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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to obtain civil legal aid in New Zealand
If you're involved in a civil legal dispute and can't afford to hire your own lawyer, you may qualify for civil Legal Aid. Legal Aid pays for some or all of your lawyer's bills. But you may have to pay some or all of it back.
Examples of civil (non-criminal) disputes are family or domestic disputes, employment disputes, and commercial disputes.
The Legal Aid scheme is governed by the LEGAL SERVICES ACT 2011.
Criminal Legal Aid is governed by different rules: see "How to obtain criminal Legal Aid".
For more information on Legal Aid, see the Ministry of Justice website
Applying for civil Legal Aid
Who can apply for civil Legal Aid?
You can apply for civil Legal Aid if you have a civil (non-criminal) legal problem that has gone, or could go, to Court.
These are examples of civil disputes for which Legal Aid is available -
- family and domestic disputes, such as day-to-day care (custody) of children, division of relationship property when a couple breaks up, and domestic violence (but not for dissolution of marriage)
- disputes over debts
- suing someone or being sued - for example breach of contract, misrepresentation or defamation
- employment disputes in the Employment Relations Authority
- landlord-tenant disputes in the Tenancy Tribunal.
You won't be able to get civil Legal Aid for -
- Court proceedings to do with dissolution of marriage (divorce) or dissolution of civil unions
- going to the Disputes Tribunal
- work by a lawyer that doesn't involve a dispute that has gone or could go to Court - for example, getting a will drawn up.
You don't have to be a New Zealand citizen or permanent resident to apply for Legal Aid.
Can I apply only if the case has already gone to Court?
No. In fact, you can apply even if your dispute never goes to Court. For example, you can hire a lawyer on Legal Aid to negotiate a settlement or to represent you in a mediation meeting to prevent the case having to go to Court at all.
How do I apply for civil Legal Aid?
You must already have approached a lawyer to be able to apply for civil Legal Aid. Your lawyer will be able to provide you with the application form and will help you fill it in.
If you don't have a lawyer, ask your family and friends if they know of one, or contact your local Citizens Advice Bureau or Community Law Centre and they will refer you to one who works in the relevant area of the law.
In the application you'll need to give details of your before-tax earnings for the last 12 months, and also give details of the value of your assets (your house, car and so on). If you have a partner, you'll also have to give details of their income and assets.
The decision to grant Legal Aid
Who decides whether to grant me civil Legal Aid?
The decision is made by the Legal Services Commissioner.
On what grounds will civil Legal Aid be granted?
The Commissioner will consider two areas when deciding whether you qualify for Legal Aid -
- whether you can afford a lawyer (financial eligibility), and
- whether Legal Aid is justified in your case.
These are explained below.
Your before-tax income and your "disposable" assets must be below the limits set out in the Legal Services Regulations 2006.
Your disposable assets means the property you could sell to raise money, but doesn't include your equity in your home (up to $80,000), your first car, your furniture and household possessions, and your tools of trade.
Whether Legal Aid is justified in your case
To qualify for civil Legal Aid you must have "reasonable grounds" for taking or defending the case. This means you must have a significant personal interest in the case; the Commissioner takes the view that there will almost always be reasonable grounds in the following cases -
- cases involving children, such as day-to-day care or contact disputes, or guardianship disputes, or care and protection matters
- domestic violence cases
- mental health cases.
If your case is about relationship property or maintenance, or if it's not a Family Court matter, the Commissioner will also look at your chances of winning your case ("prospects of success").
The Commissioner may refuse you legal aid if the likely cost of your case outweighs the benefit you could get from winning (for example, if you have a good case but you are suing someone who limited funds).
Repayments of Legal Aid
Will I have to repay any of my Legal Aid?
You may have to repay some or all of your legal aid, depending on -
- your before-tax income, and
- your total assets.
The Commissioner uses the financial information you give on your application form to work out whether you have to pay anything.
When the Commissioner assesses your assets for the purposes of making repayments, it considers all your assets. It doesn't make deductions for your equity in your home, your first car, your furniture and household possessions, and tools of trade. This is different from when the Commissioner is considering your eligibility for Legal Aid (see above). For eligibility purposes the Commissioner does make those deductions, so that it considers only what it calls your "disposable" assets.
If you're a beneficiary with no assets, it's unlikely you'll have to repay any of your legal aid.
Some people, including people applying for protection orders under the Domestic Violence Act 1995, are exempt from having to repay their Legal Aid.
How much will I have to repay?
When it tells you that you've been granted Legal Aid, the Commissioner will also tell you the maximum amount you may have to repay. The actual amount that you eventually have to repay may be less than that amount.
The exact amount you must repay isn't calculated until the end of the your case, when the actual cost of your case is known. The amount will depend on your income and assets, on how much your case costs, and on how much money (if any) you win from your case.
How repayments are made
You may be required to repay Legal Aid in one or more of the following ways -
- through regular instalments (either weekly, fortnightly or monthly)
- as a lump sum, either out of your savings or when you sell your house or other property
- out of any money you win from your Court case.
If the Commissioner decides you can afford to make regular payments, you will probably have to start them straight away. If you default on your payments, the Commissioner can charge you interest and can decide to withdraw your Legal Aid.
"Charges" as security for your debt
If you own a house, car or other valuable property, and your debt to the Commissioner is more than $300, the Commissioner will put a "charge" on the property, as security for the debt.
The charge means that if you sell the property, you must repay your debt to the Commissioner out of the money you get from the sale. However, you can repay the debt at any time before then.
After Legal Aid is granted
Can I apply for Legal Aid more than once during the same case?
Yes. If more money is needed, your lawyer can apply for more under an amendment to the Legal Aid grant.
How does my lawyer get paid?
Your lawyer will send the bill to the The Legal Aid Tribunal, and the Commissioner will pay your Legal Aid directly to your lawyer. You don't pay any money to the lawyer yourself, and your lawyer is not allowed to ask you to pay any money to him or her directly.
Challenging Legal Aid decisions
Getting the Commissioner to reconsider its decision
If the Commissioner refuses your Legal Aid application, you can get them to reconsider their decision. The Legal Aid Tribunal reviews decisions the Legal Services Commissioner makes about grants for legal aid. The person they assign to reconsider your case must be different from the person who made the original decision.
You can also get them to reconsider any other decision you're unhappy with - such as how much of your Legal Aid you have to repay.
How do I apply to the Legal Aid Tribunal?
- You must have a lawyer to be able to apply for civil Legal Aid. Your lawyer will help you with the form. There is also a section of the application form (dealing with your case) that they must fill in.
- It's important to remember that civil Legal Aid is generally given as a loan, rather than as a grant. You may have to provide your house or some other major item of property as security for the loan.
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