Conditions of Legal Aid
A grant of legal assistance is subject to the assisted person complying with certain conditions. In particular the assisted person must provide full and continuing disclosure of relevant information.
Disclosure of relevant information
Disclosure of financial circumstances
It is a condition of a grant of legal assistance that the assisted person provides and keeps providing full disclosure of his or her financial situation and that of any financially associated person. Any change must be reported.
If the assisted person misrepresents his or her situation to the Commission, aid will cease and the assisted person will be required to restore the Commission to the financial position the Commission would have been in if the correct information had been provided at the outset.
Under section 21 of the Act, a person who applies to the Commission for legal assistance and, with intent to deceive or mislead the Commission, withholds relevant information, is guilty of an offence.
Examples of a change in a person’s financial circumstances include:
Advising the Commission of change of address
An assisted person must advise the Commission in writing of a change of address. If the assisted person cannot be contacted, aid may cease.
Accept legal advice
It is a condition of continuing aid that the assisted person accepts reasonable legal advice, even where the advice is unfavourable. This includes advice relating to
- whether to make or accept a settlement proposal;
- whether a particular application or defence lacks a reasonable prospect of success;
- whether a particular course of action would be futile or counterproductive;
- the relevance or admissibility of material the client wishes to put before the court;
- the likelihood of achieving the result sought by the client.
If an assisted person declines to follow reasonable advice aid may be terminated. Transfers of a grant of aid are not generally permitted, especially where the purpose is to shop for more favourable advice.
Payment of contributions
Each assisted person must pay a contribution towards his or her grant of legal assistance. The minimum contribution for a grant of aid is $30 but, depending on the assisted person’s circumstances, it can be much more. In cases of severe hardship the assisted person may write to the Commission explaining the grounds for a reduction or waiver of the contribution.
An appeal may be lodged against the assessed contribution.
If an assisted person is in custody and cannot pay, the Commission will consider deferment of the contribution.
If legal aid is granted with a substantial contribution and the work required to complete the case comes to less than the assessed contribution, any overpayment of the contribution will be refunded.
If legal aid is refused because the applicant is assessed under the Means Test as being able to afford a substantial part of his or her legal fees, the applicant will receive a letter specifying the amount the Commission has assessed he or she can afford to pay. There is no grant of aid at this time and the applicant must pay for legal representation privately. However, if the case continues to the point where that amount of money has been spent, the applicant may reapply for aid, supplying proof of what they have paid. The Commission will then assess this application for aid in the normal manner.
How to pay a legal aid contribution
Clients can make payment by using any one of the following options:
- Pay in person at a Commission Office by cash or card;
- Pay over the phone by credit or debit card to the Finance Section, telephone 8111 5555;
- By post (cheque or money order only);
- By direct debit into the Commission Bank Account: BSB 105-132; Account No: 488230540. For a reference number, the legal aid file number as listed on the top of the letter sent to clients. The file number must be used to ensure the payment gets matched to the client.
The final contribution is the amount of money to be repaid to the Commission if the assisted person
- recovers money from the legally aided case; or
- his or her means improve by way of a lump sum from some other source (including legal proceedings),
such that the person is no longer eligible for aid, and the Commission considers that the person can afford to repay the costs already met on his or her behalf by the Commission.
If dissatisfied with the assessed repayment, an assisted person may appeal and put forward any special or exceptional circumstances for consideration. However, recovery is normally required notwithstanding that the assisted person:
- has spent money
- is dissappointed with the amount of money recovered; or
- will be left with little or nothing after repayment
Statutory charge over real estate
Section 18A of the Legal Services Commission 1977 authorises the Commission to take a statutory charge over any real estate in which the assisted person and any financially associated person has an interest in order to secure full repayment of the grant of legal assistance in due course.
The charge will not arise if the cost of the case is less than the statutory charge threshold set by the Commission from time to time, currently $2 250.
If an extension of aid is sought that would take commitment over $2 250, and the assisted person or any financially associated person has an interest in real estate, the extension request must be accompanied by a signed consent to the charge. If there is a co-owner or if the real estate belongs to the financially associated person, that person should sign a consent before aid will be granted. In some cases aid may be granted without the other person's consent.
The Consent to Statutory Charge should be signed in the presence of a solicitor employed by the firm the grant of legal aid has been assigned to. The solicitor should under the grant of legal aid explain personally to the applicant and their financially associated person the general nature and effect of the Statutory Charge and to keep them both informed of the legal costs and disbursements as the proceedings being funded by the Commission progress.
An administration fee of $300 is incurred with each statutory charge. It covers the Commission's costs of preparing and registering the charge documents, eventual removal of the charge, and all administrative work and expenses in the meantime. This charge may be discounted if the statutory charge is repaid early.
Opposing parties who are joint owners
If joint owners of property are opponents in litigation, a charge will be taken over the assisted person's interest only. This will not affect the interest of the other person. If the joint property is sold, the charge will be paid out of the assisted person's share.
If Family Court orders for property settlement specify that one party does not have a claim to real estate in the property settlement, the Commission’s charge may still require repayment.
Repayment of the charge
The charge remains over the title until the property is re-financed, further mortgaged, transferred, sold or the owner dies. On the first of these events occurring, the Commission is repaid. No repayments are required in the meantime, other than in exceptional circumstances, although if the owner or assisted person wishes to repay at any time they may do so. A repayment can occur as a lump sum or in instalments of at least $20 each.
Special arrangements for hardship
If repayment would cause hardship and the Commission's interests can be protected in some other way, such as by means of an equivalent security over another property, this may be agreed to. This is at the discretion of the Commission.
Rebate for early repayment
Early repayment of money secured by a charge taken for aid granted after 1 October 1998 attracts a rebate on the amount secured.
The rebate is
- $300 if paid within six months of the date the charge was taken;
- $150 if paid between six months and two years of the date the charge was taken; or
- $100 if paid between two and four years of the date the charge was taken.
There is a right to appeal against a decision relating to a statutory charge.
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