Division 9Division 9 Court appointed referral for legal assistance
(cf SCR Part 66A, rule 1; DCR Part 28C, rule 1)
(1) In the interpretation of this Division, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).(2) The purpose of this Division is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.(3) The provision of legal assistance under this Division is not intended to be a substitute for legal aid.(4) A referral under this Division is not an indication that the court has formed an opinion on the merits of a litigant’s case.(5) Nothing in this Division requires the court to make a referral, or to consider a litigant’s case for referral, under this Division.
(cf SCR Part 66A, rule 2; DCR Part 28C, rule 2)
In this Division:litigant, in relation to any proceedings, means:
(a) a party to the proceedings, or(b) a person who has been served with a subpoena in the proceedings, or(c) a person who has applied to be joined in the proceedings.Pro Bono Panel means the list of barristers and solicitors referred to in rule 7.35.
registrar means:
(a) in relation to the Supreme Court, the principal registrar of that Court or any registrar of that Court nominated by the principal registrar, and(b) in relation to the Land and Environment Court, the registrar of that Court, and(c) in relation to the District Court when sitting at a proclaimed place (within the meaning of the District Court Act 1973), the registrar of the District Court for that place, and(d) in relation to the Local Court, the registrar for that Local Court.scheme means the scheme for the provision of legal assistance to litigants under this Division.
(cf SCR Part 66A, rule 3; DCR Part 28C, rule 3)
The registrar may maintain a list of persons:(a) who are barristers or solicitors, and(b) who have agreed to participate in the scheme in relation to that court.
7.36 Referral to a barrister or solicitor
(cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)
(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.(2) For the purposes of subrule (1), the court may take into account:(a) the means of the litigant, and(b) the capacity of the litigant to obtain legal assistance outside the scheme, and(c) the nature and complexity of the proceedings, and(d) any other matter that the court considers appropriate.(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.
(cf SCR Part 66A, rule 5; DCR Part 28C, rule 5)
A referral may be made for the following kinds of assistance:(a) advice in relation to the proceedings,(b) representation on directions hearing, interlocutory or final hearing, arbitration or mediation,(c) drafting or settling of documents to be filed or used in the proceedings,(d) representation generally in the conduct of the proceedings or of part of the proceedings.
7.38 Provision of assistance by barrister or solicitor
(cf SCR Part 66A, rule 6; DCR Part 28C, rule 6)
Subject to rule 7.39, if a barrister or solicitor agrees to accept a referral, he or she must provide assistance to the litigant in accordance with the referral.
(cf SCR Part 66A, rule 7; DCR Part 28C, rule 7)
(1) A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only:(a) in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor, or(b) with the written agreement of the litigant, or(c) with the leave of the registrar.(2) If a barrister or solicitor ceases to provide legal assistance to a litigant, the barrister or solicitor must inform the registrar in writing within 7 days of so ceasing.(3) If a barrister or solicitor ceases to provide legal assistance to a litigant, the referral of the litigant for legal assistance in the proceedings concerned is taken, unless the court otherwise orders, to have been terminated on that cessation.
(cf SCR Part 66A, rule 8; DCR Part 28C, rule 8)
(1) An application by a barrister or solicitor to the registrar for leave to cease to provide legal assistance must be in writing and must briefly state the reasons for the application.(2) A copy of the application for leave must be served on the litigant.(3) An application for leave may be heard by the registrar in the absence of the public and without any attendance by or on behalf of any person.(4) In deciding whether to grant leave under this rule, the registrar may consider any of the following matters:(a) whether the barrister or solicitor would be likely to be able to cease to provide legal assistance to the litigant under any practice rules governing professional conduct that apply to the barrister or solicitor,(b) any conflict of interest that the barrister or solicitor may have,(c) whether there is a substantial disagreement between the barrister or solicitor and the litigant in relation to the conduct of the litigation,(d) any view of the barrister or solicitor:(i) that the litigant’s case is not well founded in fact or law, or(ii) that the litigant’s prosecution of the litigation is an abuse of process,(e) whether the barrister or solicitor lacks the time to provide adequate legal assistance to the litigant because of other professional commitments,(f) whether the litigant has refused or failed to pay any disbursements requested under rule 7.42,(g) whether it is unfair to the barrister or solicitor to require him or her to continue to provide legal assistance under the scheme,(h) any other matter that the registrar considers relevant.(5) An application for leave under this rule and any related correspondence:(a) is confidential, and(b) is not part of the proceedings in relation to which the referral was made, and(c) does not form part of the court file in relation to those proceedings.
(cf SCR Part 66A, rule 9; DCR Part 28C, rule 9)
(1) Subject to subrules (2) and (3) and rule 7.42, a barrister or solicitor who provides legal assistance to a litigant under the scheme must not seek or recover any costs for the legal assistance.(2) If an order for costs is made in favour of a litigant who is assisted under the scheme, the barrister or solicitor who has provided the legal assistance is entitled to recover the amount of costs that another person is required to pay under the order.(3) A barrister or solicitor must account to the litigant for any money received by the barrister or solicitor in respect of any disbursements that have been paid by the litigant.
(cf SCR Part 66A, rule 10; DCR Part 28C, rule 10)
A barrister or solicitor who provides legal assistance to a litigant under the scheme may request the litigant to pay any disbursements that have been, or may reasonably be, incurred by the barrister or solicitor on the litigant’s behalf in connection with the legal assistance.