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17. Costs and Fees

17.7. Deferring payment of costs to private legal practitioners

Under s43A(1) of the Act, Legal Aid NSW may postpone paying fees and disbursements to private legal practitioners until:

  • party/party costs are recovered, or
  • an official investigation into the conduct of the private practitioner is concluded: s43A(1)(b).

17.7.1 Deferring costs until party/party costs recovered

Legal Aid NSW may postpone paying fees and disbursements to a private legal practitioner for a matter where legal aid was granted until Legal Aid NSW is satisfied that the practitioner has taken all reasonable steps to recover any party/party costs to which the legally assisted person is entitled.

17.7.2 Deferring costs until the conclusion of an official investigation

Under s43A(1)(b) of the Act, Legal Aid NSW may postpone paying fees and disbursements to a private legal practitioner for a matter were legal aid was granted, until the conclusion of any official investigation into the conduct of a legal practitioner about allegations of:

  • breach of the Legal Aid Commission Act or the Legal Aid Commission Regulation by the legal practitioner
  • fraud or misrepresentation by the legal practitioner about the provision of legal aid or any such fraud or misrepresentation to which the practitioner is a party, or
  • improper action by the legal practitioner in bringing, defending or conducting any proceedings for which legal aid has been granted or any such action to which the legal practitioner is a party.

17.7.3 What is an official investigation?

Under s43A(1A) of the Act, an official investigation includes:

  • an investigation conducted by or under the authority of Legal Aid NSW where Legal Aid NSW has given written notice to the legal practitioner that the investigation is to be or is being conducted under s43A(1)(b) of the Act, or
  • criminal or disciplinary proceedings commenced against the practitioner in relation to any of the allegations set out in 17.7.2 above.

17.7.4 When is a legal practitioner party to fraud or improper action?

A private legal practitioner may be a party to a:

  • fraud
  • misrepresentation, or
  • improper action

if the practitioner:

  • becomes aware of any fraud, misrepresentation or improper action, and
  • fails to notify Legal Aid NSW promptly of that fact.

The fraud or improper action must relate to a grant of legal aid and include an allegation set out in section 17.7.2 above.

17.7.5 Payment of which costs can be deferred?

The power to defer paying fees and disbursements to a private legal practitioner relates only to costs incurred in the matter which is the subject of the investigation.

It does not relate to other work that the legal practitioner may have been assigned by Legal Aid NSW.

17.7.6 Who may defer the payment of fees?

Legal Aid NSW officers authorised under the Delegation Instrument can defer paying a private legal practitioner fees and disbursements until:

  • party/party costs are recovered,or
  • until the conclusion of any
    • official investigation by Legal Aid NSW, or
    • any criminal proceedings, or
    • disciplinary proceedings concerning allegations set out in 17.7.2 above.

Date Last Published: 21/12/2016