Civil Law Guidelines
 

Note: For civil law priorities, see Schedule B of the National Partnership Agreement on Legal Assistance Services, Commonwealth priorities and eligibility principles.

Guideline 1 General

1.1 Consideration of resolution processes other than litigation

In a Civil law matter under this Part 4, the Commission must consider making a grant of legal assistance for an applicant for assistance to participate in dispute resolution services before it considers making a grant of legal assistance to that applicant for litigation services at any stage in the proceedings.

The Commission may make a grant of legal assistance for an applicant for assistance to participate in dispute resolution services at any stage of a matter.

The Commission may make a grant to investigate and report on the merits of a case.

1.2 Assistance for Civil Proceedings other than those dealt with in this Part 4

The Commission may make a grant of legal assistance for litigation where the applicant for aid falls within the category of disadvantaged client.

In determining if a client is disadvantaged the Commission may take into account–

  1. the practical or material benefit/detriment/loss at risk;
  2. whether the matter is of such complexity that it could not be represented to the court without legal representation;
  3. whether the applicant's ability to communicate or self-represent is affected by–
  1. mental illness or impairment;
  2. physical disability;
  3. a first language other than English; or
  4. literacy levels
  1. existence of financial stress/material deprivation;
  2. housing disability (this may be indicated by homelessness or low income earners with private rental housing costs exceeding 30% household income);
  3. remoteness of location and access to service providers; or
  4. issues of joblessness and/or long term unemployment.

1.3 Assistance for damages actions

Where a civil law action is likely to result in the applicant for assistance receiving an award of damages or property, the Commission will not ordinarily make a grant of legal assistance if the Commission is satisfied from the material provided to it that–

  1. the action could reasonably be expected to be conducted under a conditional costs agreement or similar arrangement with a private legal practitioner, or
  2. the applicant for assistance can obtain appropriate legal assistance from another source.

Guideline 2 Social security and other Commonwealth benefits

2.1 Representation at Administrative Appeals Tribunal

The Commission may make a grant of legal assistance to an applicant for assistance for representation at the Administrative Appeals Tribunal if

  1. it is considered that the applicant may incriminate himself or herself, or
  2. the case is complicated, or
  3. requires significant medical evidence, or
  4. it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Service Priorities, Special Circumstances of the Applicant priorities, or
  5. the Commission determines that the appeal involves an important or complex question of law.

 

Guideline 3 Migration cases

3.1 Assistance for migration matters

1. The Commission may make a grant of legal assistance for proceedings in the Federal Court, Federal Circuit Court or High Court dealing with a migration matter, including a refugee matter, only if

  1. there is a difference of judicial opinion that relates to a substantive issue in dispute that has not been settled by the Full Court of the Federal Court or the High Court; or
  2. the proceedings seek to challenge the lawfulness of detention; or
  3. there is an arguable error of law.

2. In making a decision under (1)(c), the Commission will have regard to

  1. the importance of the case; and
  2. whether the case is a suitable vehicle for establishing new legal precedent.

Note Guideline 3.1(1)(b) does not include a challenge to a decision about a visa or a deportation order.

3. In all other cases, applicants should be referred to the Immigration Advice and Application Assistance Scheme (IAAAS) for possible assistance.

Guideline 4 Equal opportunity and discrimination cases

4.1 Assistance for certain matters if substantial benefit

Subject to guideline 1.2 in this Part 4, the Commission may make a grant of legal assistance for an equal opportunity or discrimination case if there is a real prospect of substantial benefit being gained by the applicant for assistance.
 

Guideline 5 War veterans' matters

5.1 Assistance for War veterans' matters

The Commission may make a grant of legal assistance to an applicant for assistance who is a war veteran or a dependent of a war veteran in relation to

  1. an appeal from decisions of the Veterans Review Board about war caused disability pension entitlement or assessment claims under Part II of the Veterans' Entitlements Act 1986; or
  2. an appeal from a decision of the Veterans Review Board about a claim

under the Military Rehabilitation and Compensation Act 2004 that relates to warlike or non-warlike service, in regard to–

  1. acceptance of liability (Chapter 2);
  2. rehabilitation programs (Chapter 3, Part 2);
  3. permanent impairment (Chapter 4, Part 2);
  4. incapacity payments for former members (Chapter 4, Part 4)
  5. special rate disability pension (Chapter 4, Part 6)
  6. dependants benefits (Chapter 5).

    An application for a grant of legal assistance under this guideline 5.1 is not subject to
  7. the Means Test; or
  8. the applicant for assistance making any contribution to the cost of his or her legal assistance provided by the Commission in relation to the matter, other than to the extent of any costs recovered from the respondent in the matter.
     

Guideline 6 Other Federal and High Court proceedings

6.1 Assistance for certain matters if substantial benefit

Subject to the other guidelines in this Part 4, the Commission may make a grant of legal assistance for any of the following types of matters if there is a strong prospect of substantial benefit being gained by the applicant for assistance in relation to the matter:

  1. appeals from decisions of the Administrative Appeals Tribunal;
  2. initiating proceedings in the Federal Court, the Federal Circuit Court or the High Court;
  3. appeals in the Full Court of the Federal Court or the High Court.
     

Guideline 7 Proceeds of crime

7.1 Proceedings under the Proceeds of Crime Act 2002

The Commission may make a grant of legal assistance to an applicant for assistance in relation to proceedings under the Proceeds of Crime Act 2002 if the applicant has property that is covered by a restraining order under the Act, or is likely to be covered by such an order.

  1. In assessing an applicant's eligibility under the Means Test for the purpose of determining an application for a grant of legal assistance under this guideline 7.1, the Commission must disregard any property of the applicant that is subject to a restraining order or confiscation order under theProceeds of Crime Act 2002, or is likely to be covered by such an order.
  2. In assessing an applicant's eligibility under the Merit Test for the purpose of determining an application for a grant of legal assistance under this guideline 7.1, the Commission should disregard the 'appropriateness of spending limited public legal aid funds' test.
  3. The costs of providing legal assistance to an applicant for assistance under a grant of legal assistance will be reimbursed to the Commission in accordance with sections 292 and 293 of theProceeds of Crime Act 2002.
  4. The Commission must ensure that the costs claimed by it in accordance with guideline 7.1(3) are fair and reasonable, and in accordance with the Commission's usual fee scales for civil law matters.
     

Guideline 8 Extradition proceedings

8.1 Assistance for certain extradition proceedings

The Commission may make a grant of legal assistance to an applicant for assistance in relation to the following types of proceedings under the Extradition Act 1988:

  1. extradition proceedings under section 19;
  2. an appeal under section 21 in relation to a section 19 order.
     

Guideline 9 Appeals

9.1 Assistance for appeals

Subject to the other guidelines in this Part 4, the Commission may make a grant of legal assistance for an appeal of a court decision in a civil law matter.
 

  Guideline 10 Consumer Protection

10.1 Assistance for certain matters

The Commission may make a grant of legal assistance for certain types of Commonwealth consumer protection matters involving

  1. credit matters (including mortgages and guarantees);
  2. matters relating to unconscionable contracts and unfair contract terms;
  3. matters relating to the purchase of goods and services;
  4. matters involving a claim or cause of action against a person retained to advise and/or represent a client for the purpose of consumer transaction.

10.2 Other consumer matters

In other consumer protection matters the Commission is unlikely to grant aid unless the applicant for aid falls within the category of disadvantaged client.  In determining this, the Commission may take into account those factors as set out in Part 4, Guideline 1.2.

A grant of aid will not be available for

  1. matters about medical negligence;
  2. matters about disputes which are the result of commercial or investment transactions conducted by the applicant
  3. matters concerning building disputes.

10. 3  Consumer protection matters - External Dispute Resolution

The Commission may take a grant of legal assistance for external dispute resolution in limited circumstances. A legal aid grant will only be made available where no alternative services are available to assist the client to lodge or process their dispute within a reasonable period of time and

  1. the matter is complex; or
  2. the particular circumstances of disadvantage of the client, including the extent of the impact on the client and practical difficulties in self representing, make it appropriate.

10.4  Consumer protection -  Lodging a complaint

The Commission may make a grant of aid to assist an applicant in lodging a complaint to the regulator in a consumer protection matter where

  1. no alternative services are available;
  2. the matter is complex;
  3. the particular circumstances of disadvantage of the client, including the extent of the impact on the client and practical difficulties in self-representing, make it appropriate; or
  4. the public interest would be advanced in assisting the applicant to lodge the complaint.

10.5 Consumer protection matters – Court proceedings

The Commission may make a grant of aid for court proceedings where

  1. the applicant has already participated in IDR and EDR and the parties have not resolved the dispute, or
  2. participating in IDR and EDR is unavailable, impracticable or not appropriate in the circumstances, or
  3. providing legal representation to the applicant for court proceedings would advance the public interest e.g. there is a significant point of law to be determined.

2. Where the consumer matter is eligible for the small claims procedure set out in s199 of theNational Consumer Protection Act 2009, aid is limited and in addition to guideline 10.5 (1) consideration of

  1. the complexity of the matter; and
  2. practical difficulties in self representing,

will be taken into account in determining the appropriateness of granting aid.
 

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