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Guidelines

5. Contributions

5.5. Calculating the contribution to legal costs

A section 46 determination must be made in every matter. The contribution to legal costs imposed will be nil unless the legally aided person falls into any of the categories below.

5.5.1 Where a 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:

  • where the legally aided person owns real property.

Note: The total costs and expenses will include costs incurred under s.33 of the Act. Any initial contribution paid will be subtracted from the total amount.

Note: This guideline does not apply to grants of aid made prior to 1 June 2015.

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 contribution.


5.5.2 Where a legally aided person’s financial circumstances have changed

Where Legal Aid NSW is aware the legally aided person’s financial circumstances have changed at the time of making the s.46 determination, the officer making the determination must request an updated financial statement from the legally aided person.

This might happen where a legally aided person, for example:

  • returns to work
  • receives a tax return
  • receives inheritance
  • has confiscated assets returned
  • wins money, or
  • receives a compensation pay out (not related to the grant of aid)

Once an updated financial statement is received, the final contribution must be calculated using the final contribution scale.

Note: this guideline does not apply to veteran 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.

5.5.3 When 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

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

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.

Where a legally aided 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.

How will Legal Aid NSW calculate 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.

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 contribution.


5.5.4 When a legally aided person recovers or retains an interest in real property

Where a legally aided person recovers or retains an interest in real property, the contribution to legal costs payable will be equal to total costs and expense of providing the legal service.

Note: Where a legally aided person owns real property they must give a charge to secure the total costs of providing the legal service as a condition of the grant of legal aid.

Note: Where a charge is not taken as a condition of the grant, and the legally aided person is unable to pay the total costs of providing the legal services, a charge must be taken over the property to secure the contribution amount.

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.

5.5.5 When costs are awarded to the legally aided person

Where costs are awarded in favour of the legally aided person, those costs will be paid to Legal Aid NSW.

The contribution amount must be calculated and the legally aided person advised of the final contribution amount.

In calculating the final contribution amount Legal Aid NSW will also take into account whether:

If there is a shortfall between the amount of costs awarded and the contribution amount, the legally aided person will be required to pay the difference in accordance with either  Contributions Guideline 5.5.1, 5.5.2, 5.5.3 or 5.5.4.

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

5.5.6 When legal aid is terminated

Where legal aid is terminated, in calculating the contribution amount Legal Aid NSW will take into account whether:


Inhouse matters

Where legal aid is terminated because the legally aided person has decided to be privately represented, the inhouse lawyer must seek an undertaking from the private lawyer before transferring the file, to protect the final contribution amount where it is likely the person will recover an interest in property or money and the contribution is not secured by way of charge.

Assigned matters

Where legal aid is terminated because the legally aided person has decided to be privately represented, the Grants Division must seek an undertaking from the private lawyer to protect the final contribution amount where it is likely the person will recover an interest in property or money and the contribution is not secured by way of charge.

Date Last Published: 01/07/2019

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