Print Chapter Print Section View History

17. Costs and Fees

17.8. When can Legal Aid NSW refuse to pay a legal practitioner's fees

Under s43A(2) of the Act Legal Aid NSW may refuse to pay any fees to a private legal practitioner for proceedings where legal aid has been granted, if:

  • any allegation referred to in s43(1)(b) of the Act against the practitioner is substantiated in any criminal or disciplinary proceedings.

This power is in addition to any other power Legal Aid NSW has to refuse to pay fees of a private legal practitioner.

17.8.1 What fees are included?

Under s43A(1)  the Act, the power of Legal Aid NSW to refuse to pay fees to a private legal practitioner relates only to fees in the legally aided matter which is the subject of the investigation (or criminal or disciplinary proceedings).

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

17.8.2 Who can determine not to pay a legal practitioner fees?

Legal Aid NSW officers authorised under the Delegation Instrument can determine to decline to pay the legal practitioners fees under s43A(2) of the Act.

17.8.3 Court may order private practitioner to repay costs to Legal Aid NSW

Under s43B(1)  of the Act a court or tribunal may order a private legal practitioner to repay to Legal Aid NSW the whole, or part, of any money paid by Legal Aid NSW to the practitioner.

17.8.4 When can an order be made?

An order under s43B(1)  of the Act can be made against a private legal practitioner when an allegation under s43A(1)(b)(i) or (ii) is substantiated in any criminal or disciplinary proceedings relating to those allegations.

17.8.5 What money can be ordered to be repaid?

Under s43B(2)  of the Act the court can order that any money paid by Legal Aid NSW to the legal practitioner in a matter:

  • for which legal aid has been granted, and
  • to which the allegation relates

is to be repaid to Legal Aid NSW.

17.8.6 Which court/tribunal can make the order?

Under s43(2) of the Act Legal Aid NSW can make an application to the court or tribunal that:

  • is hearing, or
  • has heard

any proceedings in relation to the matter which is the subject of the application, or

  • any other court of competent jurisdiction.

An application can only be made to a court or tribunal that has the power to award costs.


17.8.7 When can Legal Aid NSW make an application?

Under s43(2)  of the Act the application can be made either:

  • during, or
  • after the conclusion of

the legally aided proceedings.


17.8.8 Who can approve an application to the court/tribunal?

Legal Aid NSW officers authorised under the Delegation Instrument can make an application under s43B(2) of the Act.


Date Last Published: 21/12/2016