1.2 Forum Test

1.2.1.1 - The Forum Test

The Forum Test has been adopted by all legal aid commissions in Australia. This Test decides which legal aid commission should be responsible:

• for determining an application for legal aid, and
• when legal aid is granted, for the funding of that matter

in circumstances set out in the Reciprocity Agreement between legal aid commissions (see Forum Test 1.2.2).

The test requires that an application for legal aid be made in the State or Territory where the court action should proceed, or is proceeding.

The State or Territory where the court action should proceed will differ depending on the type of law and whether the matter is to be heard in a Commonwealth or State court/tribunal.

The different circumstances arising in the area of Commonwealth law are set out below.

1.2.1.2 - Commonwealth Family Law 

A) In Commonwealth family law matters, where an applicant for legal aid is seeking parenting orders, proceedings should be commenced in the State or Territory where the child/ren live, unless exceptional circumstances can be demonstrated.

B) Where an applicant for legal aid:

• lives in and commences proceedings in NSW and the child/ren reside in a different State or Territory and there are no exceptional circumstances, an application made to Legal Aid NSW should be refused on the basis of forum.  The applicant must be provided with the details of the legal aid commission in the correct State or Territory (see Forum Test 1.2.5.1). 
• lives outside of NSW and is the applicant/respondent to a successful change of venue application in NSW, ie the substantive proceedings are transferred to another State or Territory, Legal Aid NSW is responsible for funding the change of venue application, subject to the relevant eligibility tests.  However, any applications made to Legal Aid NSW for ongoing representation in relation to the substantive proceedings should be refused on the basis of forum. The applicant must be provided with the details of the legal aid commission in the State or Territory where the proceedings have been transferred to.
• where a change of venue application made in NSW is unsuccessful, ie the proceedings remain in NSW, Legal Aid NSW is responsible for funding the change of venue application and any ongoing representation, subject to the relevant eligibility tests (see Forum Test 1.2.5 and 1.2.6.4). 
• makes an application for Family Dispute Resolution (FDR) for a parenting matter and no court proceedings have commenced, Legal Aid NSW will only consider funding applications in matters where the child/ren reside in NSW, unless there are exceptional circumstances.
• is seeking parenting orders and the child/ren reside in a State or Territory other than NSW and there are no exceptional circumstances, an application made to Legal Aid NSW should be refused on the basis of forum (see Forum Test 1.2.6.1). The applicant must be provided with the details of the legal aid commission in the correct State or Territory.

Exceptional Circumstances

Circumstances that may be considered when determining whether an application falls within the category of exceptional are when:

• the children live on the border of two States (one of these States being NSW) and it would therefore be appropriate to commence proceedings in either State or Territory, or
• legal aid is sought to commence proceedings seeking a recovery order for a child/ren who have been taken to a State or Territory other than NSW, but who usually live with the applicant in NSW; or
• legal aid is sought to commence proceedings where the applicant lives in NSW and is seeking a location order for a child/ren whose whereabouts are unknown.

Note: From 1 July 2019 through to 30 June 2022, Legal Aid NSW and Victoria Legal Aid (VLA) will be piloting a flexible approach to the Forum Test for clients who live in the border areas of Victoria and NSW (see Forum Test 1.2.7). 

1.2.1.3 - Commonwealth Criminal Law

In Commonwealth criminal law matters, the State/Territory where the court action should proceed is the State or Territory in which the offence occurred and where charges are laid, unless the Commonwealth determines otherwise. For example a person charged with people smuggling, where the alleged crime has occurred in international waters, can be arrested and tried in any State or Territory the Commonwealth deems appropriate, which is supported by s70 of the Judiciary Act 1903 (Cth).

1.2.1.4 - Commonwealth/State Civil Law

In Commonwealth and State civil law, a person is at liberty to commence proceedings in whichever state they choose. However, it should be noted that a change of venue application can be made at any time seeking that the proceedings be transferred to a court/tribunal in a different State or Territory.

Cost implications when commencing civil law proceedings in the incorrect State/Territory

Where an applicant for legal aid makes an application to commence proceedings in the incorrect State or Territory in civil law matters, Legal Aid NSW may be liable to pay costs on behalf of the plaintiff. See s47 of the Legal Aid Commission Act 1979 (NSW).

In deciding whether Legal Aid NSW is the appropriate commission to fund a civil law application for legal aid, the following factors should be considered and given weight according to the type of dispute:

• where does the applicant for legal aid reside?
• where is the principal place of business as per searches conducted via the Australian Securities and Investments Commission (ASIC)?
• where is the property/properties in question located?
• where is the person domiciled?
• where did the breaches occur?
• where did the act of discrimination occur?
• where was the contract entered into?
• where is the place of work?

This is the Reciprocity Agreement introduced by National Legal Aid Commission Directors in January 1991.

1.2.2.1 - Responsibility for assistance

Where the applicant for legal aid is resident in a State or Territory and the grant of aid relates to an action to be taken outside that State or Territory, the Forum Test is to be applied and the question of aid will be the sole responsibility of the legal aid commission in the State or Territory in which the matter is or should be proceeding. See Forum Test 1.2.6.1 for clarification on the interpretation of this policy.

1.2.2.2 - Transfer of proceedings

Where a grant of legal aid has been made to a resident in a State or Territory and the proceedings are transferred to a court or tribunal of the equivalent jurisdiction outside that State or Territory, the grant of aid will continue to be the responsibility of the legal aid commission where aid has been granted.  That legal aid commission which will administer the grant of aid and will be responsible for any interstate agent's fees incurred, provided the legally assisted person was and remains a resident in the granting State or Territory (see Forum Test 1.2.6.2).

If the proceedings are transferred to a court of higher jurisdiction,  the applicant for legal aid must make a fresh application for legal aid to the legal aid commission in that State or Territory (see Forum Test 1.2.6.3).

Grants of aid will continue to be subject to the relevant legal aid commission’s eligibility tests.

1.2.2.3 - Assisted person moves but proceedings not transferred

Where a person to whom legal aid has been granted ceases to reside in a State or Territory and the proceedings remain in that particular State or Territory, the grant of aid will continue to be the responsibility of the legal aid commission in the State or Territory where the proceedings remain.

1.2.2.4 - Assisted person moves and proceedings transferred

Where a person to whom legal aid has been granted ceases to reside in a State or Territory and the proceedings are transferred to a court/tribunal outside that State or Territory, the grant of aid will be terminated and the assisted person will be required to re-apply for legal aid in the responsible state or territory (see Forum Test 1.2.6.2).

Grants of aid will be subject to the relevant legal aid commission’s eligibility tests.

Legal Aid NSW regards a solicitor as the agent of the New South Wales solicitor when legal aid is granted to a resident outside New South Wales for New South Wales proceedings and the interstate solicitor is authorised to act on behalf of the legally assisted person.

See the Legal Aid NSW Fee Scales on payment of the agent’s fees and travel.

The travelling expenses of the legally assisted person are not normally covered by a grant of legal aid.

These are the guidelines to the forum test policies and are intended to be read with the forum test policies. The guidelines provide guidance on how certain policies are to be applied by setting out certain requirements which need to be observed when determining applications and administering grants of legal aid.

The Legal Aid Commission of New South Wales is referred to as ‘Legal Aid NSW’ in these guidelines.

1.2.5.1 - Forum Test guide

The following table provides a summary of the forum test for quick reference:

The details of interstate legal aid commissions can be found on the intranet.

1.2.6.1 - Responsibility for assistance

When applying the forum test to an application for legal aid in Commonwealth family law, Legal Aid NSW will only consider funding those matters where the children live in NSW.

For example, an applicant living in NSW seeking time with his children who live with their mother in Victoria should commence proceedings in Victoria and should therefore apply to Victoria Legal Aid for a grant of legal aid. In the instance that the applicant incorrectly commences proceedings in NSW and applies to Legal Aid NSW for a grant of legal aid, his application should be refused on the basis of forum and he should be directed to Victoria Legal Aid.

Refer to Forum Test 1.2.2 and 1.2.5 and 1.2.6.4 for details on determining applications for legal aid with respect to change of venue applications.

Where proceedings have commenced, forum in this context means the State or Territory in which the proceedings are listed for hearing, NOT the State or Territory of the managing registry.

For example, if the Melbourne Registry of the Family Court manages the listing of matters for the Albury (NSW) sittings of the Family Court. The forum in this example is NSW not Victoria as the matters will be listed for hearing in NSW.

1.2.6.2 - Transfer of proceedings

Where the forum changes to another State or Territory, the State or Territory where the legally assisted person resides becomes relevant for the first time in that:

• if the legally assisted person was and remains a resident in the granting State or Territory, eg NSW, then the granting legal aid commission, eg Legal Aid NSW, continues to be responsible for funding the matter. The basis of that on-going assistance is the legally assisted person continuing to live in the granting State or Territory. In other words, for Legal Aid NSW to continue to fund a matter once the proceedings have been transferred to another State/Territory, the legally assisted person must continue to live in NSW.

• if the assisted person was never a resident of, or ceases to be a resident of the granting State or Territory, then assistance by the granting State or Territory will cease and an application must be made to the legal aid commission in the new forum State or Territory. For example, where proceedings are transferred from NSW to Queensland and the legally assisted person either a) never lived in NSW or b) has moved from NSW to another State orTerritory, Legal Aid NSW will terminate aid on the basis of forum. The basis of this determination is that there is no longer any link, be it forum or residence, with the granting State, eg NSW.

1.2.6.3 - Equivalent jurisdiction

The term 'equivalent jurisdiction' as it appears in the Reciprocity Agreement is meant to be applied in the broad sense of the term. For example, a matter commencing in the family law jurisdiction of a State or Territory Local Court and transferring to the Family Court of another State or Territory is considered to remain in the equivalent 'family law' jurisdiction.

1.2.6.4 - Applications for change of venue

Applications for change of venue should be approved or refused on merit. Where a Court orders a change of venue to another State or Territory, responsibility for the on-going provision of legal aid will be determined in accordance with Forum Test 1.2.2.2 Transfer of proceedings, 1.2.2.3 Assisted person moves but proceedings not transferred & 1.2.2.4 Assisted person moves and proceedings transferred.

See also Forum Test 1.2.6.2. 

From 1 July 2019, VLA and Legal Aid NSW will be trialling a more flexible forum test. To make an application under the flexible forum test, an applicant must meet all of the following conditions:

1. they reside in a local government area (LGA) or law society area (LSA) along the Victorian and NSW border;
2. they are seeking a grant of assistance for a Commonwealth family law matter;
3. they have a Commonwealth family law matter that is being heard or going to be heard in either Victoria or NSW;
4. their lawyer is on VLA’s family law panel if the application is made to VLA or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW;
5. their lawyer’s principal place of practice is also in a relevant LGA/LSA.

Applicants who apply under the flexible forum test may apply to VLA or Legal Aid NSW for a grant of assistance, even if the matter is going to be heard in the other state, as long as their lawyer is on the family law panel if the application is made to VLA or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW.

Applicants must still meet relevant guideline, merit and means test requirements.

What areas are affected

The flexible forum test applies to applicants living in the following Local Government /Law Society Areas:

Victoria: Mildura, Swan Hill, Gannawarra, Campaspe, Moira, Wangaratta, Indigo, Wodonga, Towong, East Gippsland.

New South Wales: Wentworth, Balranald, Murray River, Berrigan, Federation, Greater Hume, Albury, Snow Valleys, Snowy Monaro, Bega Valley.