Additional information relating to litigation grants – ICLs

Interim contest hearings – ICLs

The term ‘interim contested hearing’ covers court events where the parties are not in agreement about what arrangements should be in place until the matter can be finally determined, and the court conducts a hearing in order to make interim orders pending final hearing. The interim contested hearing fee is only available when the matter is listed for an interim hearing, an interim contested hearing or interim defended hearing.

Stage 1C – interim contest hearing of fee table 4.2 sets out the entitlements and conditions relevant to ICLs for interim contest hearings in the FCFCOA.

See Interim contested hearings – lawyers (excluding ICLs) for notes relating to grants to general lawyers.

a) Eligibility criteria

Refer to the notes under a) Eligibility criteria under the relevant litigation guideline:

b) Grants assessment process

Funding for interim contest hearings is not provided within broadband litigation grants and an extension request is required. ICLs will need to submit an extension request before the hearing.

Where a matter is not listed as an interim contested hearing but runs as one on the day, the Stage 1C appearance fee is payable. Lawyers will need to submit an extension request after the hearing. This should occur as soon as practicable after the hearing.

The application or extension request must be lodged via ATLAS using the ‘simplified process – Independent Children’s Lawyer’ template, making the following selections:

under ‘court hearings’, select ‘yes’ and advise of the appropriate court
in the professional costs screen, select ‘stage 1C interim contest inc counsel fee’.

ICLs may recommend assistance for the first 2 interim contest hearings in a matter. Any subsequent requests for interim contest hearing grants will be assessed by VLA.

Circuit fees are payable for interim contest hearings under Stage 1C but are not automatically provided. ICLs must select the ‘CF – Circuit fees’ under ‘professional costs’ in their extension request.

c) Documentary requirements

In addition to documentary requirements set out in the notes relevant to each litigation guideline, the ICL’s file must include:

a copy of the Commonwealth courts’ web portal listing indicating that the matter is listed for an interim defended hearing on the relevant date, or
a copy of a court order listing the matter for an interim contest hearing on the relevant date. It is not sufficient that the court order sets it down for an ‘interim hearing’. The court order should specify that it is set down for an ‘interim contest(ed) hearing’ or ‘interim defended hearing’, or
where the matter was not listed for an interim contest hearing but runs as a contest by way of evidence, counsel’s backsheet or the lawyer’s court attendance note outlining what occurred on the day. The document must show that evidence in chief was heard and cross examination undertaken
where the matter was not listed as an interim contest hearing but runs as a contest by way of submissions, counsel’s backsheet or the lawyer’s court attendance note outlining what occurred on the day. The document must show that significant submissions were heard, involving at least one hour of court time (ie not including time where matters are stood down for negotiations).

d) Fees and billing

See stage 1C of fee schedule 4.2 for information on the fees available and the conditions attaching to grants for interim contested hearings. The following provides additional information:

The stage 1C fee allows for preparation and an appearance fee
The appearance fee under stage 1C is the same as the appearance fee for counsel in stage 3 for trial
If a barrister is briefed to appear at a hearing, they must be paid directly. For more information, see the Step-by-step ATLAS guides.
Where the interim contested hearing is part-heard, and adjourned to another day, a further Stage 1C may be requested. An extension via ATLAS must be submitted. No additional preparation fees will be provided.
Circuit fees are available for interim contested hearings (see fee table 4.3).
a judgment fee is payable where an attendance at judgment is required on a separate day.

Preparation for trials and trial costs – ICLs (FCFCOA)

a) Grants assessment process

The stage 2A grant (fee table 4.2) allows for preparation for trial and procedural appearances (stage 2B).

An extension request must be lodged via ATLAS on the ‘simplified process – Independent Children’s Lawyer’ template. Under ‘court hearings’, select ‘yes’ and advise of the appropriate court.

For matters in the FCFCOA (Division 1), different preparation fees are available for trials estimated to run for one to four days and for trials estimated to run for five days or more. ICLs must ensure that they enter the amount of days the trial is listed for to ensure sufficient funds are provided.

ICL’s wishing to seek additional preparation fees, must submit an extension request for stage 2C (additional preparation) funding. For more information, see Additional trial preparation in exceptional circumstances – Stage 2C

The stage 3 grant (fee table 4.2) provides trial appearance costs.

b) Fees and billing

Different fee pathways apply for trial preparation and for trial appearance costs for ICLs in the FCFCOA (Division 2) and the FCFCOA (Division 1).

Circuit fees are available at the trial stage and must be requested in addition to preparation and trial costs.

Circuit fees can be requested on the same extension or a subsequent extension by selecting ‘CF – Circuit fees’ in the ‘professional costs’ screen.

FCFCOA (Division 2)

In the FCFCOA (Division 2), fees for preparation for trial are available under stage 2A.3 – preparation for trial FCC (ICL), in fee table 4.2. This broadband grant also provides access to fees for procedural hearings set out in stage 2B.

Funding for stage 2A.3 can only be recommended once. Lawyers wishing to seek additional preparation fees in exceptional circumstances must submit an extension request for stage 2C – Additional preparation fees in fee table 4.2. For more information on stage 2C grants, see Additional trial preparation in exceptional circumstances – Stage 2C

The preparation fees are stated in the tax invoice as:

‘3D 1 Prep 1 day’ available where the trial is listed for one day only)
‘3D.2 Prep more than 1 day’ (available in addition to '3D 1 Prep 1 day' where the matter is listed for more than one day or is adjourned for further days).

Lawyers should not seek additional preparation for adjourned trials unless both preparation fees have been claimed.

Trial appearance costs in the FCC for ICLs are available under the Stage 3A – trial costs for ICLs in fee table 4.2.

The stage 3A – trial costs for ICLs broadband grant allows instructing fees, appearance fees, conference fees and taking judgment fees.

If a barrister is briefed to appear at a hearing, they must be paid directly. For more information, see the Step-by-step ATLAS guides.

Circuit fees are available for trials (see fee table 4.3).

Fees for additional appearances must be requested by lodging an extension request via ATLAS using the ‘simplified process – trial’ template, selecting ‘ATDFM – Additional trial days in the FCFCOA (Division 2)’ in the ‘professional costs’ screen.

No appearance fee is payable if the matter is in the list but not reached.

FCFCOA (Division 1)

In the FCFCOA (Division 1), preparation costs are available under the stage 2A. 1 broadband grant for a trial with an estimated length of 1-4 days and stage 2A.2 for a trial with an estimated length of 5 or more days (this includes the ‘preparation’ fee and the ‘prep uplift 5+ days’ fee). Procedural appearances are also available under these broadband grants.

Where a matter is estimated to run for less than 5 days but runs beyond 5 days, both preparation components may be claimed.

The stage 2A.1 and 2A.2 fees grant can only be requested once. Any requests for further preparation must be under the stage 2C – additional preparation fees (ICL) grant.

Trial appearance costs in the FCA for ICLs are available under the stage 3 – trial costs for ICLs in fee table 4.2.

The stage 3A – trial costs for ICLs broadband grant allows instructing fees, appearance fees, conference fees and taking judgment fees. The appearance component of stage 3A is not payable if the matter is in the list but not reached.

If a barrister is briefed to appear at a hearing, they must be paid directly. For more information, see the Step-by-step ATLAS guides.

Circuit fees are available for trials (see fee table 4.3).

A judgement fee is payable where an attendance at judgement is required on a separate day.

Additional trial preparation in exceptional circumstances – Stage 2C

Fees for additional trial preparation in the FCFCOA (Division 2) and the FCFCOA (Division 1) are available under stage 2C (fee table 4.2) at an hourly rate. A grant of assistance under stage 2C cannot be the subject of lawyer recommendation but is VLA assessed.

The grant is only available in exceptional circumstances, such as where a trial is adjourned for a significant period and a number of additional reports have been filed which need to be assessed. We will only consider requests for additional preparation fees where all previous grants for preparation have been exhausted.

Stage 2C (fee table 4.2) is requested via ATLAS (either by a new application or extension) using the ‘simplified process – Independent Children’s Lawyer’ template. The lawyer is required to select ‘AP – Do you require any additional preparation under stage 2C?’ in the ‘professional costs’ screen.

An extension request for additional trial preparation must include the following:

a statement on how the work involved is extraordinary: unless the work is outside the work reasonably expected for preparation for trial, or the matter has only been adjourned for a short time with minimal additional evidence filed during the adjournment, there is no scope for paying additional fees. The provision for additional preparation is not designed to increase the fees because they may be considered inadequate (eg the affidavit took longer than usual to prepare or a conference with a witness took longer than expected)
and
the number of hours required to complete the extraordinary work.

Fees for procedural hearings in the FCFCOA

The following procedural appearance fees are available for ICLs in the FCFCOA (Division 2) and the FCFCOA (Division 1) (in FCFCOA (Division 1) matters, these fees are available as part of the broadband stage 2A grant):

Inspecting subpoenaed documents
The 2B.1 grant is payable where an attendance at court is required to inspect subpoenaed documents. The fee does not require an appearance before the court.
No fee is payable to issue subpoenas as this is considered part of the stage 2 preparation fee. Service fees, conduct money and compliance fees are available under the broadband grant.
Appearance at defended subpoena list
The 2B.2 grant is payable where a court appearance is required in relation to the objection of the release of subpoenaed material.
Telephone mention
The 2B.3 grant is payable where the attendance is undertaken by phone and no court attendance required.
Mention/directions/call over
The 2B.4 grant is payable in the following circumstances:
- Mention – payable for a court event that is not expected to advance the matter but rather to monitor where the matter is at. Such an attendance is often listed prior to trial to ensure that the parties are ready to proceed to the trial.
- Directions Hearing – payable for a court attendance that is required to receive directions as to how the matter is to proceed. The fee is for those directions hearings that are not intended to advance the substantive matter or to deal with specific issues.
- Call over – payable where the matter is listed as such. There must be a discrete hearing on a separate day from the trial. Call overs usually occur in circuit matters.

Circuit fees