No stateable case opinions

The following paragraph prescribes a fee for a no stateable case opinion where certain circumstances exist:

  • Paragraph 11 of Part 2, Chapters 1 and 2

Opinion where, in the circumstance mentioned in paragraph 11F of the notes on the operation of schedule 2, counsel concludes that there is no stateable case

This fee is payable within a range of fees depending on the status of counsel.

It is only payable where the criteria under Paragraph 11F have been met.

This states:

“A fee is to be allowed to counsel for an opinion concluding that there is no stateable appeal case only if—

  1. the counsel who prepared the opinion did not represent the assisted person at the trial; and
  2. the Board, or as the case may be the auditor, is satisfied that it would not have been possible, or would not have been reasonable, in the circumstances for the counsel who represented the assisted person at the trial to have prepared the opinion.”.

Where a fee is charged under this paragraph we must be satisfied that:

  • counsel proving the opinion was not the trial counsel; and
  • trial counsel could not reasonable have prepared the opinion.

Where we are satisfied that both criteria have been met we must allow a fee within this range.

For example, where an appeal against conviction is based on defective representation (an ‘Anderson’ appeal) it may be reasonable to consider a fee under this paragraph.

If we are not satisfied the criteria has been met we must allow a reasonable fee having regard to the relevant prescribed fees elsewhere within the Table of Fees and ask you to provide further information in support of the claim.

Paragraph 8 of the notes on the operation states:

“Where counsel is seeking a higher fee within the range under paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 1, paragraph 2(a), (d), 3(a), (b), (e), 4(b), 6(d), (e), or 11 (written work) of Chapter 1 or 2 of Part 2, or paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 3, he or she will need to justify this by reference to either or both of the following factors:—

  1. the content rather than the length of the document; and
  2. the amount of documentation necessarily referred to”.

Where a higher fee within the range is charged we must be satisfied that the fee is reasonable having regard to these factors before we pay the fee.

Where a claim is made under this paragraph you may either provide us with a copy of the document, or a supporting narrative justifying the claim made with reference to these factors.

Where we are not satisfied we must allow a reasonable fee within the range and ask you to provide further information in support of the claim

Travel, accommodation and subsistence
Preparation

In this section

Schedule 2, Fees Payable Part 2 (Appeal Court)

General issues in appeals

Guidance on general issues with fees for counsel in appeals

Schedule 2, Fees Payable Part 2 (Appeal Court)

Appeals against sentence

Guidance on fees for work undertaken in relation to an appeal against sentence

Schedule 2, Fees Payable Part 2 (Appeal Court)

Appeals by way of bills of suspension, bill of advocation or stated case

Guidance on fees for work undertaken in relation to an appeal by way of Bill of Suspension, Bill of Advocation or Stated Case

Schedule 2, Fees Payable Part 2 (Appeal Court)

Appeals against conviction or conviction and sentence

Guidance on fees for work undertaken in relation to an appeal against conviction or conviction and sentence

Schedule 2, Fees Payable Part 2 (Appeal Court)

Appeals before a full bench (five or more judges)

Guidance on fees for work undertaken in relation to hearings before five or more judges in High Court when it is sitting as an appeal court

Schedule 2, Fees Payable Part 2 (Appeal Court)

Bail appeals or interim liberation applications

Guidance on fees for bail appeals and interim liberation applications

Schedule 2, Fees Payable Part 2 (Appeal Court)

Hearings, opinions and written submissions in other appeal proceedings

Guidance on fees for a range of other appeal hearings, together with the fee for any related opinion or written submissions

Schedule 2, Fees Payable Part 2 (Appeal Court)

Advising hearings

Guidance on fees for any advising hearing held subsequent to the court making avizandum

Schedule 2, Fees Payable Part 2 (Appeal Court)

Written work in other appeal proceedings

Guidance on fees for a number of items of written work which may be payable in addition to a hearing fee.

Schedule 2, Fees Payable Part 2 (Appeal Court)

Consultations

Guidance on fees for consultations

Schedule 2, Fees Payable Part 2 (Appeal Court)

Travel, accommodation and subsistence

Guidance on supplementary fees payable for travel

Schedule 2, Fees Payable Part 2 (Appeal Court)

Preparation

Guidance on fees payable under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees

Schedule 2, Fees Payable Part 2 (Appeal Court)

Assessed fees where there is no prescribed fee

Guidance on paying fees where there is no prescribed fee

Schedule 2, Fees Payable Part 2 (Appeal Court)

Extradition proceedings

Guidance explaining there are no prescribed fees for extradition proceedings