Legal Assistance Act 1962

Legal Assistance Act 1962

An Act to make provision with respect to the granting of legal assistance to persons of limited means and matters incidental thereto

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title and commencement

(1)  This Act may be cited as the Legal Assistance Act 1962 .

(2)  This Act shall commence on the same day as the Law Society Act 1962 .

2.   Repeal

The Legal Assistance Act 1954 is repealed.

3.   Interpretation

[Section 3 Subsection (1) amended by No. 109 of 1974, s. 3 ][Section 3 Subsection (1) amended by No. 25 of 1980, s. 3 ]

(1)  [Section 3 Subsection (1) amended by No. 6 of 1968, s. 2 ]In this Act, unless the contrary intention appears –

approved scheme means –

(a) a scheme previously approved under section 3 of the Legal Assistance Act 1954 ;

(b) a scheme approved by the Attorney-General under section 4A of this Act; or

(c) a scheme approved by the Attorney-General, being a scheme proposed by a body that is prescribed for the purposes of this paragraph;

assisted person means a person who is granted legal assistance under an approved scheme or by an officer of the Australian Legal Aid Office;

committee means a committee established by the Society under an approved scheme;

court includes –

(a) the Supreme Court;

(b) [Section 3 Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] the Magistrates Court (Civil Division);

(c) a warden's court constituted under the Mining Act 1929 ;

(d) a court of summary jurisdiction; and

(e) any other court or tribunal, and any judge, commissioner of courts of requests, magistrate, justice, coroner, or other person, exercising judicial powers;

legal practitioner includes a barrister;

Society means the Law Society of Tasmania.

(2)  [Section 3 Subsection (2) omitted by No. 26 of 1969, s. 2 ].  .  .  .  .  .  .  .  

4.   

4A.   Schemes for the granting of legal assistance

[Section 4A Inserted by No. 6 of 1968, s. 3 ]

(1)  The Attorney-General may approve a scheme for ensuring that legal assistance is available to persons of limited means.

(2)  A scheme under this section may provide for and regulate –

(a) the cases in which, and the conditions under which, persons shall be eligible to receive assistance under the scheme;

(b) the kinds of legal proceedings, and the kinds of questions or matters, in respect of which assistance may or may not be granted under the scheme;

(c) the appointment of officers or servants to assist in the administration of the scheme, and the duties and remuneration of those officers or servants;

(d) the establishment of committees to administer the scheme, and the constitution, quorum, procedure, powers, and relationships of such committees;

(e) the receipt and application of any subsidy paid to the Society under section 7 ;

(f) the allocation to legal practitioners of the legal professional work to be carried out on behalf of assisted persons;

(g) the payment of fees to legal practitioners to whom legal professional work is allocated under the scheme, and the payment of contributions by assisted persons towards the cost of their assistance;

(h) the winding up of any existing approved scheme, including the continuance, with or without change, or the abolition of, committees, the transfer of funds held by committees, the continuance of legal assistance already begun or promised, and payment therefor; and

(i) such other matters as may be necessary or convenient for carrying out or giving effect to the scheme.

(3)  A scheme approved under this section shall include a date for its commencement and on that date any approved scheme theretofore in force shall be wound up as provided in the new scheme.

5.   Exemption from fees

[Section 5 Substituted by No. 26 of 1969, s. 4 ][Section 5 Subsection (5) amended by No. 25 of 1980, s. 4 ]

(1)  An assisted person and his agent shall not be required to pay to the State or an officer of the State any fee in respect of any action, matter, or transaction arising in the course of any legal professional work carried out on behalf of that person under an approved scheme.

(2)  The mere production of a certificate signed by an authorized officer that a person is an assisted person in respect of a specified action, matter, or transaction is sufficient authority for an officer of the State who is required or authorized by law to collect fees payable under any law of the State not to demand or collect fees in respect of that action, matter, or transaction from that assisted person or his agent.

(3)  If a fee is paid by an assisted person or his agent that under subsection (1) he should not be required to pay, it may be recovered by that person's solicitor acting for him in the relevant action, matter, or transaction, notwithstanding any enactment, regulation, rule, by-law, order or proclamation to the contrary.

(4)  Fees for copies of documents supplied by an officer of the State for the purposes of any legal professional work carried out on behalf of an assisted person shall be deemed to be fees in respect of that action, matter, or transaction to which the work relates.

(5)  [Section 5 Subsection (5) amended by No. 109 of 1974, s. 3 ]In this section –

authorized officer means –

(a) an officer or employee of the Society who is authorized by a committee to sign certificates under this section;

(b) the Deputy Director in this State of the Australian Legal Aid Office or some person authorized by him to sign certificates under this section; or

(c) an officer or employee of a body that is prescribed for the purposes of this paragraph and who is authorized by that body to sign certificates under this section;

fees includes stamp duties.

6.   Powers of courts as to costs

A court may make in favour of an assisted person any such order for costs (except against another assisted person) as that court has power to make in favour of a person who is not an assisted person, notwithstanding that no amount is or will be payable by the assisted person or that the costs so ordered are in excess of the amount that is or will be payable by the assisted person.

6A.   Power of committee to recover part of costs

[Section 6A Inserted by No. 26 of 1969, s. 5 ]

(1)  Where an assisted person is granted legal assistance on the basis that he bears some of the costs or expenses of the action, matter, or transaction to which the assistance relates, a committee may bring an action in the name of the Society to recover any costs or expenses of that action, matter, or transaction payable by that person in respect thereof.

(2)  If an action is brought under this section –

(a) no fees or stamp duties are payable by or on behalf of the committee to the State or any officer of the State in respect of the action; and

(b) any money recovered thereby for costs or expenses shall be paid to the committee for the purposes of this Act.

7.   Subsidies

(1)  [Section 7 Subsection (1) substituted by No. 6 of 1968, s. 5 ]The Attorney-General may pay to the Society or a committee a subsidy of such amount as he may determine towards defraying the costs of administering an approved scheme.

(2)  All payments made by the Attorney-General under this section shall be made out of money to be provided by Parliament for the purpose.

8.   Annual report

(1)  The Society shall, not later than 30th September in each year, submit to the Attorney-General a report by each committee on the operation of the approved schemes during the year ended on the preceding 30th June.

(2)  A report under this section shall be accompanied by an audited statement of the receipt and expenditure of money in relation to the respective schemes during the period to which the report relates.

9.   This Act to prevail over certain enactments, &c.

[Section 9 Amended by No. 6 of 1968, s. 6 ][Section 9 Amended by No. 46 of 1991, s. 4 and Sched. 2 ]Notwithstanding anything in the Supreme Court Civil Procedure Act 1932 or in any rules of court made thereunder, the provisions of this Act prevail over the provisions of that Act and those rules in respect of any proceedings that are subject to that Act, and any legal assistance granted to any person shall be granted under an approved scheme and not otherwise.

10.   Regulations

[Section 10 Inserted by No. 39 of 1980, s. 2 ]The Governor may make regulations for the purposes of this Act.