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Legal Aid Act [Cap 15]

Repealed by Legal Aid Act 1996

LAWS OF FIJI

CHAPTER 15

LEGAL AID

Ordinance 55 of 1968

AN ACT TO MAKE BETTER PROVISION FOR THE GRANT OF LEGAL
AID TO POOR PERSONS

[24th December, 1968]

Short title

1. This Act may be cited as the Legal Aid Act.

Power to make rules for providing for legal aid to poor persons

2. The Chief Justice, for the purpose of making legal aid available to poor persons, may, with the approval of the Minister responsible for finance, from time to time, make rules-

(a) defining the term "poor person" for the purpose of those rules and prescribing the classes of persons qualified to receive legal aid as poor persons thereunder;

(b) establishing committees and panels of barristers and solicitors for the assistance of poor persons and, for this purpose, to require practitioners to serve on those committees and panels and to undertake the advising of poor persons and the conduct of litigation on their behalf;

(c) prescribing the nature and extent of the legal aid that may be granted, and the conditions upon or subject to which it may be granted;

(d) prescribing the manner in which legal aid shall be provided and administered;

(e) providing for the remission of fees payable under any Act, rules or regulations in relation to court proceedings to which poor persons are parties and for the non-allowance or remission of costs payable by poor persons (whether to other parties or to barristers and solicitors) and for the non-allowance, remission or disposal of costs payable to poor persons.

Scope of rules

3. Any rules made under the provisions of section 2 may apply either generally with respect to all legal matters or may apply to such classes of matters or proceedings as may be specified in such rules.

Controlled by Ministry of the Attorney-General.

SECTION 2-LEGAL AID RULES

Rules* 13th January 1969, 24th February 1969, 10th February 1971,
21st August 1972, 27th April 1984
* See Legal Notices Nos. 18 and 40 of 1969, 28 of 1971,
82 of 1972 and 54 of 1984.

(Made by the Chief Justice)

Short title and interpretation

1.-(1) These Rules may be cited as the Legal Aid Rules.

(2) In these Rules, unless the context otherwise requires-

"a poor person" means a person who is not possessed, in Fiji or elsewhere, of money or property, other than wearing apparel, to the amount of more than two hundred dollars in value.

Privy Council

2. Legal aid may be granted, subject to the following rules, by the President of the Fiji Court of Appeal to a poor person who gives him notice of intention to seek the leave of the Judicial Committee of the Privy Council to appeal to the said Judicial Committee against the decision of the Fiji Court of Appeal in a criminal appeal:

Provided that the President shall not grant such legal aid unless the Court of Appeal has certified that the case is fit for appeal to the said Judicial Committee.

Fiji Court of Appeal

3. Legal aid may be granted, subject to the following rules, by the President of the Fiji Court of Appeal, or by any judge of the said Court of Appeal nominated by the said President, to any poor person who is a party to proceedings in the said Court of Appeal as-

(a) the appellant in an appeal from the judgment of the Supreme Court in its criminal jurisdiction; or

(b) the appellant, or the respondent, in an appeal from the judgment or order of the Supreme Court in its divorce jurisdiction.

Supreme Court

4. Legal aid may be granted, subject to the following rules, by the Chief Justice or any other judge of the Supreme Court to a poor person who is, or gives him notice of his intention to become, a party to proceedings in the Supreme Court as-

(a) the defendant in a criminal cause; or

(b) the petitioner, or respondent, in proceedings brought under the Matrimonial Causes Act; or
(Cap. 51.)

(c) the appellant, or the respondent, in an appeal from the judgment of a Magistrate's Court in a criminal cause therein; or

(d) the appellant, or the respondent, in an appeal from the judgment or order of a Magistrate's Court in a case therein under the Maintenance and Affiliation Act.
(Cap. 52.)

Magistrates' Courts

5. Legal aid may be granted, subject to the following rules, by the Chief Justice, or by another judge of the Supreme Court nominated by the Chief Justice, to a poor person who is the defendant in a criminal cause in a Magistrate's Court:

Provided that no application for legal aid may be made by a defendant in a criminal cause in a Magistrate's Court unless the consent of the presiding magistrate is obtained and endorsed on the application.
(Inserted by Rules* 24th February 1968.)
* See Legal Notice No. 40 of 1969.

Applications

6.-(1) Applications for legal aid shall be made in writing in the form prescribed as Form I in the First Schedule.

(2) Applications for legal aid in appeals before the Fiji Court of Appeal or by persons proposing to seek leave to appeal to the Judicial Committee of the Privy Council shall be submitted to the Registrar of the Fiji Court of Appeal.

(3) Applications for legal aid in criminal causes and appeals in the Supreme Court shall be submitted-

(a) in Suva, to the Chief Registrar of the Supreme Court;

(b) in Lautoka, to the Deputy Registrar, Lautoka.

(4) Application for legal aid in any criminal cause in a Magistrate's Court must be submitted to the Clerk of the Court of that Magistrate's Court.

Declaration as to means

7. Every application for legal aid must be accompanied by a declaration as to means in the form prescribed as Form 2 of the First Schedule.

Further particulars of means

8. Where an application is made for legal aid, the President of the Fiji Court of Appeal, the Chief Justice or the judge, as the case may be, may order the applicant to provide further and better particulars of his property and that he do so under oath; and if the applicant fails to provide such particulars within a reasonable time, under oath if so ordered, his application shall be refused.

Extent of legal aid: Privy Council

9. Where legal aid is granted under rule 2, the President of the Fiji Court of Appeal shall direct the extent of the legal aid granted and may give further directions from time to time, as necessary:

Provided that the maximum total amount to be paid for legal aid in respect of any one application for leave to appeal to the Judicial Committee of the Privy Council, shall be eighty dollars and the maximum total amount to be paid for legal aid in respect of any appeal, if leave has been given, shall be one hundred dollars.

Legal aid: Fiji Court of Appeal, Supreme Court, Magistrates Courts

10. Where legal aid is granted under rules 3, 4 or 5, the Registrar of the Fiji Court of Appeal, the Chief Registrar, the Deputy Registrar, Lautoka, or the Clerk of the Court, as the case may be, and depending upon the wishes of the applicant as expressed in his written application, shall either-

(a) brief any barrister and solicitor who may be willing to accept the brief; or

(b) submit to the applicant a list of barristers and solicitors who had notified the Chief Registrar of the Supreme Court that they are willing to accept briefs to represent poor persons under the provisions of these Rules and endeavour to brief any of such barristers and solicitors whom the applicant may nominate and in doing so shall follow any order of preference stated by the applicant; or

(c) issue to the applicant a legal aid certificate, as provided for in rule 11.

Legal aid certificate

11.-(1) Where legal aid is granted under rules 3, 4 or 5 and the applicant requests it in his application, a legal aid certificate in the form prescribed as Form 3 in the First Schedule shall be issued to him under rule 10.

(2) Any barrister and solicitor who has an unconditional right of audience in the court in which the proceedings are pending, or are to be brought, may at the request of the applicant, undertake to represent him in those proceedings and he shall, at the conclusion of the proceedings, be entitled to be paid fees in accordance with these Rules in the same way as if he had been briefed by one of the Court officers authorised under rule 10 to brief barristers and solicitors in legal aid cases.

(3) Where a barrister and solicitor has undertaken to represent an applicant who has obtained a legal aid certificate, the applicant shall hand the certificate over to the said barrister and solicitor, who shall present it to the Chief Registrar of the Supreme Court in support of his claim for payment of his fees at the conclusion of the proceedings.

Change of barristers and solicitors

12.-(1) Where legal aid has been granted under rules 3, 4 or 5 and a barrister and solicitor has been briefed by the officer of the court authorized under rule 10 or has undertaken to represent the applicant and has received a legal aid certificate from him, the applicant shall not be entitled to a change of barrister and solicitor, save at his own expense, unless the court before which the proceedings are pending, or to be brought, orders otherwise.

(2) Where a court orders that an applicant to whom legal aid has been granted may be permitted a change of barrister and solicitor, it may at the same time, or at any time thereafter upon the application of the barrister and solicitor who has ceased, as a result of the order, to represent the applicant, make an order that the said barrister and solicitor be paid the fees, in whole or in part, to which he would have been entitled under these Rules if he had continued to represent the applicant until conclusion of the proceedings:

Provided that, unless such an order for payment is made by the court, the said barrister and solicitor shall not be entitled to be paid any fees under these Rules.

Fees

13.-(1) The fee to be paid to a barrister and solicitor who has been briefed under rule 10 or who has provided legal representation after accepting a legal aid certificate under rule 11 shall be paid in accordance with the scale of fees prescribed in the Second Schedule.

(2) When the amount of the fee to be paid under rule 9 or under paragraph (1) has been ordered by the President of the Fiji Court of Appeal or the appropriate court, as the case may be, payment shall be made by the Chief Registrar of the Supreme Court.

Travelling and subsistence expenses

14. Travelling and subsistence expenses will not be paid in respect of any attendances on a legal aid brief unless they have been specifically authorised in advance by the President of the Fiji Court of Appeal, the Chief Justice or the judge granting the legal aid, as the case may be.

FIRST SCHEDULE

FORM 1
(Rule 6(1))

APPLICATION FOR LEGAL AID

To: *The Registrar, Fiji Court of Appeal
The Chief Registrar, Supreme Court.
The Deputy Registrar, Supreme Court, Lautoka
The Clerk of the Court, ...... Magistrate's Court

1. I, ...................... being a person not possessed, in Fiji or elsewhere, of property, other than wearing apparel, to the amount of more than $200 in value, hereby apply for legal aid.

2. I * am/hereby give notice of my intention to become +the defendant in a criminal cause in the * Supreme Court/Magistrates' Court, ...................... charged with the following offence(s):

(continue overleaf if there is insufficient space here);

+the *appellant/respondent in an appeal in the *Fiji Court of
Appeal/Supreme Court in a *criminal/divorce/separation and maintenance/affiliation matter; +the number and title of the case in the Supreme Court/Magistrate's Court was:

3. If legal aid is granted, I request that:

*you brief any barrister and solicitor who may be willing to accept the brief;

*you send me a list of the barristers and solicitors willing to represent poor persons under the Legal Aid Rules, and endeavour to brief any of such barristers and solicitors whom I may nominate, following any order of precedence I may state;

*you issue to me a legal aid certificate under rule 11 of the Legal Aid Rules, so that I may instruct a barrister and solicitor myself.

4. My postal address is:

5. *I have read and understood this application/*This application has been read and explained to me by......................................................... of ......................................................................... (address) who has signed below as witness and I understand it fully.

6. I send herewith my declaration as to means.

(Applicant) .................................................................

Date ...............................................................................

(Witness)

*Delete whichever is not applicable.
*Complete whichever sections are appropriate and delete the others.

FORM 2
(Rule 7)

DECLARATION AS TO MEANS

I ............................. of ......................................... solemnly and sincerely declare that:

1. I do not possess any money or other property, other than wearing apparel, in Fiji or elsewhere, except for the following:

Item Value Where Property is Located

2. I do not own, occupy or have any interest in any land, /*other than:

Location Area Interest

3. During the past 12 months I have not been employed/+have been employed as:

Employment Period Wages or Salary

4. I live at ......................................................................................

5. I *am/am not married.

6. I have ........................................ children whom I am supporting.

I have read and understood this declaration/this declaration was completed at my dictation by.......................................................................................................................................of ...................................................................... who has signed below as witness; he read the contents of this form to me in the................................... language and I dictated to him in the.................................... language the entries which he was to make for me.

I realise that, if any entry is false, I may be liable to prosecution.

(Applicant)

(Date)

(Witness)
*Delete as necessary and complete as appropriate.

FORM 3
(Rule 11)

LEGAL AID RULES

LEGAL AID CERTIFICATE

This certificate has been issued this ................................. day of .................................. 19............. to ............................................ of ............................................ hereinafter called "the applicant".

The applicant has been granted legal aid by................................ for the purpose of:

in (name of court) .......................................................................................................

Any barrister and solicitor having an unconditional right of audience in the said court who undertakes the representation of the applicant in the proceedings referred to above will be entitled, upon the conclusion of these proceedings and upon presentation of this certificate, to be paid the fees payable under the provisions of the Legal Aid Rules, in accordance with any order given by the court.

Registrar, Fiji Court of Appeal/
Chief Registrar, Supreme Court/
Deputy Registrar, Lautoka/
Clerk of the Court ................... Magistrates' Court.

NOTE.-This certificate is issued under the provisions of the Legal Aid Rules. Fees will not normally be paid to any barrister and solicitor who does not retain and produce this certificate in support of his claim for payment of fees.

SECOND SCHEDULE
(Rule 13(1))

(Substituted by Rules* 27 April 1984
* See Legal Notice No. 54 of 1984.

FEES ALLOWED IN THE FIJI COURT OF APPEAL

Criminal Cases and Matrimonial Causes

1. For taking instructions and preparing for the hearing ... $15 to $45
2. For the first day of hearing ..................................... $25 to $35
3. For each subsequent day of hearing (maximum 2 days) $20

FEES ALLOWED IN THE SUPREME COURT

(A) Original Jurisdiction

Matrimonial Causes

4. For taking instructions and preparing for the hearing.... $30 to $50
5. For the first day of hearing ............................................ $25 to $35
6. For each subsequent day of hearing (maximum 5 days) $25

Criminal Cases

7. For taking instructions and preparing for the hearing.... $35 to $100
8. For the first day of hearing ............................................ $25 to $100
9. For each subsequent day of hearing (maximum 8 days) $25 to $100

(B) Appellate Jurisdiction

(i) Criminal Appeals
(ii) Affiliation Appeals
(iii) Separation & Maintenance Appeals

10. For taking instructions and preparing for the hearing .... $20 to $75
11. For the first day of hearing ............................................. $25 to $35
12. For each subsequent day of hearing (maximum 2 days) .... $25

Criminal Cases

13. For taking instructions and preparing for the hearing ... $20 to $35
14. For the first day of hearing ............................................ $25
15. For each subsequent day of hearing (maximum 2 days) $25

NOTES:
(1) These fees are prescribed for a normal day's sitting of the court. Where an additional brief appearance is also necessary for an application, motion or attending for judgment an appropriate fee will be allowed in addition to the above fees. The minimum fees for attending court on any one day will be $20.
(2) Fees will be allowed for days of hearing additional to those allowed for in the scale, on the certificate of the court of hearing. In the case of certificates issued by a magistrate's court such certificates are subject to confirmation by the Chief Justice.
(3) Where the barrister and solicitor who appeared in the court of first instance appears at the hearing of an appeal, the minimum fees for preparation will normally be allowed but this may be increased in special circumstances.

Controlled by Ministry of Justice

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