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Act Repealed Latest version as at 15 December 1995 (as enacted) | 1995 No 91

Legal Services Amendment Act 1995

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Act Repealed Latest version as at 15 December 1995 (as enacted) | 1995 No 91

Legal Services Amendment Act 1995

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1 Short Title and commencement

(1)

This Act may be cited as the Legal Services Amendment Act 1995, and shall be read together with and deemed part of the Legal Services Act 1991 (hereinafter referred to as the principal Act).

(2)

This Act shall come into force on a date to be appointed by the Governor-General by Order in Council.

2 Interpretation

Section 2 of the principal Act is hereby amended by omitting, from the definition of the term “domestic proceedings”, the expression “Domestic Protection Act 1982”, and substituting the expression “Domestic Violence Act 1995”.

3 Resources of spouse or of parents of minor

Section 31 of the principal Act is hereby amended by adding the following subsection:

“(7)

For the avoidance of doubt, it is hereby declared that where—

“(a)

A person seeks or receives civil legal aid in connection with proceedings under the Domestic Violence Act 1995; and

“(b)

Those proceedings are brought by—

“(i)

A minor against his or her parent or parents; or

“(ii)

A person against his or her spouse,—

the parties to those proceedings shall be regarded, for the purposes of subsections (1) and (2) of this section, as having contrary interests in the dispute to which the proceedings relate.”

4 New sections inserted

(1)

The principal Act is hereby amended by inserting, after section 49, the following sections:

“49a. Contributions and charges in relation to proceedings under Domestic Violence Act 1995

“(1)

In this section and section 49b of this Act, unless the context otherwise requires, the term ‘domestic violence proceedings’, in relation to any person, means—

“(a)

Any proceedings under the Domestic Violence Act 1995 to which that person is a party, where those proceedings relate, wholly or partly, to an application made, by or on behalf of that person, for a protection order or an order under Part III of that Act, or both:

“(b)

Any proceedings on an appeal, by or on behalf of that person, under section 91 or section 93 of the Domestic Violence Act 1995 against any determination of any Court in any proceedings to which paragraph (a) of this subsection applies:

“(c)

Any proceedings under the Domestic Violence Act 1995 relating to, or arising out of, any proceedings in which a protection order, or an order under Part III of that Act, or both, are made in that person’s favour.

“(2)

This section applies to any person who receives civil legal aid in connection with any domestic violence proceedings, whether or not those proceedings are part of, or arise out of, or relate to, or are joined or heard with, proceedings (whether brought by or on behalf of that person or any other person) for any order, relief, redress, or remedy under an enactment other than the Domestic Violence Act 1995.

“(3)

Notwithstanding anything in section 37 or section 40 of this Act, but subject to subsection (4) of this section and to section 49b of this Act, where this section applies to any person in respect of any grant of civil legal aid, then, to the extent that the grant of aid relates to domestic violence proceedings, and to that extent only,—

“(a)

That person shall not be required to make a contribution pursuant to section 37 of this Act in respect of that grant of aid; and

“(b)

No charge shall be imposed, pursuant to section 40 of this Act, on any property of that person in respect of that grant of aid,—

unless the District Subcommittee considers that there are exceptional circumstances that justify the making of such a contribution, or the imposition of such a charge, or both.

“(4)

Where, in relation to a grant of civil legal aid, a District Subcommittee determines, pursuant to subsection (3) of this section, that, to the extent that the grant of aid relates to domestic violence proceedings, a person to whom this section applies should be required to make a contribution under section 37 of this Act, nothing in paragraph (b) of that subsection applies in respect of that contribution.

“(5)

Nothing in this section affects—

“(a)

The liability of any person to whom this section applies to make any contribution pursuant to section 37 of this Act in relation to any grant of civil legal aid, to the extent that the grant of aid does not relate to domestic violence proceedings; or

“(b)

The imposition of any charge on the property of such a person pursuant to section 40 of this Act in respect of any proceedings, other than domestic violence proceedings or, as the case requires, to the extent that the proceedings are not domestic violence proceedings.

“49b. Apportionment of contribution and charge in respect of domestic violence proceedings

“(1)

Where—

“(a)

Civil legal aid is granted to any person in respect of any proceedings; and

“(b)

That grant of aid relates, in part, to domestic violence proceedings; and

“(c)

That person is not required, pursuant to section 49a(3) of this Act, to make a contribution under section 37 of this Act in respect of that grant of aid, to the extent that it relates to domestic violence proceedings,—

then, for the purposes of determining the amount of the contribution that must be paid by the person granted aid, the District Subcommittee shall determine the proportion of the grant of aid that appears to the Subcommittee to be fairly and reasonably attributable to the domestic violence proceedings, and, subject to any power of the Subcommittee to vary or waive the amount of the person’s contribution, that contribution shall be reduced proportionately in accordance with that determination.

“(2)

Where—

“(a)

Any grant of civil legal aid relates, in part, to domestic violence proceedings; and

“(b)

No charge is imposed, pursuant to section 40 of this Act, on any property of the aided person in respect of that grant of aid, to the extent that it relates to domestic violence proceedings; and

“(c)

In respect of any claim made under section 79(1) of this Act in relation to that grant of aid, any sum is allowed (in whole or in part) under section 80 or section 82 of this Act; and

“(d)

That claim relates, in part, to domestic violence proceedings,—

then, for the purposes of calculating the amount of the charge (if any) to which the aided person’s property is to be subject under section 40 of this Act by reason of the allowing of that sum, the District Subcommittee to which that claim is made shall determine the proportion of that claim that appears to the Subcommittee to be fairly and reasonably attributable to the domestic violence proceedings, and that proportion of that claim shall be disregarded in making that calculation.

“(3)

Subject to subsections (4) and (5) of section 123 of this Act, but without limiting subsection (6) of that section, in making any determination pursuant to subsection (1) or subsection (2) of this section, the District Subcommittee shall have regard to such representations or information (if any) made or provided to the Subcommittee in relation to the matter.

“(4)

Where,—

“(a)

Pursuant to section 62(b) of this Act, a District Subcommittee advises an applicant for civil legal aid of the amount of the contribution which that person is required to make in respect of that aid; and

“(b)

In calculating the amount of that contribution, the Subcommittee has made a determination pursuant to subsection (1) of this section,—

that advice shall include a statement setting out the reasons for that determination.

“(5)

Where,—

“(a)

Pursuant to section 81 of this Act, a District Subcommittee advises an aided person of the amount of the charge to which the aided person’s property is subject under section 40 of this Act; and

“(b)

In calculating the amount of that charge, the Subcommittee has made a determination pursuant to subsection (2) of this section,—

that advice shall include a statement setting out the reasons for that determination.”

(2)

Section 37(1) of the principal Act is hereby consequentially amended by inserting, before the words “Where a person”, the words “Subject to sections 49a and 49b of this Act,”.

(3)

Section 40(1) of the principal Act is hereby consequentially amended by omitting the expression “and 49”, and substituting the expression “49, 49a, and 49b”.

5 Applications in representative capacity under Domestic Violence Act 1995

The principal Act is hereby amended by inserting, after section 69, the following section:

“69a.

“(1)

Notwithstanding sections 64 and 65 of this Act, where any proceedings for, or relating to, a protection order under the Domestic Violence Act 1995, or an order under Part III of that Act, are being brought or defended, pursuant to section 9 or section 11 or section 12 or section 73 of that Act, by a next friend or guardian ad litem, an application for civil legal aid for the person on whose behalf those proceedings are being so brought or defended shall be made on that person’s behalf by that next friend or guardian ad litem.

“(2)

Sections 65, 67, and 68 of this Act, so far as applicable, shall apply in relation to an application for civil legal aid to which subsection (1) of this section applies, with all necessary modifications, and with the following specific modification, namely, that a reference in those sections to a mentally disordered person shall be read as including a person on whose behalf an application may be made, pursuant to section 11 or section 12 or section 73 of the Domestic Violence Act 1995, for a protection order or an order under Part III, of that Act, or both.”

6 Transitional provision

Where any application has been made, before the commencement of this Act, for civil legal aid in connection with any proceedings under the Domestic Protection Act 1982, then,—

(a)

In any case where that application has been dealt with (whether by a District Subcommittee or the Authority) before the commencement of this Act, all matters relating to that application, including (without limitation) the applicant’s. liability to pay any contribution and the imposition of any charge on any property of the applicant, shall be determined in all respects as if this Act had not been passed:

(b)

In any other case, all matters relating to that application shall be determined in accordance with the principal Act (as amended by this Act), and the principal Act shall apply accordingly with all necessary modifications.

This Act is administered in the Ministry of Justice.

Act Repealed Latest version as at 15 December 1995 (as enacted)

Legal Services Amendment Act 1995

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