Civil law guidelines

State matters

Legal aid applicants and people who have received a grant of legal aid may be asked or required to participate in alternative dispute resolution as a condition of the grant of legal aid.

Legal Aid NSW officers authorised under the Delegation Instrument clause 6 may authorise a payment under s33 of the Act to assist a legal aid applicant to mediate a dispute.

Commonwealth matters

When determining an application for legal aid, Legal Aid NSW will consider whether it is appropriate to provide funding for an alternative dispute resolution process before providing funding for litigation.

Legal Aid NSW may determine to fund a dispute resolution process at any stage of a matter.

The following are examples of the types of circumstances where a breach of civil liberties may have occurred.

• the applicant is unlawfully searched, arrested, detained or imprisoned by a person in a special position of authority;
• the applicant is unlawfully threatened, hit, touched or physically handled by a person in a special position of authority;
• the applicant is imprisoned or detained by a person in a special position of authority and the condition of that detention or imprisonment are not authorised by law (relevant contexts could include a correctional centre, immigration detention or a mental health facility).

Legal aid may be granted for an application in a Commonwealth civil matter, if:

• it is a Commonwealth law matter,
• it meets any policies that are relevant to the application,
• the applicant meets the relevant means test (unless otherwise stated in the policy), and
• the matter meets the merit test (unless otherwise specified in the policy).

Legal Aid NSW should apply the criteria above in the order that they are listed.

If a matter is within the criteria, Legal Aid NSW must determine, in accordance with the policies, whether legal aid is to be granted, and if so, the nature and extent of the aid.

Legal Aid NSW must also consider available funds and competing priorities in making the decision.

If there is no Commonwealth policy relating to a Commonwealth priority, Legal Aid NSW may grant aid in the manner, and to the extent, it considers appropriate in that priority area.

Legal Aid NSW must ensure that any litigation, for which a grant of legal aid is made under the Commonwealth guidelines, is conducted in a cost-effective manner.

For the purposes of Civil policy 4.4.2 Consumer protection matters – external dispute resolution, external dispute resolution (or EDR) means the external dispute resolution of a consumer claim or dispute using an EDR scheme. This includes, but is not limited to, EDR schemes run by the following organisations:

• the Financial Ombudsman Service (including its third party uninsured motor vehicle jurisdiction);
• the Credit Ombudsman Service;
• the Telecommunications Ombudsman Service;
• the Energy and Water Ombudsman Service;
• the Travel Compensation Fund;
• the Superannuation Complaints Tribunal;
• a government-based superannuation EDR process.

Funding is available under Civil policy 4.4.2 Consumer protection matters – external dispute resolution, regardless of whether a claim has been through a company's Internal Dispute Resolution (IDR) process.

4.5.1 Social Disadvantage Test

What is the At Social Disadvantage Test?

An applicant is ‘at social disadvantage’ if Legal Aid NSW is satisfied they are a person who is at significant risk of suffering social or financial detriment as a result of matters relating to their current or recent employment.

In assessing whether an applicant is at social disadvantage Legal aid NSW will consider factors including:

• the applicant’s level of financial vulnerability, and
• the applicant’s level of personal vulnerability, or
• whether the applicant is an Aboriginal person, a child or a victim of domestic violence or at risk of domestic violence.

For Legal Aid NSW to be satisfied the applicant meets the 'At Social Disadvantage’ Test, the applicant must satisfy the financial and personal vulnerability criteria set out in the ‘at social disadvantage' guidelines.

Financial vulnerability

In determining whether an applicant meets this aspect of the test, Legal Aid NSW must be satisfied that the applicant satisfies three financial vulnerability criteria, which include the applicant:

1. is in debt and they are unable to repay,
2. has to rely on a welfare agency for support (eg. Mission Australia, Anglicare or Centrelink),
3. has no savings that can be called upon,
4. has no access to credit from a bank, building society or credit union,
5. is behind or at risk of falling behind in rent or mortgage payments,
6. is in difficulty meeting utility payments such as electricity, water, phone or gas,
7. could not raise $2000 in a week for an emergency (eg. to fix a broken appliance).

Personal vulnerability

In determining whether an applicant meets this aspect of the test, Legal Aid NSW must be satisfied that the applicant satisfies three personal vulnerability criteria, including:

1. has an ongoing health condition or disability,
2. has unstable/temporary housing,
3. has very poor ability to communicate in English,
4. has a low level of education, literacy, training or skills,
5. is at risk of long term unemployment,
6. has a criminal record,
7. lives in a suburb that has high levels of disadvantage and unemployment,
8. is fifty five (55) years of age or over,
9. is under twenty five (25) years of age.

Or Other disadvantage

The applicant will satisfy this aspect of the guidelines where the applicant is:

• an Aboriginal person,
• a child, or
• a victim of domestic violence or at risk of domestic violence.

Grants of aid for matters in the Local Court Industrial Relations Division under Chapter 2 Pt 9 Div 2 of the Industrial Relations Act 1996 (NSW) are to be closely monitored by Legal Aid NSW staff.

Private legal practitioners who have conduct of the matter are required to report to Grants, Legal Aid NSW at reasonable stages on the progress of the matter.

In the event a lump sum grant is provided for a public interest matter or a test case, the indemnity under s 47 of the Act will apply to the lump sum grant, unless exceptional circumstances exist.

Unless Legal Aid NSW determines that a matter is complex, funding for grants in Veterans' matters will be administered as Stage 1 and Stage 2.

The funding for Stage 1 and Stage 2 grants is set out in the Commonwealth Civil Law Fee Scale.

3.13.1 Fees in complex matters

Legal Aid NSW determines whether a Veterans' matter is complex.

Where Legal Aid NSW determines that a matter is complex, appropriate lump sum fees will be negotiated with the legal practitioner in accordance with the Commonwealth Civil Law Fee Scale.

Legal Aid may be available for an NDIS matter in the Administrative Review Tribunal (ART) where a Grants Officer decides that:

• there is a significant likelihood that legal representation will lead to wider community benefit; or
• the applicant is experiencing disadvantage and would likely realise a substantial benefit from legal representation; and
• the matter meets the Merit Test.

4.9.1 Wider community benefit

The factors to which a Grants Officer may have regard in making a decision that a matter will lead to wider community benefit, may include, but are not limited to, the following:

Factors relating to the National Disability Insurance Scheme Act 2013 (NDIS Act) and rules

(a) Whether interpretation or application of a provision under NDIS Act, or rules made under the NDIS Act (rules):

• has been considered and fully addressed by the ART or a court;
• is not comparable to another provision that has been considered and fully addressed by the ART or a court;
• is not well understood or does not have an obvious meaning, including where there is ambiguity.

(b) The evidence base (including where there is limited or no evidence base) in relation to a disability, therapy or support.

Factors relating to the administration of the National Disability Insurance Scheme (NDIS)

(c) Whether a decision in relation to the matter:

• will clarify an uncertain or contentious area of law in relation to the NDIS Act or rules or the application of policy;
• will resolve an important question of law arising under the NDIS Act or rules;
• may result in improvements or beneficial changes to the administration of the NDIS;
• is likely to affect a significant number of participants in the NDIS.

4.9.2 Whether a person experiencing disadvantage would likely realise a substantial benefit from legal representation

In deciding whether a person experiencing disadvantage would likely realise a substantial benefit from legal representation, the LAC may consider:

• the applicant’s capacity to self-represent;
• the applicant or family/carer’s ability to access support to self-represent;
• the availability of other sources of legal assistance.

The Grants Officer may determine the weight to be given to relevant factors.

Legal Aid NSW can make grants of aid for Commonwealth civil proceeds of crime matters. The following guidelines apply to the grant of aid:

• the costs of providing a grant of aid to an applicant for a proceeds of crime matter will be reimbursed to Legal Aid NSW in accordance with ss 292 and 293 of the Proceeds of Crime Act 2002 (Cth).
• Legal Aid NSW must ensure that the costs claimed by it in accordance with the policy are fair and reasonable and in accordance with Legal Aid NSW usual fee scales for civil law matters.
• once an application for a civil law proceeds of crime is received and Legal Aid NSW is satisfied the applicant's assets are retrained, the Senior Solicitor (Grants), Criminal Law, is to be notified immediately.
• there are specific Grants procedures which need to be followed when an application for legal aid is received under the proceeds of crime legislation.

The following are guiding principles for determining whether the 'public interest' requirement is satisfied:

• Public interest is something of serious concern common to the public at large or a significant section of the public, such as a disadvantaged or marginalised group.
  
• For something to be of 'public interest' it must amount to more than a private right or individual interest, although the two may coincide.
  
• For something to be of 'public interest', it must amount to more than something merely 'of interest to the public', although again, the two may coincide.
  
• There may be competing public interests in any one case that have to be weighed against each other.
  

A special circumstance is defined in Legal Aid NSW policies as one of the following:

• the applicant has a language or literacy problem,
• the applicant has an intellectual, psychiatric or physical disability,
• it is difficult for the applicant to obtain legal assistance because the applicant lives in a remote location,
• in relation to family law matters – there is, or is a likelihood of, domestic violence, especially if an allegation of domestic violence has been made by a party to the matter,
• the applicant is a child, or
• the applicant is a person appointed by a court order under sections 15YF or 15YG of the Crimes Act 1914 (Cth) to ask questions of a child complainant or child witness.

State matters

Legal aid may be granted for test cases and public interest cases in any of the classes of matters for which legal aid is available.

Commonwealth matters

Legal Aid NSW may grant legal aid for a matter that it considers may be a test case within the meaning of the Commonwealth Public Interest and Test Cases Scheme (the Scheme) if Legal Aid NSW determines that the matter is a Commonwealth matter and:

• arises under Commonwealth law,
• is within the Commonwealth priorities meets any Commonwealth policies that are relevant to the application,
• satisfies the Means Test (unless otherwise specified in the policies), and
• satisfies the Merit Test (unless otherwise specified in the policies).

For Legal Aid NSW to be satisfied that a matter in relation to a visa cancellation under s501 of the Migration Act 1958 (Cth) raises a significant human rights issue, one or more of the following criteria must be satisfied:

• the applicant would be at risk of persecution or death if returned to their country of origin,
• it is in the best interests of the child or children because it is clearly the child or children who will suffer if the applicant is deported, or
• the applicant is a person who has either:
  • substantial mental health problems,
  • significant cognitive difficulties, or
  • a significant physical difficulty, and
    if deported back to their country of origin, he or she would be denied significant family support.