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Policies

11. Contributions

11.3. What is a final contribution?

A final contribution 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 or retain an interest in property or money, and/or
  • costs have been awarded in favour of the legally aided person.

See Contributions Policy 11.3.3 for calculating the contribution where a person owns real property.

See Contributions Policy 11.3.4 for calculating the contribution where a person’s financial circumstances have changed.

See Contributions Policy 11.3.5 for calculating the contribution where a person recovers or retains an interest in property or money.

See Contributions Policy 11.3.4 for calculating the contribution where costs have been awarded in favour of the legally aided person.

11.3.1   When are final contributions to be determined?

Legal Aid NSW will make a determination under s46 of the Act:

  • at, or after the conclusion of the proceedings, or
  • if legal aid is terminated during the course of the matter, at or after the termination.

See Contributions Guideline 5.5 on making a determination under s46 of the Act.

11.3.2  When should a legally aided person be notified that a final contribution 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 s46 of the Act will made at the end of the grant of aid and that the client may be required to make a contribution under s46 of the Act.

11.3.3  Calculating a final contribution where the legally aided person owns real property

Where the legally aided person owns real property, unless it is an exempted matter, Legal Aid NSW will determine that the final contribution amount payable will be equal to the total costs and expense of providing the legal service.

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

Note: This policy does not apply to grants of aid made prior to 1 June 2015 where a charge was not required as a condition of the grant.

See Contributions Guideline 5.5.1 for calculating a contribution where a person owns real property.

11.3.4 Calculating a final contribution 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 Section 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: Only where the calculated amount equals the total costs and expense of providing the legal service, and the legally aided person has paid an initial contribution, can this amount be deducted from the final calculated contribution.

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

See Contributions Guideline 5.5.2 for guidance on calculating a contribution where the person’s financial circumstances have changed.

11.3.5 Calculating a final contribution where the legally aided person recovers or retains an interest in property or money

Where Legal Aid NSW is satisfied that the legally aided person has recovered or retained an interest in property or money as an outcome of their legally aided matter, Legal Aid NSW will determine that the final contribution amount payable will be equal to the total costs and expense of providing the legal service.

In these circumstances Legal Aid NSW will secure the final contribution by:

  • deducting the calculated amount from any monies recovered, or
  • where a charge has been provided, the calculated amount will 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.

See Contributions Guideline 5.5.3 on calculating the contribution amount.
See Contributions Guideline 5.4 on securing a charge and lodging caveats.

11.3.6 Calculating the final contribution where legal aid is terminated

When calculating the final contribution amount 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 final contribution amount payable will be equal to the total costs and expense of providing the legal service.
In all other circumstances, Legal Aid NSW will impose a final contribution in accordance with Contributions Policy 11.3.3 or 11.3.4.

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

See Contributions Guideline 5.5.5 on collecting contributions when legal aid is terminated.

11.3.7  Calculating the final contribution 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 final contribution

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
    - the legally aided person has retained an interest in property or money, or
    - Legal Aid NSW is satisfied the legally aided person’s financial circumstances have and changed.

See Contributions Policy 11.3.1 where the legally aided person owns real property and the final contribution amount has been secured by way of an equitable charge over the real property.
See Contributions Policy 11.3.4 for calculating the contribution amount where a legally aided person has retained an interest in property or money.
See Contributions Policy 11.3.3 for calculating the contribution amount where a legally aided person’s financial circumstances have changed.

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 s45 of the Act.

See Contributions Guideline 5.9 for guidance on how and when an assignment of the right of the legally aided person to recover such monies should be sought.


11.3.8 Notifying the legally aided person that a final contribution amount 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.

11.3.9 Right to have costs of private lawyer assessed

Where a legally aided person is required to pay a final contribution, they are entitled to have the costs of a private lawyer assessed or taxed.

See Contributions Guideline 5.7 on having the legally aided person's costs assessed.


11.3.10 Can a final contribution be varied?

A final contribution 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.

In all other circumstances the following applies:

Reducing the contribution amount at the time of calculating the contribution

Legal Aid NSW will only consider reducing the contribution amount at the time of calculating the contribution, where Legal Aid NSW is satisfied that:

  • it is in the commercial interests of Legal Aid NSW to reduce the calculated contribution amount, or
  • where Legal Aid NSW is satisfied it is a public interest coronial inquest matter or Legal Aid NSW is satisfied the matter has been conducted in the public interest and the legally aided person will not derive any personal or financial benefit from the proceedings.

See Contributions Guideline 5.8.1 on what may be taken into consideration when reducing the calculated contribution in these circumstances.

Note: There is no discretion to reduce the final contribution amount at the time the contribution is being calculated where the legally aided person owns real property and the final contribution amount has been secured with an equitable charge over the real property unless it is an exempted matter.

Reducing the calculated contribution amount after it has been imposed

Once a final contribution has been imposed, it can only be reduced if Legal Aid NSW is satisfied there are exceptional circumstances.

See Contributions Guideline 5.8.2 on applying the exceptional circumstances test.

See Contributions Guideline 5.8.3 on applying the Objective Test and the test where Legal Aid NSW is satisfied there are extremely exceptional circumstances.

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

Note: only an Executive Director has the delegation to reduce the final contribitions where Legal Aid NSW is satisfied there are extremely exceptional circumstances.


11.3.11 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 5.10 on refunding a final contribution.

11.3.12 Can a legally aided person appeal to the Legal Aid Review Committee against the amount of a final contribution

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


Date Last Published: 23/12/2016

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