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Financial contributions (section 36) - retrospective contributions

Legal Aid Queensland may impose a s 36 condition on a grant of aid that requires a legally assisted person to pay a retrospective contribution towards the costs of providing legal assistance. A retrospective contribution may be imposed when/or as a result of a grant of legal aid, the legally aided person's ownership of/or entitlement to property is preserved or that person is entitled to recover property or money.

The amount of retrospective contribution to be paid will be determined by Legal Aid Queensland when an order or agreement has been made which preserves the client's property or money or entitles them to recover property or money.

In situations where legal aid ceases to fund a matter prior to an order or agreement being made Legal Aid Queensland reserves its right to impose a retrospective contribution.

The amount of contribution imposed will not exceed the ordinary professional costs that would be payable by a non-legally aided person.

The contribution that the legally assisted person is liable to pay shall, until payment, be a first charge in favour of Legal Aid Queensland on the money and property actually recovered by or on behalf of the legally assisted person in respect of the matter in which legal assistance was given. All conveyances or acts done to defeat that charge will be void as against Legal Aid Queensland except for a bona fide purchaser for value without notice.

Interest is chargeable on retrospective contributions

Interest is chargeable at the rate prescribed in Civil Proceedings Act 2011 on contributions imposed pursuant to s 36 of Legal Aid Queensland Act 1997.

Legal Aid Queensland requires interest to be paid on a retrospective contribution while it or part of it remains unpaid one month after the date of imposition or, when there is a request for review, within fourteen days after the final determination of the external review officer, whichever is the latter.

When a retrospective contribution is levied, Legal Aid Queensland will notify the legally assisted person of the amount to be paid and the rate of interest which will accrue.

How the retrospective contribution is calculated

When a case finalises and a benefit has been received Legal Aid Queensland will consider the type of matter funded and the value of the property and/or money received by the legally assisted person when determining the amount of the retrospective contribution payable.

Criminal injuries compensation
lesser of
(a) total expenditure on the file or
(b) $4,000 + GST or
(c) 20% of the award
Equal opportunity, discrimination and employment law
lesser of
(a) total expenditure on the file or
(b) 20% of the award
Family law
lesser of
(a) total expenditure on the file or
(b) 20% of the property settlement

Items excluded from retrospective contribution calculations

When calculating the amount of retrospective contribution to impose Legal Aid Queensland will disregard the following expenditures:

  • interpreter fees
  • translation fees
  • rural travel and accommodation
  • portion of the chairperson's costs of any dispute resolution conference attributable to any other party to the conference.
  • portion of the arbitrator's costs in property arbitration matters.

GST and recovery of costs

Where Legal Aid Queensland is seeking to recover more than 50% of the costs of the file (including any initial contributions paid) GST must be imposed.

Decision makers of a higher delegation

Where more than 50% of the benefit obtained relates to a deferred benefit such as superannuation, the matter must be referred to a senior grants officer for determination.

Review

Applicants seeking a review of a decision to impose a retrospective contribution have 28 days from the date of issue of the tax invoice to request a review.

If at any time after the notice has issued Legal Aid Queensland identifies an error in the way the retrospective contribution amount being sought has been calculated the Director, Grants has the authority to vary the retrospective contribution being sought to the correct amount. The Director, Grants will only exercise this power to reduce the contribution amount.

If there were circumstances that prevented the applicant seeking a review within this time a request can be made to have the appeal period extended. This decision is made by the internal review officer.

Only the external review officer may review the imposition of a retrospective contribution. The external review officer may waive, vary or confirm the retrospective contribution. The decision of the external review officer is the final decision of Legal Aid Queensland.

The external review officer may waive or vary the imposition of a retrospective contribution if they consider:

  • exceptional circumstances exist, and
  • the applicant has no capacity to pay a retrospective contribution.

For the purpose of this guideline "exceptional circumstances" refer to circumstances that are unusual, uncommon or exceptional that set apart the applicant's case from all other cases where applicants for legal assistance are required to pay a retrospective contribution.

When reviewing the imposition of a retrospective contribution the external review officer will consider each case in its entirety and on its own merits.

Factors that will be considered include:

  • details of the applicant's current financial situation, such as income, Centrelink benefits, number of children and expenses
  • any personal circumstances that affect the applicant's ability to meet their financial obligations
  • whether there has been a change in the applicant's circumstances since they accepted the offer of legal assistance and being required to pay the retrospective contribution
  • the type of benefit/property that was received or retained
  • the proportion of the benefit/property that relates to deferred benefits such as superannuation
  • the period of time until any deferred benefits are accessible
  • the date of determination and notification of the contribution amount the decision was made and the client and the client notified about the contribution amount.

Legal assistance is only provided to people who are financially disadvantaged and meet the means test. The fact that the legally assisted person is financially disadvantaged or in financial difficulty will not alone be considered to be an exceptional circumstance.

Legal assistance for property matters is only provided where the total property pool is between $20,000 and $400,000. The fact that the legally assisted person receives a small amount of property under the settlement will not alone be considered to be an exceptional circumstance.

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