Legal aid and pro bono procedures
[1-0600] Pro bono schemes in NSW
Where a litigant appears unrepresented and indicates that he or she is unable to afford private representation, the litigant may be referred to any one of a number of bodies who provide legal advice or representation in appropriate circumstances, generally subject to a means test and an assessment of the merits of the applicant’s case. In other cases, it may be appropriate to gently identify the advantages of the litigant having professional assistance and indicate where such assistance may be obtained; but if the litigant indicates that he or she wishes to present the case in person, either through mistrust of the profession or for other reasons, the issues should not be pushed, lest it engender suspicion that the court is unwilling to hear the case impartially, a common problem in the case of the vexatious or querulous litigant. Refer to “Probono schemes in NSW” on the Publications menu on JIRS for further information at https://jirs.judcom.nsw.gov.au/static/general/pro_bono_brochure_2019.pdf.
Such bodies include:
NSW Legal Aid Commission
Central Sydney Legal Aid Office (Head Office)
323 Castlereagh Street, Haymarket 2000
Telephone: 9219 5000
Pursuant to the Legal Aid Commission Act 1979, a personal may apply to the Commission for legal aid. The application must be made in the manner and form approved by the Commission: s 31. Applicants must fill out a Legal Aid application form, which can be obtained from any Legal Aid office, from duty lawyers at local courts or by contacting LawAccess NSW on 1300 888 529 or accessing www.lawaccess.nsw.gov.au.
New South Wales Bar Association — Legal Assistance Referral Scheme (LARS)
174 Phillip Street, Sydney 2000
Telephone: 9232 4055
The Bar Association has specifically requested that applicants not be directed to attend its offices.
The scheme only applies to legal proceedings being heard in NSW. When deciding whether to provide assistance under the scheme, the NSW Bar Association considers a number of factors, including the applicant’s financial resources, whether they have been refused legal aid or assistance elsewhere, and the general nature of the matter. Applicants must fill out an application form, which can be downloaded from the website under “Legal assistance”.
New South Wales Bar Association — Duty Barrister Scheme
B/174 Phillip Street, Sydney 2000
Telephone: 9232 4055
The Duty Barrister Scheme is an initiative of the NSW Bar Association which has introduced the scheme to particular Local Courts to help people who cannot afford a lawyer, who do not qualify for legal aid and who have a matter before the court on the day. The duty barrister can provide legal advice and argue the case in court.
The Law Society of New South Wales — Pro Bono Scheme
The Pro Bono Solicitor
Law Society of New South Wales
Lower Ground Floor, 170 Phillip Street, Sydney 2000
Telephone: 9296 0364; 9926 0355
To qualify for the scheme, applicants must have been refused by Legal Aid; satisfy the scheme’s means test; and have reasonable prospects of success. The matter must also fall within an area covered by the scheme. Enquiries may be directed through one of these agencies: LawAccess NSW, community legal centres, legal advice centres, private legal practices, welfare agencies or the Legal Aid Commission.
Public Interest Advocacy Centre (PIAC)
Level 5, 175 Liverpool St,
Sydney NSW 2000
The Public Interest Advocacy Centre is an independent, not-for-profit law and policy organisation, committed to social justice and addressing disadvantage. Their focus is on cases that can lead to systemic change and will have widespread benefit.
[1-0610] Court-based scheme
Division 9 of Pt 7 of UCPR provides for court appointed referral for legal assistance in proceedings in the Supreme Court, District Court and Local Court.
The purpose of the Division is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance: r 7.33(2).
The provision of legal assistance is not intended to be a substitute for legal aid (r 7.33(3)), and a referral is not an indication that the court has formed an opinion on the merits of a litigant’s case.
A litigant may be a party to proceedings, a person served with a subpoena or a person who has applied to be joined in proceedings: r 7.34.
The principal registrar of the Supreme Court (or any registrar of that Court nominated by the Principal Registrar), the registrar in a proclaimed place in the case of the District Court or the registrar of a Local Court may maintain a list of barristers or solicitors who have agreed to participate in the scheme in relation to that court (the Pro Bono Panel): r 7.36. For an application where a referral for pro bono legal assistance was refused, see Potier v Arnott  NSWCA 5.
If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the panel for legal assistance: r 7.36(1). The interests of justice include not only the interests of the applicant but also the interests of the other parties and the court: Hetherington-Gregory v All Vehicle Services (No 2)  NSWCA 257 at .The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral: r 7.36(2A). The court may note limitations on the referral as occurred in Norman v Wall  NSWSC 129 where the referral was limited to advising the named plaintiffs on the viability of the cause of action in tort, breach of fiduciary duty and or breach of trust, and to assist with drafting any amended statement of claim: at . See also Norman v Wall (No 6)  NSWSC 1211.
The power may be exercised in the absence of the public and without any attendance by or on behalf of any person: r 7.36(3). The court may take into account (r 7.36(2)):
the means of the litigant
the capacity of the litigant to obtain legal assistance outside the scheme
the nature and complexity of the proceedings
any other matter that the court considers appropriate.
A referral may be made for the following kinds of assistance (r 7.37):
advice in relation to the proceedings
representation on directions hearing, interlocutory or final hearing, arbitration or mediation
drafting or settling of documents to be filed or used in the proceedings
representation generally in the conduct of the proceedings or of part of the proceedings.
Once an order is made the registrar must attempt to arrange the legal assistance, however, the referral can only be made to a panel member who has agreed to accept it. If the registrar is unable to do so within 28 days of the referral, the registrar may make an order terminating the referral: r 7.36(4A).
A panel member having accepted a referral must give assistance in accordance with it (r 7.38) and can cease that assistance only:
in the circumstances set out in any practice rules governing professional conduct that apply to the panel member
with the written agreement of the litigant,
with the leave of the registrar.
If a panel member ceases to provide legal assistance he or she must inform the registrar in writing within seven days: r 7.39(2).
Rule 7.40 sets out the procedure for, and matters to be considered upon, an application to the registrar for leave to cease to provide legal assistance.
A panel member may only recover costs that another person is required to pay in an order for costs in favour of the litigant: r 7.41(1) and (2). A panel member may request the litigant to pay disbursements (r 7.42) and must account to the litigant for any money received in respect of disbursements so paid: r 7.41(2).
The process of granting a referral is administrative rather than judicial, however, the court must be satisfied that it is in the interests of justice to do so: Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital  NSWSC 602 at . See Hetherington-Gregory v All Vehicle Services (No 2)  NSWCA 257 for an example where the court was not persuaded that it was in the interests of justice to refer the applicant to the Pro Bono Panel as there did not appear to be reasonable prospects of success. See also Phu v NSW Department of Education and Training  NSWCA 119 and Potier v Arnott  NSWCA 5.
For a case in which a referral for assistance by way of representation on the hearing of an appeal was made, see Rouvinetis v Knoll  NSWCA 125.
Legal Aid Commission Act 1979
UCPR Pt 7 Div 9, rr 7.33–7.42