Conditions for paying lump sum fees in criminal law matters

Conditions for paying lump sum fees in criminal law matters

The following conditions apply to lump sum fee payments in criminal matters:

  • The lump sum fee covers all the necessary work involved in:
    • taking instructions from witnesses
    • preparing for the hearing.
  • Additional fees for court appearances are set out in the relevant tables.
  • If the lawyer briefs counsel or a lawyer advocate, then Victoria Legal Aid (VLA) will not pay any additional fee above the appearance fees in the tables.
  • It is the lawyer’s responsibility to pay any tax invoices they receive from counsel or from a lawyer advocate.
  • The lawyer must claim all fees online using using ATLAS.
  • If VLA makes a grant of assistance on the basis that VLA will pay disbursements only, then the lawyer must brief counsel or a lawyer advocate at the fees listed in the relevant lump sum fee table. If no fee is listed, then the lawyer must use the ‘second day’ fee.

Travel expenses for solicitors appearing as counsel

These fees are effective from 1 January this year. For all other fees payable prior to this date, see Archived versions of the Handbook.

A travelling fee may be paid if an advocate appears in a hearing of criminal charges in a Magistrates’ or Children’s court which is more than 40 kilometres from the advocate’s usual place of business.

The fee is calculated at the rate of 76 cents per kilometre for each kilometre of the return trip in excess of 80 kilometres, and is paid as a disbursement.

These fees must be specifically approved in advance. However, the travel fee will be payable without prior approval where a solicitor who practises more than 40 kilometres from GPO Melbourne briefs Melbourne counsel.

Usually VLA requires that an advocate practising in the same town as the court be engaged.

Multiple accused

In a summary criminal proceeding the fees for acting for multiple accused are set out in Table A.

Appeal Costs Certificates

If the prosecution obtains an adjournment, then the lawyer must:

  • request an Appeal Costs Certificate
  • where applicable, apply promptly to the Appeal Costs Board for recovery of the lawyers’ costs of the adjournment.

If a lawyer has an Appeal Costs Certificate, then the fees payable by VLA are set out in Table BBB of Fee Schedule 1A.

If the assisted person is acquitted of all charges against them, then their lawyer should make an application to the court for costs. The lawyer should cite both:

Wherever possible, the lawyer must apply to the court for costs orders. If the court does order costs, then the lawyer should:

  • ask the court to pay the costs to VLA
    and
  • cite section 46(2) of the Legal Aid Act.

Counsel appearing for the accused in an interlocutory appeal relating to a State prosecution must make application to the Court of Appeal pursuant to the Appeals Costs Act 1998 if any of the following circumstances apply:

  • where an interlocutory appeal by the accused is successful
  • where the accused is a respondent to an interlocutory appeal by the prosecution
  • where the court reserves a question of law for determination by the Court of Appeal pursuant to s. 305 of the Appeals Costs Act.

Adjournments

VLA does not usually pay for adjournments at the request of the assisted person. However, VLA will pay for an adjournment if:

  • there are exceptional circumstances
  • it is reasonable in all the circumstances (for example, if something could not have been reasonably foreseen).

Such requests should be rare.

If an assisted person does request that VLA pay for an adjournment, then, wherever possible, the matter should be administratively adjourned to another date.

The lawyer must keep adequate file notes about the request for the adjournment on their case file.

Transcribing taped records of interviews

The fee payable by VLA for transcribing a taped record of interview is for the clerical task of producing a hard copy of the record of interview. Usually, a hard copy will be necessary only if the record of interview is in dispute.

The fee is not for the time spent by a lawyer in listening to the tape and taking notes. That work is part of the lawyer’s professional costs which are included in the lump sum fee.

Summary crime tax invoices

If a lawyer claims fees from VLA in summary crime matters, then the lawyer must specify on their lump sum tax invoice:

  • the date of the contest mention
  • the date of their substantive appearance to which the lump sum fee applies
  • the dates of any further appearances by them.

If the lawyer does not fully and correctly complete their tax invoice, then VLA may not certify the tax invoice.