Victorian Consolidated Legislation

Legal Aid Act 1978 - SECT 30

Selection of practitioner2

30. Selection of practitioner2





(1) If-

   (a)  legal services are to be performed on behalf of an assisted person by
        a private legal practitioner; and

   (b)  VLA has not assigned the conduct of the assisted person's case to a
        private legal practitioner chosen after VLA called for tenders to
        conduct the case; and

   (c)  VLA has not under section 29B assigned the conduct of the assisted
        person's case to a private law practice or private legal practitioner
        included on a panel established under section 29A-

the assisted person is entitled to select a private law practice from the
names on a referral panel.

(2) If an assisted person does not wish to exercise the right to select a
private law practice under subsection (1), VLA must, on that person's behalf,
select a private law practice from the names on a referral panel.





(3) In selecting a private law practice under subsection (2), the paramount
consideration is the interests of the assisted person but, subject to that
consideration, VLA must allocate work equitably amongst the private law
practices named on referral panels.





(4) A private law practice may apply to VLA for inclusion on a referral panel.









(5) A private law practice is not eligible to apply under subsection (4)
during any period-

   (a)  for which the private law practice is disqualified from applying in
        accordance with this section; or

   (b)  of removal under subsection (10) or (11).





(6) On receiving an application under subsection (4), VLA may-

   (a)  accept the application and include the name of the private law
        practice on a referral panel; or

   (b)  subject to subsection (14), refuse the application and may disqualify
        the private law practice from making another application under
        subsection (4) for a specified period.

(7) VLA must prepare and maintain panels of names of private law practices
from the names of the private law practices that have applied under subsection
(4) and been accepted for inclusion.





(8) If the name of a private law practice is included on a referral panel, the
names of all the private legal practitioners who are partners, directors or
employees of the private law practice are, by force of this subsection, also
included on the panel, except the name of any of those legal practitioners
that has been removed under this section.





(9) If the name of a sole practitioner is included on a referral panel, the
names of all the practitioners who are employed by the sole practitioner are,
by force of this subsection, also included on the panel, except the name of
any of those practitioners employed by the sole practitioner which has been
removed under this section.





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(10) Subject to subsection (15), VLA may remove from a referral panel for a
specified period the name of-

   (a)  any private law practice; or

   (b)  any private legal practitioner who is a partner, director or employee
        of a private law practice.





(11) Without limiting VLA's powers to refuse an application made under
subsection (4) or remove a name from a referral panel, VLA may-

   (a)  refuse an application made under subsection (4) or remove from a
        referral panel the name of a private law practice if the name of a
        private legal practitioner who is a partner, director or employee of
        the private law practice is removed from the panel;

   (b)  remove from a referral panel the name of any private law practice that
        habitually takes an excessive time to defend persons charged with
        criminal offences.

(12) VLA may amend a referral panel-

   (a)  to remove the name of any private law practice that, or private legal
        practitioner who, has ceased to practise; or

   (b)  to record any change in name of a private law practice or private
        legal practitioner; or

   (c)  to remove a name in accordance with a request under subsection (13).



(13) A private law practice or a private legal practitioner may, by writing to
VLA, request that their name be removed from a referral panel and VLA must
comply with that request.





(14) Before refusing an application made under subsection (4), VLA must-

   (a)  give written notice to the applicant setting out-

   (i)  the reasons for the proposed refusal; and

   (ii) the period of any proposed disqualification; and

   (b)  afford the applicant a reasonable opportunity to be heard and show
        cause why the application should not be refused or the
        disqualification should not be made.

(15) Before removing a name from a referral panel under subsection (10) or
(11), VLA must-

   (a)  give written notice to the private law practice or private legal
        practitioner concerned setting out the reasons for the proposed
        removal; and

   (b)  afford them a reasonable opportunity to be heard and show cause why
        the removal should not be made.



(16) A notice given to a private law practice under subsection (14) or (15)
may be given to any principal of the practice.





(16A) If a person wishes to be heard in accordance with subsection (14) or
(15), the panel chairperson must appoint an independent reviewer to hear and
determine the matter of the refusal, removal or disqualification.

(16B) Subject to this Act and the regulations (if any), in hearing and
determining a matter under this section the reviewer-

   (a)  may consider any relevant matters as grounds for removal, refusal or
        disqualification and is not limited to consideration of the grounds
        set out in the notice provided by VLA under subsection (14)(a) or
        (15)(a);

   (b)  may-

   (i)  confirm, vary or refuse to confirm the proposed removal, refusal or
        disqualification; or

   (ii) substitute his or her own determination for the proposed removal,
        refusal or disqualification- and make a determination accordingly;

   (c)  may regulate his or her own proceedings.

(16C) The independent reviewer must determine a matter under this section as
expeditiously as possible after the end of the hearing.

(16D) After hearing the matter, the independent reviewer must advise VLA of
his or her determination.



(16E) An independent reviewer must keep records of his or her determinations
and proceedings under this section.

(16F) VLA must give notice of its decision under subsection (6)(b), (10) or
(11) or the determination of the independent reviewer under subsection (16A)
to the private law practice or private legal practitioner concerned.



(17) An action does not lie against any director of the board any officer or
employee of VLA or any member of a legal aid review committee on account of
any proceedings taken or thing said or done in the course of or in relation to
any proceedings or hearing under this section before the commencement of
section 17(4) of the Law and Justice Legislation Amendment Act 1997 or, in the
case of a member of a legal aid review committee, after that commencement in
accordance with section 51.

(17A) A director or officer or employee of VLA or an independent reviewer is
not personally liable for anything done or omitted to be done in good faith
after the commencement of section 17(4) of the
Law and Justice Legislation Amendment Act 1997-

   (a)  in the exercise of a power or the discharge of a duty under this
        section; or

   (b)  in the reasonable belief that the act or omission was in the exercise
        of a power or the discharge of a duty under this section.

(17B) Any liability resulting from an act or omission that would, but for
subsection (17A), attach to a director or officer or employee of VLA or to an
independent reviewer attaches instead to VLA.

(18) A decision of VLA or a determination of an independent reviewer under
this section is final and not subject to appeal.





(18A) Nothing in subsection (18) prevents the taking of proceedings-

   (a)  seeking the grant of any relief or remedy in the nature of certiorari,
        prohibition, mandamus or quo warranto or the grant of a declaration or
        an injunction; or

   (b)  seeking any order under the Administrative Law Act 1978-

in respect of any decision of VLA or determination of an independent reviewer
under this section.

(19) In this section-



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referral panel means a panel prepared under subsection (7);



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