6.2 Contributions Policy

Legal Aid NSW has the power to determine an initial contribution amount and a contribution to legal costs.

Legal Aid NSW imposes an initial contribution in most legally aided matters. Initial contributions are not voluntary and payment of the contribution is a condition of the grant of legal aid. This means a legally aided person must pay the contribution amount imposed unless it has been waived. The power to determine an initial contribution is under s 36 of the Legal Aid Commission Act 1979 (NSW). The initial contribution is based on a person’s income and assets at the time legal aid is granted.

Initial contributions are payments that go towards the costs of providing the legal service to the legally aided client. It is important that we collect contributions from clients who can afford to pay. Initial contributions are an integral part of the revenue of Legal Aid NSW, and as such, ensure we can continue to provide legal representation to socially and economically disadvantaged people across New South Wales.

All legally aided persons need to be aware at the time aid is granted that the initial contribution must be paid, unless it has been waived.

Legal Aid NSW must make a determination under s 46 of the Legal Aid Commission Act 1979 (NSW) in every matter. This is called a contribution to legal costs. These contributions are imposed either at the end of a matter or if legal aid is terminated.

Legal Aid NSW also has the power to defray expenses incurred under s 33 of the Legal Aid Commission Act 1979 (NSW).

6.2.1.1 - Initial contribution calculated by the Means Test

Initial contributions are calculated using the Means Test.

The Means Test:

• assesses whether an applicant qualifies for legal aid and, if so,
• the amount of contribution they will be required to pay.

See Means Test policy 1.4.7.3 Income contribution for scale on calculating contribution on the applicant’s net assessable income.

See Means Test 1.4.7.4 Assets contribution for scale on calculating contributions on the applicant’s net assessable assets.

See also Contributions guideline 6.1.

6.2.1.2 - Exercising a discretion under the Means Test to vary the initial contribution

Legal Aid NSW can exercise discretion to vary the initial contribution amount by increasing or reducing the amount calculated under the Means Test at the time legal aid is granted.

See Means Test policy 1.4.9.1  Income exceeds the maximum threshold by up to 10%.

See Means Test policy 1.4.9.2  Income exceeds the maximum threshold by over 10%.

See Means Test policy 1.4.9.3 Contribution exceeds the allowable amount for the type of matter (cost of proceedings).

See Contributions guideline 6.1.5 My client can't pay the initial contribution.

See Contributions guideline 6.1.6 What payment methods are available on payment methods available.

6.2.1.3 - Once imposed, can an initial contribution be reduced?

Legal Aid NSW can exercise discretion to vary the initial contribution amount by increasing or reducing the amount calculated under the Means Test at the time legal aid is granted.

See Means Test policy 1.4.9.1  Income exceeds the maximum threshold by up to 10%.

See Means Test policy 1.4.9.2  Income exceeds the maximum threshold by over 10%.

See Means Test policy 1.4.9.3 Contribution exceeds the allowable amount for the type of matter (cost of proceedings).

See Contributions guideline 6.1.5 My client can't pay the initial contribution.

See Contributions guideline 6.1.6 What payment methods are available on payment methods available.

6.2.1.4 - Once imposed can an initial contribution be increased?

Once imposed an initial contribution can be increased in circumstances where Legal Aid NSW is satisfied the legally aided person’s financial circumstances have changed.

See Means Test policy 1.4.7.3 Income contribution for scale on calculating contribution on the applicant’s net assessable income.

See Means Test policy 1.4.7.4 Assets contribution for scale on calculating contributions on the applicant’s net assessable assets.

6.2.1.5 - Can a legally aided person appeal against an initial contribution?

A legally aided person can appeal to the Legal Aid Review Committee (LARC) against the amount of the initial contribution imposed except in Local Court criminal matters.

There is no right of appeal to LARC against the decision to impose an initial contribution or the amount of the contribution in Local Court criminal matters.

For all other appeals see Policy on Legal Aid Review Committee Appeals.

See Contributions Guideline 6.2 on exercising discretion to reduce or waive an initial contribution.

6.2.1.6 - Can initial contributions be refunded?

The only time a legally aided person will be entitled to a refund is where the contribution amount paid exceeds the costs and expense of providing the legal service (calculated at the appropriate Legal Aid fee scale).

The refund amount will be the difference between the amount that has been paid and the costs of providing the legal service.

Note: the minimum $75 contribution will never be refunded.

What if the client pleads guilty in a Local Court defended matter?

Where a legally aided person has paid a minimum contribution for a Local Court defended hearing and subsequently pleads guilty, that client will not be entitled to have the contribution refunded.

6.2.1.7 - Can legal aid be terminated for failure to pay the initial contribution?

A contribution is a condition of the grant of legal aid.

Legal aid will only be terminated where the legally aided person fails to pay an assessed initial contribution amount of $1000 or more.

See Termination Policy on terminating legal aid where a legally aided person fails to pay the initial contribution.

Under s 34B of the Legal Aid Commission Act 1979 (NSW), Legal Aid NSW has the power to require a legally aided person to provide security for the costs of providing the legal service by requesting an equitable charge over real property.

A legally aided person will be required to give a charge over real property as a condition of the grant of legal aid:

• where a legally aided person owns real property, and
• the legal dispute is about the property, or
• the value of the property is $200,000 or more, and
• it is an expensive matter – this includes family law court proceedings, criminal indictable matters including EAGP, trials and higher court appeals, and higher court civil proceedings.

to secure the total costs and expense of providing the legal service determined under s 46 of the Legal Aid Commission Act 1979 (NSW), unless it is an exempted matter; see Contributions policy 6.2.5.

See Contributions policy 6.2.3 on contributions to legal costs.

See Contributions guideline 6.4 on securing contributions with a charge over real property.

Note: There is discretion not to take a charge where Legal Aid NSW is satisfied there are exceptional circumstances. Directors have the delegation to exercise this discretion. See Delegation Instrument.

Note: The requirement for the legally aided person to give a charge over real property also applies to any financially associated person. See Means Test policy 1.4.2 Whose means are considered when applying the Means Test? See Means Test policy 1.4.5.2 Assets test in all other matters.

A contribution to legal costs is a determination made under s 46 of the Legal Aid Commission Act 1979 (NSW) (the Act) and is a contribution imposed on a legally aided person at the end of a grant of legal aid.

Legal Aid NSW must make a determination under s 46 of the Act in every matter where a grant of legal aid is made. In deciding whether the legally aided person will be required to pay a final contribution amount and the amount of that contribution, Legal Aid NSW will take into account whether:

• the legally aided person owns real property, unless it is an exempted matter;
• the legally aided person's financial circumstances have changed;
• the legally aided person has or may recover money;
• the legally aided person has or may recover or retain and interest in real property; and/or
• costs have been awarded in favour of the legally aided person.

See Contribution Policy 6.2.3.3 Where a legally aided person owns real property for calculating the contribution where a person owns real property.

See Contribution Policy 6.2.3.4 Where a legally aided person’s financial circumstances have changed for calculating the contribution where a person’s financial circumstances have changed.

See Contribution Policies 6.2.3.5 and 6.2.3.6 for calculating the contribution where a person recovers or retains an interest in property or money.

See Contribution Policy 6.2.3.8 When costs are awarded to the legally aided person for calculating the contribution where costs have been awarded in favour of the legally aided person.

6.2.3.1 - When is the contribution to legal costs to be determined?

A contribution to legal costs is a determination made under s 46 of the Legal Aid Commission Act 1979 (NSW) (the Act) and is a contribution imposed on a legally aided person at the end of a grant of legal aid.

Legal Aid NSW must make a determination under s 46 of the Act in every matter where a grant of legal aid is made. In deciding whether the legally aided person will be required to pay a final contribution amount and the amount of that contribution, Legal Aid NSW will take into account whether:

• the legally aided person owns real property, unless it is an exempted matter: see Contribution policy 6.2.4;
• the legally aided person's financial circumstances have changed;
• the legally aided person has or may recover money;
• the legally aided person has or may recover or retain and interest in real property; and/or
• costs have been awarded in favour of the legally aided person.

6.2.3.2 - When should a legally aided person be notified that a contribution to legal costs determination will be made?

The legally aided person and their lawyer must be advised in writing at the time aid is granted that a determination under s 46 of the Act will be made at the end of the grant of aid and that the client may be required to make a contribution under s 46 of the Act.

6.2.3.3 - Calculating the contribution to legal costs where the legally aided person owns real property

Where the legally aided person owns real property, Legal Aid NSW will determine that the contribution to legal costs will be equal to the total costs and expense of providing the legal service, unless:

• it is an exempted matter (see Contribution policy 6.2.4), or
• Legal Aid NSW has determined not to take a charge.

Note: The total costs and expenses will include costs incurred under s 33 of the Act.

See Contributions Guideline 6.5.1

6.2.3.4 - Calculating the contribution to legal costs where the legally aided person's financial circumstances have changed

Where Legal Aid NSW is satisfied the legally aided person's financial circumstances have changed, when calculating the amount of the final contribution, Legal Aid NSW will:

• request an updated Financial Statement;
• assess the amount of final contribution to be paid using the s 46 Contribution Scale.

Note: This policy does not apply to matters under Part II of the Veterans' Entitlements Act 1988 (Cth) or under the Military Rehabilitation and Compensation Act 2004 (Cth) where the means test is not applied.

Note: The total costs and expenses will include costs incurred under s 33 of the Act.

See also Contributions Guideline 6.5.2

Note: There is discretion to reduce the contribution to legal cost where Legal Aid NSW is satisfied there are exceptional circumstances. Only Directors have the delegation to reduce the final contribution.

6.2.3.5 - Calculating the contribution to legal costs where the legally aided person recovers money

Where a legally aided person recovers money, the contribution to legal costs payable will be equal to total costs and expense of providing the legal service, subject to the following exceptions:

Family Law property settlement proceedings

Where legal aid is granted for Family Law property settlement proceedings, the total costs and expense of providing the legal service will be imposed on any settlement monies received that is more than $30,000.

Centrelink and Child Support back payments

Legal Aid NSW will not take into account any money received by way of back payment in social security matters or lump sum amounts received in child support matters when calculating the contribution to legal costs.

All other legally aided matters

• Where a person recovers $5,000 or less: Legal Aid NSW will not take into account any money recovered up to $5,000 when calculating the contribution to legal costs.

• Where a person recovers more than $5,000: The total costs of providing the legal service will be imposed on any amount recovered over $5,000.

6.2.3.6 - Calculating the contribution to legal costs where the legally aided person retains or recovers an interest in real property

Where Legal Aid NSW is satisfied that the legally aided person has recovered or retained an interest in real property, the contribution to legal costs payable will be equal to the total costs and expense of providing the legal service.

The calculated amount can be secured by a charge and registered caveat against the real property.

Any initial contribution that has been paid by the legally aided person will be deducted from the final amount calculated under s46 of the Act.

Note: The total costs and expenses will include costs incurred under s 33 of the Act.

6.2.3.7 - Calculating the contribution to legal costs where legal aid is terminated

When calculating the contribution to legal costs where:

• legal aid is terminated prior to the conclusion of proceedings, and
• there is a possibility that the legally aided person may recover or retain an interest in property or money

Legal Aid NSW will determine that the contribution to legal costs will be equal to the total costs and expense of providing the legal service.

In all other circumstances, Legal Aid NSW will impose the contribution in accordance with Contributions Policies 6.2.3.4-6.

Note: The total costs and expenses will include costs incurred under s 33 of the Act.

See Contributions guideline 6.5.6 on collecting contributions when legal aid is terminated.

6.2.3.8 - Calculating the contribution to legal cost where costs are awarded to the legally aided person

Where costs are awarded by a court or tribunal in favour of the legally aided person all of these costs must be paid directly to Legal Aid NSW. The lawyer representing the legally aided person is responsible for recovering costs awarded to the legally aided person.

Calculating the contribution to legal costs

Where the legally aided person is awarded costs by a court or tribunal, or if the terms of settlement include costs payable to the legally aided person, when calculating the final contribution amount, Legal Aid NSW will take into account:

• the amount of costs awarded to the legally aided person and recovered by Legal Aid NSW, and

whether:

• the total costs and expense of providing the legal service are secured by way of charge/ caveat over real property, or
• Legal Aid NSW is satisfied the legally aided person’s financial circumstances have and changed, or
• the legally aided person has recovered money, or
• the legally aided person has retained or recovered an interest in real property.

See Contributions Guideline 6.5.1 where the legally aided person owns real property and the final contribution amount has been secured by way of an equitable charge over the property.

See Contributions Guideline 6.5.2 where a legally aided person’s financial circumstances have changed.

See Contributions Guideline 6.5.3 where a legally aided person has recovered money.

See Contributions Guideline 6.5.4  where a legally aided person has recovered or retained an interest in property.

Note: In circumstances where the legally aided person fails to instruct their lawyer to recover the costs, Legal Aid NSW can obtain an assignment of the right of the legally aided person to recover such monies under s 45 of the Act.

See Contributions Guideline 6.9 Assigning the right to recover costs for guidance on how and when an assignment of the right of the legally aided person to recover such monies should be sought.

6.2.3.9 - Notifying the legally aided person that a contribution to legal costs has been imposed

Legal Aid NSW must notify the legally aided person within a reasonable timeframe that a contribution under s 46 of the Act has been imposed, and:

• set out clearly the total amount  of contribution that must be paid, and
• provide a due date for payment.

Note: The timeframe for payment is forty-two (42) days unless specific arrangements for payment have been entered into between the legally aided person and Legal Aid NSW.

6.2.3.10 - Right to have costs of private lawyer assessed

Legal Aid NSW must notify the legally aided person within a reasonable timeframe that a contribution under s 46 of the Act has been imposed, and:

• set out clearly the total amount  of contribution that must be paid, and
• provide a due date for payment.

Note: The timeframe for payment is forty-two (42) days unless specific arrangements for payment have been entered into between the legally aided person and Legal Aid NSW.

6.2.3.11 - Can a contribution to legal costs be varied?

A contribution to legal costs amount can be varied by a later determination to increase or decrease the calculated amount where Legal Aid NSW is satisfied that the original amount was not imposed in accordance with the Contribution Policy.

The only circumstance in which a contribution amount that has been paid by a legally aided person can be refunded is where the original amount paid was incorrect.

Reducing the calculated contribution amount after it has been imposed

Note: There is discretion to reduce the contribution to legal costs where Legal Aid NSW is satisfied there are exceptional circumstances. Only Directors have the delegation to reduce the contribution to legal costs.

Note: A contribution to legal costs can only be varied (either by reducing or increasing the amount) up to six months after it has been imposed.

6.2.3.12 - Can a contribution amount be refunded once it has been paid?

The only circumstance in which a contribution amount that has been paid by a legally aided person can be refunded is where the original amount paid was incorrect.

Section 64 of the Act sets out the circumstances in which money can be paid out of the Legal Aid Fund. These provisions do not cover payments to a legally aided person unless it is money owed under s 44 of the Act.  As such the power to make payments from the Legal Aid Fund is limited by s 64 of the Act.

See Contributions Guideline 6.10 Refunding a contribution to legal costs.

6.2.3.13 - Can a legally aided person appeal to the Legal Aid Review Committee against the amount of a contribution to legal costs

There is no right of appeal to the Legal Aid Review Committee against the decision to impose a contribution to legal costs or the amount of the contribution.

Date last published: 11 March 2024

These are matters that are exempted from an initial contribution imposed under s.36(1)(a) of the Legal Aid Commission Act 1979.

Criminal

• Local Court criminal duty matters,
• Legal Aid NSW criminal law advice,
• Drug Court matters,
• First appearance bail applications in Local Court criminal matters,
• Children in the Children's Court criminal matters,
• Legal Aid NSW criminal law duty service,
• Protected person in apprehended domestic violence orders,
• Supreme Court bail applications, 
• Representation provided by the Prisoners' Legal Service, and
• Criminal Law matters where the Means Test does not apply.

Family

• Legal Aid NSW family law legal advice service,
• Family Law Duty Service,
• Family Law Care and Protection Duty Service,
• Children in Children’s Court matters,
• Children in appeals to the District Court in care matters,
• Children involved in family law proceedings where an order for separate representation is made under s.68L of the Family Law Act 1975,
• Children in NCAT and appeals in the Supreme Court,
• Family Dispute Resolution conference,
• Proceedings under the Children and Young Persons (Care and Protection) Act 1998, 
• Child support matters, and
• Family Law matters where the Means Test does not appy.

Civil

• Legal Aid NSW civil law advice service,
• Some matters where the applicant is the subject of proceedings in Mental Health Advocacy Service matters (including Guardianship matters),
• Matters under Part 11 of the Veterans' Entitlements Act 1988 (Cth) and under the Military Rehabilitation and Compensation Act 2004 (Cth),
• Coronial Inquest matters, 
• Migration matters that fall within the scope of Civil policy 4.14.5 Visa applications and representation in the AAT (Migration and Refugee Division), and
• Civil Law matters where the Means Test does not apply.