Legal Aid NSW Policy Online
Document Type: Policy
Chapter:2. Legal Aid Commission Act


2.1. Introduction

The Legal Aid Commission Act 1979 (NSW) (the Act) governs the functions and responsibilities of the Legal Aid Commission of New South Wales (Legal Aid NSW) and the way in which it delivers legal aid. All Commission officers who have responsibility for administering and granting legal aid or for representing legally assisted persons need to be familiar with the main provisions of the Act.

The Act has been amended from time to time to reflect changed priorities and in response to difficulties which have been identified. This chapter refers to some of these changes where they help to understand the effect of particular provisions. The full text of each section has been given for easy reference. In addition there are references to case law and Legal Aid NSWs policies that relate to specific sections.

References in this chapter to ‘the Act' are to the Legal Aid Commission Act 1979 (NSW).




Date Last Published: 29/05/2009

2.2. Part 1 - Preliminary

2.2.1 Section 4 - Definitions

“(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

Australian Legal Aid Office means that part of the Community Affairs Division of the Attorney-General's Department of the Commonwealth that is designated the Australian Legal Aid Office and that operates in New South Wales.

de facto partner of a person means the other party to a de facto relationship, within the meaning of the Property (Relationships) Act 1984 (NSW), with the person.

legal aid means legal aid under this Act and includes, in relation to a person who is a patient within the meaning of the Mental Health Act 2007 (NSW), aid provided to the patient in respect of any matter, whether of a legal nature or not.

legally assisted person means a person to whom legal aid is provided.

practising certificate means a practising certificate issued under Part 2.4 of the Legal Profession Act 2004 (NSW)

private legal practitioner means a person who is practising in New South Wales:

(a) as a barrister on his or her own account, or

(b) as a solicitor, whether on his or her own account or in partnership or as an associate or employee of another solicitor, and includes a body, whether incorporated or unincorporated, which provides community legal services.

(2) A reference in this Act to the exercise of a function includes, where that function is a duty, the performance of that duty”.




Date Last Published: 29/05/2009

2.3. Part 2 - Constitution and management of Legal Aid Commission

2.3.2 Section 6

“(1) There is hereby constituted a corporation under the corporate name of the “Legal Aid Commission of New South Wales”.

(3) The Commission is, for the purposes of any Act, a statutory body representing the Crown.

Commentary

The status of Legal Aid NSW as a statutory corporation representing the Crown means Legal Aid NSW can sue and be sued.

As a statutory corporation Legal Aid NSW can only perform functions assigned to it under the Act or other legislation.

If proceedings are:

the recepient is to notify the Commission SolicItor Legal Policy Branch. Back to top

2.3.3 Sections 7–9

(Repealed)


2.3.5 Section 10 - Functions of the Commission

“(1) The principal function of the Commission is to provide legal aid and other legal services in accordance with this Act.

(2) The Commission in the exercise of its principal function may:

(a) determine:

(i) the persons or classes of persons in respect of whom legal aid may be granted, and

(ii) the matters or classes of matters in respect of which legal aid may be granted,

(b) determine priorities in the provision of legal aid as between:

(i) different persons or different classes of persons, and

(ii) different matters or different classes of matters,

(c) (Repealed)

(d) specify principles, including the imposition of means tests, to be applied in determining applications for legal aid,

(e) specify the circumstances, if any, in which contributions shall be paid by legally assisted persons and the means of calculating any such contributions,

(f) establish and conduct such local offices as it considers appropriate,

(g) liaise and co-operate with persons engaged or interested in the provision, in New South Wales or elsewhere, of legal aid otherwise than under this Act,

(g1) (Repealed)

(h) give assistance and make grants, on such terms and conditions as it thinks fit, to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid,

(i) enter into agreements for the provision of legal aid to citizens of New South Wales in proceedings outside New South Wales with bodies which exercise, outside New South Wales, functions similar to those of the Commission,

(j) bring to the attention of the public, by publishing advertisements or otherwise, the services provided by the Commission,

(k) collect and publish information in respect of the functions of the Commission and in respect of other schemes of legal aid provided in New South Wales,

(l) undertake research into all aspects of legal aid including the investigation and assessment of different methods of financing and providing legal aid,

(m) initiate and carry out educational programmes designed to promote an understanding by the public, or by sections of the public, of their rights, powers, privileges and duties under the laws of New South Wales, and

(n) make reports and recommendations to the Minister on such matters relating to the functions of the Commission as the Minister requests or as the Commission considers appropriate.

(3) The Commission may exercise such other functions as are conferred or imposed on it by or under this or any other Act.

(4) The Commission may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions

(5) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions.

Note: Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff.

Back to top

Commentary

Section 10 sets out the principal function of Legal Aid NSW, to provide legal aid and other legal services in accordance with this Act.

Developing policies

Section 10 enables Legal Aid NSW to decide the types of matters for which it will grant of legal aid. Legal Aid NSW can develop policies to be applied when make determinations for legal aid including the application of a means test.

Employing staff

Legal Aid NSW cannot employ staff. Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 (NSW) in the Government Service to enable Legal Aid NSW to exercise its functions.

Schedule 1 of that Act means that staff employment conditions are those of the Public Service under Chapter 2 of that Act.

Back to top

2.3.6 Section 11 - Provision of legal aid

“(1) Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means:

(a) by arranging for the services of private legal practitioners to be made available, wholly or partly at the expense of the Commission,

(b) by making available the services of the Chief Executive Officer or members of staff of the Commission, or

(c) by arranging for the services of the Public Defenders to be made available.

(2)Nothing in this Act prevents the Commission from providing, to a patient within the meaning of the Mental Health Act 2007, aid in respect of any matter, whether of a legal nature or not, by arranging for the services of persons approved by the Commission, whether or not those persons are private legal practitioners.

(3)Except as provided by subsection (2), this Act applies to and in respect of the provision of legal aid by a person approved by the Commission under that subsection in the same manner as it applies to and in respect of the provision of legal aid by a private legal practitioner”

Back to top

Commentary

Section 11 allows Legal Aid NSW to provide legal aid by such means as it determines including on either, an in-house basis (or public defender) or by assigning to private legal practitioners.

Back to top

2.3.7 Section 11A - Provision of legal advice only

“To remove any doubt, it is declared that the giving of legal advice to a person constitutes the giving of legal aid if the person is given legal advice and no other form of legal aid. However, Part 3 does not apply to the giving of that advice”.

Back to top

Commentary

Legal advice

Legal advice is privileged but it is not legal aid for the purposes of receiving applications and making grants for assistance under Part 3 of the Act.

Section 11A was inserted to address an observation made by the court in Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, that the provision of advice was not covered by privilege under section 25(1) and (2) of the Act.

Back to top

2.3.8 Section 12 - Duties to be observed in the provision of legal aid

“ In respect of the provision of legal aid, the Commission shall:

(a) ensure that legal aid is provided in the most effective, efficient and economical manner

(b) have regard to the need for legal aid to be readily available and easily accessible to disadvantaged persons throughout New South Wales,

(c) ascertain and keep under review community needs in relation to legal aid,

(d) liaise with professional bodies representing private legal practitioners and, where appropriate, use the services of private legal practitioners in the provision of legal aid,

(e) determine the allocation of legal aid services between the Chief Executive Officer or members of staff of the Commission and private legal practitioners and the principles on which private legal practitioners are to be offered or refused matters on assignment,

(f) ensure, if work is assigned to a private legal practitioner, that the assignment is made in accordance with principles determined from time to time by the Commission and after consideration of the following

(i) the interests of the legally assisted person,

(ii) any choice expressed by the legally assisted person for a particular private legal practitioner

(iii) the fair and reasonable distribution of work among private legal practitioners who are appointed to the relevant panel under Division 2 of Part 3,and that the principles so determined by the Commission are publicly notified or available on request,

(g) ensure, by the assignment of appropriate work, the maintenance of the office of the Public Defenders

(h) ensure the co-ordination of legal aid services and the avoidance of any unnecessary duplication in the provision of legal aid services,

(i) ensure that, except where otherwise expressly provided by this Act, nothing is done by the Commission, the Chief Executive Officer or members of staff of the Commission which may interfere with the relationship between a solicitor acting in the solicitor's professional capacity and the solicitor's client, and

(j) have regard to the desirability of enabling members of staff of the Commission to use and develop their expertise by undertaking, as far as is reasonably practicable, a full range of professional legal work”.

Back to top

Commentary

Section 12 sets out duties which need to be observed in the provision of legal aid, including how policies are developed in relation to allocating legal work between in-house and private legal practitioners.

A number of cases have considered the implications of s12 of the Act as it relates to the assignment of matters and the discretion of Legal Aid NSW when determining applications: See Legal Services Commission v Stephens [1981] 2 NSWLR 697; Milat v Legal Aid Commission (1995) SC 3026/95; Attorney General v Milat (1995) 37 NSWLR 370.

Assigning indictable criminal matters

The Court of Appeal in Legal Services Commission of New South Wales v. Stephens [1981] 2 NSWLR 697 discussed Legal Aid NSW section 12 duties and its policy concerning the allocation of work between in-house legal practitioners.

The Court of Appeal, Street C J, Moffit P, :and Hope J A, held

“Provided due regard is had to all the matters contained in s12 the Commission may validly formulate and act upon general policy guideline.

Accordingly, a general policy determination that the conduct of indictable criminal proceedings in respect of which it granted an application for legal aid pursuant to s34 of the Act, would not, unless there were exceptional circumstances, be assigned to solicitors in private practice unless the Public Solicitor was unable to conduct those proceedings, was not inconsistent with and contrary to the provisions of the Act (particularly s12(f)) and was not invalid”.

This case has confirmed that Legal Aid NSW policy in relation to allocating legal work between in-house and private legal practitioners in indictable criminal matters is not inconsistent with any of the provisions in s12 of the Act.

See Representation chapter for Legal Aid NSW policies on allocating legal work in criminal matters between in-house and private legal practitioners.

See Criminal Practice Direction for officers authorised to assign criminal indictable matters.

Can a legal aid applicant request a specific private legal practitioner?

Legal Aid NSW has developed policies in relation to allocating work between in-house and private legal practitioners for criminal, civil and family law matters. Legal Aid NSW, in developing its policy has considered s12 of the Act in detail.

Section 12(f)(ii) of the Act does not automatically entitle an applicant to the legal practitioner of their choice: see Legal Services Commission v Stephens [1981] 2 NSWLR 697.

See Representation chapter for Legal Aid NSW policy on allocating and assigning legal work between in-house legal practitioners and private legal practitioners.

Remuneration in matters assigned to private legal practitioners

In Attorney General v Milat (1995) 37 NSWLR 370 the Court of Appeal unanimously set aside Hunt J's orders which demanded Legal Aid NSW reconsider its scale of fees for experienced counsel and held it was inconsistent with Dietrich for trial judges to

“embark upon a detailed exercise of assessing the relative degrees of competence and experience potentially available to act for an accused person. …the principle in Dietrich turns upon whether legal representation is unavailable to an indigent accused…it does not concern an accused person's supposed right to competent counsel…”

The Court of Appeal decision confirmed the power of Legal Aid NSW to determine the scale of fees paid to private legal practitioners for legal aid work.

Can a grant of aid be conditional on Legal Aid NSW nominating a legal practitioner?

The decision of Legal Aid NSW to make a grant conditional on a nominated legal practitioner does not breach subsection 12(f).

See Representation chapter for Legal Aid NSW policies on allocating legal work between in-house and private legal practitioners.

Back to top

2.3.9 Section 13 - Annual report

“(1)The Commission shall, as soon as practicable after 30th June in each year, prepare and forward to the Minister a report of its work and activities for the year ending on that date and shall include in the report a review of all other legal aid services available in New South Wales.

(2)The Minister shall lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after the receipt by the Minister of the report”.

2.3.11 Section 14 - Constitution of Board

“(1)There is to be a Board of the Commission.

(2) The Board is to consist of:

(a) the Chief Executive Officer, and

(b) 9 part-time members, appointed by the Minister, of whom:

(i) one is to be a person appointed as Chairperson of the Board (in and by the instrument of appointment as member or by a subsequent instrument executed by the Minister), and

(ii) one is to be a person nominated by the Bar Association, and

(iii) one is to be a person nominated by the Law Society, and

(iv) one is to be a person nominated by Unions NSW, and

(v) 3 are to be persons who, in the opinion of the Minister, possess skills or experience that would benefit the Board, and

(vi) one is to be a person who, in the opinion of the Minister, represents consumer and community welfare interests, and

(vii) one is to be a person who, in the opinion of the Minister, represents such bodies, whether incorporated or unincorporated, as provide community legal services.

(3) If a nomination for the purposes of subsection (2) (b) (ii), (iii) or (iv) is not received within the time or in the manner specified by the Minister by notice in writing given to the body entitled to make such a nomination, the Minister may appoint any person to be a part-time member of the Board instead of the person required to be appointed on that nomination.

(4) Before appointing a person referred to in subsection (2) (b) (vi) or (vii), the Minister must:

(a) cause to be published such advertisements (inviting applications from persons to apply for appointment as part-time members of the Board) in such form and manner as the Minister directs, and

(b) take into consideration any such applications received by the Minister.

(5) Schedule 2 has effect with respect to the membership of the Board.

(6) Schedule 3 has effect with respect to the procedure of the Board.”

Back to top

Commentary

The make up of the Board of Legal Aid NSW indicates the commitment to diversity of representation on the Board of Legal Aid NSW.

Back to top

2.3.12 Section 15 - Function of Board

“The Board has the function of establishing the broad policies and strategic plans of the Commission”.

2.3.13 Section 16 - Chief Executive Officer

“(1) There is to be a Chief Executive Officer of the Commission.

(2) The Chief Executive Officer is to be appointed by the Minister. The person so appointed may be, but is not required to be, a barrister or solicitor.

(3) The employment of the Chief Executive Officer is subject to Part 2A of the Public Sector Management Act 1988, but is not subject to Part 2 of that Act”.

2.3.14 Section 17 - Functions of Chief Executive Officer

“(1) The Chief Executive Officer:

(a) is responsible for the day-to-day management of the affairs of the Commission (including managing financial and human resources and the provision of legal aid and other legal services) subject to, and in accordance with, the broad policies and strategic plans established by the Board and any general directions the Board may issue in connection with those policies and plans, and

(b) has and may exercise such other functions as are conferred or imposed on the Chief Executive Officer by or under this or any other Act or law.

(2) Any act, matter or thing done in the name of, or on behalf of, the Commission by or with the authority of the Chief Executive Officer is taken to have been done by the Commission.

Back to top

Commentary

Division 3 determines how the powers, functions and responsibilities of Legal Aid NSW are performed. The Board is responsible for developing the policies as they relate to the administration and granting of legal aid and Legal Aid NSW strategic planning.

The Chief Executive Officer for Legal Aid NSW manages the day to day operations of Legal Aid NSW including finance, human resources and the provision of legal services

The Chief Executive Officer is appointed by the Minister and is not required to be a legal practitioner.

Back to top

2.3.15 Sections 18–22

(Repealed)

2.3.16 Section 23

(Repealed)

2.3.18 Section 23A - Appointment of solicitor to be solicitor practising on own account

“(1) If the Chief Executive Officer does not hold a current practising certificate, the Chief Executive Officer is to appoint one or more persons to exercise the functions that would be exercisable by the Chief Executive Officer under sections 24, 28 and 64A if he or she held a current Australian practising certificate.

(2) A person so appointed must be a member of staff of the Commission who is a solicitor of appropriate seniority and experience and who holds a current Australian practising certificate”.

Back to top

Commentary

The Chief Executive Officer can exercise the functions of a solicitor if he or she has a practising certificate. The CEO can appoint one or more staff members who hold practising certificates, to exercise the CEOs functions under ss24, 28 and 64A if the CEO does not hold an Australian practising certificate.

Where documents have to be signed under s28 of the Act in relation to proceedings involving an applicant for legal aid or a legally assisted person, Richard Funston, Deputy CEO (Legal) is the Solicitor on Record.

The person responsible for administration of the Legal Aid NSW Trust Account under section 64A of the Act is Annmarie Lumsden, Director Criminal Law.

Back to top

2.3.19 Section 24 - Performance of functions of solicitor

“(1) The Chief Executive Officer or a member of staff of the Commission shall not perform any functions of a solicitor under this Act unless the Chief Executive Officer or member of staff holds a current Australian practising certificate.

(2) In practising as, or performing the functions of, a solicitor under this Act:

(a) the Chief Executive Officer has all the functions of a solicitor practising on the solicitor's own account,

(b) a member of staff of the Commission has all the functions of a solicitor employed by a person practising as a solicitor on the person's own account, and

(c) the Chief Executive Officer and each member of staff of the Commission

(i) shall observe the same rules and standards of professional conduct and ethics as those that a private legal practitioner is, by law or the custom of the legal profession, required to observe in the practice of that profession, and

(ii) are subject to the same professional duties as those to which a private legal practitioner is subject by law or the custom of the legal profession in the practice of that profession

(2A) If the Chief Executive Officer does not hold a current Australian practising certificate, a reference in subsection (2) to the Chief Executive Officer is to be read as a reference to the relevant member of staff appointed for the time being under section 23A.

(3) Nothing in this section affects the operation of section 25”.

Back to top

Commentary

Section 24(1) requires all Commission staff practising as legal practitioners, to hold a current Australian practising certificate.

Legal practitioners' professional responsibilities

Section 24(2)(c) requires in-house legal practitioners to follow the same rules and standards of professional conduct and ethics and observe the same duties as those of a private legal practitioner. If a non-legal staff member of Legal Aid NSW is performing legal functions, subsection 2(c) applies to them in the same way as to legal staff.

Legal practitioners have a responsibility to ensure non-legal staff who are performing legal functions are aware of any relevant professional responsibilities that may have to observe in their work.

Profession rules and ethics

Legal practitioners should be familiar with the NSW Solicitors Manual. Legal Aid NSW staff can contact the Commission Solicitor and the Legal Policy Branch for advice about any professional or ethical concerns that may have.

Complaints about legal practitioners

Complaints may be made to the Law Society or Legal Services Commissioner about legal practitioners employed by Legal Aid NSW: see Legal Profession Uniform Law Application Act 2014 (NSW).

Back to top

2.3.20 Section 25 - Solicitor-client relationship

“(1) The relationship arising by virtue of this Act between a solicitor, whether the solicitor is the Chief Executive Officer or a member of staff of the Commission or a private legal practitioner to whom work is assigned under this Act, and an applicant for legal aid or a person to whom legal aid is granted shall be the relationship as between a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client

(1A) The relationship that arises as referred to in subsection (1) between a solicitor and a person who is an applicant for legal aid or who is a person to whom legal aid is granted arises only in the context of functions performed by the solicitor in the course of acting for the person as solicitor. That relationship does not arise therefore in the course of the exercise of functions under this Act in arranging for a private legal practitioner to act as solicitor for the person.

(2) The like privileges as those which arise from the relationship of a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client shall arise between the Commission or a committee established under this Act and an applicant for legal aid or a person to whom legal aid is granted.

(3) Without affecting the generality of subsection (1) or (2), the Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person or court any information or document (including an application for legal aid) relating to the administration of legal aid

(4) Nothing in subsection (1), (2) or (3) applies in respect of:

(a) the conduct of any matter necessary for the proper administration of this Act (including an agreement or arrangement referred to in section 72A),

(b) proceedings for an offence connected with the administration of legal aid,

(c) any disciplinary proceedings under the Legal Profession Uniform Law (NSW),

(d) any proceedings by which the Commission is seeking to recover money from a person in respect of whom legal aid has been granted,

(e) an investigation or inquiry under the Ombudsman Act 1974,

(f) the exercise by the Auditor-General of his or her functions under this Act or any other law,

(g) the carrying out by a person of any research approved by the Commission, being research carried out in a manner that ensures that the identity of an applicant for legal aid or a person to whom legal aid is granted is not disclosed to other persons,

(h) the divulging of information to a person concerning an application for legal aid made by or on behalf of the person (including such matters as the basis for the refusal of any such application),

(i) the divulging of information to a person to whom legal aid has been granted concerning the administration of the grant of legal aid,

(j) the divulging of information for the purpose of facilitating the conduct of alternative dispute resolution under Part 3A,

(k) the divulging of information obtained from a person, with the consent of that person, or

(l) the divulging, with the consent of the Commission, to any court or tribunal of information or a document concerning any of the following matters:

(i) whether or not an application for legal aid has been made by a particular person,

(ii) whether such an application was granted or refused,

(iii) the grounds on which such an application was granted or refused (including information as to the means of the applicant),

(iv) whether a person has appealed against the refusal of such an application.

(5) The Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person, court or tribunal the identity of a person from whom the Commission, the committee, the Chief Executive Officer or the member of staff receives information concerning

(a) a breach or alleged breach of a condition on which legal aid has been granted or provided, or

(b) a breach or alleged breach of a requirement of this Act or the regulations (for example, a failure to notify the Commission of a change in the means or circumstances of a legally assisted person as required under section 38A (1)), or

(c) the commission or alleged commission of an offence in connection with the administration of legal aid.

(6) For the purposes of this section

(a) an applicant for legal aid includes a person who requests legal advice but no other form of legal aid, and

(b) a person to whom legal aid is granted includes a person to whom that advice is given, and

(c) an application for legal aid includes a request for that advice”.

Back to top

Commentary

Solicitor-client relationship

The solicitor-client relationship created by subsections 25(1) and (2) is to ensure a legally assisted person receives the same benefits and protection as they would if they retained their own legal practitioner.

The solicitor-client relationship only arises in the course of acting for a legal aid applicant or legally assisted person as a legal practitioner. It does not apply to when Commission staff are in the process of arranging for an applicant or legally aided person to be represented by a private practitioner (subsection 1).

The same privileges which arise from the solicitor-client relationship arise between the client and Legal Aid NSW or a Committee established under the Act and a legal aid applicant or a legally assisted person.

Subsection 25(3) and the administration of legal aid

Subsection 25(3) of the Act means Legal Aid NSW does not have to disclose information in relation to the administration of legal aid to any person or court.

This provision gives extra protection to the legally aided client in that information provided to Legal Aid NSW in relation to an application for legal aid, which may not attract privilege or confidentiality under the solicitor-client relationship, does not have to be divulged by Legal Aid NSW: See Tectran Corporation Pty Ltd & Ors v. Legal Aid Commission of New South Wales & ANOR 4 July 1986 SC and Tectran Corporation Pty Ltd & Ors v. Legal Aid Commission of New South Wales & ANOR 7 NSWLR 340 where s25(3) is discussed at length.

Subsections 25(1)–(3) of the Act means Legal Aid NSW does not have to give its reasons for determining a grant of legal aid to the court: See Wentworth v Rogers (No 12) (1987) 9 NSWLR 40.

Exceptions to disclosure

Legal Aid NSW can disclose in circumstances set out in subsection (4)(a) to (l).

This includes:

Legal professional privilege

Legal professional privilege is to be claimed for documents covered by the privilege unless the client has waived their privilege.

Protection for informants

Subsection 25(5) of the Act protects the identity of people who inform Legal Aid NSW about a breach of the Act or an offence in connection with the administration of legal aid.

Legal advice privileged

Subsection 25(6) reinforces the effect of s11A of the Act on legal advice being legal aid for the purpose of section 25.

Subpoenas

When Legal Aid NSW is served with a subpoena to give evidence or produce documents in any legal aid matter the documents subpoenaed must be considered in light of s25. and s26 of the Act. Subpoenas served on Legal Aid NSW should be referred to the Solicitor to Legal Aid NSW, Legal Policy Branch.

Legal professional privilege is to be claimed for those documents covered by the privilege, unless the client has waived his or her privilege.

Section 25(3) is to be relied on for those documents which relate to the administration of legal aid.

Procedure when served with subpoena

When Legal Aid NSW is served with a subpoena, the Legal Aid NSW officer responsible for the legal aid matter, whether an in-house or assigned matter, must inform:

that a subpoena has been served.

Who is responsible for responding to subpoenas?

The Solicitor to Legal Aid NSW is responsible for responding to all subpoenas served on Legal Aid NSW.

Legal Aid NSW maintains a record of all subpoenas to produce documents served on Legal Aid NSW.

Who can divulge information under section 25?

Legal Aid officers having conduct of a matter are authorised under the Delegation Instrument to consent to the provision of information or a document to a court or tribunal as provided under s25(4)(l) of the Act, unlesss legal aid has been wholly or partly refused under the Legal Aid NSW merit test.

In these cases the matter is to be referred to a Senior Solicitor Grade V or above are authorised under the Delegation Instrument to determine whether Legal Aid NSW consents to the divulging of this information.

Reconciling s25(3) and s26 of the Act

Subsection 25(3) of the Legal Aid Commission Act 1979 prevents Legal Aid NSW from divulging to a court any information relating to the adminstration of legal aid (Tectran Corporation Ltd v Legal Aid Commission of NSW). Section 26 makes it an offence for any person engaged in the administration of the Act to divulge any information obtained in connection with the administration of legal aid.

The purpose of subsection 25(3) has been discussed in a number of cases. It has been reasoned that the subsection was included to extend the benefit of legal professional privilege to an application for legal aid and material submitted in suppport of the application, so as to put a legally assisted person or legal aid applicant in the same position with regard to the confidentiality of information provided by them, as a privately funded client. However, the legislation is drafted in such a way that it protects from disclosure more than the information provided by or on behalf of the client in support of their application. Subsection 25(3) refers to information relating to the administration of legal aid, and section 26 refers to information obtained in connection with the administration of legal aid.

In Wentworth v Rogers (No 12) the Court of Appeal expressed the opinion that the section 26 prohibition was directed to unauthorised leaks and would not extend to information which is divulged at the direction or on behalf of Legal Aid NSW which Legal Aid NSW is entitled to divulge pursuant to subsection 25(3). This appears to be inconsistent with the Court's slightly earlier decision in Tectran.

Reading Tectran and Wentworth together, they can be reconciled as follows: there is a broad prohibition on staff disclosing, without authorisation, any information they obtain as a result of their work in Legal Aid NSW. However, Legal Aid NSW may authorise the disclosure of information provided that it does not relate to the administration of legal aid.

Back to top

2.3.21 Section 26 - Divulging of certain information prohibited

“(1) A person engaged in the administration of this Act must not divulge any information or document (including an application for legal aid) obtained in connection with the administration of legal aid.

Maximum penalty: 50 penalty units or imprisonment for 6 months.

(2) This section does not prevent the divulging of information or a document if the information or document is divulged:

(a) in connection with the administration of legal aid, or

(b) as referred to in section 25 (4).

(3) This section does not limit the operation of section 25. Consequently, a member of the Board, a member of a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission cannot be required to divulge any information or document merely because the divulging of the information or document is not prohibited by this section.

(4) For the purposes of this section, an application for legal aid includes a request for legal advice but no other form of legal aid”.

Back to top

Commentary

Certain information cannot be divulged

A person involved in the administration of legal aid must not divulge any information obtained in the connection with the administration of legal aid. It is an offence to divulge any information obtained in connection with the administration of legal aid.

Section 26 of the Act is a statutory confidentiality or secrecy provision that applies to all employees of Legal Aid NSW, as well as private legal practitioners and contractors.

Section 26 of the Act protects both documents and information.

Responsibility of senior staff

Senior staff responsible for the supervision of staff must advise staff they are supervising that they are prohibited from disclosing any information obtained in the connection with the administration of legal aid unless it comes within the exceptions in s25(4) of the Act.

Exceptions to divulging information

Section 26 does not prevent information being divulged if the information is:

Disclosures to a court or tribunal about the outcome of an application for legal aid cannot be made without the consent of Legal Aid NSW: section 25(4)(l).

Section 26 does not limit s25

Section 26 does not limit s25 of the Act, and consequently the CEO, a member of a Legal Aid NSW Committee, a Board member or a Legal Aid NSW staff member cannot be required to divulge any information or document merely because divulging the information or document is not prohibited by s26 of the Act: see Wallach v Amalgamated Television Services SC 13226 of 1987 11 November 1988.

Prosecution under this section

Prosecutions for breaches of s26 of the Act must be in accordance with s72 of the Act.

The penalty for a breach of s26 of the Act is 50 units ($5500) or 6 months in prison.

Defamation Act

Undersection 27 and Schedule 1 of the Defamation Act 2005(NSW), a defence of absolute privilege applies to:

“any matter that is published for the purpose of the execution or administration of the Legal Aid Commission Act 1979 NSW

(a) to or by the Legal Aid Commission of New South Wales constituted under that Act, or

(b) to or by a member of staff of the Legal Aid or a committee established under that Act”.

Inquiries by staff

Inquires about the effect or interpretation of s26 and whether information can be disclosed can be directed to the Legal Aid NSW legal policy branch in Head Office.

Reconciling s25(3) and s26 of the Act

Subsection 25(3) of the Legal Aid Commission Act 1979 prevents Legal Aid NSW from divulging to a court any information relating to the adminstration of legal aid (Tectran Corporation Ltd v Legal Aid Commission of NSW). Section 26 makes it an offence for any person engaged in the administration of the Act to divulge any information obtained in connection with the administration of legal aid.

The purpose of subsection 25(3) has been discussed in a number of cases. It has been reasoned that the subsection was included to extend the benefit of legal professional privilege to an application for legal aid and material submitted in suppport of the application, so as to put a legally assisted person or legal aid applicant in the same position with regard to the confidentiality of information provided by them as a privately funded client. However, the legislation is drafted in such a way that it protects from disclosure more that the information provided by or on behalf of the client in support of their application. Subsection 25(3) refers to information relating to the administration of legal aid, and section 26 refers to information obtained in connection with the administration of legal aid.

In Wentworth v Rogers (No 12) the Court of Appeal expressed the opinion that the section 26 prohibition was directed to unauthorised leaks and would not extend to information which is divulged at the direction or on behalf of Legal Aid NSW which Legal Aid NSW is entitled to divulge pursuant to subsection 25(3). This appears to be inconsistent with the Court's slightly earlier decision in Tectran.

Reading Tectran and Wentworth together, they can be reconciled as follows: there is a broad prohibition on staff disclosing, without authorisation, any information they obtain as a result of their work in Legal Aid NSW. However, Legal Aid NSW may authorise the disclosure of information provided that it does not relate to the administration of legal aid.

Back to top

2.3.22 Section 27 - Immunity

“(1) An act or omission of:

(a) the Commission, the Chief Executive Officer or a member of staff of the Commission, or

(b) the Board or a member of the Board, or

(c) a committee established under this Act or a member of such a committee, or

(d) a person acting under the direction of a person or body referred to in paragraph (a), (b) or (c), does not subject the Commission, the Chief Executive Officer, a member of staff, a member of the Board, a member of the committee or a person so acting to any action, liability, claim or demand if the act or omission was done, or omitted to be done, in good faith for the purpose of executing this Act.

(2) No liability attaches to or is incurred by the Commission, the Chief Executive Officer, a member of staff of the Commission, a member of the Board, a member of a committee established under this Act or a person acting under the direction of any of them because of anything done, or omitted to be done, by a private legal practitioner to whom work is assigned under this Act.

(3) In this section, a reference to an act or omission includes (but is not limited to) a reference to anything done or omitted to be done in respect of

(a) the appointment of a private legal practitioner to, or the suspension or removal of a private legal practitioner from, a panel under Division 2 of Part 3, or

(b) the assignment of work to a private legal practitioner, or

(c) an audit in respect of a private legal practitioner”.

Back to top

Commentary

Section 27(1) of the Act protects the CEO, employees, board members and committee members from legal liability for acts and omissions performed in good faith for the purpose of executing the Act.

The protection does not extend to private legal practitioners to whom legal aid work has been assigned.

Complaints

Section 27 does not prevent investigation of complaints about employed legal practitioners under the Legal Profession Uniform Law Application Act 2014 (NSW); or, disciplinary action taken against any employee under Part 5 of Government Sector Employment Act 2013 (NSW).

Panels of private legal practitioners

Subsections 27(2) and (3) were added by the Legal Aid Commission Amendment Act 2002 at the same time as the provisions of Part 3 Division 2 dealing with panels of private legal practitioners. The provisions protect Legal Aid NSW from liability for actions of private legal practitioners and it protects Legal Aid NSW from liability in relation to action taken concerning assignment of work, any audit undertaken or action it may take to remove a legal practitioner from a panel.

Back to top

2.3.23 Section 28 - Solicitor on record

“(1) Where:

(a) in any proceeding, a document is required or permitted to be signed by a solicitor for a party to a proceeding who is an applicant for legal aid or a legally assisted person, and

(b) the Chief Executive Officer or a member of staff of Legal Aid is taking steps to conserve the interests of the applicant pending the determination of the application or is providing legal aid to the legally assisted person in relation to the proceeding, the signature of the Chief Executive Officer, or of a member of staff of Legal Aid who is a solicitor and who, pursuant to a written authority given generally or specially by the Chief Executive Officer, is authorised to sign documents on behalf of the Chief Executive Officer for the purposes of this section, shall be deemed to be the signature of the solicitor for that party.

(2) If the Chief Executive Officer does not hold a current Australian practising certificate, a reference in subsection (1) to the Chief Executive Officer is to be read as a reference to the relevant member of staff appointed for the time being under section 23A.

Back to top

Commentary

Section 28 enables any in-house legal practitioner to sign documents provided to or lodged with the Court where a party is a legally aided person or applicant for legal aid.

Date Last Published: 13/12/2016

Back to top

2.4. Part 3 - Provision of legal aid

2.4.2 Section 29 - Definitions

“(1) In this Part, application means an application for legal aid made to the Commission.

(2) In this Part, a reference:

(a) to an applicant for legal aid is a reference to a person on whose behalf legal aid is sought,

(c) to the ordinary professional cost of a legal service is a reference to the usual cost of the legal service if provided by a private legal practitioner, and

(d) in relation to an application, to a party to proceedings, includes a reference to a person who, in the opinion of the Commission, may become a party to proceedings”.


2.4.3 Section 30 - Provision of legal aid

“(1) Except to such extent, if any, as the Commission may otherwise determine in accordance with subsection (2) or (4), legal aid shall be provided by the Commission in accordance with this Part.

(2) The Commission may, from time to time, determine that legal aid in respect of such matters or classes of matters as the Commission determines shall be provided by the Commission on such terms and conditions as the Commission determines, and that legal aid may be provided accordingly

(3) Without limiting the generality of subsection (2), the terms and conditions referred to in that subsection may include terms and conditions that the legal aid shall be provided without charge, without means tests or other tests and without the necessity for compliance with such formal or procedural requirements of this Part as the Commission may determine

(4) Where the Commission determines in accordance with subsection (2) to provide legal aid in the form of a grant of money for specified purposes, sections 34 (6)–(8), 41 and 47 do not apply to the provision of the legal aid if the Commission, in the terms and conditions on which that legal aid is provided, so determines”.

Back to top

Commentary

Provision of legal aid

Legal Aid NSW must provide legal aid in accordance with Part 3.

Section 30 enables Legal Aid NSW to attach terms and conditions to any grant of legal aid.

Lump sum grants

Sections 30(2) and (4) enable Legal Aid NSW to provide legal aid as a lump sum fee for specified purposes. Subsection (4) makes it possible for Legal Aid NSW to make a lump sum grant to assist a party to run a case without the benefit of the s47 of the Act indemnity.

Conditions of a lump sum grant of aid

If Legal Aid NSW determines to makes a lump sum grant of aid, in doing so, it may also determine whether s 34 (6)-(8),s41, or s47 will apply.

Legal Aid NSWs policy is to exclude the operation of these sections. However, the client must be notified of this in the letter when advising of the determination of the grant.

See Types of Grants of Aid chapter for policies in relation to lump sum grants.

See Delegation Instrument for Legal Aid NSW officers authorised to make lump sum grants.

Departing from means and merit test in grants of legal aid

Subsection 30(3) of the Act gives Legal Aid NSW express discretion to not apply a means or merit test in certain applications for legal aid.

Legal Aid NSWs Merit Test policy sets out the test for merit.

Legal Aid NSWs Means Test policy sets out the policy for the means test.

Back to top

2.4.4 Section 31 - Application for legal aid

“(1) A person may apply to the Commission for legal aid.

(2) Nothing in subsection (1) prevents a person from making an application on behalf of another person

(3) An application is to be made in the manner and form approved by the Commission”.

Commentary

Anyone can make an application on behalf of another person.

Applications on behalf of clients in criminal proceedings

Under Rule 6A of the NSW Solicitors Professional Conduct and Practice Rules 1995 a solicitor who receives instructions to represent a client in criminal proceedings subject to obtaining a grant of legal aid must assist that person to apply for the grant as soon as practicable after receiving instructions, and not later than thirty (30) days before the commencement of the trial.

If a private legal practitioner receives instructions from a client within thirty (30) days of a criminal trial, the private legal practitioner must serve on the Registrar, or listing director of the court, notice in writing that an application for legal aid has been made, explaining the circumstances in which the application is made, and forward a copy of that notice to Legal Aid NSW.

See Delegation Instrument for Legal Aid NSW officers authorised to accept an application for legal aid which is not in the approved format.

Back to top

2.4.5 Section 32 - False application

32 “A person shall not make an application knowing that it is false in any material particular”.

Maximum penalty: 50 penalty units or imprisonment for 6 months.

Commentary

There is a penalty under section 32 of the Act for making a false application in an application for a grant for legal aid.

This section only applies to false application it does not relate to failing to provide updated information.

A private legal practitioner to whom legal aid work has been assigned. Legal Aid grants can be “assigned” to a private legal practitioner, law firm or other organisation. The power to assign legal work is under s12 of theLegal Aid Commission Act 1979 (NSW). and who fails to exhibit the required candour may attract professional disciplinary action (Riley [35,040.15].

Legal Aid NSW may undertake investigations and prosecutions for offences under this section of the Act: s72 of the Act

Requirements to advise Legal Aid NSW of any change in circumstances which may affect the grant of legal aid are dealt with under s38A of the Act.

Back to top

2.4.6 Section 33 - Powers of Commission in respect of application

“(1) On receipt of an application, the Commission may:

(a) make such inquiries as it thinks fit as to the means and circumstances of the applicant and of each person who is associated with the applicant for the purposes of any means test under section 35,

(b) require the applicant to furnish such information, in addition to the information furnished in the application, and produce such books or documents as the Commission specifies,

(c) require the applicant to attend personally,

(d) refer the application or any matter relating to or arising from the application to a person (including a barrister or solicitor) nominated by the Commission for investigation, report or advice, and

(e) take such steps as may be necessary to conserve the interests of the applicant pending the determination of the application.

(2) The Commission may defray expenses incidental to any of the matters referred to in subsection (1) from money available to the Commission or require the applicant to meet those expenses. A requirement that the applicant meet those expenses may be imposed at any time after receipt of the application but not later than the making of a determination in respect of the person under section 46.

(3) An amount required to be paid under subsection (2) must be paid in such manner, and within such time, as the Commission directs.

The Commission may recover an amount payable to it under subsection (2), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction”.

Back to top

Commentary

Section 33(1) of the Act authorises Legal Aid NSW to investigate a range of matters before it determines an application for legal aid.

On receipt of a legal aid application, prior to determining the application Legal Aid NSW may, under s33 of the Act:

Expenses incurred by Legal Aid NSW under s33

Legal Aid NSW under section 33(2) and (3) of the Act:

for expenses incurred by Legal Aid NSW under s33 of the Act.

Payment of expenses incurred under s33 will only be required if legal aid is granted after these inquiries. Any legal practitioner's costs and disbursements incurred by Legal Aid NSW will normally be included either as a s36 initial contribution or in s46 contribution or taken from any party/party costs paid to Legal Aid NSW.

Where expenses are incurred by Legal Aid NSW under section 33(1), Legal Aid NSW staff should notify the applicant's legal practitioner or the applicant, in writing that these deductions may be made.

Obtaining Counsel's advice

Under s33 of the Act Legal Aid NSW frequently authorises the obtaining of counsel's opinion or further investigations, at the expense of Legal Aid NSW, before determining whether legal aid should be granted or refused.

If legal aid is granted after s33 enquiries, any legal practitioner's fees, disbursements and Counsel's fees paid by Legal Aid NSW under s33 of the Act will then normally be deducted from:

Section 33 authorisation is not a grant of legal aid

An authorisation to grant expenses under section 33 is not a grant of legal aid. The various sections of the Act which apply to grants of legal aid do not apply to section 33 authorisations. For example:

Who can authorise a s33 payment

Legal Aid NSW officers authorised under the Delegation Instrument can authorise s33 payments.

Exceptions to paying s33 expenses

In war veterans' matters Legal Aid NSW will not require a veteran to meet section 33 expenses.

However, if legal aid is sought in a War Veteran's matter for a non-psychiatric claim where

No section 33 expenses are to be recovered in immigration matters determined on or after 29 April 2004.

Back to top

2.4.7 Section 34 - Determination of application

“(1) The Commission shall determine an application by granting the application unconditionally or subject to conditions or by refusing the application. The Commission may at any time redetermine an application that has been refused

(2) The Commission shall give notice to the applicant of the determination or redetermination of the application as soon as practicable (and in any case not later than 14 days) after the determination or redetermination is made

(3) A notice given under subsection (2), except where:

(a) the application relates to proceedings in a Local Court with respect to a criminal offence, or to such other proceedings as the Commission may from time to time determine, and is granted unconditionally, or

(b) the application relates to proceedings in a Local Court with respect to a criminal offence, or to such other proceedings as the Commission may from time to time determine, and is refused wholly or partly on the ground that the applicant fails to satisfy such means test as is determined by the Commission for the purposes of section 35 (1),shall be in writing.

(4) Where a person or committee acting in pursuance of a delegation or authorisation under section 69 grants an application subject to conditions or refuses an application, other than an application referred to in subsection (3) (b), the person or committee shall, in the notice given under subsection (2), inform the applicant that he or she has a right of appeal to a Legal Aid Review Committee against the determination or redetermination by the person or committee of the application.

(4A) Subsection (4) does not apply in respect of any condition of the kind referred to in section 56 (1AA) that is imposed on the grant.

(5) Where a person or committee referred to in subsection (4) grants an application subject to conditions or refuses an application, other than an application referred to in subsection (3) (b), the person or committee shall record the reasons for the determination or redetermination of the application

(6) As soon as practicable after the commencement of proceedings (not being proceedings with respect to a criminal offence), a solicitor acting on behalf of a legally assisted person shall give notice to the other parties, if any, to the proceedings of the fact that the solicitor is acting for a legally assisted person.

(7) Where the solicitor referred to in subsection (6) is a private legal practitioner, the solicitor shall advise the Commission in writing, within 7 days of giving notice under that subsection, that notice has been given.

(7A) If an application for legal aid is made after the commencement of the proceedings to which the application relates, the Commission may give notice to the other parties, if any, to the proceedings of the receipt of the application.

(8) A notice given under subsection (6) or (7A):

(a) shall be in writing,

(b) shall contain a reference to the effect of section 47, and

(c) may be given in any manner authorised for the service of process in the proceedings to which the notice relates”.

Back to top

Commentary

Once an application is received, Legal Aid NSW must determine it in one of three ways:

Who can make a determination to grant legal aid?

Legal Aid NSW officers authorised under the Delegation Instrument can make determinations to grant legal aid.

Redetermining grants of aid

The Commission can redetermine a legal aid application which has been refused. If an officer has a delegation to determine a legal aid application, that officer may redetermine the application if it is refused.

See Delegation Instrument for who has the authority to make the redetermination concerning the same application.

Notifying applicant in writing

Under s34(2) and (3) of the Act, Legal Aid NSW is required (except for matters under s34(2)(a) and (b)) to give notice in writing to the applicant for legal aid about its determination or redetermination.

Applicant's right of appeal

If the determining officer refuses to grant legal aid or attaches conditions to the grant, the determining officer must advise the client in writing of their right to appeal except if it is a grant under s34(2)(b) of the Act.

Exceptions to right of appeal

The applicant has no right of appeal against a condition of a grant of legal aid where the only condition involves legal assistance being provided in-house, by the Public defender or assigned to a private legal practitioner (subsection 4A ): See s56(1AA) of the Act.

See Representation chapter for policies relating to the allocation and assignment of legal work between in-house and private legal practitioners.

An applicant has no right of appeal against a determination:

Record reason for decision

The person or committee who grants an application subject to conditions, or refuses an application (other than an application referred to in s34(3) (b) of the Act) is obliged under s34(5) of the Act to record its reasons.

Mandatory notifications under s34

The notices required under subsections34(2), (6) and (7) are mandatory. The notice under subsection (7A) where Legal Aid NSW has received an application for legal aid after proceedings have commenced is discretionary.

Legal Aid NSW officers should give this notice if an application is received by Legal Aid NSW close to the hearing of the matter, or the other party/ies could be affected by section 47 if legal aid is subsequently granted.

Private legal practitioner must notify other parties if client legally assisted

A private legal practitioner must inform other parties in the proceedings that the client is legally assisted and advise Legal Aid NSW that notice under s34(6) has been given to the other parties in the proceedings within 7 days of giving the notice.

In Milat v Legal Aid Commission (1995) SC 30026/95 25 May 1995 Simpson J held that a letter outlining conditions of a proposed grant did not amount to a determination or notice of determination under section 34(1) or (2).

Notice of receipt of legal aid application

Under s34(7A) of the Act, Legal Aid NSW has a discretion to give notice to other parties of the receipt of a legal aid application if proceedings have already commenced. The notice must be in writing and advise the parties of the affect of s47 of the Act. The Notice may be given in any manner authorised for service of process in the proceedings to which the notice relates.

Appeals to LARC

If there is an appeal to a Legal Aid Review Committee (LARC) against a determination to refuse legal aid and the officer preparing the report to LARC considers aid should be granted, that officer may grant aid. Any such determination is a redetermination of the original application, and may itself be subject to an appeal. An appeal to a LARC lapses if Legal Aid NSW grants the application on a redetermination.

If the officer preparing the report to a LARC considers that the refusal should stand, this does not amount to a redetermination and the original appeal still stands. Where LARC has upheld a Legal Aid NSW decision to refuse legal aid a redetermination is only to occur in exceptional circumstances.

See Appeal chapter for policy and guidelines on appeals to LARC.

Back to top

2.4.8 Section 34A Date on which legal aid is granted

“(1) The Commission may, when granting an application for legal aid, determine that the application shall be deemed to have been granted at any time on or after the date on which the request for legal aid was made, whether or not an application for legal aid was duly made on that date

(2) The Commission shall be deemed always to have had the power conferred by this section”.

Commentary

Date of Grant of Aid

Under s34A(1) of the Act, Legal Aid NSW, at the time of granting legal aid, may determine that a grant of aid is deemed to have been granted on or after the date on which the request for aid was made whether or not the application was duly made on that day.

The date from which legal aid is to apply should be considered carefully particularly where legal aid is granted as a result of a redetermination as the date of grant may affect the legally assisted person's indemnity under s47 of the Act.

The date of commencement of a redetermined grant may also affect expenses or fees requested by the private legal practitioner under s41 of the Act.

See Types of Grants chapter for policies and guidelines on dating grants.

No retrospective grants

Legal Aid NSW does not have the power to make retrospective grants to cover an applicant's costs and liabilities before the date a request for legal aid was made.

Legal Aid NSWs policy is that generally grants date from the date of receipt of a written application or the date of request for an emergency grant.

Where a grant is determined following a LARC appeal the date will generally be the date of receipt of the original application. For circumstances in which Legal Aid NSW may determine a different date.

2.4.9 Section 34B - Commission can require security for costs etc

“(1) The power of the Commission to impose conditions on the grant or provision of legal aid to a person extends to authorise the imposition of a condition requiring the person:

(a) to provide, or to enter into an agreement to provide, security to the satisfaction of the Commission for the payment of amounts payable or which may become payable by the person to the Commission under this Act, and

(b) to pay any expenses incurred by the Commission by way of stamp duty, registration fees and other disbursements in connection with the provision of any such security or the entering into of any such agreement.

(2) The Commission is empowered to take such action as may be necessary or expedient for or in connection with the due enforcement of any such security or agreement

(3) If a condition is imposed under subsection (1) (b), the person must pay the required amount in such manner and within such time as the Commission directs and it may be recovered by the Commission from the person as a debt in a court of competent jurisdiction

(4) To remove any doubt, it is declared that the amounts payable by a person to the Commission under this Act include any interest payable in respect of those amounts under section 71A.

Back to top

Commentary

Section 34B of the Act, confers on Legal Aid NSW the power to seek a charge over property of a legally assisted person as a security for payment of expenses.

See Contributions chapter for policies on securing contributions.

Security of costs

If Legal Aid NSW requires security for costs this would not of itself create a contractual relationship which would make Legal Aid NSW liable for proceedings in the Consumer, Trader and Tenancy Tribunal under consumer credit legislation.

Recovery of debts

Legal Aid NSW can take any reasonable action necessary to recover debts owed by a legally assisted person in relation to a grant of legal aid.

Back to top

2.4.10 Section 34C - Certain arrangements do not amount to imposition of condition, or variation, of legal aid

“(34C)The determination of a lump sum fixed amount as the amount to be paid to a private legal practitioner as fees for the legal services to be provided by the legal practitioner to a legally assisted person does not of itself constitute the imposition of a condition on, or a variation of, the grant of legal aid”.

Back to top  

Commentary

Lump sum fixed amount

If Legal Aid NSW determines to pay the applicant's private practitioner a lump sum fixed amount as payment for legal services this is not to be treated as a condition of grant of aid for the purpose of ss 34(1) and 34(5) of the Act or 34B of the Act. There is no right of appeal to LARC against a decision under this section.

See Types of Grants chapter for policy on lump sum grants.

Back to top

2.4.11 Section 35 - Means test

"(1)The Commission shall not, unless it is of the opinion that there are special circumstances relating to the property or means of the applicant or otherwise, grant an application unless the applicant, and each person who is associated with the applicant, satisfies such means test or other test as is determined by the Commission in respect of applicants generally or the class or description of applicants to which the applicant belongs and is applicable as at the date on which the application was made.

(2)A means test determined by the Commission for the purposes of subsection (1) is to be determined having regard to the ability of:

(a) applicants generally or applicants of the class or description of applicants in respect of whom the means test is determined, and

(b) persons associated with such applicants, to meet the ordinary professional cost of the legal services sought by the applicant.

(3)For the purposes of subsection (1), special circumstances may include:

(a) that the applicant is a party to proceedings as a member of an unincorporated association, or

(b) that the applicant is a party to:

(i) proceedings relating to environmental matters,

(ii) a relator suit, or

(iii) a test case.

(4)For the purposes of any means test determined under this section, a reference to a person who is associated with an applicant is a reference to such of the following persons or classes of persons as are specified by the means test as being associated with the applicant:

(a) the applicant's spouse or the applicant's de facto partner,

(b) any person who is financially responsible for, or who provides financial support to, the applicant,

(c) if the applicant is a corporation, any person whose financial interests will, in the opinion of the Commission, be directly and beneficially affected if the proceedings in respect of which legal aid is granted to the applicant are successful,

(d) if the applicant is applying as a member of an unincorporated association, any other member of the association whose financial interests will, in the opinion of the Commission, be directly and beneficially affected if the proceedings in respect of which legal aid is granted to the applicant are successful, and

(e) if the applicant is applying for legal aid in respect of proceedings under the Family Provision Act 1982, any other person whose interests will, in the opinion of the Commission, be beneficially affected if legal aid is granted to the applicant”.

Back to top

Commentary

Legal Aid NSWs means test takes into account the ability of an applicant and associated persons to meet the ordinary professional costs of the legal services sought by the applicant.

Formulated Means Tests

Legal Aid NSW has developed a Formulated Means Test in consultation with National Legal Aid and the other legal aid commissions.

Under s35(1) of the Act, Legal Aid NSW must apply the relevant means test when making a determination to grant legal aid unless Legal Aid NSW is satisfied there are special circumstances relating to the property or means of the applicant or otherwise. The test applied is the test available at the time of the application or request for legal aid was made.

Special circumstances are described in s35(3) of the Act and may include where the applicant is a party to:

Determinations about whether there are special circumstances under s35(1) of the Act can only be made by those authorised under the Delegation Instrument .

“Associated persons” is defined in s35(4) of the Act.

2.4.12 Section 36 - Monetary contribution by applicant

“(1) In granting an application, the Commission may do either or both of the following:

(a) impose a condition that requires the applicant to pay such amount to the Commission by way of contribution to the costs and expenses of the legal services sought by the applicant as the Commission determines,

(b) determine the maximum amount the applicant will, subject to section 47, be required to pay to the Commission towards the costs and expenses of a party to any proceedings brought by or against the applicant if, in relation to those proceedings, the party obtains an order for costs against the applicant.

(2) An amount required to be paid under subsection (1) shall be paid in such manner, and within such time, as the Commission directs.

(3) If a person who is or has been a legally assisted person fails to pay an amount payable under subsection (1), the Commission may recover the amount, and any interest payable in respect of the amount, from the person as a debt in a court of competent jurisdiction”.

 Back to top

Commentary

Under s36 of the Act Legal Aid NSW may determine the initial amount a legally assisted person is to contribute to the costs and expenses of their legal matter. The amount of contribution to be paid is assessed through the Means Test.

Legal Aid NSW officers authorised under the Delegation Instrument can determine the initial contribution.

Contribution towards an adverse cost order

Under s36(1)(b) of the Act, Legal Aid NSW may determine the maximum amount a legally assisted person will be required to contribute towards costs paid by Legal Aid NSW under s47 of the Act in the event the applicant has an adverse costs order made against them.

See Contribution chapter for policies and guidelines on contributions.

Exempt matters

For matters exempt from initial contributions see Legal Aid NSWs Contribution policy.

Notifying Clients

When granting legal aid Legal Aid NSW officers are to ensure that any contributions assessed under section 36(1) of ther Act are clearly set out in the grant letter and the timeframe in which the contribution is to be paid. This applies to both in-house and assigned matters.

Collecting s36 contribution

Contributions must be paid in the manner and within the time Legal Aid NSW determines. Legal Aid NSW can recover a contribution, with interest (s71A), in any court of competent jurisdiction.

Waiving or varying a contribution

Legal Aid NSW officers authorised under the Delegation Instrument can vary or waive an initial contribution.

The amount a Legal Aid NSW officer can vary a contribution is authorised under the Delegation Instrument.

Back to top

2.4.13 Section 37 - Applications by certain persons

“(1) Nothing prevents the Commission from granting an application made by:

(a) a party to proceedings where legal aid has been granted to another party to the same proceedings

(b) a corporation if the Commission is of the opinion that the legal aid granted will protect the interests of other persons who are eligible for legal aid,

(c) a person involved in an inquiry or investigation, being an inquiry or investigation established by or under an Act, an Imperial Act or an Act of the Parliament of the Commonwealth or by a Minister of the Crown for New South Wales or the Commonwealth, or

(d) a person whose interests are, or may be, adverse to the Crown in right of New South Wales or of the Commonwealth or a statutory body representing the Crown in right of New South Wales or of the Commonwealth.

(2) Where the Commission grants an application pursuant to subsection (1) (a), a solicitor employed by the Commission shall not act for more than one party to the same proceedings if to do so would create a conflict of interests”.

Back to top

Commentary

Legal Aid NSW can grant legal aid to more than one party in the same proceedings.

Conflict of interest

No in-house legal practitioners can act for more than one party in the same proceedings if to do so would create or potentially create a conflict of interest.

Legal aid may be granted to an applicant whose interests are adverse to the Crown.

See Conflict of Interest Guidelines for guidance on how to manage a potential conflict of interest situation.

2.4.14 Section 38 - Variation of grant of legal aid

“(1) The grant of legal aid to a person may, at any time, be varied by the Commission so as to

(a) terminate the provision of the legal aid,

(b) alter the nature or extent of the legal aid,

(c) make the provision of the legal aid subject to a condition or an additional condition (including a condition of the kind referred to in section 36 (1) (a)), or

(d) alter a condition (including a condition of the kind referred to in section 36 (1) (a)) to which the provision of the legal aid is subject.

(1AA) The Commission may at any time redetermine the variation of a grant that terminates the provision of legal aid.

(1A) In the exercise of its power to vary such a grant, the Commission may:

(a) make such inquiries as it thinks fit as to the means and circumstances of the legally assisted person and of each person who would be associated with the legally assisted person for the purposes of any means test under section 35 were the legally assisted person still an applicant for legal aid,

(b) require the legally assisted person to furnish such information, and to produce such books or documents, as the Commission specifies,

(c) require the legally assisted person to attend personally, and

(d) refer any matter relating to or arising from the legal services provided to the legally assisted person under the grant to a person (including a barrister or solicitor) nominated by the Commission for investigation, report or advice.

(2) Where a grant is varied under subsection (1), the Commission shall give notice, in writing, of the variation within 14 days after the variation is made to the person in respect of whom the variation is made and the solicitor acting on behalf of that person

(3) Where a grant is varied under subsection (1) so as to terminate the provision of legal aid to a person, the Commission shall, in addition to the requirements of subsection (2), give notice, in writing, of the variation within 35 days after the variation is made to each solicitor acting for each party to any proceedings to which that person is a party or, where no solicitor acts on behalf of a party, to the party

(4) Where a grant is varied under subsection (1) by a person or committee acting in pursuance of a delegation or authorisation under section 69 in a way which adversely affects the person in respect of whom the variation is made, the person or committee making the variation shall, in the notice given under subsection (2), inform the person in respect of whom the variation is made that he or she has a right of appeal to a Legal Aid Review Committee against the variation.

(5) Where a grant is varied as referred to in subsection (4), the person or committee making the variation shall record the reasons for the variation of the grant.

(6) If a grant is varied under subsection (1) (c) or (d) so as to impose or vary a condition of the kind referred to in section 36 (1) (a), the amount required to be paid must be paid in such manner, and within such time, as the Commission directs. The Commission may recover the amount, and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction”.

Back to top

Commentary

Under s38 of the Act Legal Aid NSW may vary a grant of legal aid at any stage during the life of the grant of aid. This includes varying a condition or conditions, contributions required or even terminating the grant of legal aid.

Legal Aid NSW officers authorised under the Delegation Instrument can vary a grant of legal aid.

Investigative powers

In exercising its power to vary a grant of legal aid Legal Aid NSW may investigate as it sees fit, the means and circumstances of the legally assisted person and any associated person. Legal Aid NSW is entitled to ask the person to attend Legal Aid NSW personally, answer specific questions and produce documentation requested. Legal Aid NSW may also refer the matter to another person, including a barrister or solicitor for investigation, report or advice.

Notification of varying a grant of legal aid

Legal Aid NSW must notify the client in writing of its determination (within 14 days) of its decision to vary a grant of legal aid.

Section 38 (3) does not require Legal Aid NSW to give reasons to other parties for varying a grant: Wentworth v Rogers (No 12) (1987) 9 NSWLR 400

Recording reasons

Legal Aid NSW is not required to give reasons for varying or terminating a grant.

However, under s59(3) of the Act a Legal Aid Review Committee determining an appeal in relation to a variation or termination must record its reasons.

Whilst Legal Aid NSW is not required to provide reasons for terminating a grant of aid the court held that by mot making the client aware of the material it was relying on to do so, or providing the client with an opportunity to be heard was a denial of natural justice: Automatic Ticket Research (Vic) PL v Legal Aid Commission (1991) 22 ALD 590.

Terminating a grant of legal aid

Legal Aid NSW officers authorised under the Delegation Instrument can terminate a grant of legal aid.

Once legal aid is granted a legally assisted person is in receipt of a benefit and has a legitimate expectation that the benefit will be continued.

Procedural fairness in terminating a grant of aid

Before legal aid is terminated the client must be told, in detail, the matters of concern to the determining officer and given appropriate time to respond to the concerns raised.

Termination can only be made on grounds indicated as being of concern: See Automatic Ticket Research (Vic) Pty Limited v. Legal Aid Commission (1991) 22 ALD 590 R.

Consideration given to impact of terminating grant

An officer making a determination to terminate a grant of legal aid must consider the impact of the termination and in particular the fact it may render a former legally assisted person liable to pay the whole of the opponent's costs, including party/party costs incurred for the period when legal aid was current.

Legal Aid NSW must notify in writing within 35 days after the termination of legal aid is made to each legal practitioner acting for each party to any proceedings to which that person is a party or, where no practitioner acts on behalf of a party, to the party.

Legal Aid NSW may, at any time redetermine the termination of grant of aid. See appeal chapter for policy and guidelines on appeals.

Back to top

2.4.15 Section 38A - Notification of changes

“(1) Where:

(a) a legally assisted person or a private legal practitioner representing a legally assisted person becomes aware of a change in the means or circumstances of the legally assisted person or in any other matter relating to the grant of legal aid to the legally assisted person, and

(b) the change is of such a nature that the legally assisted person or private legal practitioner, as the case may be, ought reasonably to suspect that the Commission might terminate the provision of legal aid or alter the nature or extent of the legal aid,

the legally assisted person or private legal practitioner, as the case may be, shall forthwith notify the Commission in writing of the change.

(2) Subsection (1) has effect notwithstanding any privilege that may arise from the relationship between a solicitor acting in a professional capacity and the solicitor's own client”.

Back to top

Commentary

Under section 38A the legally assisted person and their legal practitioner is obliged to notify Legal Aid NSW in writing of any change in circumstances which may affect the grant of aid. It is not an offence however not to notify Legal Aid NSW.

Failure to notify of any changes which may affect the grant of legal aid.

If a private legal practitioner to whom legal aid work has been assigned fails to notify Legal Aid NSW of any changes it may amount to professional misconduct: See New South Wales Bar Association v LH (No 2) [2005] NSWADT 156.

A notice under s38A(1) of the Act has to be given notwithstanding any privilege that may arise from the relationship between a legal practitioner and a client.

Back to top

2.4.16 Section 39 - Fees in respect of assigned matters

“(1) The Commission shall determine the fees to be paid by it to private legal practitioners to whom work is assigned by the Commission

(2) In determining the fees referred to in subsection (1), the Commission shall consult with and take into account the views of:

(a) the Bar Association in respect of fees to be paid to barristers, and

(b) the Law Society in respect of fees to be paid to solicitors.

(3) The fees referred to in subsection (1) shall, so far as practicable, consist of fixed amounts determined in respect of particular legal services.

(4) A fee determined under subsection (1) in respect of a legal service shall be less than the ordinary professional cost of the legal service.

(5) In determining fees under subsection (1), the Commission is subject to the requirements of any agreement or arrangement under section 72A”.

Back to top

Commentary

Under s39 of the Act Legal Aid NSW can determine the fees paid to private legal practitioners to whom work is assigned: seeAttorney General v Milat (1995) 37 NSWLR 370

Legal Aid NSW must consult with the Bar Association and Law Society when developing policy around fees to be paid to private legal practitioners. Where practical fees should be fixed amounts for particular legal services.

The fees scale determined by Legal Aid NSW should be less than commercial rates (s39(4)).

Fees in criminal matters

The Court of Criminal Appeal confirmed Legal Aid NSWs power to determine the fees paid to legal practitioners for criminal matters: Attorney General v Milat (1995) 37 NSWLR 370.

See Costs and Fees chapter for policies and guidelines on costs and fees.

Back to top

2.4.17 Section 40 - Assessment of costs

“(1) To assist in the determination of costs of which the Commission has agreed to pay a proportion to a private legal practitioner to whom work has been assigned by the Commission, the Commission has the same rights to require the private legal practitioner to have a bill of costs assessed or taxed in relation to that work as it would have if the Commission (and not the legally assisted person on whose behalf the work was done) were the client of the private legal practitioner.

(1A) In addition, a person who is required to pay an amount under section 46 (1) has the same rights to require the private legal practitioner who provided legal services to the person as a legally assisted person to have a bill of costs assessed or taxed in relation to the work done by the practitioner on behalf of that person as the person would have if the person were not a legally assisted person.

(2) No objection shall be made under this or any other Act or law to the assessment or taxation of a bill of costs relating to work done on behalf of a legally assisted person on the basis that the costs were not incurred by the legally assisted person but were incurred by another person on his or her behalf.

Back to top

Commentary

Legal Aid NSW has a right, under s40 of the Act, to require a private legal practitioner to whom work has been assigned by Legal Aid NSW to have a bill of costs assessed or taxed as if Legal Aid NSW and not the legally assisted person were the client of the legal practitioner.

Commission officers authorised under the Delegation Instrument can make a decision to have Bill of Costs assessed or taxed.

Rights of client to have Bill of Costs assessed and s46 contributions

Under s40(1A) of the Act a legally assisted person who is required to make a s46 contribution has a right to have the costs of the private legal practitioner assessed or taxed.

Legal practitioner's Bill of Costs must be acceptable to client

If Legal Aid NSW is imposing a contribution under s46 of the Act, the assigned legal practitioner is to obtain the legally assisted person's acknowledgement that the legal practitioner's bill is acceptable. The legal practitioner to whom the matter is assigned must confirm the client's satisfaction with the Bill of Costs prior to submitting the Bill to Legal Aid NSW.

The legal practitioner must provide Legal Aid NSW with a copy of the legally assisted person's response or advise that acknowledgment was sought but no response received from the client within the required 30 days.

Back to top

2.4.18 Section 41 - Demand for or receipt of certain payments prohibited

“(1) Despite any Act or law to the contrary, a private legal practitioner is not entitled to charge or recover from a legally assisted person any amount:

(a) by way of costs in respect of work assigned by the Commission to the private legal practitioner on behalf of that person, or

(b) by way of disbursements incurred on behalf of that person in connection with that work, except with the approval of the Commission

(2) A provision of any agreement (whether in writing or not and whether entered into before or after the commencement of this section):

(a) under which the operation of this section is excluded, modified or restricted, or

(b) which has the effect of excluding, modifying or restricting the operation of this section, is void”.

Back to top

Commentary

Private legal practitioners to whom work is assigned are prohibited from charging or recovering legal fees from a legally assisted person.

The Legal Aid NSW may determine that s41 does not apply if a grant for lump sum amount is made under s30(2) or (4) of he Act.

private legal practitioner cannot enter into any agreement with a client to undermine this provision and any such agreement is void.

See Costs and Fees chapter for policies and guidelines on costs and fees.

Breaches of s41

A breach of s41 of the Act, no longer carries a specific penalty. However conduct by a legal practitioner that breaches the section may attract professional disciplinary penalties.

Reporting breaches

A Legal Aid NSW officer who becomes aware of possible breach of section 41 should report the matter to the Manager Panels and Professional Standards, Grants Division. The Manager Panels and Professional Standards may consult with the Manager Legal Policy Branch.

See Forman & Anor v Rattray [2006] NSWSC 260, for decision concerning s41 of the Act.

See costs and fees chapter for policies and guidelines in relation to s41 of the Act.

Back to top

2.4.19 Section 42 - Discretion of court or tribunal as to costs

“A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person”.

Back to top

Commentary

This provision requires a court or tribunal in making a cost order to make an order for costs for or against a legally assisted person as though they were not legally assisted.

Section 42 has the effect of ensuring that Legal Aid NSW is not limited to recovering costs at the level of the contribution made by the legally assisted person.

Back to top

2.4.20 Section 43 - Payment of costs in cases of fraud and improper behaviour

“(1) A court or tribunal may, on the application of the Commission, order a person who is or was a legally assisted person to pay to the Commission any money paid or payable by the Commission as the costs and expenses of the legal services provided to the person as a legally assisted person (including the fees of the legal practitioner who acted for the person, party and party costs and expenses under section 33) if the court or tribunal is satisfied that:

(a) the legal aid was obtained by fraud or misrepresentation, or

(b) the legally assisted person has acted improperly in bringing, defending or conducting any proceedings with which the legal aid is concerned.

(2) Such an application can be made to the court or tribunal that is hearing or has heard any proceedings with which the legal aid is concerned or to any other court of competent jurisdiction either during or after the conclusion of the proceedings. However, an application can only be made to a court or tribunal that can make an order as to costs.

(3) When an order is made under this section, the costs are to be assessed as if the person ordered to pay them were not a legally assisted person”.

Back to top

Commentary

Legal Aid NSW can apply to a court or tribunal to seek an order to have a legally assisted person pay to Legal Aid NSW any cost incurred by Legal Aid NSW in the provision of legal aid if legal aid was obtained by fraud or misrepresentation.

A court or tribunal may order a person who is or was a legally assisted person to pay to Legal Aid NSW the costs and expenses of the legally assisted person.

Who can apply to a court or tribunal?

Legal Aid NSW officers authorised under the Delegation Instrument can make the applications to the court or tribunal.

See Costs and Fees chapter for policies on costs.

Back to top

2.4.21 Section 43A - Payment of costs to private legal practitioners

“(1) The Commission may defer="defer" payment of any fees payable by it to a private legal practitioner in connection with proceedings in respect of which legal aid has been granted

(a) until the Commission is satisfied that the practitioner has taken reasonable steps to recover any party and party costs to which the legally assisted person is entitled, or

(b) until the conclusion of any official investigation in relation to:

(i) any alleged breach of this Act or the regulations by the practitioner,

(ii) any alleged fraud or misrepresentation by the practitioner in relation to the provision of legal aid or any such fraud or misrepresentation to which the practitioner is a party, or

(iii) any alleged improper action by the practitioner in bringing, defending or conducting any proceedings in relation to which legal aid has been provided or any such action to which the practitioner is a party, or

(iv) any matter concerning the assignment of work to, or the performance of work by, the practitioner as a member of a panel established under Division 2 of Part 3, or

(c) until the completion of any criminal or disciplinary proceedings commenced against the practitioner in respect of a matter referred to in paragraph (b).

(1A) A reference in subsection (1) (b) to an official investigation includes a reference to an investigation conducted by or under the authority of the Commission, but only if the Commission has given written notice to the legal practitioner concerned that the investigation is to be or is being conducted.

(2) Without affecting any other power of the Commission to refuse payment of any fees, the Commission may refuse to make a payment of any fees to a private legal practitioner in connection with proceedings in respect of which legal aid has been granted if any allegation referred to in subsection (1) (b) against the practitioner is substantiated in any criminal or disciplinary proceedings.

(2A) The power of the Commission to defer="defer" or refuse to make a payment to a private legal practitioner under this section applies only to the payment of fees in connection with the proceedings in respect of which legal aid has been granted and to which subsection (1) relates.

(3) A private legal practitioner is a party to any fraud or misrepresentation or to any improper action if the practitioner becomes aware of any such fraud, misrepresentation or improper action and fails to notify the Commission promptly of that fact.

(4) The Commission may reduce an amount payable by the Commission to a private legal practitioner by an amount payable by the private legal practitioner to the Commission”.

Back to top

Commentary

Deferring payment of fees

Legal Aid NSW can defer="defer" payment of fees to a private legal practitioner in the circumstances set out in s43A(1) of the Act. This power is in addition to any other power of Legal Aid NSW to refuse payment of any fees

What fees does it to?

The power to defer="defer" in section 43A(1) only relates to those fees in the matter subject to investigation (subsection 2A). It does not relate to other work that may have been assigned to the practitioner by Legal Aid NSW.

Refusing to pay 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.

Who can defer="defer" or refuse to pay fees?

Legal Aid NSW officers authorised under the Delegation Instrument can make a determination to defer="defer" payment of fees

See Costs and Fees chapter for policies on costs.

Back to top

2.4.22 Section 43B - Payment of money by certain private legal practitioners

(1) This section applies to a private legal practitioner against whom an allegation referred to in section 43A (1) (b) (i) or (ii) is substantiated in any criminal or disciplinary proceedings.

(2) A court or tribunal may, on the application of the Commission, order a private legal practitioner to repay to the Commission the whole, or part, of any money paid by the Commission to the practitioner in connection with proceedings for which legal aid has been granted and to which the allegation relates.

(3) Such an application can be made to the court or tribunal that is hearing or has heard any proceedings with which the legal aid is concerned or to any other court of competent jurisdiction either during or after the conclusion of the proceedings. However, an application can only be made to a court or tribunal that can make an order as to costs”.

Back to top

Commentary

Legal Aid NSW can apply to a court or tribunal to seek an order to have a private legal practitioner repay Legal Aid NSW the whole or part of the money paid by Legal Aid NSW to the practitioner in relation to a grant of legal aid.

When can an application under s43B be made?

Applications under section 43B are limited to allegations of fraud, misrepresentation or improper conduct under section 43A(1) that are substantiated in criminal or disciplinary proceedings.

Who can apply to a court or tribunal?

Legal Aid NSW officers authorised under the Delegation Instrument can make the application.

See Cost and Fees chapter for policies on s43.

2.4.23 Section 44 - Direction as to payment of certain money to the Commission

“(1) The Commission may, by notice in writing, direct a legally assisted person or a private legal practitioner acting for such a person to pay to the Commission the whole, or such part as is determined by the Commission and specified in the notice, of any money recovered by or on behalf of the person in any proceedings in respect of which legal aid was granted to the person.

(2) An amount required to be paid under subsection (1) must be paid in such manner, and within such time, as the Commission directs.

(3) The Commission shall account to a legally assisted person referred to in subsection (1) and any private legal practitioner so referred to in respect of money paid to it under subsection (1).

(4) The Commission may, in respect of money paid to it by a legally assisted person or a private legal practitioner under subsection (1):

(a) deduct any amount payable to it under this Act by the person, and

(b) offset the amount of any fees payable by it to any private legal practitioner in connection with the proceedings in which the money was recovered against any other money held by the practitioner in relation to the same proceedings.

(5) The Commission may recover an amount payable to it under subsection (1), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction.

(6) In this section, money includes a cheque”.

Back to top

Commentary

Legal Aid NSW may by written notice direct a legally assisted person or their legal practitioner to pay Legal Aid NSW the whole or specified part of any money recovered by or on behalf of the  legally assisted person in proceedings for which legal aid has been granted. private legal practitioner

Legal Aid NSW may deduct from the money any amount payable to it under the Act by the legally assisted person and offset the amount of any fees payable by it to any private legal practitioner in connection with the proceedings in which the money was recovered against any other money held by the practitioner for the same proceedings which may include for example an initial contribution.

Proceedings to recover money

Legal Aid NSW may take proceedings to recover money not paid under s44 of the Act, and any interest, as a debt in a court of competent jurisdiction.

Who can direct payment?

Legal Aid NSW officers with authority under the Delegation Instrument can direct a client or private legal practitioner to pay.

See Costs and Fees chapter for policies on costs.

Back to top

2.4.24 Section 45 - Recovery of money

“(1) Where:

(a) a court or tribunal has made an order directing the payment of money (whether or not being or including an order as to costs) in favour of a legally assisted person, or

(b) money is otherwise recoverable by a legally assisted person (whether or not in a proceeding or by virtue of a settlement or compromise), and the person fails, within such time as the Commission thinks reasonable, to recover the money, the Commission may, by notice in writing, direct the person to assign his or her right to recover the money, or such part of it as is specified in the notice, to the Commission within a period of 21 days after the date of the notice.

(2) Where a legally assisted person fails to comply with a notice given to him or her under subsection (1), the person shall be deemed, at the expiration of the period referred to in subsection (1), to have assigned to the Commission the right to recover the money in respect of which the notice is given and the Commission may do and suffer all such things as the person could, but for this subsection, have been able to do or suffer in order to recover that money.

(3) The Commission must account to the legally assisted person in respect of money recovered by it under this section”.

Back to top

Commentary

Legal Aid NSW may by written notice [pdf] require a  legally assisted person to assign their right to recover costs or other money recoverable as an award or settlement to Legal Aid NSW.

Failure to comply with a Notice to Assign

If the legally assisted person fails to comply with a notice after 21 days they will be deemed to have assigned their right to recover the moneys referred to in the notice to Legal Aid NSW and Legal Aid NSW has the power to take necessary recovery action

Assignment of costs not yet taxed (assessed)

Legal Aid NSW can request assignment of an untaxed costs order but cannot take further recovery action until the costs order had been assessed, notified to the grantee and filed.

Who can write a Notice to assignment?

Legal Aid NSW officers authorised under the Delegation Instrument can request a legal assisted person to assign their right to recover costs.

Back to top

2.4.25 Section 46 - Liability of legally assisted person to pay costs and expenses

“(1) When legal services have been provided to a legally assisted person, the Commission is to determine the amount, if any, payable to the Commission by the person in respect of the costs and expenses of those legal services (including expenses under section 33). More than one such determination can be made in respect of the person and can be made at or after the conclusion of the matter for which legal services were provided or, if legal aid is terminated during the course of the matter, at or after the termination. A determination can be varied by a later determination.

(2) The amount payable under subsection (1) shall not exceed the amount by which the sum of:

(a) the costs of the legal services provided, and

(b) any disbursements and out-of-pocket expenses incurred in or in connection with the provision of those services, exceeds any amount, or the sum of any amounts, paid by the legally assisted person to the Commission under section 36 (1) (a).

(2A) An amount required to be paid under subsection (1) must be paid in such manner, and within such time, as the Commission directs.

(3) The Commission may recover an amount payable to it under subsection (1), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction.

(4) For the purposes of subsection (2), a reference to costs is a reference to costs assessed as if the legally assisted person were not a legally assisted person.

Back to top

Commentary

Once proceedings are concluded, Legal Aid NSW must assess the amount, if any of its costs and expenses in providing legal aid to the client and make a section 46 determination on the amount if any that the client should contribute.

See Contributions chapter for policies and guidelines on contributions.

When is a s46 determination made?

The section 46 determination can be made at or after the conclusion of proceedings or at or after the termination of the grant of legal aid. More than one determination can be made. A section 46 determination can be varied by a later determination.

Section 46 contributions should be distinguished from contributions to costs awarded against a client assessed under section 36(1)(b) of the Act.

Legal Aid NSW officers authorised under the Delegation Instrument can make or vary a s46 contribution.

Limit to the amount of a s46 contribution

A s46 contribution cannot exceed the costs of legal services provided including disbursements and out of pocket expenses.

When is payment of contribution due?

The amount payable to Legal Aid NSW must be paid within the timeframe and the manner Legal Aid NSW directs.

Proceedings to recover amount owed

Any amount payable or owed to Legal Aid NSW can be recovered as a debt in a court of competent jurisdiction.

Recovering s33 expenses

Subsection 46(1) confirms that s33 expenses may be included in a s46 recovery and provides that a determination may be varied.

See Contributions chapter for policies on s46 contributions.

Back to top

2.4.26 Section 47 - Payment of costs awarded against legally assisted persons

“(1) Where a court or tribunal makes an order as to costs against a legally assisted person

(a) except as provided by subsections (2), (3), (3A), (4) and (4A), the Commission shall pay the whole of those costs, and

(b) except as provided by subsections (3), (3A), (4) and (4A), the legally assisted person shall not be liable for the payment of the whole or any part of those costs

(2) The Commission shall not pay an amount in excess of $5,000 (or such other amount as the Commission may from time to time determine)

(a) except as provided by paragraph (b), in respect of any one proceeding or

(b) in respect of each party in any one proceeding, being a party who has, in the opinion of the Commission, a separate interest in the proceeding

(3) The Commission shall not be liable to pay any costs incurred by or on behalf of a person in respect of a period during which that person was not a legally assisted person (even though those costs were ordered to be paid at a time when that person was a legally assisted person) and that person shall be liable for the payment of those costs

(3A) Where a court or tribunal makes an order as to costs against a legally assisted person in respect of proceedings for a criminal offence in which the legally assisted person was the accused person, the legally assisted person shall be liable for the payment of the whole of those costs

(4) Where a court or tribunal makes an order as to costs against a legally assisted person in respect of

(a) an appeal, or an application for a new trial, made on the ground that money awarded to the legally assisted person is inadequate,

(b) an action in which the legally assisted person is successful against one or more, but not all, of the other parties to the action,

(b1) an action in which the legally assisted person is successful after having been unsuccessful in interlocutory proceedings related to the action,

(c) an action heard and determined pursuant to an order under section 42 of the Civil Procedure Act 2005,

(d) an action brought under the Family Law Act 1975 of the Commonwealth or

(e) an action brought under the Child Support (Assessment) Act 1989 of the Commonwealth, the Commission may decline to pay the whole, or such part as it determines, of those costs and those costs or that part which the Commission has declined to pay shall be paid by the legally assisted person

(4A) If a court or tribunal makes an order as to costs against a legally assisted person on the basis that the person did not accept an offer of compromise made in proceedings (being an offer made in accordance with rules of court or an offer of a prescribed kind):

(a) the Commission may decline to pay the whole, or such part as it determines, of those costs to the extent that they are costs incurred by the party that made the offer after the day on which the offer was made, and

(b) the legally assisted person is liable for payment of any of those costs that the Commission has declined to pay.

(5) The Commission shall give notice, in writing, to a legally assisted person, the whole or part of whose costs it has, under subsection (4) or (4A), declined to pay, of the decision to decline payment of the costs within 14 days after the decision is made.

(6) Where a decision to decline to pay the whole or part of any costs is made by a person or committee acting in pursuance of a delegation or authorisation under section 69, the person or committee shall, in a notice given under subsection (5), inform the legally assisted person that he or she has a right of appeal to a The Commission Review Committee against the decision.

(7) Where a person or committee referred to in subsection (6) declines the payment of costs under subsection (4) or (4A), the person or committee shall record the reasons for the decision to decline the payment.

(8) Any amount paid by the Commission under this section shall be deemed to have been paid by the legally assisted person on whose behalf it is paid”.

Back to top

Commentary

Section 47 provides that with some exceptions Legal Aid NSW is liable for the costs awarded against a legally aided person, but limits the amount of costs Legal Aid NSW is liable to pay to a maximum amount to be determined by Legal Aid NSW.

Current maximum amount paid by Legal Aid NSW

The current maximum amount is $15,000. The ceiling referred to in s47(2) may be raised without amending the Act. Legal Aid NSW does not raise the ceiling for particular matters. It will only raise the ceiling as a matter of policy to apply to all matters which come within the scope of s47.

Legal Aid NSW has increased the general limit on a number of occasions.

The limits are set out below

$ Amount Date of order for costs

15,000 Made on or after 1 April 1999

12,500 Made between 1 August 1990 and 31 March 1999

10,000 Made between 1 August 1989 and 31 July 1990

7,500 Made between 27 September 1984 and 31 July 1989

5,000 Made prior to 27 September

Statutory protection against costs

Section 47 gives a statutory protection to the legally assisted person against paying costs awarded against them except in certain specified matters and in Federal Court proceedings.

Notification to other parties

The legal practitioner acting for the legally assisted person must notify the other parties to the proceedings of the effect of s47 of the Act. See s34(6) of the Act for notification procedures and requirements.

What if there is more than one party?

If there is more than one successful other party to the proceedings the monetary limit will be shared between the parties except where Legal Aid NSW is satisfied that the party has a separate interest, then a separate monetary limit will apply to that party.

See Costs and Fees chapter for policy on s47 costs.

Where Legal Aid NSW can exercise discretion in matters where indemnity does not apply

Legal Aid NSW may exercise discretion to decline to pay the whole or part of the costs in the matters set out in subsections (4) and (4A).

Costs incurred under contractual obligations (Mortgages) or as a statutory obligation

Legal Aid NSW is not liable for cost which are incurred by the legally assisted person under contractual or statutory obligations(eg mortgages). Maher v Network Finance Ltd(1986) 4 NSWLR 694.

Accordingly Legal Aid NSW is not liable to pay:

Costs that Legal Aid NSW will not pay under s47 of the Act

Costs incurred by or on behalf of a person for the period when that person was not a legally assisted person. This includes party/party costs which relate to work undertaken prior to the grant of legal aid.

Where a court or tribunal makes an order as to costs against a legally assisted person in relation to proceedings for a criminal offence in which the legally assisted person was the accused person.

Terminating a grant of aid and the effect of s47

Legal Aid NSW officers need to be aware of the effect that terminating legal aid may have in rendering a formerly legally assisted person liable for the whole of the other party/ies costs of the proceedings. This includes party/party costs incurred for the period when legal aid was current. Where possible the legally assisted person should be given the opportunity to conclude proceedings without incurring adverse cost orders. For requirements on terminating grants see s38 of the Act.

Lump sum grants and s47 indemnity

Legal Aid NSW officers should be aware of the effect on the legally assisted person's liability for costs of section 47(3), (3A), as well as section 30(2) and (4) of the Act where a lump sum grant has been made on condition that section 47 does not apply.

Subsection 47(4) does not apply to an order for costs made before 1 February 1997.

Does the indemnity cover the Federal Court?

The indemnity under s47 of the Act does not cover Federal Court matters. Legal Aid NSW, however, may pay an amount towards costs awarded against a legally assisted person in a Federal Court matter up to the monetary limit set by section 47(2). The  legally assisted person  will be liable to pay any balance owing. Grant letters for Federal Court matters need to clearly notify the applicant of this.

In Woodlands & ors v Permanent Trustee Co (1996) 139 ALR 127 the full Federal Court held that:

“section 43 of the Federal Court Act overrode section 47 of the LAC Act”.

Librizzi v Flower Power P/L [2000] FCA 1500 is to similar effect.

The High Court in Bass v Permanent Trustee Co & Or [1999]overruled the full Federal Court in Woodland on the basis that no cost order had been made but gave obiter to the effect that s43 of the Federal Court of Australia Act 1976 (Cth) would prevail over s47 of the Legal Aid Commission Act (NSW).

In an interim decision in the Woodlands case (1995) 58 FCR 139Wilcox J granted an application for fixing of maximum costs recoverable in the proceedings on a party and party basis, a process provided for by O62A of the Federal Court rules. The fact that the plaintiffs were legally aided was a factor in capping costs at $12,500, the then maximum section 47 amount.

In Minns v New South Wales (No 2) [2002] FMCA 197 the Federal Magistrates Court considered some factors which may be considered in deciding whether to cap party and party costs in a legally aided matter.

In Corcoran v Virgin Blue Airlines Pty Ltd [2008] FCA 864 the Federal Court more fully discussed the factors relevant to the exercise of discretion to make an order capping party and party costs.

Interlocutory proceedings and s47 indemnity

Under section 47(4)(b1) Legal Aid NSW may decline to pay the whole or part of costs awarded against a legally assisted party in interlocutory proceedings if the legally assisted party succeeds in the final proceedings. Accordingly, where possible, payment of costs in interlocutory proceedings should await the outcome of the final proceedings.

Case law and s47 of the Act

Section 47 of the Act does not prevent a court from making orders for security for costs against a legally assisted party, though it may influence whether such an order should be made Rajski & ors v Computer Manufacturing and Design P/L [1983] 2 NSWLR 122.

In Khoury & Anor v Hiar & Anor [2006] NSWCA 47 Legal Aid NSW succeeded in stopping Mr Hiar from enforcing the costs judgment against Ms Khoury. The Court of Appeal confirmed that a legally assisted person is not liable for an adverse cost order and Legal Aid NSWs liability for costs is limited by the operation of section 47 of the Act.

In Everingham v GIO CA 40718/94 13 April 1995, the claimant lost one legally aided claim against the opponent and won a claim that was not legally aided. The opponent then sought to set off the amount of the claimants cost award in the case he had won against the costs the opponent claimed in the legally aided case. The Court of Appeal overruled an order in the District Court setting off the amount of opponents costs on the grounds that they were covered by the section 47(1) exemption.

Re: Seghabi ex parte: GIO General Limited No. NP298 of 1994 FED No. 470/94, a Bankruptcy Petition was dismissed in part because the costs order on which it was based included costs for the period when the debtors were legally assisted and which they were not liable to pay under section 47(1). The creditor had not received notice of the grant of legal aid.

Who can authorise payment under s47(4) and (4A)?

Legal Aid NSW officers authorised under the Delegation Instrument can authorise payment under s47(4) and (4A).

Advising Clients in federal court and tribunal matters

Grant letters in proceedings in the federal courts and tribunals should include paragraphs which set out the risks where costs are awarded against the legally aided person.

Procedure for paying s47 costs

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, disbursements and counsel's fees.

Back to top

2.4.27 Section 48 - Commission has lien on certain documents

“(1) To secure the payment of costs in respect of work done by the Chief Executive Officer or a member of staff of the Commission, and expenses incurred by the Commission, on behalf of a legally assisted person, the Commission has a lien on any document held by it in connection with proceedings conducted on behalf of the person by the Chief Executive Officer or member of staff.

(2) The law relating to the waiver of a solicitor's lien applies to the Commission's lien in the same manner as it would apply if the person in respect of whom the Commission's lien is exercised were not a legally assisted person”.

Back to top

Commentary

Section 48(1) creates a statutory lien that applies only to documents.

Subsection (2) was introduced when a new section 48 was substituted by the Legal Aid Commission (Amendment) Act 1996, to take into account the Supreme Court's power to set aside liens under section 209C of the legal Profession Act 1987 (now section 728(1) of the Legal Profession Act 2004). It was also intended to ensure that Legal Aid NSW can obtain files from private practitioners that are subject to a lien, in return for undertaking to pay costs. The reference to the law relating to waiver should be treated as including Rules 29.4 and 29.5 of the Solicitors Professional Conduct and Practice Rules 1995.

Legal Aid NSW officers authorised under the Delegation Instrument can exercise a lien.

Back to top

2.4.29 Section 49 - Assignment of work

“(1) Without limiting the ways in which the Commission may assign work on behalf of legally assisted persons to private legal practitioners in accordance with section 12 (f), the Commission may assign work in accordance with this Division”.

Back to top

Commentary

See Grants Division Guidelines on assigning legal matters to panel solicitors.

2.4.30 Section 50 - Panels of private legal

“(1) The Commission may establish panels of suitably qualified and experienced legal practitioners in private practice who have notified the Commission that they are willing to act as legal practitioners for legally assisted persons.

(2) A body, whether incorporated or unincorporated, which provides community legal services is not eligible to be included in a panel, unless the Commission otherwise determines.

(3) A panel may be established according to such criteria as the Commission determines, and publicly notifies or makes available on request, which may include (but are not limited to):

(a) matters generally, or matters of a particular type or class, or

(b) a specified jurisdiction, or

(c) a specified area of the State”.

Back to top

Commentary

Section 50 of the Act enables Legal Aid NSW to establish panels of private legal practitioners.

See Grants to Community Legal Centres chapter for policies relating to grants of aid to CLCs.

Back to top

2.4.31 Section 51 - Application for appointment to panel

“(1) A legal practitioner in private practice may apply to the Commission for appointment to one or more panels.

(2) The Commission is to establish a selection committee under this Act, comprising a nominee of the Law Society, a nominee of the Bar Association and such other persons as may be appointed by the Commission

(3) All matters relating to the membership and procedure of a selection committee are to be determined by the Commission after consultation with the Law Society and the Bar Association.

(4) An application is to be assessed by the selection committee which, after its assessment is made, is to recommend to the Commission whether, in its opinion, the applicant is a suitable person to be appointed to the panel or panels for which the person has applied.

(5) The Commission may not:

(a) refuse to appoint a legal practitioner to a panel for which the legal practitioner has made application, or

(b) suspend or remove a legal practitioner from a panel, otherwise than at the legal practitioner's request, unless the Commission has given written notice to the legal practitioner of its reasons and has given the legal practitioner a reasonable opportunity to be heard in relation to the proposed refusal or removal.

(6) If, as a consequence of disciplinary proceedings taken against a legal practitioner, the legal practitioner is prevented from practising as a legal practitioner, the legal practitioner, if he or she is a member of a panel, is taken to have been removed from the panel”.

Back to top

Commentary

Under s51(5) of the Act Legal Aid NSW must give reasons explaining the basis for not appointing a legal practitioner to a panel.

See Delegation Instrument for who has authority to establish a selction committee for the purpose of appointing practitioners to panels under s50(1) of the Act.

Back to top

2.4.32 Section 52 - Conditions applying to members of panels

“ (1) The appointment of a legal practitioner to a panel is for 2 years (or such other term as may be specified by the regulations), unless the legal practitioner is sooner removed from the panel at his or her request or in accordance with this Division.

(2) A legal practitioner in private practice may re-apply under section 51 for appointment to a panel.

(3) Before work may be assigned to a legal practitioner who is appointed to a panel, the practitioner must enter into a service provision agreement with the Commission.

(4) Without limiting the matters for or with respect to which a service provision agreement may make provision, a service provision agreement may make provision for or with respect to the following matters:

(a) the terms on which the legal practitioner is to provide legal services to a legally assisted person or to legally assisted persons,

(b) practice standards, and compliance with practice standards,

(c) the provision of regular written reports on the progress of an allocated matter,

(d) audits under section 52B,

(e) participation in a rostered duty lawyer service.

(5) Appointment to a panel does not confer an entitlement to work”.

Back to top

Commentary

The term of legal practitioners appointed to panels is to be no less than two and no more than five years: See Legal Aid Commission Regulation 2006.

A legal practitioner may reapply for appointment to a panel once the term is completed.

Service Agreement

The service agreement is an agreement entered into between Legal Aid NSW and the legal practitioner and includes practice standards and compliance of the standards, audits and rostered duty service.

Before work can be assigned to a legal practitioner appointed to a panel the legal practitioner must enter into a service agreement with Legal Aid NSW.

Legal Aid NSW officers authorised under the Delegation Instrument can endorse a service agreement between a panel practitioner and Legal Aid NSW.

Back to top

2.4.33 Section 52A - Breach of service provision agreement

“(1) The Commission is to establish a monitoring committee under this Act, comprising a nominee of the Law Society, a nominee of the Bar Association and such other persons as may be appointed by the Commission, for the purpose of monitoring service provision agreements.

(2) All matters relating to the membership and procedure of a monitoring committee are to be determined by the Commission after consultation with the Law Society and the Bar Association.

(3) If a legal practitioner appears to have breached a service provision agreement, the Commission or the monitoring committee may give written notice to the legal practitioner of the apparent breach and direct the legal practitioner to provide a written response to the monitoring committee by way of explanation.

(4) After a legal practitioner has provided a written response to the monitoring committee or, after having been given a reasonable opportunity to provide a written response to the monitoring committee, has failed to do so, the monitoring committee may recommend to the Commission:

(a) that the legal practitioner be removed from the panel, or

(b) that no work be assigned to the legal practitioner for a period of between 3 months and 2 years, or

(c) that no further action be taken.

(5) A recommendation under subsection (4) may be made unconditionally or subject to conditions.

(6) On receipt of a recommendation from the monitoring committee, the Commission is to determine what action (if any) should be taken in respect of it”.

Back to top

Commentary

Section 52A requires Legal Aid NSW to establish a Monitoring Committee which includes representatives from the Bar Association, the Law Society and other persons Legal Aid NSW may wish to nominate for the purpose of monitoring the provision of service agreements between panel legal practitioners and Legal Aid NSW.

Legal practitioners who have breached the service agreement must be given written notice by the Monitoring Committee or Legal Aid NSW and directed to provide a response to the complaint.

Once the response is received or if the legal practitioner fails to provide a response the Monitoring Committee may make recommendations to Legal Aid NSW. Once a recommendation is received, Legal Aid NSW is to determine what action, if any, should be taken.

Back to top

2.4.34 Section 52B - Audits

“(1) The Commission may, at any time, in relation to any work assigned by the Commission to a legal practitioner (an assigned matter), carry out an audit of the legal practitioner, or cause such an audit to be carried out, in respect to any one or more of the following:

(a) claims for payment,

(b) compliance with practice standards,

(c) compliance with the terms and conditions of a service provision agreement,

(d) compliance with the Commission's guidelines, policies and delegations,

(e) substantial or unresolved complaints concerning service delivery.

(2) An audit cannot be carried out until after written notice of the intention to carry out the audit is given to the legal practitioner concerned. The written notice must state the purpose and scope of the audit.

(3) So far as practicable, an audit is to be carried out at a time that is convenient to the legal practitioner concerned, having regard to the needs of his or her practice.

(4) If an assigned matter comprises a matter in which a member of staff of the Commission acts for a party, an audit is to be carried out by:

(a) a person who is not a member of the staff of the Commission, or

(b) a member of the staff of the Commission who does not work in close and regular association with the member of staff of the Commission who acts for the party, and any information or document obtained in connection with the audit must not be divulged by the auditor or any other person to the member of staff of the Commission who acts for the party if that information or document might unfairly prejudice the interests of any other party.

(5) The relationship between a private legal practitioner and a legally assisted person does not operate to prevent or limit an audit under this section.

(6) For the purposes of an audit, the Commission, or a person appointed by the Commission, may:

(a) require a legal practitioner to produce for inspection any files, records or documents relating to an assigned matter, and

(b) make copies of, or take extracts or notes from, any such files, records or documents, and

(c) require a legal practitioner to provide the Commission, or person, with such assistance and facilities as may be reasonably necessary to enable the Commission, or person, to exercise the functions under this section, and

(d) require a legal practitioner to give the Commission, or person, such other information as is reasonably necessary for the purposes of the audit.

(7) If a record relating to an assigned matter:

(a) is not in writing, or

(b) is written in a language other than English, or

(c) is not decipherable on sight, a requirement under subsection (6) (a) to produce the record is a requirement to produce, in addition to the record if it is in writing, or instead of the record if it is not in writing, a statement, in English and decipherable on sight, that contains all the information in the record.

(8) The Commission must reimburse a legal practitioner for disbursements, such as photocopying, and any other out-of-pocket expenses reasonably incurred by the legal practitioner as a consequence of an audit.

(9) Except in proceedings under Part 10 of the Legal Profession Act 1987, the production of a file, record, document or statement, or the giving of information, under this section does not subsequently affect any legal professional privilege to which, but for subsection (5), the file, record, document, statement or information would be subject.

(10) The regulations may make provision for or with respect to audits under this section.

(11) If a private legal practitioner fails or refuses to co-operate in the carrying out of an audit under this section, the Commission may do any one or more of the following:

(a) terminate the services of the practitioner in relation to any work assigned by the Commission to the practitioner,

(b) remove the practitioner from a panel to which the practitioner is appointed,

(c) refuse to pay to the practitioner any money payable by the Commission to the practitioner.

(12) Nothing in section 12 (i) or section 25 prevents or restricts the carrying out of an audit under this section”.

Back to top

Commentary

Audits can be carried out in relation to matters listed in 52B(1) a-e.

Written notice of Audit

Written notice must be given before an audit can be conducted.

Section 52B(6) and(7) of the Act sets out what the person appointed by Legal Aid NSW can do in relation to an audit.

Producing files

The production of a file or giving of information under this section does not subsequently affect client legal privilege.

The consequence of failing to comply with an audit are set out in subsection (11).

Legal Aid NSW adopted Panel Solicitors Audit Priority Guidelines in July 2005.

Legal Aid NSW officers authorised under the Delegation Instrument can conduct audits.

Back to top

2.4.36 Section 53 - Establishment of Legal Aid Review Committees

“The Commission may establish one or more Legal Aid Review Committees:.

2.4.37 Section 54 - Members

“(1) A Legal Aid Review Committee is to consist of 3 members appointed by the Board, of whom:

(a) one is to be a person nominated by the Minister, and

(b) one is to be a person nominated jointly by the Bar Association and the Law Society, and

(c) one is to be a person who is not a legal practitioner.

(2) One of the members is, in and by the relevant instrument of appointment or in and by a subsequent instrument, to be appointed as Chairperson of the Committee”.

Back to top

Commentary

Legal Aid NSW has established six  Legal Aid Review Committees (LARC), including three specialist Family Law LARC.

See Appeal chapter for policies and guidelines on appealing to LARC.

See Appeal Guideline 11 for list of current members of LARC.

Back to top

2.4.39 Section 56 - Appeals

“(1) An applicant or legally assisted person dissatisfied with:

(a) the determination or redetermination, by a person or committee acting in pursuance of a delegation or authorisation under section 69, of an application under section 34 (1)(b) the variation, by such a person or committee, of a grant of legal aid under section 38 (1),

(b1) the redetermination of a variation of a grant of legal aid, by such a person or committee, under section 38 (1AA), or

(c) a decision, by such a person or committee, to decline payment of the whole or any part of costs under section 47 (4) or (4A), may appeal to a Legal Aid Review Committee.

(1A) Such an appeal may not be made in respect of the determination or redetermination of an application under section 34 (1):

(a) if the application has been refused as referred to in section 34 (3) (b), or

(b) if the application relates to proceedings in a Local Court with respect to a criminal offence and the applicant is dissatisfied because he or she is required to pay a contribution towards the costs and expenses of the legal services sought by the applicant.

(1AA) Despite subsection (1), an appeal may not be made in respect of the imposition of a condition on a grant of legal aid (whether imposed by way of a determination or redetermination of an application for legal aid, or by way of a variation or redetermination of a variation of a grant of legal aid) if the condition is to the effect that the Commission is to provide the legal aid concerned by any of the following means:

(a) by making available the services of the Chief Executive Officer or members of the staff of the Commission, or

(b) by arranging for the services of the Public Defenders to be made available,

(c) by arranging for the services of private legal practitioners to be made available, wholly or partly at the expense of the Commission.

(1B) An appeal against the refusal of an application for legal aid lapses if, after the appeal is lodged, the Commission grants the application on a redetermination of the matter under section 34.

(1C) An appeal against the variation of a grant of legal aid that terminates the provision of legal aid lapses if, after the appeal is lodged, the Commission provides legal aid on a redetermination of the matter under section 38.

(2) An appeal shall be lodged with the Commission in writing in accordance, or substantially in accordance, with the form approved by the Commission for the purpose and shall be so lodged within:

(a) a period of 28 days after the date on which notice of the determination or redetermination of the application, variation or redetermination of the variation, or decision in respect of which the appeal is brought was given to the appellant, or

(b) such longer period as a Legal Aid Review Committee may, where it is of the opinion that there are special circumstances, allow”.

Back to top

Commentary

Section 56 deals with appeals to Legal Aid Review Committees (LARC). Section 56(1) of the Act sets out the circumstances in which an applicant for legal aid can appeal a decision by Legal Aid NSW.

An applicant or  legally assisted person may appeal to a Legal Aid Review Committee when dissatisfied with

See Appeal chapter for policies in relation to appeals to LARC

When an applicant cannot appeal a determination

A legal aid applicant or legally assisted person cannot appeal certain determinations which are set out in subsections 561A and 1AA of the Act.

When does an appeal lapse?

An appeal lapses if after the appeal is lodged legal aid is granted under a redetermination under s34 of the Act.

Case law and appeals

In Bustard v Caldwell SC 14321 of 1987 October 1987 the Supreme Court held that there cannot be an appeal under s 56 and adjournment under section 57 until there has been a prior determination of an application for legal aid under s34 of the Act.

See Appeal chapter for policies on appeals to  LARC.

Back to top

2.4.40 Section 57 - Adjournment of certain proceedings

“(1) Where it appears to a court or tribunal, on any information before it

(a) that a party to any proceedings before the court or tribunal:

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit”.

Back to top

Commentary

Right to an adjournment

Section 57 of the Act imposes an obligation on a court or tribunal to adjourn proceedings to such date on such terms and conditions as it thinks fit where it appears to the court or tribunal:

and

The language of s57 is mandatory: The Friends of the Glenreagh Dorrigo Line Incorporated & Ors v Jones & Ors[1994] NSWCA 101 per the Full Supreme Court. Prima facie the existence of an appeal or an intention to appeal requires an adjournment: Lewis v Spencer [2007] NSWSC 1383 at [11]. Once a court is satisfied that each of the requirements of the section is fulfilled, the court must adjourn proceedings: DPP v Emanuel [2009] NSWCA 42 at [35]-[36] per Full Court of Appeal. The court does not possess any residual discretion to decide whether or not to grant the adjournment: Waverly Council v Bobolas [2005] NSWLEC 577 at [14].

s57(1)(b): The appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings

The bona fides of the appeal is determined by an analysis of whether the appeal is being pursued for genuine purposes. In other words, the section requires the court to determine whether the appeal is being lodged (or is intended to be lodged) for the purpose of causing the adjournment; not for purpose of obtaining legal aid: Lewis v Spencer [2007] NSWSC 1383 at [15].

Whether the appeal to the Legal Aid Review Committee was or will be successful does not determine the issue of whether the appeal is bona fides: Lewis v Spencer [2007] NSWSC 1383 at [15]. (Note, however, that the competency of the appeal is relevant to the requirements of s57(1)(a)(ii)).

Nor is the fact that witnesses will have to re-attend and the proceedings will have to be re-organised sufficient reason to find that there is an improper hindrance or delay in the proceeding or that the appeal or intention to appeal is not bona fide: Lewis v Spencer [2007] NSWSC 1383 at [18].

Even an unreasonable act by the appellant that caused the initial refusal or termination of legal aid may not, without more, be conclusive or relevant to the bona fides of an appeal: Lewis v Spencer [2007] NSWSC 1383 at [19].

For an example of a case in which an adjournment was refused because it was held the conditions set out in s57(b) were not met, see Duchesne v Master Education Services Pty Ltd [2008] NSWIRComm 233.

s57(1)(c): Special circumstances

The question of whether there are special circumstances involves the exercise of the Court's discretion: Bourke and Bourke v Beneficial Finance Corporation Limited (1993) 124 ALR 716 at [72] per the Full Federal Court.

In The Friends of the Glenreagh Dorrigo Line Incorporated & Ors v Jones & Ors[1994] NSWCA 101 the Full Supreme Court upheld an appeal against the dismissal of proceedings where a LARC appeal was under way because the judge, when determining that no adjournment should be given, did not identify the special circumstances which prevented such an adjournment having effect.

The application of s57 to Federal courts and tribunals

Section 57 applies to both state and federal courts and tribunals: Wilson v Alexander [2003] FCAFC 272 at [23] per the Full Federal Court.

This principle stated in Wilson was applied in Tsoi v Savransky [2004] FMCA 879 at [13] and Maslaukas v Qld Nursing Council (No.2) [2008] FMCA 236 at [7], where Barnes FM stated: “While there was previously some debate as to whether such a New South Wales legislative provision applied in the Federal Courts and proceedings under Federal law […] it is now clear that the [Federal] Court is bound by that legislation to adjourn the proceedings if the requirements of s57 are met save in special circumstances.”

Onus

The onus rests with the party opposing the adjournment to establish one or more of the relevant circumstances that would justify refusal: Fibre-Tek (Gold Coast) Pty Ltd v Sky Bennett [2006] NSWSC 1100 at [26]; Lewis v Spencer [2007] NSWSC 1383 at [17].

Seeking a court adjournment pending a LARC appeal

Legal practitioners assisting with an application and informing them of their right to appeal under s56 should also advise them on the procedure for applying for a court adjournment in the event that they lodge an appeal against any determination of the grant of aid.

Back to top

2.4.41 Section 58 - Functions of a Legal Aid Review Committee on an appeal

“For the purposes of hearing and determining an appeal, a Legal Aid Review Committee

(a) has the functions and discretions that the person or body whose determination, variation or decision is the subject of the appeal had in respect of the matter the subject of the appeal, and

(b) is required to comply with any policy guidelines with which that person or body was required to comply in respect of the matter the subject of the appeal”.

Back to top

Commentary

Section 58(a) requires LARC to exercise discretions of the officer making the original determination, including taking into account the responsibilities under s12 of the Act.

The policy for appeals and the guideline for procedures for preparing appeals to LARC are set out in the Appeal chapter and are based on the matters which LARC must consider under s58 of the Act.

The determining officer preparing a report for LARC should include as supporting material extracts of all policies and all information that were relevant to determining the application.

See Appeal Guideline 2 for procedure on preparing reports for LARC.

Date of grant of aid following an appeal

Legal aid grants authorised by LARC generally date from the date of the original request for an emergency grant or the date of receipt of the original legal aid application rather than the date on which the appeal is determined. See types of grants of aid for policies on dating grants.

2.4.42 Section 59 - Determination of appeal

“(1) A Legal Aid Review Committee shall determine an appeal made to it and in so doing may make such order with respect to the matter the subject of the appeal as it thinks fit.

(2) A Legal Aid Review Committee shall give notice, in writing, of its determination of an appeal to the appellant and to the Commission.

(3) A Legal Aid Review Committee shall record its reasons for the determination of an appeal”.

2.4.43 Section 60 - Effect and implementation of determination or order

“(1) A determination or order of a Legal Aid Review Committee under section 59 in respect of an appeal shall be deemed to be the final decision of the person or body whose determination, variation or decision was the subject of the appeal and shall be given effect to accordingly.

(2) Nothing in subsection (1) prevents the assignment of work to a private legal practitioner in respect of an applicant whose appeal to a Legal Aid Review Committee has been upheld”,

Back to top

Commentary

There is no right of appeal from a final decision of a  LARC. Once a LARC has made a decision neither LARC nor Legal Aid NSW will review its merits.

However, in cases where new information is received after a LARC has decided an appeal there may be a further determination of an application under section 34 of the Act.

Back to top

2.5. Part 3A - Alternative dispute resolution

2.5.1 Section 60A - Purpose of Part

“(1) The purpose of this Part is to enable the Commission to arrange for matters to be dealt with by alternative dispute resolution.

(2) This Part does not prevent the parties to proceedings or proposed proceedings from agreeing to and arranging for alternative dispute resolution of any matter otherwise than in accordance with this Part”.


2.5.2 Section 60B - Definitions

“In this Part:

alternative dispute resolution includes conferencing.

conferencing means a structured negotiation process that takes place in course of a program approved by the Commission and in which the convenor assists the parties to a dispute to settle the dispute.

conferencing session means a meeting at which conferencing takes place and, in sections 60D and 60E, includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session.

convenor of a conferencing session means the person to whom a matter has been referred for conferencing under this Part”.

2.5.3 Section 60C - Powers of Commission in respect of alternative dispute resolution

“(1) The Commission may arrange for a matter, or any aspect of a matter, to be dealt with by alternative dispute resolution if the Commission considers it appropriate to do so. The Commission may do so before or after the determination of an application for legal aid in respect of the matter.

(2) Without limiting the powers of the Commission under section 33, the Commission may require an applicant for legal aid or a person to whom legal aid is granted to participate in such alternative dispute resolution procedures as may be specified by the Commission.

(3) The Commission may defray expenses incidental to alternative dispute resolution from money available to the Commission or require (whether before or after the application for legal aid is determined) the applicant or person to whom legal aid is granted to meet those expenses.

(4) An amount required to be paid under subsection (3) must be paid in such manner, and within such time, as the Commission directs.

(5) The Commission may recover an amount payable to it under subsection (3), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction”.

Back to top

Commentary

Legal Aid NSW may arrange ADR

Legal Aid NSW may arrange for alternative dispute resolution (ADR) of a matter if it considers it appropriate or arrange the alternative dispute resolution before or after the determination of the relevant application for legal aid

Requirement to attend ADR

Legal Aid NSW may require an applicant, or a person to whom legal aid is granted to participate in alternative dispute resolution as specified by Legal Aid NSW.

Payment for ADR

Legal Aid NSW may pay the expenses for alternative dispute resolution, or require the applicant, or legally assisted person to pay the expenses.

The amount required to be paid under subsection (3) must be paid in the manner and within the time Legal Aid NSW directs

If it is not paid Legal Aid NSW may recover, with any interest payable, as a debt in a court of competent jurisdiction

Legal Aid NSW FDR Unit

Legal Aid NSW has its own Family Dispute Resolution Section where conferencing for family law matters under the Family Law Act 1975 (Cth) are conducted.

2.5.4 Section 60D - Defamation

“(1) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to:

(a) a conferencing session, or

(b) a document or other material sent to or produced to the convenor of a conferencing session, or sent to the Commission, for the purpose of enabling a session to be arranged, or

(c) a document or other material prepared by the convenor of a conferencing session in the course of, or as a result of, the session.

(2) The privilege conferred by subsection (1) extends only to a publication made:

(a) at a conferencing session, or

(b) as provided by subsection (1) (b) or (c), or

(c) as provided in section 60F”.

Back to top

Commentary

Under s60D of the Act the same privilege concerning defamation as exists in judicial proceedings exists in relation to a conferencing session.

The privilege applies to:

The privilege only extends to publication made:

Section 27(2)(b) of the Defamation Act 2005 (NSW) extends absolute privilege to court proceedings. Section 60D resolves any uncertainty as to whether the extension of absolute privilege to Legal Aid NSW, its officers and committees as under Schedule 1 of the Defamation Act extends to anything said or any document produced in a conferencing session. 

Back to top

2.5.6 Section 60F - Secrecy

“The convenor of a conferencing session may disclose information obtained in connection with a conferencing session in any one or more of the following circumstances only:

(a) with the consent of the person from whom the information was obtained,

(b) to the Commission, a committee established under this Act, the Chief Executive Officer or a member of staff of the Commission in connection with the administration of legal aid,

(c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to a person or damage to property,

(d) if the disclosure is reasonably required for the purpose of referring any party or parties to a conferencing session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the conferencing session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner,

(e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth”.

Back to top

Commentary

Section 60F is a confidentiality or secrecy provision applying only to the convener of a conferencing session and authorising, but not requiring disclosure by the convenor in the limited circumstances set out in 60F (a)-(e).

There is no penalty prescribed for a breach of section 60F of the Act.

Immunity

The Convenor of a conferencing session is given immunity from any action for any thing which was done or omitted in good faith for the purposes of a conferencing session under Part 3A.

2.5.7 Section 60G - Immunity for convenors of conferencing sessions

“No matter or thing done or omitted to be done by the convenor of a conferencing session subjects the convenor to any action, liability, claim or demand if the matter or thing was done or omitted in good faith for the purposes of a conferencing session under this Part”.


Date Last Published: 29/05/2009

Back to top

2.6. Part 4 Finance

2.6.1 Section 61 - Definitions

“In this Part:

financial year, in relation to the Commission, means the year ending on 30 June.

Fund means the Legal Aid Fund established under section 62.


2.6.2 Section 62 - Legal Aid Fund

“The Commission shall establish and administer a fund, to be called the “Legal Aid Fund”.

Back to top

Commentary

For information on the Legal Aid NSWs Fund contact:

Trust Account Clerk

Level 8

323 Castlereagh Street

SYDNEY NSW 2000

Telephone 9219 5946

2.6.3 Section 63 - Payments into Fund

“(1) Except as provided by section 64A, there shall be paid into the Fund:

(a) all amounts paid out of the Public Purpose Fund maintained under Division 2 of Part 6 of the Legal Profession Act 1987 for the purpose of supplementation of the Legal Aid Fund,

(b) any money appropriated by Parliament for the purposes of the Fund,

(c) any money received by the State of New South Wales from the Commonwealth for the purposes of legal aid,

(d) amounts paid to the Commission under section 36 (1) (a) or (b) or recovered by it under section 36 (3),

(d1) money received by the Commission in respect of services performed or carried out under clause 20 of Schedule 8,

(e) money received by the Commission by way of payment of party and party costs,

(f) money received by the Commission pursuant to a direction under section 44 (1),

(g) money recovered by the Commission under section 45 (2),

(h) amounts paid to the Commission pursuant to a determination under section 46 (1) or recovered by it under section 46 (3),

(i) money received by the Commission pursuant to a liability under section 48 (a),

(j) penalties recovered pursuant to this Act, and

(k) the interest from time to time accruing from the investment of the Fund.

(2) There may be paid into the Fund money, other than money referred to in subsection (1), which may lawfully be paid into the Fund.

(3) The Commission shall maintain a separate account or accounts in the Fund for money:

(a) received for or on behalf of a legally assisted person by a private legal practitioner when acting as a solicitor on behalf of the person, or

(b) otherwise payable to a legally assisted person, not being money payable into the trust account referred to in section 64A.

(4) Interest from time to time accruing from the investment of money in a separate account referred to in subsection (3) does not form part of that separate account and is not payable to the legally assisted person concerned”.

Back to top

Commentary

The separate account maintained under section 63(3) of the Act for matters assigned to private legal practitioners is treated part of the Legal Aid Fund.

Back to top

2.6.4 Section 64 - Payments out of the Fund

“There may be paid out of the Fund:

(a) all charges, costs and expenses incurred by the Commission in the exercise of its functions under this Act,

(b) costs and expenses incurred in respect of applications for legal aid,

(c) fees payable to private legal practitioners to whom work is assigned by the Commission,

(d) disbursements incurred on behalf of legally assisted persons,

(e) subject to section 47, costs awarded against legally assisted persons,

(f) money referred to in section 63 (1) (f) which is payable by the Commission to legally assisted persons,

(g) money granted by the Commission in respect of legal aid schemes administered by other persons, and

(h) all other amounts required or authorised by this Act to be paid out of the Fund.”


2.6.5 Section 64A - Trust account

“(1) A trust account is to be established called the Legal Aid Commission Trust Account.

(2) The person responsible for the administration of the Account is the Chief Executive Officer or, if the Chief Executive Officer does not hold a current practising certificate, the relevant member of staff appointed for the time being under section 23A.

(3) All money received for or on behalf of any legally assisted person by the Chief Executive Officer, or a member of staff of the Commission, when acting as a solicitor on behalf of the person is to be held in the Account by the person responsible for the administration of the Account.

(4) Part 6 of the Legal Profession Act 1987 applies to the Account”.

Back to top

Commentary

Under section 23A of the Act the Chief Executive officer has appointed Richard Funston Director Criminal Law, to exercise functions as the person responsible for the administration of the Account.

Chapter 3 Part 3.1 of the Legal Profession Act 2004 (NSW) on trust funds now applies to subsection (4) and determines how costs can be deducted from moneys received on behalf of a client.

For Enquiries about Trust Account matters contact:

Trust Account Clerk

Level 2

323 Castlereagh Street

SYDNEY 2000

TEL: 92195946

 

Date Last Published: 29/05/2009

Back to top

2.7. Part 5 - Miscellaneous

2.7.1 Section 68 - Consultative committees

“(1) The Commission may establish standing or special consultative committees for the purpose of advising the Commission in the exercise of its functions under this Act.

(2) The members of a consultative committee established under subsection (1) shall be appointed by the Commission on such terms and conditions as the Commission may determine and shall consist of such persons as the Commission considers appropriate.

(3) The Commission shall appoint one of the members of a consultative committee established under subsection (1) to be chairperson of the committee and any such committee may, subject to subsection (4) and to any directions of the Commission, regulate its procedure in such manner as it thinks fit.

(4) The Commission may specify the number of persons who shall constitute a quorum of a consultative committee established under subsection (1)”.

2.7.2 Section 69 - Delegation

“The Commission may, by instrument in writing, delegate the exercise of such of the functions of the Commission (other than this power of delegation) as are specified in the instrument to any of the following:

(a) a committee comprised of members of the Board, including the Chief Executive Officer or a member of the Board nominated by the Chief Executive Officer,

(b) a member of staff of the Commission,

(c) a person for the time being holding or acting in a specified position in the staff establishment of the Commission,

(d) any person (including a private legal practitioner) of whose services the Commission makes use pursuant to this or any other Act”.

Note. Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of function”.

Back to top

Commentary

Section 69 should be read in the light of the functions conferred on the Chief Executive Officer under s17 of the Act, in particular, his responsibilities for the delivery of legal aid and legal services under s17(1)(a) and s17(2).

The Board may delegate the functions conferred on it by s15 of the Act to a Committee of the Board that includes the Chief Executive Officer.

See Delegation Instrument for the functions delegated in relation to the administration and granting of legal aid under the Act.

Back to top

2.7.3 Section 70 - Determination of pecuniary interests

“(1) The Commission may determine that the interest of a member of the Board or a member of a committee established under this Act is or is not a direct or indirect pecuniary interest for the purposes of this Act.

(2) A determination made by the Commission under subsection (1) shall be final and conclusive”


2.7.4 Section 71 - Notices

“(1) Where, under this Act, notice in writing is required to be given to a person by the Commission, the notice may be given:

(a) in the case of a person other than a corporation:

(i) by delivering it to the person, or

(ii) by delivering it, or by sending it by prepaid post, addressed to the person at the address, if any, specified by the person for the giving of notices under this Act, or, where no such address is specified, at the person's usual place of abode or the person's place of business, being the usual place of abode or place of business last known to the Commission, or

(b) in the case of a corporation:

(i) by leaving it at the place of business, or registered office, of the corporation with a person apparently in the service of the corporation and apparently not less than 16 years of age, or

(ii) by delivering it, or by sending it by prepaid post, addressed to the corporation at the address, if any, specified by the corporation for the giving of notices under this Act, or, where no such address is specified, at the registered office of the corporation or its place of business last known to the Commission.

(2) Notice shall, in respect of a notice sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given at the time at which the notice would be delivered in the ordinary course of post”.


2.7.5 Section 71A - Interest

“(1) Interest at the prescribed rate is payable on:

(a) an amount or part of an amount payable by a person under section 33 (2) that is not paid by such date as may be specified in a direction under section 33 (3), or

(a1) an amount or part of an amount payable by a person under section 36 (1) that is not paid by such date as may be specified in a direction under section 36 (2), or

(b) an amount or part of an amount payable by a person under section 38 (1) (c) or (d) that is not paid by such date as may be specified in a direction under section 38 (6), or

(b1) an amount or part of an amount payable by a person under section 44 (1) that is not paid by such date as may be specified in a direction under section 44 (2), or

(b2) an amount or part of an amount payable by a person under section 46 (1) that is not paid by such date as may be specified in a direction under section 46 (2A), or

(c) an amount or part of an amount payable by a person under section 48 (1) that is not paid by such date as may be specified in a direction under section 48 (1A), or

(d) an amount or part of an amount payable by a person under section 60C (3) that is not paid by such date as may be specified in a direction under section 60C (4).

(2) In this section:

prescribed rate means:

(a) a rate equivalent to 50 per cent of the rate prescribed for the purposes of section 101 of the Civil Procedure Act 2005, or

(b) if some other rate is prescribed by the regulations, that other rate”.


2.7.6 Section 72 - Proceedings for offences

“(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone.

(2) Proceedings for an offence arising under section 26 or 32 may be commenced at any time within 2 years after the offence was allegedly committed.

Back to top

Commentary

An offence against the Act arising under ss26 of the Act and 32 of the Act must be dealt with within 2 years.

The CEO has not delegated the authority to investigate and prosecute under this section.

2.7.7 Section 72A - Agreements or arrangements with Commonwealth

“(1) The State, or the Commission with the approval of the Attorney General, may from time to time enter into an agreement or arrangement with the Commonwealth for or with respect to the provision of legal aid.

(1A) The matters for which any such agreement or arrangement may provide include (but are not limited to the following:

(a) the money to be made available by the Commonwealth, or (in the case of an agreement or arrangement between the State and the Commonwealth) by the State and the Commonwealth, for the purposes of the provision of legal aid and other legal services,

(b) the priorities to be observed, in relation to money made available by the Commonwealth, in the provision of legal aid and other legal services.

(2) Any such agreement or arrangement shall, except in so far as it is inconsistent with this Act or the regulations, be binding on the Commission”.

Commentary

Section 72A of the Act authorises Legal Aid NSW, with the approval of the Attorney General to enter directly into agreements with the Commonwealth for the provision of legal aid.

When Legal Aid NSW enters into an agreement for funding with the Commonwealth government for the purpose of providing legal aid in relation to Commonwealth matters. Legal Aid NSWs Board must approve and adopt the Commonwealth Guidelines and priorities before they are incorporated into Legal Aid NSWs polices.

The Commonwealth agreement for funding currently includes funding for Commonwealth criminal, civil and family law matters.

See family lawcivil law and criminal law for Legal Aid NSWs policies and guidelines in relation to

Back to top

2.7.8 Section 76 - Regulations

“(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units”.

Back to top

Commentary

The Legal Aid Commission Regulation 2006 (NSW) makes a provision for private practitioner panels.

 

Date Last Published: 29/05/2009

Back to top

2.8. Schedules

2.8.1 Schedule 1 - Repeals

2.8.2 Schedule 2 - Membership of Board

2.8.3 Schedule 3 - Procedure of Board

2.8.4 Schedule 4-6 – repealed

2.8.5 Schedule 7 - Constitution and procedure of Legal Aid Review Committees

2.8.6 Schedule 8 - Savings, transitional and other provisions

 

Date Last Published: 29/05/2009