations, travel and accommodation costs remain a feature of outreach work assisting clients in RRR locations and in international pro bono legal work.

Several of the large firms have established RRR outreach programs. Many take the view that they should be prepared to incur travel and accommodation expenses, having both the capacity to cover these expenses and the capacity to provide pro bono lawyers for long periods of time. There is a view that developing relationships with RRR community partners, and delivering effective pro bono services in these areas, requires face to face contact. Similarly, larger international firms are usually prepared to meet the travel costs associated with running an international pro bono practice.

Interpreting services

The 2020 National Law Firm Pro Bono Survey indicated that the cost of interpreter and translation services (together, interpreting services) is considered a constraint to pro bono by a significant number of firms (13 out of 26 firms).^[25]

The cost of interpreters can be a challenge for the operation of a pro bono practice, despite the fact that much of this work is conducted in partnership with community legal organisations, most of whom have access to free interpreting services. The Australian Pro Bono Centre is also aware of firms who cover the cost of interpreters as part of legal clinics run in partnership with community legal organisations.

While the cost of interpreters is not usually a problem for pro bono volunteers and secondees, in the context of pro bono referrals it can be a more significant issue. A firm that receives a referral request may have access to disbursement funds and schemes. But in most cases the firm’s options are either to absorb the cost itself or to reject the referral request. While some firms are in a position to pay for interpreters in every matter, and willing to do so, others are not.

Medical and other expert reports

Medical and other expert reports together are a significant disbursement-related expense in large and mid-sized pro bono (nominated by 6 out of 26 firms in the 2020 National Law Firm Pro Bono Survey).^[26]  These reports are used in a wide range of transactional and contentious pro bono matters to provide medical, economic or other evidence. One example is outlined in the following case study, provided by the pro bono manager of a large firm:

A national firm was acting in a matter associated with a native title claim. A claim for native title had already succeeded, but there was still a question about which members of a particular Indigenous community were entitled to claim the land.

The firm engaged an anthropologist who had expertise in genograms and family trees. The anthropologist conducted a study of who had migrated to the land, who had lived on it, and how the land had been used.

The anthropologist’s expert report identified the history of the land with enough certainty that the Commonwealth government could determine which particular families should receive title to the land. The report was important to the Commonwealth as well as to the whole community, as it gave everyone involved a deeper understanding of the basis of entitlement to the land, and provided authority for the government’s decision.

A single report can cost thousands of dollars. While disbursement schemes may be able to assist with these expenses, an alternative approach for many firms is to try to engage an expert witness on a pro bono basis. The Australian Pro Bono Centre’s ExpertsDirect project aims to assist firms in this regard.^[27]

Transcripts

The cost of transcripts can be a constraint for barristers to be able to provide pro bono advice on the merits of an appeal against certain decisions. These costs can be considerable but may be reimbursed through various available disbursement assistance schemes (discussed below).

Other costs including internal disbursements

Most firms are willing to cover the cost of internal disbursements incurred in pro bono matters (such as stationery and photocopying). Some, but not all, disbursement assistance schemes cover these expenses.

Barristers’ Fees

Barristers’ fees are treated as a disbursement unless the barrister agrees to provide his or her services on a pro bono basis. In litigious matters where costs are recovered either through settlement or court order, law firms will almost always pay the barrister his or her fees.  This is an important part of encouraging barristers to take on pro bono matters as it recognises that a barrister is self-employed, and thus gives up direct income when acting pro bono.

EXISTING MECHANISMS THROUGH WHICH DISBURSEMENTS ARE MET

Pro bono providers take a range of approaches to meeting the cost of disbursements in pro bono matters. The 2016 National Law Firm Pro Bono Survey indicated that most large and mid-sized firms were paying significant amounts for disbursements themselves, and many maintained a disbursements budget for this purpose. Small firms, Referral Organisations, CLCs and sole practitioners have less capacity to absorb these costs.

In addition to paying for disbursements themselves, firms manage the cost of disbursements by looking to:

• the client;
• expert witnesses (to provide their services on a pro bono basis);
• partner community legal organisations;
• disbursement schemes and funds;
• court-based fee waiver schemes; and
• the court (to make costs orders).

Law firm pays

Many large and mid-sized firms routinely pay for disbursements in pro bono matters, particularly if the client lacks the capacity to pay and there is no other feasible funding source such as a disbursements scheme. The 2020 National Law Firm Pro Bono Survey found that 68.4 percent of respondent firms reported paying for external disbursements in 2020, including all 9 large respondent firms, 11 out of the 15 mid-sized respondent firms and 6 out of 14 small respondent firms.^[28]

The ways in which large firms manage the payment of disbursements vary from firm to firm. Many have an annual disbursements budget, and some firms will create a matter-specific budget for each larger matter. In some firms, disbursements are managed by the practice group that undertakes the work, and may be paid or written off at that level.

The picture regarding mid-sized and smaller firms is less clear. Small firms take a more ad hoc approach and decide whether they are in a position to pay disbursements on a case-by-case basis. Some mid-sized and smaller firms can manage disbursements because their pro bono matters do not always have a significant disbursement component.  Smaller budgets with tighter cashflows can be restrictive. For very small firms, in the absence of an alternative funding source, the cost of disbursements may be instrumental in deciding whether or not to take the matter on.

Client pays

The arrangements as between firm and pro bono client regarding the payment of disbursements are agreed at the start of the matter and documented in the client costs agreement.

Where no external funding source is available, many firms will pass on the cost of disbursements to their pro bono client if it would not cause financial hardship. For example, if the client is a large not-for-profit that has some capacity to pay, often the firm will act for no fee or a reduced fee, but charge for disbursements.

When acting for disadvantaged individuals, large and mid-sized firms will tend not to pass on the cost of disbursements to clients. For small firms, if the firm is not in a position to absorb disbursements, the client’s ability to pay can determine whether the matter proceeds. In some cases, small firms will advise their pro bono clients to plan ahead so as to be in a position to meet the major expenses anticipated.

Expert witness provides pro bono services

In some instances, firms are able to arrange for services, such as expert witness services, to be provided on a pro bono basis. Often the practice group undertaking the work is able to draw on its own professional networks for this purpose.

The Australian Pro Bono Centre partners with expert witness services broker ExpertsDirect to provide free expert witness services in pro bono legal matters.^[29]

Partner organisation pays or accesses subsidised service

The 2020 National Law Firm Pro Bono Survey found that 42.5% of the pro bono work undertaken by Survey firms was sourced through a partnership with a CLC, Referral Organisation or an ATSILS.^[30] One of the benefits of partnering with a community organisation is that in some circumstances the partner organisation can cover the cost of disbursements or has access to a fund or facility that will.

Examples include:

• Lawyers assisting CLCs, Referral Organisations or NFPs as volunteers or secondees, and conducting the work under the auspices of the organisation. In this context, expenses such as travel expenses to outreach locations, access to disbursement assistance funds, and interpreter’s fees are usually managed by the community/partner organisation.
• Lawyers accepting referrals through a referral scheme or organisation (such as LawRight) which provides access to its disbursements fund.

Court exempts, waives or postpones filing fee

Most Australian courts and many tribunals have made rules for the exemption or discretionary waiver of filing and other court fees. In Victoria, Western Australia and South Australia (and possibly in other jurisdictions), financial assistance to pay filing fees can also be sought from a disbursement fund.

Despite these measures, significant amounts are being paid by large and mid-sized firms for filing fees in pro bono matters. —The 2020 National Law Firm Pro Bono Survey found that ‘filing fees’ were reported as one of the higher-cost disbursements by 13 out of 26 respondent firms (50%).^[31]

Disbursement Assistance Schemes

The 2020 National Law Firm Pro Bono Survey found that 10 of the 38 respondent firms (26.3%) had applied to a disbursement assistance scheme in the last two years.  That number has increased in recent years from seven firms in 2018 (20%)^[32] and two firms in 2016 (5%).^[33]

Firms responding to the 2020 National Law Firm Pro Bono Survey indicated that a key deterrent against applying for a disbursement assistance scheme was the time and/ or administrative burden involved in the application process.^[34]

Court order costs

Although not every pro bono matter seeks a financial outcome, or proceeds to judgment with a successful result, costs orders play a role in helping firms and their clients to manage the cost of disbursements in their pro bono work. As the Australian Pro Bono Centre noted in its submission to the Productivity Commission’s Access to Justice Arrangements inquiry, the standard practice of many large law firms (e.g. Allens, Ashurst, Clayton Utz) when a costs award is made in favour of a pro bono client is to use the costs award to pay for disbursements incurred in the matter, particularly counsel’s fees.  Costs orders also help to sustain the operation of non-government disbursement funds.

1.12.4 DISBURSEMENT ASSISTANCE

---

This section provides information about possible ways to reduce the impact of disbursement costs through:

• the exemption and waiver of court and tribunal fees; and
• disbursement assistance schemes.

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 for court or tribunal fees, such as filing fees and, in some cases, setting down and daily hearing fees.

The Acts, regulations or rules for some courts and tribunals expressly provide for fee exemption, waiver, remittal or postponement of fees for certain categories of persons. Even if there is no express provision, a waiver may nonetheless be available.

For example, those liable to pay fees in Commonwealth courts (the High Court, the Federal Court of Australia, the Federal Circuit Court and the Family Court) and the Administrative Appeals Tribunal are eligible for an exemption from, or reduction of, those fees if the person:

• has been granted legal aid;
• is the primary holder of a particular benefit or concession card;
• is younger than 18 years;
• an Independent Children’s Lawyer appointed to represent a child’s interests in proceedings under the Family Law Act 1975 (Cth);
• is imprisoned or detained in a public institution;
• is in receipt of a youth allowance, Austudy or ABSTUDY benefit; or
• (or body) has been granted assistance under Part XI of the Native Title Act 1993 (Cth).^[35]

Applications for waiver must be accompanied by supporting evidence which is relevant to the grounds for exemption. Once a general exemption is established, the waiver will remain in place until the proceedings are finalised. A person who has been granted a general exemption must notify the court if there is any change in circumstances that would alter their entitlement to the exemption. Applications for fee exemption are available on request from each District Registry. Individuals may also apply to have court fees waived if the Judicial Registrar or authorised officer decides that paying the fee would cause financial hardship, taking into consideration the individual’s income, day-to-day living expenses, liabilities and assets. Financial hardship exemptions are considered afresh each time a fee is payable in proceedings.

If a person is unable to demonstrate their entitlement to a general exemption, they may nevertheless apply to the registrar for a 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, liabilities and assets.^[36] Unlike the general exemption, a financial hardship exemption does not apply on an ongoing basis meaning that requests from the recipient must be considered afresh on each occasion a fee is payable in the proceedings.

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 a waiver of the payment of fees, either pursuant to a general discretion or specifically in the case of financial hardship. 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 the applicant might be receiving assistance from another source such as a spouse or trust fund, and provide financial information about that person or entity.^[37]

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. Pursuant to these provisions, the payment of fees by a pro bono or legally assisted party is postponed until judgment is given, and fees are not payable at all if judgment is against the party,^[38] or judgment is in their favour but damages are not awarded (or only nominal damages are awarded) in their favour or costs.^[39]

A ‘pro bono party’ is defined as a person who is 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. A legally assisted party includes a party who is receiving legal assistance assisted through a community legal service within the meaning of the Legal Profession Uniform Law (NSW). The lawyer or barrister acting for the party must certify in writing to the relevant court that the party is being so represented and must undertake to pay certain fees in the event that the concession does not apply.^[40]

Further information and forms for fee exemptions and waivers can be obtained from court and tribunal registries. The following resources may also be helpful:

• The NSW Department of Justice has published a fee exemption and waiver guide for NSW Supreme, District and Local Courts which is available online.^[41]
• The Legal Services Commission of South Australia has published a court and tribunal fee waiver guide covering all South Australian Courts, as well as the Federal Courts and Tribunals, which is available online.^[42]
• LawRight has produced a suite of Factsheets which provide details on fee waivers and reductions in the Queensland Courts, in the Administrative Appeals Tribunal, the Federal Court, the Federal Circuit Court and the High Court, which are all available online.^[43]
• The Tasmanian Magistrates’ Court and Supreme Court both permit the Registrar to reduce or waive a fee if it appears that payment of the fee would result in undue hardship due to the exceptional circumstances of the case.^[44]
• The ACT Courts may exempt an individual from paying fees or charges under r 15 of the Court Procedures Act 2004 (ACT) for multiple reasons, including financial hardship.
• The NT Local and Supreme Courts have fee waiver forms available online.^[45]

ADVOCACY FOR A GENERAL PRO BONO EXEMPTION

Anecdotal evidence from law firms and Referral Organisations around Australia indicates that most low-income Australians who are represented on a pro bono basis are exempt from the payment of fees. However, those who are being represented on a pro bono basis but do not fall within the above exempt categories, for example asylum seekers, must seek a waiver or deferral of the payment of the relevant fee.

While those who do not fall within the exempt categories can request the court or tribunal to exercise its ‘financial hardship’ discretion, on the basis that payment of the fee would cause them to suffer financial hardship, this can be a lengthy process with uncertain prospects of success. People already experiencing disadvantage may find the process difficult as it requires completion of a lengthy statement of financial position and attesting in an affidavit to the veracity of the information provided.^[46]

The Australian Pro Bono Centre has advocated for the introduction of a new fee exemption category for clients who are being represented on a pro bono basis, limited to certified pro bono assistance schemes, prescribed in regulations, or cases where the pro bono lawyer certifies that they are acting pro bono and their client cannot otherwise afford legal representation.^[47]

DISBURSEMENT ASSISTANCE SCHEMES

Over the past 30+ years, disbursement schemes and funds have been developed in most Australian jurisdictions in response to the rising cost of litigation and the increasing need for support for disadvantaged people who do not qualify for legal aid.

Limited disbursement assistance is available for pro bono matters. There are currently nine different disbursement assistance schemes operating in Australia: at least one in each State and Territory with the exception of the Australian Capital Territory, and a separate scheme for Commonwealth law matters. However, only the New South Wales and Commonwealth disbursement assistance schemes have been established specifically to fund disbursements in pro bono matters. Other State and Territory based schemes provide assistance in a range of litigious matters.

This section outlines the existing disbursement assistance schemes relevant to the Commonwealth and each State and Territory jurisdiction.

Most of the schemes and funds require any monies to be repaid to the fund in the event of a successful recovery of costs. To remain financially viable, the non-government disbursement funds rely on top-ups through the proceeds of costs orders, together with philanthropic grants and fundraising. However, given that not every pro bono matter seeks a financial outcome, and that not every litigated matter proceeds to a successful judgment, only a proportion of pro bono matters result in costs orders. The funds depend on the diligent and prompt repayment of disbursements in those matters that do.

The 2020 National Law Firm Pro Bono Survey had the largest proportion of firms (26.3%) reporting that they had applied to an assistance scheme in the past two years.^[48] That number has increased in recent years from seven firms in 2018 (20%)^[49] and two firms in 2016 (5%).^[50] Firms that had not applied indicated that such schemes were too time-consuming or onerous, particularly where their clients could not wait for approval, needing to expend the costs immediately.^[51]

Disbursement assistance schemes may help to address the barrier to pro bono assistance presented by the cost of disbursements. However, many of the schemes are subject to limitations that reduce their accessibility, such as an application fee, or a condition that an application can only be made once the disbursement has been incurred. Other limitations include caps on the amount that can be recovered, means and merits tests, and conditions that limit assistance to cases where damages are likely to be recovered.

_______________________

COMMONWEALTH LAW MATTERS

The Commonwealth government runs a Disbursement Support Scheme to provide financial assistance to litigants unable to cover disbursement costs in Commonwealth civil litigation matters.

Assistance will only be granted to an entity that:

• is, or intends to be, a party to an Australian legal action;
• qualifies under a statutory scheme for disbursement support; and
• is ineligible for financial assistance from a legal aid commission.^[52]

The scheme is not available for criminal matters, State or Territory legal matters or overseas legal matters.^[53]

The scheme covers costs including, but not limited to, disbursements for expert reports, photocopying and witness fees, court transcripts and interpreter fees.^[54] There are caps on the amount of assistance that will be provided for certain disbursements.^[55]

No assistance will be contributed towards legal representation fees, travel expenses or filing fees in jurisdictions where the relevant court is able to waive all or part of the filing fee. The scheme does not give an indemnity for costs that may be awarded against the applicant.^[56] No assistance will be granted under the scheme for people who are receiving, or are eligible to receive, a grant of financial assistance through a legal aid commission or under another scheme administered by the Attorney-General’s Department.^[57] Other restrictions on eligibility can be found on the Department website.^[58]

To be eligible for assistance, the applicant must show that total expected disbursement costs will be in excess of $500.^[59] In assessing the application, the Department will have regards to the applicant’s financial circumstances and whether the applicant is able to meet the cost of legal action without incurring serious financial difficulty. Circumstances which may be taken into account include the applicant’s income, assets, liabilities, expenses, and standard of living. Regard will also be had to the relative merit of the applicant’s claim.^[60] As of July 2018, the decision maker must also consider whether the applicant has been the subject of criminal proceedings in Australia or overseas (and the gravity, nature and outcome of these proceedings), and if the person is overseas, the circumstances under which they departed Australia.^[61]

If an application is successful, the Department will enter into a Grant Agreement with the recipient, specifying the maximum amount of financial assistance available under the grant in relation to a particular type of cost. Grant Agreements do not provide funding retrospectively and will usually provide funding in six month blocks. The Department does not pay disbursements incurred directly; throughout the litigation, the recipient will pay the disbursements incurred, which will then later be reimbursed by the Department.^[62]

Application Forms and further details about the Commonwealth Disbursement Support Scheme are available on the Attorney-General’s Department’s website.^[63]

________________________

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 the payment of compensation or damages.

Before applying to any disbursement assistance schemes firms should determine whether the client may be eligible for legal aid (see Chapter 3.1 Legal Aid Commissions) as in most cases disbursement assistance will not be available to people who would otherwise qualify for legal assistance. In some jurisdictions a grant of legal aid for disbursements only (provided the client is eligible for aid) may be possible.

Australian Capital Territory

There is no scheme in the Australian Capital Territory offering disbursement assistance. Lawyers engaged on a pro bono basis must contact and seek the approval of the ACT Pro Bono Clearing House before charging any disbursements to a client who has been referred by the ACT Pro Bono Clearing House.

New South Wales

The New South Wales Law Society administers the Pro Bono Disbursement Assistance Trust Fund, which can reimburse lawyers for properly incurred disbursements in pro bono cases referred under the Law Society’s Pro Bono Scheme.^[64] To retain Counsel on a pro bono basis, consider applying to the NSW Bar Association’s Legal Assistance Referral Scheme.^[65]

A formal application must be made to the Fund’s trustees detailing the relevant disbursements and receipts. An application to the Fund must include the client’s signature, unless exceptional circumstances prevent the signature from being obtained. In most cases, this application will be made at the conclusion of the matter. In prolonged matters, applications for payment may be made on an ongoing matter, although payments will not be made more frequently than quarterly. If the client is successful in their action and recovers costs, the total value of disbursements paid by the Fund will need to be repaid to the Fund.^[66] Enquiries should be directed to the Pro Bono Scheme, Law Society of New South Wales.^[67]

Northern Territory

The Northern Territory’s Contingency Legal Aid Fund (CLAF) provides financial assistance to eligible persons who are unable to cover the reasonable cost of disbursements and out of pocket expenses incurred during the course of civil litigation.^[68] Financial assistance is only available for litigation conducted in the Northern Territory, unless the matter is conducted in another state or territory but the cause of action arose in the Northern Territory.^[69]

Funding is available to enable a person to bring or defend a proceeding and covers items such as stamp duty, service fees, expert witness reports, travel expenses and expert witness court attendance fees. The CLAF does not cover lawyer professional fees. Without specific authorisation, it is not able to cover Counsel’s fees or reimburse sundries.^[70]

All applications for financial assistance should be made out to the CLAF Fund Manager. An administration fee of $200 (GST inclusive) will attach to each application, although this can be waived at the discretion of the Fund Manager. Applicants are required to disclose their full financial circumstances to the Fund and undertake to inform the Fund of any significant variations in financial circumstances. Each application will need to be accompanied by a supporting letter from the applicant’s lawyer detailing the nature and anticipated cost of the disbursements, the merits and prospects of success of the proposed proceeding and the expected quantum.^[71]

All applications are assessed by a Legal Aid Committee. The Committee will consider each application in light of whether the applicant meets the financial criteria for a grant of assistance, whether the case has a good prospect of success, whether the applicant has previously received the CLAF’s assistance and whether granting assistance will support litigation of general importance. The Committee may reject or postpone the application if it appears that the applicant may be eligible for legal aid.^[72]

If financial assistance is granted, the applicant is required to enter into a Litigation Support Loan Contract (Loan Contract) with the CLAF.^[73] The Loan Contract will specify the terms and conditions of assistance, the type of expenses that will be covered, and the maximum amount for which CLAF’s liability for those expenses will be capped.^[74] Having regard to the applicant’s financial circumstances, the Loan Contract may stipulate that the applicant contribute to the expected cost of disbursements. This contribution requirement may be varied at any point by the Committee.^[75]

In the absence of exceptional circumstances, assistance will be provided from the date of receipt of the application and will not be granted retrospectively. Funding is granted in stages, meaning that the assisted person will need to apply to the Committee for further financial assistance at the conclusion of each stage of litigation. The Committee reserves the right to vary the amount of contribution based on a change in the merits or expected cost of the case.^[76] The Committee may also suspend, cancel or terminate any assistance.^[77]

The CLAF operates on a self-funding model. This means that all assisted persons are required to repay the total value of funds advanced by the CLAF over the course of litigation. Applicants who are successful in their claims will also be required to pay an additional contingency fee, a pre-determined percentage of the assistance actually advanced by the Fund during the course of the litigation. Unsuccessful litigants are not required to pay this additional fee.^[78]

Further information and application forms are available from the Fund Manager at the Northern Territory Legal Aid Commission.^[79]

Queensland

Civil Law Legal Aid Scheme

The Civil Law Legal Aid Scheme (CLLAS) provides grants of aid to enable financially disadvantaged people to meet the reasonable cost of outlays associated with civil litigation.^[80] For a grant to be made, the civil claim or action must be dealt with by the Queensland Courts or Tribunals.^[81]

The CLLAS will consider funding any civil litigation but will give priority to matters involving children or matters where, if not litigated, the applicant would lose their home or livelihood. Assistance will not be granted for environmental impact or development claims, disability compensation claims, motor vehicle property damage claims, class actions, family property claims or claims that fall solely under Commonwealth law.^[82]

Professional legal fees and counsel fees are not considered to be outlays and are not funded under CLLAS. However, if the CLLAS requires an opinion from counsel on quantum or liability, the cost of the opinion may be considered an outlay and may be funded by CLLAS at its discretion.^[83]

Only applicants represented by an approved legal practice are eligible for a grant of aid under CLLAS.^[84] These legal practitioners must undertake to represent the client on a speculative, or ‘no-win-no-fee’, basis.^[85] Applications for assistance must be lodged by the approved legal practitioner on behalf of the client and must be accompanied by a supporting letter to allow the CLLAS to assess the merit of the proposed claim. Applicants must include a summary of the basis of the claim, information regarding the supporting evidence, an itemised list and estimated cost of outlays, an estimate of quantum for the claim and the matter’s prospect of success.^[86] There is no processing fee attached to lodgement of an application.

All applications are considered by Legal Aid Queensland and the Public Trustee of Queensland.^[87] All applications must meet the means and merits tests.^[88] To qualify for a grant of assistance, an applicant must be financially eligible under Legal Aid Queensland’s means test guidelines, except in relation to equity in their home. An applicant may have equity in their home of up to $320,000.^[89] Taking into account the applicant’s financial assets, the CLLAS may require the applicant to pay an initial contribution, calculated in accordance with the initial contribution tables provided by Legal Aid Queensland.^[90]The applicant must also show that they are not eligible for legal aid in Queensland.^[91] To satisfy the merits test, the claim should have a reasonable prospect of success, be of the kind that a prudent self-funding litigant would pursue, and have an expected quantum of more than $20,000. Consideration may also be given to whether the applicant will suffer a disadvantage if aid is not granted by the CLLAS and to the financial resources of the CLLAS at the time the application is lodged.^[92]

If an application is approved, the scheme will cover the costs of the disbursements identified in the budget forecast provided as part of the application.^[93] In exceptional circumstances, retrospective aid may be granted.^[94] A grant of aid may be varied or terminated in certain circumstances at the CLLAS’ discretion.^[95]

At the conclusion of the matter, the applicant is required to repay to the CLLAS the total amount of the funding provided if there is a successful outcome.^[96]If a claim is unsuccessful or a settlement order or judgment cannot be enforced, the applicant is not required to refund the CLLAS. The CLLAS will not pay any orders made by the court requiring the applicant to pay the other party’s legal costs.^[97]

More information about the CLLAS is available either by contacting the Coordinator, Civil Law Legal Aid Scheme or on the Legal Aid Queensland website.^[98]

LawRight Disbursement Fund

LawRight has a limited disbursement fund, which is available to member law firms, barristers and CLCs who have agreed to act for a LawRight client on a pro bono basis and where the client cannot meet disbursement costs.^[99] If the applicant’s litigation is successful, or they obtain alternative funding, they will be required to reimburse the fund.^[100]

For more information visit the LawRight website.^[101]

South Australia

Overview

The Law Society of South Australia’s Litigation Assistance Fund (LAF) is a not-for-profit charitable trust that operates to assist under-resourced people with meritorious claims. Grants of LAF assistance are limited to circumstances where a civil claimant seeking compensation or damages would be otherwise unable to meet the fees and/or disbursements associated with their claim. The LAF is unable to assist in family law or de facto relationship matters, or with criminal matters.^[102] In some circumstances, South Australian lawyers are required, under Rule 16A of the Australian Solicitors’ Conduct Rules, to inform their clients about LAF funding.^[103]

Funding assistance is limited to litigation, proposed or actual, within South Australia; the LAF does not approve applications for litigation outside South Australia unless the cause of action arose in South Australia. Applicants must be residents of South Australia at the time that the cause of action arose.^[104]

Applications for funding assistance are prepared and lodged by the claimant’s lawyer, and both the lawyer and the applicant must sign the form. The lawyer is required to prepare a letter setting out the appropriateness of the LAF supporting the intended action and provide primary material to this effect. A fee of $100 is attached to the lodgement of an application. For urgent applications, a fast-processing fee of $250 will be charged. Both application fees are waived for claimants who hold either an Automatic Issue Health Card or a Pension Card.^[105]

Applications for funding assistance are subject to a means and merits tests. The applicant is required to disclose full financial circumstances, based upon which the Fund Manager prepares a report for the Assessment Panel. There is no income limit for applicants; rather, the test is whether or not they can reasonably meet the cost of the proposed litigation. The Fund Manager makes a decision about whether legal aid should be pursued instead, rather than the onus being on the applicant. After the Fund Manager’s assessment is made, the application is assessed by the Assessment Panel.^[106]

Types of funding

The LAF provides two types of funding: full funding and disbursements only funding (see below). While the two types share common procedural requirements, claimants must understand the distinction between the two types to receive appropriate assistance.

The LAF operates on a ‘self-funding’ model meaning that it receives a small percentage of the damages recovered by the claimants whom it assists. The type of assistance rendered — full funding or disbursements only funding — will determine the amount of damages a successful litigant must pay into the LAF. ^[107]

(a) Full funding

In full funding matters, the assisted person receives funding to cover both costs and disbursements. A successful application for full funding will pay the legal costs of an assisted party on an ordinary ‘solicitor/client’ basis on the appropriate Court scale. The LAF does not pay costs on a ‘solicitor/own client’, or full indemnity, basis. ^[108]

If the applicant is successful in their claim, they are required to repay any costs paid by the LAF, in addition to 15 percent of damages received. If the applicant is not successful, they are not required to repay the LAF. The applicant will be responsible for paying costs awarded in favour of the other party.^[109]

(b) Disbursements Only Funding

Disbursements Only Funding assists claimants in meeting disbursements such as court filing fees, medical and other expert reports, witness fees, transcript and trial fees.^[110] The LAF does not pay lawyer or counsel fees. Assistance is granted on an agreed scale to a fixed stage in the proceedings. Disbursement assistance may be limited to the investigation of the claim and drafting and filing of Summons, or extend to the pre-trial conference, trial or post-trial stages. At the conclusion of each stage of litigation, the assisted person may apply to extend the assistance to cover the next stage of the proceedings. Any disbursement exceeding $1000 must be approved by the Fund Manager before being incurred.^[111]

To be eligible for disbursement only assistance, claimants must show that they have entered into a contingency agreement with their lawyer.^[112]

If the litigation is successful, the applicant will be required to repay the money outlaid for disbursements, in addition to a fund fee levied on the value of disbursements paid out by the LAF. This fee will be between 25 percent and 100 percent of the original outlay and is determined by the Assessment Panel.^[113] If the applicant is unsuccessful they will not be required to repay the LAF.^[114] While the mandatory contingency agreement absolves the applicant from paying client-solicitor fees, the applicant remains responsible for paying the other side’s costs.^[115]

Further enquiries in relation to both types of funding should be directed to Law Society of South Australia.^[116]

Tasmania

The Civil Disbursement Fund (CDF), administered by the Legal Aid Commission of Tasmania (Commission), provides financial assistance for disbursements incurred in the course of civil litigation. Tasmanian residents who are not eligible for legal aid may also apply to the CDF, in recognition of the impact of rising civil case costs.^[117]

Priority is given to serious personal injury claims, including workers compensation claims, with other cases assessed against competing resources and priorities. Further priority will be given to applicants who are seeking a settlement of damages and whose case has a high likelihood of success.^[118]The CDF does not receive applications for criminal matters, family or de facto matters, or proceedings before the Resource Management and Planning Appeals Tribunal.^[119]

The types of expenses covered by the CDF include, but are not limited to, court filing fees, medical and expert reports, interpreter’s fees, conduct money, witness’s expenses, transcript fees, trial fees, lawyer’s travelling and accommodation fees. Lawyers’ and Counsel’s fees, and sundries, are not covered by the Fund.^[120]

The CDF is not available to self-represented litigants. Applicants must be represented by a lawyer acting on a contingency fee basis, a pro bono basis, or reduced or delayed fee basis.^[121]

There is a $200 application fee to accompany all applications for CDF funding.^[122] The fee will be refunded in cases where the application fails the means test (but not where they fail the merits test), or where there are insufficient funds to make the grant.^[123] Each application is considered upon its individual merits.^[124] Each review will take into account the prospects of success, the quantum of damages and the likelihood of recovery.^[125] While there is not a strict means test, the applicant must be able to demonstrate, with supporting documents, that at the time of the application, he or she is unable to pay the disbursement costs associated with their legal matter. If it appears to the Legal Aid Commission that the applicant may be eligible for legal aid, the Commission will inform the applicant of this possible entitlement before determining whether or not to grant CDF assistance.^[126] Having regard to the applicant’s financial circumstances, the Commission may require the applicant to contribute to the cost of outlays.^[127]

The Commission reserves the right to vary the assistance at any time after the approval of an application.^[128] Assistance is granted in set stages as follows: investigation of claim to drafting of originating process, filing to pre-trial conference, trial phase and post-trial procedures. At the conclusion of each of the listed stages of litigation, the applicant may apply to extend the assistance to cover the disbursements for the next stage of the proceedings.^[129]

It is a condition of assistance that the recipient repays the CDF the cost of all disbursements incurred by the CDF on their behalf. Disbursements are to be repaid in full plus a premium applied. The premium is set by the Commission at the matter’s commencement, with a 30% premium applied to all medical negligence cases and a 20% premium applied to all other cases. The Commission will fix the premium with regard to factors including the level of risk to the disbursement being repaid, the likelihood of success of the action involved, and the likely time before the disbursement will be repaid.^[130] The Commission will not be responsible for any costs awarded against the applicant.^[131]

Further enquiries about the fund should be directed to Legal Aid Commission of Tasmania.^[132]

Victoria

Law Aid is a scheme jointly administered by the Law Institute of Victoria and the Victorian Bar Council that provides disbursement assistance to legal practitioners who represent clients on a pro bono or contingency basis. Law Aid is only available for civil litigation matters and is not accessible to clients involved in family law or criminal matters.^[133]

Law Aid provides funding solely for the purposes of paying disbursements, including expert’s fees, travelling and accommodation expenses, filing and court fees, jury fees and witness expenses. The scheme does not cover sundries such as photocopying, printing, telephone or postage and does not extend to solicitor-client fees. As part of the arrangement lawyers and counsel agree not to charge unless and until the successful conclusion of the litigation.^[134]

It is a requirement of the lawyer to set out in an attached letter the likelihood of recovery of damages awarded. While all forms of civil litigation are considered, the types of matters generally covered include personal injury claims, claims against institutions involving oppressive behaviour, loss or destruction of property claims, professional negligence claims, and wills and estate claims. Claims involving matters of public interest that will not result in the payment of compensation but are considered to have real merit may also be eligible for assistance.^[135]

Applications for disbursement assistance are available online and will only be accepted from legal practitioners. An application fee of $200 applies to all applications for assistance.^[136] Applications must detail the financial assets of the client and must be accompanied by a supporting letter from the applicant’s lawyer. Lawyers must accurately assess and estimate the out of pocket expenses for which they seek reimbursement as any additional request or future disbursements will have to be specifically reviewed and approved by Law Aid.^[137]

Applications are assessed by the Fund Manager having regards to the applicant’s financial means and an appraisal of the likely success and merit of the claim. The quantum of funding provided to the assisted person is at the discretion of Law Aid. Law Aid may limit assistance to a fixed dollar amount or to the funding of certain disbursements only, and reserves the right to terminate assistance at any stage of litigation.^[138] The lawyer is required to report to Law Aid every three months as to progress in the litigation.^[139]

If the litigation is successful, all disbursements paid by Law Aid must be repaid in addition to a 5 percent levy on the award or compensation received. Law Aid reserves the right to vary this levy, for example if the judgment or settlement includes a non-monetary component.^[140] If the matter is unsuccessful, the applicant is not required to repay the scheme but will remain responsible for any costs awarded against them in favour of the other party.

Further enquiries should be directed to The Manager, Law Aid.^[141]

Western Australia

The Western Australian Civil Litigation Assistance Scheme (CLAS) aims to assist plaintiffs who are unable to pay the costs of civil proceedings and who are otherwise ineligible for a grant of legal aid. Grants of assistance cover both professional legal fees and disbursements, including Counsel’s fees where the Counsel briefed has been approved by the CLAS. The CLAS is unable to provide disbursements-only grants. 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.^[142]

Applications may only be made by private legal practitioners acting on behalf of applicants.^[143] Unlike the disbursement assistance schemes of other State and Territory jurisdictions, the CLAS conditions of assistance do not require lawyers to work on a pro bono or contingency basis.^[144] Lawyers accept to work the hourly rate as provided by the Supreme Court Scale of Costs.^[145] The legal practitioner must also be on Legal Aid Western Australia’s CLAS Panel of Practitioners.^[146] All applications will be assessed by the Director of Legal Aid, in discretionary consultation with the CLAS Advisory Panel.^[147] Applications are assessed with regards to the CLAS’s eligibility criteria.^[148]

Eligibility is determined by means and merits tests. The former looks at the income and assets of the applicant and anyone else who gives them financial support. The thresholds and allowances included in the means test are based on national economic and social data. Under the latter test, consideration is to be given, amongst other things, to the strength of the claim, any legal or factual difficulties, available documentary evidence and the ability of the defendant to pay any award of damages and costs.^[149]

Law Access WA, a Perth-based organisation originally established by the WA Law Society, also has a limited disbursement fund for pro bono lawyers who take on Law Access referrals.^[150] The fund may cover interpreter or translator fees, expert reports, application fees, transcript fees, or travelling and accommodation expenses; however, it does not cover solicitors’ or barristers’ fees, or office expenses. Applications for the fund must be made to the CEO of Law Access.^[151]

This chapter was reviewed in 2022 by the Australian Pro Bono Centre and the pro bono team at Herbert Smith Freehills, headed by Brooke Massender and Bianca Janovic. The Centre acknowledges and is grateful for the generous contributions of all those who assisted with the 2022 refresh of the Australian Pro Bono Manual.

---

[1] Australian Pro Bono Centre, ’Definition of Pro Bono’, Information on Pro Bono (Web Page) <http://probonocentre.org.au/information-on-pro-bono/definition/>.

[2] For more information see 2.1.6 Letters of engagement.

[3] McCullum v Ifield [1969] 2 NSWR 329 at 330 per Taylor J citing Gundry v Sainsbury [1910] 1 KB 645.

[4] For example the 2004 Final Report of the Senate Legal and Constitutional References Committee Inquiry into Legal Aid and Access to Justice referred to anecdotal information that suggested that some lawyers use delaying tactics against pro bono litigants, thus recommending that all courts consider amending their rules to allow lawyers who provide pro bono legal services to recover their costs in similar circumstances to those litigants who pay for their legal representation. See Senate Legal and Constitutional References Committee, Final Report of the Senate Legal and Constitutional References Committee Inquiry into Legal Aid and Access to Justice, (Report, 2004), 178-179 <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2002-04/legalaidjustice/report/contents>.

[5] Grata Fund, The Impossible Choice: losing the family home or pursuing justice – the cost of litigation in Australia (Report, August 2022) 29 <https://www.gratafund.org.au/adverse_costs_report>.

[6] Wentworth v Rogers (2006) 66 NSWLR 474.

[7] King v King [2012] QCA 81.

[8] See further 2.1.6 Letters of engagement and Appendix 1 Precedents.

[9] Mainieri v Cirillo [2014] VSCA 227 [53].

[10] Ibid [52].

[11] Mourik v von Marburg [2016] VSC 601.

[12] Ibid [29].

[13] Ibid [30].

[14] John Corker, ‘Funding Litigation: The Challenge’ (2007) UNSWLRS 2.

[15] Mansfield v Townend (No 2) [2018] NSWDC 177.

[16] Ibid [18].

[17] See National Pro Bono Resource Centre, Submission to the Productivity Commission on Access to Justice Arrangements, (Draft Report, 21 May 2014) 5 <https://www.probonocentre.org.au/wp-content/uploads/2015/10/National-Pro-Bono-Resource-Centre-submission-210514.pdf>.

[18] Legal Services Act 2007 (UK) c 29 s 194.

[19] National Pro Bono Resource Centre, Submission to the Productivity Commission on Access to Justice Arrangements (Draft report, 21 May 2014) 4-7, https://www.probonocentre.org.au/wp-content/uploads/2015/10/National-Pro-Bono-Resource-Centre-submission-210514.pdf.

[20] See, for example, Federal Court Rules 2011 (Cth) r 4.19(2) (see also the repealed Federal Court Rules 1979 (Cth) O 80 r 9(1)–(2)).

[21] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 83<https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[22] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 125<https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[23] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 124 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[24] Local Court of New South Wales, Fees (Web Page, June 2021) <https://www.localcourt.nsw.gov.au/local-court/forms-and-fees/fee.html>.

[25] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 124 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[26] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 124 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[27] Australian Pro Bono Centre, ExpertsDirect Pro Bono Service (Web Page, June 2021) <https://www.probonocentre.org.au/expertsdirect-pro-bono-service/>.

[28] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 82 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[29] Australian Pro Bono Centre, ExpertsDirect Pro Bono Service (Web Page, June 2021) <https://www.probonocentre.org.au/expertsdirect-pro-bono-service/>.

[30] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 54 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[31] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 83 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[32] Australian Pro Bono Centre, Report on the Sixth National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2019) 73 <https://www.probonocentre.org.au/wp-content/uploads/2019/02/Report-of-the-Sixth-National-Pro-Bono-Survey-2018.pdf>.

[33] Australian Pro Bono Centre, Report on the Fifth National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, March 2017) 56 <http://probonocentre.org.au/wp-content/uploads/2017/03/Report-on-the-Fifth-National-Law-Firm-Pro-Bono-Survey.pdf>.

[34] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) 83-84 <https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[35] See High Court of Australia (Fees) Regulation 2012 (Cth) reg 11; Federal Court and Federal Circuit Court and Family Court Regulations 2012 (Cth) reg 2.05; Administrative Appeals Tribunal Regulation 2015 (Cth) reg 21.

[36] See High Court of Australia (Fees) Regulation 2012 (Cth) reg 12; Federal Court and Federal Circuit Court and Family Court Regulations 2012 (Cth) reg 2.06; Administrative Appeals Tribunal Regulation 2015 (Cth) reg 21(h); Family Law (Fees) Regulation 2012 (Cth) reg 2.05.

[37] Legal Services Commission of South Australia, ‘Court and Tribunal Fee Waiver Guide’, (September 2021) 11, <https://lsc.sa.gov.au/resources/CourtandTribunalFeeWaiverGuide.pdf>.

[38] Civil Procedure Regulation 2017 (NSW) regs 12(2)(a).

[39] Civil Procedure Regulation 2017 (NSW) regs 12(2)(b).

[40] Civil Procedure Regulation 2017 (NSW) reg 3.

[41] NSW Department of Communities and Justice, NSW Supreme, District and Local Courts Guidelines for the Waiver, Remission and Postponement of Fees .

[42] Legal Services Commission of South Australia, Court and Tribunal Fee Waiver Guide, (September 2021) 11 <https://lsc.sa.gov.au/resources/CourtandTribunalFeeWaiverGuide.pdf>.

[43] To access the Factsheets see LawRight, ‘Factsheets arranged by area of law’, Information about the law (Web Page) .

[44] r 8 Supreme Court (Fees) Rules 2017 (Tas); Magistrates Court of Tasmania, Fees and charges (July 2022) < https://www.magistratescourt.tas.gov.au/fees>.

[45] See <https://supremecourt.nt.gov.au/__data/assets/pdf_file/0005/727268/fee-waiver-form.pdf> and https://localcourt.nt.gov.au/sites/default/files/local_court_fee_waiver.pdf.

[46] See for example, Federal Court of Australia, Application for Exemption from Paying Court Fees – Financial Hardship (April 2013) <http://www.fedcourt.gov.au/forms-and-fees/court-fees/exemptions/guide-to-form-financial-hardship>.

[46] National Pro Bono Resource Centre, Submission to the Productivity Commission on Access to Justice Arrangements, (Draft Report, 21 May 2014) 32-38 <https://www.probonocentre.org.au/wp-content/uploads/2015/10/National-Pro-Bono-Resource-Centre-submission-210514.pdf>.

[47] National Pro Bono Resource Centre, Submission to the Productivity Commission on Access to Justice Arrangements, (Draft Report, 21 May 2014) 32-38 <https://www.probonocentre.org.au/wp-content/uploads/2015/10/National-Pro-Bono-Resource-Centre-submission-210514.pdf>.

[48] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) p 83,<https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[49] Australian Pro Bono Centre, Report on the Sixth National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2019) 73 <https://www.probonocentre.org.au/wp-content/uploads/2019/02/Report-of-the-Sixth-National-Pro-Bono-Survey-2018.pdf>.

[50] Australian Pro Bono Centre, Report on the Fifth National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, March 2017) 56 <http://probonocentre.org.au/wp-content/uploads/2017/03/Report-on-the-Fifth-National-Law-Firm-Pro-Bono-Survey.pdf>.

[51] Australian Pro Bono Centre, Report on the 7^th National Law Firm Pro Bono Survey: Australian firms with 50 or more lawyers (Report, February 2021) p 83-84,<https://www.probonocentre.org.au/wp-content/uploads/2021/02/Survey-Report-FINAL.pdf>.

[52] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018) cl 4.1(1) <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>. .

[53] Attorney-General’s Department, ‘Disbursement Support Scheme’, Commonwealth legal financial assistance (Web Page) <www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/DisbursementSupportScheme.aspx>.

[54] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018) cl 7.3 <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>.

[55] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018)  cl 7.3 <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>.

[56] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018) cl 7.5 <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>.

[57] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018) cl 3.11(a)(v), 4.1(1) <www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/DisbursementSupportScheme.aspx>.

[58]  Attorney-General’s Department, ‘Disbursement Support Scheme’, Commonwealth legal financial assistance (Web Page) <www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/DisbursementSupportScheme.aspx>.

[59] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance (Guidelines, July 2018) 2012, cl 3.11(b) <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>.

[60] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018) pt 5, div 3 <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>.

[61] Attorney-General’s Department, ‘Disbursement support scheme’ (Web Page) <https://www.ag.gov.au/legal-system/legal-assistance/commonwealth-legal-financial-assistance/disbursement-support-scheme>.

[62] Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012 (Guidelines, July 2018) pt 6 <https://www.ag.gov.au/sites/default/files/2020-03/commonwealth-guidelines-for-legal-financial-assistance-2012.pdf>.

[63] Attorney-General’s Department, ‘Disbursement Support Scheme’, Commonwealth legal financial assistance (Web Page) <www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/DisbursementSupportScheme.aspx>.

[64] Law Society of New South Wales, Handy Hints for Pro Bono Lawyers (Web Page) <https://www.lawsociety.com.au/handy-hints-pro-bono-lawyers>.

[65] For more information see New South Wales Bar Association, ‘Legal Assistance Referral Scheme’ About legal assistance (Web Page) <https://nswbar.asn.au/using-barristers/get-legal-assistance/legal-assistance-referral-scheme>.

[66] Law Society of New South Wales, Handy Hints for Pro Bono Lawyers <https://www.lawsociety.com.au/handy-hints-pro-bono-lawyers>.

[67] For more information, see Law Society of New South Wales, ‘The Pro Bono Scheme’, For the public (Web Page) <www.lawsociety.com.au/ForSolictors/professionalsupport/buildyourpractice/probonoscheme/index.htm>.

[68] Northern Territory Legal Aid Commission, ‘Guidelines’, For Lawyers (Web Page) <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[69] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[70] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[71] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3, cl 2<https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[72] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3 cl 4<https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[73] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3 cl 11 <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[74] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3 cl 1 <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[75] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3 cl 4 <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>.

[76] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3 cl 4 <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>..

[77] Northern Territory Legal Aid Commission, Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3, cl 5 <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>..

[78] Northern Territory Legal Aid Commission,  Chapter 5 – Northern Territory Law Guidelines (Guidelines, 15 June 2018) pt 3, cl 7 <https://www.legalaid.nt.gov.au/for-lawyers/guidelines/>..

[79] For more information, see Northern Territory Legal Aid Commission (Web Page) <https://www.legalaid.nt.gov.au/>.

[80] Legal Aid Queensland, ‘Civil Law Legal Aid Scheme’ Our services <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>.

[81] Legal Aid Queensland, ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>

[82] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.1.1-2 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>

[83] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.1.3 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>

[84] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 3.1.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>

[85] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 3.1.3 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[86]Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 3.1.4 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/>.

[87] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 5.1.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/..

[88]Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.1.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[89] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.2.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>

[90] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.2.3 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[91] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.1.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[92] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 6.3.2 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[93] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 7.1.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[94] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 7.1.7 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[95] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 8.1.1-2 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[96] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 9.1.1 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[97] Legal Aid Queensland, , ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>; Legal Aid Queensland, Civil Law Legal Aid Scheme Guidelines (Guidelines) cl 9.4.5-6 <http://www.legalaid.qld.gov.au/files/assets/public/publications/cllas/cllas-guidelines.pdf>; Victorian State Government, Making it easier to do business with government (Web Page) <https://www.buyingfor.vic.gov.au/>; Australian Pro Bono Centre, ‘Victorian Government Legal Services Panel’, Provide Pro Bono Assistance (Web Page) <http://probonocentre.org.au/provide-pro-bono/government-tender-arrangements/victorian-government-legal-services-panel/.>.

[98] Legal Aid Queensland, ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>.

[99] Legal Aid Queensland, ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>.

[100]  Legal Aid Queensland, ‘Civil Law Legal Aid Scheme’ Our services (Web Page) <http://www.legalaid.qld.gov.au/get-legal-help/our-services/civil-law-legal-aid-scheme>.

[101] LawRight, Law Right Access Justice (Web Page) <http://www.lawright.org.au/.>

[102] Law Society of South Australia, ‘Litigation Assistance Fund’ (Web Page) <https://www.lawsocietysa.asn.au/Public/Community/Litigation_Assistance_Fund.aspx?WebsiteKey=f282a980-3d01-4268-abde-25da9e81104d>.

[103] Law Society of South Australia, Australian Solicitors’ Conduct Rules (at 1 July 2015) r 16A.

[104] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) f 6 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[105] Law Society of South Australia, ‘Litigation Assistance Fund’ (Web Page) <https://www.lawsocietysa.asn.au/Public/Community/Litigation_Assistance_Fund.aspx?WebsiteKey=f282a980-3d01-4268-abde-25da9e81104d>

[106] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) rr 1-2 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[107] Law Society of South Australia, ‘Litigation Assistance Fund’ (Web Page) <https://www.lawsocietysa.asn.au/Public/Community/Litigation_Assistance_Fund.aspx?WebsiteKey=f282a980-3d01-4268-abde-25da9e81104d>.

[108] Law Society of South Australia, ‘Litigation Assistance Fund’ (Web Page) <https://www.lawsocietysa.asn.au/Public/Community/Litigation_Assistance_Fund.aspx?WebsiteKey=f282a980-3d01-4268-abde-25da9e81104d>.

[109] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[110] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[111] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) r 20-22 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[112] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) rr 17, 26 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[113] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) r 24 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[114] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) rr 24-25 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[115] Law Society of South Australia, Rules of the Litigation Assistance Fund for Disbursements Only Funding (at July 2015) r 28 <https://www.lawsocietysa.asn.au/pdf/DOF_Rules.pdf>.

[116] Law Society of South Australia, Litigation Assistance Fund (Web Page) <https://www.lawsocietysa.asn.au/Public/Community/Litigation_Assistance_Fund.aspx?WebsiteKey=f282a980-3d01-4268-abde-25da9e81104d>.

[117] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[118] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines cl 5.5  (Guidelines, June 2017) <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[119] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines cl 5.4 (Guidelines, June 2017) <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[120] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) 3 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[121] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 5.2 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[122] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 3.1 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[123] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 3.2-3.4 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[124] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 4.1 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>. .

[125] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 5.1 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[126] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 4.4 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[127] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 6.1 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[128] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 8.1 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[129] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 10.3 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[130] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 1.3 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[131] Legal Aid Commission of Tasmania, Civil Disbursement Fund Guidelines (Guidelines, June 2017) cl 2.3 <http://www.legalaid.tas.gov.au/wp-content/uploads/2018/05/CDF-Guidelines-Jun-2017.pdf>.

[132] Legal Aid Commission for Tasmania, ‘Civil Disbursement Fund’, For Lawyers(Web Page, 17 May 2018) <http://www.legalaid.tas.gov.au/for-lawyers/civil-disbursement-fund/>.

[133] Law Aid, ‘Scheme Outline’, outline (Web Page, 2022) <http://lawaid.com.au/scheme-outline/>.

[134] Law Aid, Application form for Civil Litigation Support (Application Form) <http://www.lawaid.com.au/wp-content/uploads/LawAid_App_Form_V1.pdf>.

[135] Law Aid, ‘Scheme Outline’, outline (Web Page, 2022) <http://lawaid.com.au/scheme-outline/>.

[136] Law Aid, ‘Scheme Outline’, outline (Web Page, 2022) <http://lawaid.com.au/scheme-outline/>.

[137] Law Aid, Application form for Civil Litigation Support (Application Form) <http://www.lawaid.com.au/wp-content/uploads/LawAid_App_Form_V1.pdf>.

[138] Law Aid, ‘Fund Fee Agreement’, resources (Publication) cl 1(b) <http://www.lawaid.com.au/wp-content/uploads/Blank-fund-fee-agreement-August-2014.pdf>.

[139] Law Aid, ‘Fund Fee Agreement’, resources (Publication) cl 2(d)<http://www.lawaid.com.au/wp-content/uploads/Blank-fund-fee-agreement-August-2014.pdf>.

[140] Law Aid, ‘Fund Fee Agreement’, resources (Publication) cl 4(a), 4(b), 4(d) <http://www.lawaid.com.au/wp-content/uploads/Blank-fund-fee-agreement-August-2014.pdf>.

[141] Law Aid, ‘Scheme Outline’, outline (Web Page, 2022) <http://lawaid.com.au/scheme-outline/>.

[142] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[143] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[144] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[145] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[146] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[147] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[148] Legal Aid Western Australia, ‘Civil Law’, What We Do (Web Page) <https://www.legalaid.wa.gov.au/index.php/get-legal-help/what-we-do/civil-law>.

[149] Legal Aid Western Australia, ‘Grant guidelines’, Managing grants of aid (Web Page) < https://www.legalaid.wa.gov.au/lawyers/managing-grants-aid/grant-guidelines#Means>.

[150] Law Access WA, ‘Disbursements information for pro bono lawyers’, Support and Resources (Web Page) <https://lawaccess.org.au/resources/disbursements-information-for-pro-bono-lawyers/>.

[151] The relevant email address is lawaccess@lawaccess.org.au.

Return to CONTENTS

Return to AUSTRALIAN
PRO BONO CENTRE