In certain circumstances, the FAS may pay legal costs above or below the standard amount of legal costs having regard to the factors outlined below.
20.3.1 Payment of legal costs below the standard amount
Legal costs may be reduced where the work required in a particular circumstance justifies a reduction of legal costs associated with a specific application, notwithstanding that the application is complex.
Some examples of scenarios where legal costs may be reduced include where:
- there are significant quality issues associated with the application
- multiple separate but largely duplicative applications involving the same or related acts have been submitted by a lawyer (that is, multiple applications were unreasonably submitted rather than a single consolidated application dealing with related acts). In this scenario, the FAS will not pay legal costs for each individual application on the basis that there is significant or total overlap in the work required across the applications, or
- there are integrity issues associated with the applications.
20.3.2 Payment of legal costs above the standard amount
The FAS will only consider paying legal costs above the amounts listed, or outside the circumstances identified in the above table, in exceptional circumstances, and only where the lawyer provides an appropriate explanation of the additional work undertaken.
Where a lawyer is seeking legal costs above the upper amounts set out in the table above, they should provide an explanation of the exceptional circumstances that caused additional work to be undertaken, demonstrating how the application went above the conventional levels of complexity and the additional amount sought from the FAS.
The FAS may consider paying above the standard amount of legal costs where the lawyer provides robust details as follows:
- Where the application involves complex/sensitive engagement with the applicant, including:
- socio-economic factors (e.g. homelessness, incarceration or in care)
- requirement to engage with external agencies (e.g. child protectionetc)
- medical/wellbeing factors (e.g. chronic or acute trauma presentations, neurodiversity factors)
- cultural (e.g. facilitation of cultural support plans for First Nations applicants, use of interpreter services)
- a high level of trauma impacting the applicant’s ability to provide instructions for a prolonged period of time, supported by psychological material or in-patient admission
- severe safety concerns requiring special arrangements such as protective measures, witness protection and confidentiality protocol.
- The quality and extent of the legal work undertaken, including
- where a lawyer provides extensive submissions across multiple factors or sections of the legislation
- where a lawyer is required to obtain extensive third-party records for a high complex case
- significant legal research to establish eligibility due to complex factual or legal issues.
- The barriers to engagement experienced by the victim
- relevant requests should outline that without legal support the applicant may face structural barriers from accessing FAS assistance (e.g. due to age or limited access to technology)
- The value and relevance of the legal services in progressing the application
- this can include whether the lawyer undertook work outside the standard scope of the application, such as where multiple changes were requested by the applicant, re-allocation of fund requests etc)
- interstate or international considerations requiring coordination with foreign or government entities
The above are examples of factors that the FAS may consider when determining payment above the standard amount of legal costs.
Costs must be supported by evidence, clearly linked to advancing the application and proportionate to the complexity of the matter.
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