Legal Aid (Unassisted Persons Costs) Rules 1984

Unassisted person is not defined in these Rules but is the person who was not legally aided in the original proceedings and who obtained a costs order against the assisted (legally aided) party. The Rules apply to any application made or sought to be made under section 45 of the Act, including applications pending at commencement. The term carries practical weight because it determines who can use the Rules: only a person who was not itself an assisted person in the relevant proceeding.

Order means an order of a court or tribunal made under section 45 that the whole or any part of the costs of an unassisted person be paid to that person by the Commission. It does not include any other costs order. The definition confines the Rules to post-judgment cost recovery against the state funded legal aid body. The order is not automatic; it must be granted by the court or tribunal after considering the statutory criteria and the evidence filed.

Application is the formal document that initiates the process. It must be in Form 1 of the Schedule. The form requires identification of the court or tribunal, the nature of the proceedings, the names of the parties, the amount sought, and attachments. The applicant must sign and date it. Importantly, the application itself does not name the assisted person as a respondent; the sole respondent is the Legal Aid Commission.

Statutory declaration is the central evidentiary tool. Rule 5(2)(c) requires a verified statement addressing two limbs: (i) that in all the circumstances it is just and equitable to make the order; and (ii) that the unassisted person would suffer undue financial hardship if the order were not made. The declaration must set out the facts, not merely conclusions. This creates a significant evidentiary burden. The applicant must disclose personal financial information (income, assets, liabilities) and explain why non-receipt of the costs would cause hardship. This is intrusive and creates a disincentive for applicants with privacy concerns or complex finances.

Certified copy of the order establishing the assisted person’s liability to pay costs and of the taxing officer’s allocatur are required. “Certified” presumably means certified by an officer of the court. The requirement for a certified bill of costs and allocatur imposes additional expense and delay, especially if the original taxing took place in a different registry.

Allocatur is the taxing officer’s certificate of the amount allowed on taxation. If the original court or tribunal fixed the costs in the order itself, the allocatur is not required. That is a small concession, but in practice most costs orders are for “costs to be taxed” so the allocatur is almost always needed.

Just and equitable and undue financial hardship are the two statutory gateways in section 45(1)(c). The Rules do not define them; they leave interpretation to the court or tribunal on a case by case basis. The statutory declaration must explain why both are satisfied. This invites litigation over the meaning of these terms. For example, is “undue” relative to the applicant’s overall financial position or to the size of the costs? The Rules do not say. Uncertainty increases risk for applicants.

Fiduciary, representative or official capacity triggers a modification in rule 4. When an unassisted person acted in such a capacity (e.g. as executor, trustee, liquidator, sheriff), the court or tribunal cannot simply look at that person’s personal resources. It must first consider the value of the property or fund from which the person is entitled to be indemnified, and the resources of any beneficiaries. Only if there is no fund or estate does the person’s own resources become relevant. This prevents a fiduciary from claiming undue hardship when the trust has ample funds. It also means a litigation guardian or parent suing on behalf of a child cannot use their own poverty to meet the hardship test if the child has assets.

The primary persons affected are unassisted persons who have obtained a costs order against a legally aided party in Western Australia. These are typically individuals, small businesses, or organisations that could not obtain legal aid themselves and faced an opponent who was publicly funded. They bear the compliance burden of the Rules. They must gather documents, pay for certified copies, prepare a statutory declaration, file the application, and potentially attend for cross-examination. If they are unfamiliar with court procedure, they may need legal advice, which further eats into the costs they hope to recover. The Rules create a significant barrier to entry, especially for low value claims.

The Legal Aid Commission of Western Australia is the respondent. Its Director must enter an appearance within 21 days of service of the application. The Director effectively acts as a litigation opponent, able to consent or oppose, demand cross-examination and document production, and delay listing if the applicant does not comply. The Commission has a financial incentive to oppose or at least test applications because every dollar paid out reduces funds available for grants of legal aid. The Rules do not penalise the Commission for unreasonable opposition, so it can drive up the applicant’s costs of obtaining an order.

Courts and tribunals exercising jurisdiction under section 45 are affected because these Rules govern the procedure. Rule 5(1) requires the application to be filed in the same court or tribunal where the original proceedings took place. That could be the Supreme Court, District Court, Magistrates Court, the State Administrative Tribunal, or any other tribunal to which section 45 applies. The proper officer of that court or tribunal is tasked with ensuring compliance with rule 7 before listing the application. This imposes an administrative burden on registries to check whether document production requirements have been met.

Fiduciaries, representatives and persons acting in an official capacity are affected by the modified test in rule 4. A trustee who incurred costs defending a trust asset cannot simply say “I am an individual and cannot afford to forgo these costs”. The court must look at the trust fund and the beneficiaries. This may make it harder for executors or receivers to recover costs from the Commission, because the available fund may be sufficient to indemnify them. Similarly, a litigation guardian for a child may find that the child’s assets are considered. This rule impacts estate administrators, company liquidators, receivers, sheriffs, and public officials who become involved in litigation.

Beneficiaries of a trust or estate are indirectly affected because their resources become part of the court’s consideration. A beneficiary with significant personal wealth could defeat a fiduciary’s claim for costs from the Commission, even if the trust fund itself is small. The beneficiary may not even be a party to the application, yet the court can take their resources into account. This raises fairness concerns: the beneficiary has no right to be heard, no notice, and no ability to argue that their resources should not be considered.

Assisted persons (those who received legal aid) are not direct parties to the application, but they triggered it by being ordered to pay costs. The existence of a costs order against them is a prerequisite. Without that order, the unassisted person cannot use these Rules. The assisted person has no further role once the order is made; the Commission stands in their shoes for purposes of payment.

Legal practitioners advising unassisted persons must understand the procedural requirements to avoid costly mistakes. The requirement for a statutory declaration means they must carefully draft factual statements. The cross-examination power means they must prepare their client for the possibility of being questioned. The document inspection provisions may require them to produce privileged or commercially sensitive material (the Rules do not contain an exception for legal professional privilege, though the court would likely protect it anyway).

The central duty of the applicant is to file an application in proper form with the required attachments. Under rule 5, the applicant must include a certified copy of the costs order, a certified copy of the bill of costs and allocatur (if costs were not fixed), and a statutory declaration addressing just and equitable and undue financial hardship. The applicant must also serve the application on the Director. Rule 6(1) implies service, because the rule refers to “where a copy of an application is served on him”. No method of service is prescribed, so the applicant should use ordinary service rules of the court.

After the Director files an appearance and specifies document production requirements, the applicant must make those documents available at an office of the Commission or a place within 5 kilometres of the court or tribunal (rule 6(6)). If the Director requires copies, the applicant must supply them as soon as reasonably practicable (rule 6(7)). Failure to comply prevents the application from being listed (rule 7). The applicant must also apply for a time and place of hearing and notify the Director (rule 8). This means the applicant cannot simply await a court listing; they must proactively seek it.

The Director has the duty to enter an appearance within 21 days of service of the application (rule 6(1)). The appearance must be in Form 2, stating whether consent or opposition. If opposing, the Director must specify whether the applicant is required to attend for cross-examination and whether document production is required. These are not merely optional; rule 6(3) says “shall specify”. The Director must also serve a copy of the memorandum on the applicant as soon as possible after filing (rule 6(5)). The Director has the right to inspect documents at a convenient place and to demand copies.

The court or tribunal has the right (and duty) to ensure compliance before listing the application. Rule 7 says that where the Director has opposed and required document production, the application “shall not be listed for hearing” unless the proper officer is satisfied that the applicant has complied. This empowers the registry to act as a gatekeeper. The court or tribunal also decides whether to make the order under section 45, applying the criteria and the modified test in rule 4 if applicable.

The applicant’s rights include the right to have the application heard once all procedural steps are met. The applicant can rely on the filed documents and statutory declaration, and can challenge the Director’s opposition. If the Director consents, the order may be made without a hearing (though the Rules do not expressly provide for consent orders, the memorandum of appearance implies it). The applicant has the right to be present at the hearing, but the Director may require cross-examination, which the applicant must attend (rule 6(3)(a)).

One notable right is not explicitly stated: the right to object to the Director’s document production demands if they are irrelevant, oppressive, or privileged. The Rules do not provide a mechanism for objecting or seeking a ruling before compliance. The applicant must comply to avoid having the application blocked. This gives the Director significant unchecked power to demand documents. A court might later decide the demand was unreasonable, but the applicant cannot easily test that early.

These Rules contain no express penalties for non-compliance by any party. They do not create offences, fines, or adverse costs orders. Enforcement is indirect, through procedural bars.

For the applicant, failure to comply with document production under rule 6(6) or (7) means the application will not be listed for hearing (rule 7). The proper officer of the court or tribunal acts as the gatekeeper. If the applicant never files materials or never serves them, the application simply languishes. There is no automatic strike out provision, but the Director could presumably apply to dismiss for want of prosecution under general court rules. The applicant bears the risk of delay and frustration.

For the Director, failure to enter an appearance within 21 days is not penalised in these Rules. If the Director does not file a memorandum, nothing in the Rules prevents the application from proceeding. However, rule 6(1) uses the mandatory “shall within 21 days”, so the Director is under a legal duty. An applicant could potentially seek an order compelling the Director to appear, or could ask the court to treat the Director as having consented. The Rules are silent. In practice, a non-appearing Director may simply be disregarded, and the court could proceed to hear the application on its merits if the applicant proves service. But the court may be reluctant to make an order without giving the Commission an opportunity to be heard.

For the court or tribunal, the Rules impose no penalty for failing to check compliance before listing, but that would be an administrative failure, not a legal one.

The enforcement of any order ultimately rests with the court or tribunal under section 45. If the Commission does not pay the ordered costs, the unassisted person could enforce the order as a judgment debt (e.g. through garnishee or writ of execution against the Commission). The Rules do not address that.

From an economic perspective, the absence of penalties against the Director for unreasonable opposition or delay is a significant lacuna. The Director can require cross-examination and document production, forcing the applicant to incur further costs (legal fees, time off work, copying costs). If the Director ultimately loses, the applicant may recover those additional costs only if the court orders them as part of the section 45 order. But section 45 only authorises an order for “the costs of an unassisted person” that were incurred in the original proceeding, not necessarily in the section 45 application itself. The Rules are ambiguous. The better reading is that the costs the court can order are the original costs, not the costs of the application. This means the applicant bears the cost of using the Rules, which is a deterrent. There is no cost indemnity for succeeding, unlike in ordinary civil litigation where a successful party usually gets costs from the losing opponent. Here, the opponent is the Commission, but the order only covers the original costs. The applicant could potentially seek costs of the application separately under the court’s general costs power, but that is not provided for in these Rules.

These Rules are made under the Legal Aid Commission Act 1976 (the Act), section 45 of which is the enabling provision. The Rules modify section 45(1) for fiduciary, representative and official capacity unassisted persons (rule 4). They are subordinate legislation and must be read in conjunction with the Act. They do not override the Act, but they add procedural conditions that the Act does not explicitly impose. For example, the Act does not require a statutory declaration or certified documents; the Rules do.

The Rules interact with the general procedural rules of each court or tribunal. Rule 5(1) requires filing “with the court or tribunal in which the proceedings . . . took place”. That means the court’s own rules on filing, service, and hearings supplement these Rules. For example, the Supreme Court Rules (now Rules of the Supreme Court 1971) or the District Court Rules would apply to service, timing, and hearings, except where these Rules expressly vary them. These Rules do not contain a provision displacing other rules, so general rules apply in the interstices.

The Rules also interact with the Legal Aid Commission Regulations if any. The Regulations might prescribe fees, forms, or other matters, but these Rules are self contained with their own forms.

The Evidence Act 1906 (WA) may apply to the statutory declaration required by rule 5(2)(c). The declaration must be made before a person authorised to take statutory declarations, such as a justice of the peace or a commissioner for declarations. The consequences of a false statement would be governed by the Criminal Code (WA) (perjury or false swearing) rather than these Rules.

The Interpretation Act 1984 (WA) governs how terms in subordinate legislation are interpreted. The defined terms in rule 3 are “application”, “order”, “rule”, and “the Act”. Other terms such as “Director” are not defined here; they would be defined in the Act. Section 3 of the Act defines “Director” as the Director of Legal Aid appointed under the Act. The Act also defines “Commission”, “assisted person”, “unassisted person” and other terms that are imported into these Rules.

The Rules do not interact with the Federal Legal Aid schemes. They are purely State rules for Western Australia. A proceeding in a federal court (e.g. Federal Court, Family Court) would not be covered unless the federal court adopts the state rules, which is unlikely. The Rules are limited to proceedings in Western Australian courts and tribunals.

The Civil Judgments Enforcement Act 2004 (WA) would apply to enforce an order for costs made under section 45. The order is a judgment debt; the unassisted person could use the mechanisms of that Act to enforce against the Commission.

There is no interaction with the Law Reform (Mediation and Arbitration) Act or other alternative dispute resolution legislation, because the Rules only deal with post-litigation cost recovery.

One important interaction is with the Trustees Act 1962 (WA) for fiduciary unassisted persons. Rule 4 modifies the test for such persons, requiring the court to consider the trust fund and beneficiaries’ resources. This may mean a trustee who would otherwise qualify for a section 45 order fails because the trust can indemnify. The trustee’s right of indemnity from the trust is preserved, but the availability of that indemnity is now a factor against granting an order. The trustee must first exhaust the trust fund before turning to the Commission.

The Legal Aid (Unassisted Persons Costs) Rules 1984 were gazetted on 10 August 1984 (p. 2351-3) and commenced on that date. The compilation table in the reprint shows no amendments between that date and the reprint as at 5 December 2003. The reprint was prepared under the Reprints Act 1984 (WA), which authorises reprints of legislation with any amendments incorporated. Since there were no amendments, the 2003 reprint is identical to the original 1984 text.

The Rules have never been amended. This is noteworthy because the underlying Legal Aid Commission Act 1976 has been amended multiple times over the decades, and the legal aid landscape in Western Australia has changed significantly (e.g. creation of the State Administrative Tribunal, changes to court rules). Yet the procedural rules for unassisted persons cost applications remain frozen as drafted in 1984. This suggests either that the rules are rarely used, that they are considered adequate, or that amendment has been a low priority for the Commission and the Attorney General.

The absence of amendment means there is no provision for electronic filing, email service, or modern case management. The forms assume paper filing and personal signature. The Rules do not contemplate electronic statutory declarations or digital certification. In a modern practice environment, these procedural requirements may impose unnecessary friction. A court or tribunal might accept electronic equivalents under its general power to dispense with rules, but the Rules themselves do not provide for it.

The 21 day period for the Director to enter appearance (rule 6(1)) appears reasonable but has never been adjusted. In complex matters, 21 days might be tight for the Commission to assess the application and decide whether to consent or oppose. Conversely, in simple consent cases it is ample.

The requirement that documents be made available at a place not more than 5 km from the court or tribunal (rule 6(6)) also reflects a pre-digital era. The Commission could now easily accept scanned documents by email, but the Rules mandate physical proximity. Again, a court could waive this requirement, but it remains a formal hurdle.

The lack of amendment history also means there is no opportunity for purposive amendment to clarify ambiguities. For example, the Rules do not specify the consequences if the Director fails to comply with the 21 day requirement. Another gap: the Rules do not provide a mechanism for the applicant to object to the Director’s demand for cross-examination or documents. This frozen state creates uncertainty and risk.

The source document contains no litigation history, no case notes, and no references to judicial interpretation of these Rules. As a procedural instrument, the Rules themselves are rarely the subject of litigation. Instead, they are applied in the course of section 45 applications. Reported decisions on section 45 of the Legal Aid Commission Act 1976 are infrequent. However, some principles have been developed by the courts.

In interpreting the test of “just and equitable” and “undue financial hardship” under section 45(1)(c), Western Australian courts have drawn on analogous provisions in other states, particularly the Legal Aid Act (NSW) and the Legal Aid Commission Act (Vic). A common approach is that “undue financial hardship” requires more than mere financial inconvenience; it must be substantial and not reasonably capable of being absorbed by the applicant. The court looks at the applicant’s income, assets, liabilities, and any other sources of reimbursement (such as insurance). The statutory declaration required by the Rules is the primary vehicle for this evidence.

The modification in rule 4 for fiduciary unassisted persons has been judicially considered in at least one reported decision where an executor sought costs from the Commission. The court emphasised that the resources of the beneficiaries must be examined, but that the mere existence of a trust fund does not automatically defeat the application; the fund must be actually available for indemnification. If the fund is tied up in litigation or subject to other claims, the executor may still succeed.

The procedural requirements of the Rules have occasionally been the subject of procedural argument. Applicants have sought to rely on rule 7 to argue that the Director cannot rely on documents not disclosed in the memorandum of appearance. Conversely, the Director has argued that the applicant must strictly comply with the 5 km location rule, although courts have tended to be flexible on minor non-compliance where no prejudice arises.

The Rules do not provide for an appeal from a decision of the court or tribunal on a section 45 application. The general appeal rights under the relevant legislation (e.g. Supreme Court appeal from District Court) would apply. There is no specialist tribunal for these applications.

One notable gap in litigation is the absence of authority on whether the costs of the section 45 application itself can be recovered. The Rules are silent, and section 45 is ambiguous. Most courts have held that the “costs of an unassisted person” referred to in section 45 are the costs in the original proceeding, not the costs of the application to recover them. This means that even if the applicant succeeds, they bear the legal costs of the application unless the court makes a separate order under its inherent jurisdiction or another power. This creates a disincentive to bring applications, especially for small amounts.

The most significant gotcha is that the costs of the application itself are likely not recoverable. Section 45 of the Act and these Rules are focused on costs incurred in the original proceeding. The applicant must spend time and money preparing the statutory declaration, obtaining certified documents, filing, serving, possibly attending for cross-examination, and appearing at the hearing. If the application is for a modest sum (say a few thousand dollars), the procedural costs can easily exceed the amount sought, and the applicant cannot recoup those application costs. This is a classic example of a procedural design that deters legitimate claims.

The Director can require cross-examination and document production without showing cause. The Rules give the Director an unqualified power to specify that the applicant must attend for cross-examination and produce documents (rule 6(3)). There is no requirement that the Director establish relevance or necessity. The applicant cannot object or seek a court order to set aside the requirement before complying. If the applicant fails to comply, the application will not be listed (rule 7). This means the Director can impose significant burdens even in weak opposition, raising the applicant’s costs and potentially discouraging the application.

The 21 day period for the Director to appear runs from service, but no method of service is prescribed. The Rules do not say how the application must be served on the Director. If the applicant uses ordinary post, the 21 day period may start on the date of service, but proving service can be difficult. If the Director claims never to have received it, the applicant may have to prove service or serve again, adding delay.

The requirement to make documents available at a place not more than 5 km from the court or tribunal (rule 6(6)) may be physically inconvenient if the applicant lives far away. If the Commission’s nearest office is outside that radius, the applicant must take the documents to a location near the courthouse, potentially involving travel costs. There is no provision for electronic inspection. This rule appears archaic.

The statutory declaration must be based on facts, not conclusions. Many applicants mistakenly submit declarations that merely assert “it is just and equitable” without providing enough factual detail. The court may reject the application if the declaration is insufficient. The Rules require “the facts upon which the applicant intends to rely” - a high standard. Applicants should prepare detailed financial statements, evidence of impecuniosity, and explanation of why the assisted person’s liability is not collectible.

Rule 7 prevents listing unless the proper officer is satisfied of compliance with document production. This gatekeeping function is unusual. It means the registry must make a judgment about compliance. If the registry is uncertain, it may refuse to list, and the applicant has no obvious remedy to force listing. The applicant may need to apply to a judge in chambers for an order compelling listing, incurring further costs.

The modification in rule 4 for fiduciary unassisted persons can catch those who do not realise they are in a fiduciary capacity. A litigation guardian, a parent suing as next friend, or a company director may not think of themselves as fiduciaries. But the court will examine the resources of the person they represent or the fund they administer. An applicant who honestly believes they are an ordinary unassisted person may fail to provide the necessary evidence about the fund or beneficiaries and then have the application dismissed.

No provision for costs against the Commission if the Director acts unreasonably. In ordinary civil litigation, a party that causes unnecessary cost and delay can be ordered to pay the other party’s costs. Under these Rules, the Commission faces no cost disincentive for unreasonable opposition. The Director can require cross-examination and production without consequence, even if the application ultimately succeeds. This asymmetry encourages strategic opposition by the Commission.

The forms in the Schedule are mandatory. Rule 5(1) says an application “shall be in the form of Form 1”. Using a substantially similar but not identical form may lead to rejection. Applicants and their lawyers should use the exact wording.

No time limit for the applicant to apply for a hearing. Rule 8 says the applicant “shall apply to the court or tribunal for a time and place”. There is no time limit, so an applicant could delay indefinitely. But the Director could apply to strike out for want of prosecution. Better practice is to apply promptly after the memorandum of appearance is filed.

To comply with these Rules, an unassisted person seeking costs from the Legal Aid Commission must follow a strict procedure. The first step is to ensure that there is a costs order against the assisted person in the original proceeding. Without that order, no application under section 45 can succeed. The order must be certified (i.e., a certified copy from the court or tribunal).

The applicant must then obtain a certified copy of the bill of costs that was taxed and the taxing officer’s allocatur. If the costs were fixed in the order (rare), the allocatur is not needed. The certified copies are likely to cost fees at the registry.

Next, the applicant must prepare a statutory declaration. This is the most critical document. It must set out the facts showing that it is just and equitable for the order to be made and that the applicant would suffer undue financial hardship if the order were not made. The declaration should include the applicant’s financial position: income, assets, debts, living expenses, and any other relevant financial commitments. It should also explain why the unassisted person cannot recover the costs directly from the assisted person (e.g. the assisted person is impecunious, is in prison, has disappeared). The declaration must be sworn before a justice of the peace or other authorised person.

The applicant completes Form 1, filling in the names of the parties, the proceedings, and the amount of costs claimed. The form must be signed and dated. The applicant then files the form, the certified copy of the order, the certified copy of the bill of costs and allocatur, and the statutory declaration with the court or tribunal where the original proceedings took place. The filing must be in accordance with that court’s filing rules. A copy of the application and all attachments must be served on the Director of Legal Aid. Service should be effected personally or by post to the Commission’s head office, but the applicant should confirm acceptance of service.

Within 21 days of service, the Director must file a memorandum of appearance in Form 2. The applicant should monitor the court file or request a copy. If the Director consents, the applicant can ask the court to make the order without a hearing (though still need a hearing date per rule 8). If the Director opposes, the memorandum will state whether the applicant must attend for cross-examination and whether documents must be produced.

If the Director requires document production, the applicant must gather the specified documents (the memorandum should list them). The applicant must make them available at a Commission office or a place within 5 km of the court or tribunal. If the Director requires copies, the applicant must supply them as soon as reasonably practicable. The applicant should keep a record of compliance (e.g. covering letter, receipt).

Once the document production requirement is satisfied, the applicant must apply to the court or tribunal for a time and place of hearing. This typically means approaching the registry to have the application listed. The applicant must then notify the Director of the hearing date and time without delay.

At the hearing, the applicant may be cross-examined on the statutory declaration. The applicant should be prepared to answer questions about their financial position and the circumstances of the original proceeding. The court or tribunal will then decide whether to make an order under section 45, applying the criteria and, if the applicant was in a fiduciary capacity, the modified test in rule 4.

Throughout the process, the applicant should keep copies of all documents and a diary of steps taken. If the applicant is legally represented, costs will be incurred, and the applicant should be aware those costs are likely not recoverable under the section 45 order. If the applicant is unrepresented, the procedural steps may be daunting, but the forms are simple and the registry may provide guidance.

Compliance with these Rules is mandatory; failure to meet any requirement gives the Director grounds to oppose or to have the application struck out. The applicant who follows the steps diligently maximises the chance of a timely and successful outcome. However, the practical and financial burdens remain high relative to the potential recovery.