| Commonwealth Law Matter Type Guidelines - General |
Guideline: Cwth
Effective Date: 15/7/10 |
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| 1. | Basis of determination of grant of legal assistance | |||||
| (1) | The Commission may make a Grant of Legal Assistance for an application for assistance that: | |||||
| (a) | is for assistance for a Commonwealth Law Matter | |||||
| (b) | is within a Commonwealth Legal Aid Service Priority | |||||
| (c) | meets any guidelines set out in these Commonwealth Matter Legal Aid Guidelines that are relevant to the application | |||||
| (d) | meets the means test (unless otherwise specified in these Guidelines), and | |||||
| (e) | meets the merits test (unless otherwise specified in these Guidelines). | |||||
| (2) | When determining whether a Grant of Legal Assistance is to be made, the Commission should apply guideline 1(1)(a), (b), (c), (d) and (e) in that order. | |||||
| (3) | If an application for a Grant of Legal Assistance meets the criteria in this guideline 1(1), the Commission will determine, in accordance with these Guidelines and after giving consideration to available Commonwealth Legal Aid Monies and competing Commonwealth Legal Aid Priorities, whether a Grant is to be made and, if so, the nature and extent of that Grant. | |||||
| (4) | If, apart from this guideline, there is no guideline relating specifically to a Commonwealth Legal Aid Priority, the Commission may make a Grant of Legal Assistance in the manner, and to the extent, it considers appropriate in that priority area. | |||||
| 2. | The means test | |||||
| The means test to be applied by the Commission is the means test used by the Commission, at the date of the relevant application for assistance, for applications for assistance in State law matters. | ||||||
| 3. | The merits test | |||||
| (1) | To satisfy the merits test, the applicant for assistance must meet each of the following 3 tests: | |||||
| (a) | the reasonable prospects of success test in 3(2) | |||||
| (b) | the prudent self-funding litigant test in 3(3), and | |||||
| (c) | the appropriateness of spending limited public legal aid funds test in 3(4). | |||||
| (2) | The reasonable prospects of success test is met only if, on the information provided to the Commission, it appears to the Commission that, on the legal and factual merits, the proposed action, application, defence or response for which a Grant of Legal Assistance is sought is more likely than not to succeed. | |||||
| (3) | The prudent self-funding litigant test is met only if the Commission considers that a prudent self-funding litigant would risk his or her own financial resources in funding the proposed action, application, defence or response for which a Grant of Legal Assistance is sought. | |||||
| Note: | Legal aid is a benefit funded by Australian taxpayers. Many taxpayers who are above the means test threshold for the granting of legal assistance have their own access to justice constrained in whole or in part because of limited financial resources. To reduce the inequity between those who have access to assistance and those who are marginally excluded, the Commonwealth aims to have strategies adopted that will provide solutions to assisted clients' problems at minimum cost. The test of the 'prudent self-funding litigant', one without 'deep pockets', is one such strategy. It aims to put assisted litigants into an equal but not better position than private litigants without 'deep pockets' who risk their own funds. | |||||
| (4) | The appropriateness of spending limited public legal aid funds test is met only if the Commission considers that the costs involved in providing the assistance are warranted by the likely benefit to the applicant or, in appropriate circumstances, the community. | |||||
| Note: | The Commonwealth has numerous competing interests for its legal aid resources, and accordingly requires the Commission to be satisfied that the matter for which legal assistance is sought is an appropriate expenditure of Commonwealth legal aid program resources. Examples of what the Commonwealth considers to be inappropriate expenditures of Commonwealth legal aid resources are: | |||||
| (a) | applications to the court to dispense with a spouse's consent to a passport so that the applicant and child can travel overseas (as the Commonwealth considers that the contingent documentary costs of overseas travel should form part of the overall expense of the trip), and | |||||
| (b) | some aspects of family law contact and property disputes, where the issue appears to be of minor significance in relationship to the legal costs that will be incurred in providing the legal assistance, for example, in a contact dispute, where the issue in dispute is who will pay for the child's bus or taxi fare, or who washes the child's clothes, or who provides the child's morning or afternoon tea. | |||||
| (5) | The merits test is to be applied to all applications for a Grant of Legal Assistance, unless otherwise specified in these Guidelines. | |||||
| 4. | Test cases | |||||
| (1) | In considering whether to make a Grant of Legal Assistance, the Commission may take into account whether funding is available from another Commonwealth scheme such as the Commonwealth Public Interest and Test Cases Scheme. | |||||
