Western Australian Consolidated Acts

LEGAL AID COMMISSION ACT 1976 - SECT 40

40 .         Assisted persons to have private practitioners of their choice

        (1)         Subject to the succeeding provisions of this section, where it is determined pursuant to section 38(1) that legal services shall be performed on behalf of an assisted person by a private practitioner, the assisted person is entitled to select the private practitioner from a panel of names of private practitioners prepared by the Commission pursuant to this section.

        (1a)         If an assisted person exercises his right to select a private practitioner under subsection (1) and the legal aid authority by which the decision to provide legal aid to the assisted person was made considers that the selection so made is not in the interests of the assisted person, that legal aid authority may set aside the selection so made and select on behalf of that assisted person another private practitioner from a panel of names prepared under this section.

        (2)         Where an assisted person does not wish to exercise his right to select a private practitioner pursuant to subsection (1) the legal aid authority by which the decision to provide legal aid to the assisted person was made shall, on his behalf, select a private practitioner from a panel of names prepared pursuant to this section.

        (3)         In selecting a private practitioner pursuant to subsection (1a) or (2) the paramount consideration shall be the interests of the assisted person but, subject to that consideration, legal aid authorities shall allocate work equitably amongst private practitioners named on panels prepared pursuant to this section.

        (4)         The selection of a private practitioner pursuant to subsection (1), (1a) or (2) does not — 

            (a)         affect the rights of the selected private practitioner to refuse instructions, to engage a private practitioner as agent or, on reasonable grounds, to entrust a matter or part of matter to another private practitioner;

            (b)         permit the selected private practitioner, if shown on the panel of names as a partner or director of a law practice, to act otherwise than in the name of the law practice; or

            (c)         permit the selected private practitioner, if shown on the panel of names as an employee of a law practice, to act otherwise than in the name of that law practice.

        (5)         The Commission shall, out of those private practitioners who have notified it of their willingness to act for persons receiving legal aid, prepare and maintain panels of names of private practitioners for the purposes of this section and the panels may be so prepared as to give effect to the preferences expressed by practitioners for the several branches of the law, types of practice, courts, or areas of the State.

        (6)         Subject to subsection (7) the Commission may exclude or remove the name of a private practitioner from the panels of names prepared pursuant to this section or may include it with limitations as to the nature of the legal aid the practitioner is permitted to give.

        (6a)         In making an exclusion, removal or limitation of a private practitioner under subsection (6) the Commission may have regard to any order or finding of fact relating to that practitioner made under Part 13 of the Legal Profession Act 2008 by the Complaints Committee, the State Administrative Tribunal or the Supreme Court (full bench).

        (7)         Before making any such exclusion, removal or limitation as is mentioned in subsection (6) in relation to a private practitioner the Commission shall — 

            (a)         give written notice to the private practitioner setting out its reasons for the proposed exclusion, removal or limitation; and

            (b)         afford the private practitioner a reasonable opportunity to be heard and to show cause why the exclusion, removal or limitation should not be made.

        (8)         A private practitioner aggrieved by any such exclusion, removal or limitation as is mentioned in subsection (6) may, within 6 months after the receipt, in the ordinary course of post, of the notice mentioned in that subsection, apply to the Supreme Court, by way of originating summons, for an order setting aside the exclusion, removal or limitation; and the Supreme Court may, as it thinks fit, — 

            (a)         grant the application, subject to conditions or unconditionally;

            (b)         postpone the making of an order with liberty to apply; or

            (c)         dismiss the application,

                and, subject to the right, hereby conferred, of the practitioner, where his application is dismissed, to make a further application, at any time after 6 months from the date of the dismissal, the decision of the Supreme Court is final and conclusive.

        (8a)         Where, under subsection (6), the Commission has excluded or removed the name of a private practitioner from a panel of names prepared pursuant to this section the Commission may, by notice in writing to the practitioner, direct that he cease to perform legal services under this Act — 

            (a)         with respect to a particular matter;

            (b)         on behalf of a particular assisted person; or

            (c)         on behalf of assisted persons generally.

        (9)         A private practitioner who is a member, or the deputy of a member, of the Commission, a member of a legal aid committee, a member or substitute member of a review committee or a member of a consultative committee is, subject to this section, entitled to have his name included in a panel of names prepared pursuant to this section and is entitled to perform legal services by way of legal assistance under this Act.

        [Section 40 amended by No. 60 of 1977 s. 21; No 126 of 1982 s. 12; No. 90 of 1986 s. 15; No. 65 of 2003 s. 47(6); No. 74 of 2003 s. 75(4); No. 45 of 2004 s. 37; No. 21 of 2008 s. 674(21) and (22).]