Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where a court
or tribunal, having finally decided a proceeding in favour of an unassisted
person, considers that an order for costs should be made against a party who
is an assisted person and determines his liability in that regard, the court
or tribunal may order that the whole or any part of the costs of the
unassisted person be paid to him by the Commission; but such an order shall
not be made, —
(a)
unless the proceeding is such that an order for costs would be made in favour
of the unassisted person, if this section were not enacted;
(b) in
respect of costs incurred by the unassisted person at first instance, unless
the proceeding was initiated by the assisted person at first instance; and
(c) in
any event, unless the court or tribunal is satisfied that —
(i)
in all the circumstances of the case, it is just and
equitable that the order should be made; and
(ii)
the unassisted person would suffer undue financial
hardship if the order were not made.
(2) Notice of
intention to apply for an order pursuant to subsection (1) shall be given
to the Director by or on behalf of the unassisted person and the Director
shall have the right to be heard on the application.
(3) The provisions of
subsection (1) relating to costs incurred at first instance apply to a
court or tribunal whether sitting at first instance or on appeal or review.
(4) In this section a
reference to costs is a reference to costs as between party and party, but the
costs in respect of which an order may be made pursuant to subsection (1)
include those of applying for the order.
(5) For the purposes
of subsection (1) a proceeding is finally decided in favour of an
unassisted person where —
(a) no
appeal lies against the decision in his favour;
(b) an
appeal lies against the decision with leave and the time limited for
applications for leave expires without leave being granted; or
(c)
leave to appeal against the decision is granted or is not required and no
appeal is brought within the time limited for appeal,
and where an appeal
against the decision is brought out of time, the court determining the appeal,
or any further appeal, in that proceeding may make an order for the repayment
by the unassisted person to the Commission of the whole or any part of any sum
previously paid to him, pursuant to this section, in respect of that
proceeding.
(6) Where a court
decides any proceeding in favour of an unassisted person and an appeal lies,
with or without leave, against that decision, the court may, as it thinks fit,
forthwith make, or refuse to make, an order pursuant to subsection (1),
but an order so made shall not take effect —
(a)
where leave to appeal is required, unless and until the time limited for
applications for leave to appeal expires without leave being granted;
(b)
where leave to appeal is granted or is not required, unless and until the time
limited for appeal expires without an appeal being brought;
(c)
where an appeal is brought, until it is finally decided.
(7) Where a person
receives legal aid in connection with part only of any proceeding, the
reference in subsection (1) to the costs of the unassisted person in that
proceeding is a reference to so much of those costs as is attributable to that
part.
(8) The rules
may —
(a)
prescribe the manner of determining what proceedings are or are not separate
proceedings for the purposes of this section or have or have not been
initiated by an assisted person;
(b)
modify the provisions of subsection (1) in their application to an
unassisted person who is concerned in a proceeding in a fiduciary,
representative or official capacity, only; and
(c)
regulate the procedure in connection with applications and orders made
pursuant to subsection (1) and provide for the delegation of the powers
of a court or tribunal to an officer of the court or tribunal.