The following procedure should be followed in relation to costs under section 47:

• check costs are reasonable and relate to the grant of legal aid
• before agreeing to pay the costs of the successful party under s47, Legal Aid NSW officers must examine the legal practitioner's account of costs and disbursements including counsel's fees to ascertain:
  • o whether they consider the account to be reasonable, and
  • o that all costs, disbursements and counsel's fees relate to work after the date of the grant of legal aid.
• if an agreement cannot be reached as to whether the account is reasonable, the bill of costs will need to be assessed.

10.4.1 s36(1)(b) contribution paid to successful party

Before making any payments under s47 of the Act, Legal Aid NSW must ascertain whether any contribution assessed under s36(1)(b) of the Act has been paid to the successful party. If the contribution has been paid, Legal Aid NSW officer must pay the successful party the balance of costs up to the monetary limit.

10.4.2 Contribution outstanding

If the contribution is still outstanding, Legal Aid NSW must attempt to recover the contribution from the legally assisted person before paying the successful party.

10.4.3 What if a legally assisted person fails to pay a contribution

If the legally assisted person fails to pay the contribution, Legal Aid NSW is obliged to pay the full amount due to the successful party without any deduction for the outstanding contribution.

10.4.4 Recovery of contribution

The outstanding contribution will have to be recovered from the legally assisted person under s36(3) of the Act.

See Contributions chapter for information on collecting contributions.

10.4.5 Who do you pay?

Where a s47 payment is made, the cheque must be drawn in favour of the party in whose name the court made the order for costs and forwarded to their legal practitioner.

The cheque is not to be made payable to the successful party's legal practitioner unless there is an authority to that effect.

The exception is when a successful party is also legally assisted. In such cases the procedure below is to be followed.

If the successful party's legal practitoner is unknown

If the identity of the successful party's legal practitioner is not known the cheque may be forwarded to the legally assisted person's legal practitioner with instructions to forward the cheque to the successful party.

If the successful party is also legally assisted

Where the successful party to the proceedings is also legally assisted:

• appropriate journal entries are to be made instead of drawing a cheque in favour of the successful party
• the date of the grant of legal aid to the unsuccessful legally assisted person is the appropriate date for calculating the amount payable by Legal Aid NSW under s47 of the Act.

Date Last Published: 23/04/2007
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