Civil Law Guidelines

Guideline 1. General

A grant of aid may be available in a civil law matter if it meets one of the civil law guidelines below.

For the purposes of the civil law guidelines, in determining if special circumstances apply consideration is given to–

1. the potential benefit, detriment or loss to the applicant,
2. whether the matter is of such complexity that it could not be effectively presented to the court by the applicant without legal representation,
3. whether the applicant's ability to communicate or self-represent is affected by–

1. 1. mental illness or impairment,
   2. age,
   3. disability,
   4. a first language other than English, or
   5. literacy

    d. whether the applicant is subject to a particular vulnerability, such as–

1. 1. financial stress or material deprivation,
   2. housing vulnerability,
   3. remoteness of location,mental illness or impairment,
   4. limited access to service providers, or
   5. unemployment.

Prior to granting aid for litigation, consideration must be given to granting aid for dispute resolution. A grant of aid for dispute resolution may be made at any stage of a matter.

Guideline 2. Government benefit, pension or allowance

A grant of aid may be available for representation at the Administrative Review Tribunal (ART) where a decision has been made that affects the applicant’s receipt or payment of a government benefit, pension or allowance if–

1. the applicant may incriminate himself or herself,
2. the matter is complicated,
3. the matter requires significant medical evidence,
4. it would be unreasonable to expect the applicant to adequately represent himself or herself due to a special circumstance, or
5. the proceeding involves an important or complex question of law.

A grant of aid may be available for an appeal from the ART to the Federal Court in relation to the receipt or payment of a government benefit, pension or allowance if there is a strong prospect of substantial benefit being gained by the applicant in appealing the decision.

Guideline 3. Consumer protection

A grant of aid may be available to the consumer in a consumer protection matter involving–

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

Subject to teh following, a grant of aid may be available in other consumer protection matters if special circumstances apply (see cilvil law guideline 1. General)

A grant of aid will not be available for the following matters:

1. professional negligence,
2. a dispute resulting from a commercial or investment transaction conducted by the applicant,
3. a building dispute.

If a grant of aid is made for a consumer protection matter, the grant may include funding for–

1. external dispute resolution, if special circumstances apply,
2. assistance in lodging a complaint to a regulator if special circumstances apply or the public interest would be advanced in assisting the applicant to lodge the complaint,
3. court or tribunal proceedings if–

1. 1. the applicant has already participated in external dispute resolution and the parties have not resolved the dispute, or
   2. external dispute resolution is unavailable, impracticable or not appropriate in the circumstances, or
   3. funding the applicant for court proceedings would advance the public interest e.g. there is a significant point of law to be decided, and
   4. where the matter is eligible for the small claims procedure in s.199 of the National Consumer Credit Protection Act 2009, only if it is determined that special circumstances apply.

Guideline 4. Migration

A grant of aid may be available to a person who has applied for a temporary partner visa–

1. to finalise their application, or
2. for a review by the Administrative Review Tribunal (ART) of a refusal of their application,

if the applicant is separated from the sponsor and is seeking an exemption from the requirement of being a spouse or partner on the ground of–

1. family violence,
2. the death of a spouse, or
3. there being a child of the relationship.

A grant of aid may be available to the secondary applicant on an application for a permanent skilled visa–

1. to finalise their application, or
2. for a review by the ART of a refusal of their application,

where the applicant is seeking an exemption from the requirement of being a member of the family unit on the ground of family violence.

A grant of aid may be available to appeal a decision to refuse a permanent protection visa by the Department of Home Affairs.

A grant of aid may be available to an applicant seeking Ministerial intervention in relation to a visa decision.

A grant of aid will only be available under guideline 4.1, 4.2, 4.3 or 4.4, if special circumstances apply.

A grant of aid may be available for proceedings in the Federal Circuit and Family Court of Australia, the Federal Court or the High Court for a migration matter, including a refugee matter, 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,
2. the proceedings seek to challenge the lawfulness of detention, or
3. there is an arguable error of law.

Guideline (b) above, does not include a challenge to a decision about a visa or a deportation order.

In making a decision under Guideline (c) above, regard will be had to–

1. the importance of the matter, or
2. whether the matter is a suitable vehicle for establishing new legal precedent.

Guideline 5. Original jurisdiction matters under the Guardianship and Administration Act 2013 (SA) or the Mental Health Act 2009 (SA)

A grant of aid may be available to a person who is the subject of an application for an order under the Guardianship and Administration Act 2013 or the Mental Health Act 2009 in the original jurisdiction of the South Australian Civil and Administrative Tribunal if the legal representation is requested by a statutory authority or government agency on behalf of–

1. a child under the age of 18,
2. an adult where a guardianship or administration order is in place, or
3. an adult with severe disability or mental illness.

Guideline 6. Extradition

A grant of aid may be available to an applicant seeking assistance in relation to–

1. extradition proceedings under s.19 of the Extradition Act 1988, or
2. a review under s.21 of the Extradition Act 1988  in relation to a s.19 order.

Guideline 7. War veterans

A grant of aid may be available to a war veteran or a dependent of a war veteran to appeal a decision of the Veterans Review Board concerning–

1. a war caused disability pension entitlement or assessment claim under Part II of the Veterans' Entitlements Act 1986, or
2. a claim under the Military Rehabilitation and Compensation Act 2004 that relates to warlike or non-warlike service, regarding

1. 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), or
   6. benefits for dependents (Chapter 5).

An application for a grant of aid is not subject to–

1. the Means Test, or
2. the applicant contributing to the cost of his or her legal representation other than to the extent of any costs recovered from the respondent in the matter.

A grant of aid may be available for an appeal from the Administrative Review Tribunal if there is a strong likelihood of substantial benefit being gained by the applicant. The exceptions relating to the Means Test and contribution does not apply to such an appeal.

Guideline 8. Proceeds of Crime Act 2002 (Cth)

A grant of aid may be available in a proceeding under the Proceeds of Crime Act 2002 if the applicant has property that is covered, or is likely to be covered, by a restraining order under that Act.

In assessing an applicant's eligibility under the Means Test, any property of the applicant that is subject to a restraining order or confiscation order under the Proceeds of Crime Act 2002, or likely to be covered by such an order, is disregarded.

In assessing an applicant's eligibility under the Merit Test, the 'appropriateness of spending limited public legal aid funds' test is disregarded.

The cost of a grant of aid under this guideline will be reimbursed to Legal Services in accordance with ss.293 and 294 of the Proceeds of Crime Act 2002.

Legal Services must ensure that the costs claimed in accordance with guideline 8.4 are fair and reasonable, and in accordance with the usual fee scale for civil law matters.

Guideline 9. Equal Opportunity and Discrimination

A grant of aid may be made in relation to an equal opportunity or discrimination matter if there is a real prospect of substantial benefit being gained by the applicant.

Guideline 10. Commonwealth civil law matters

A grant of aid may be available for a Commonwealth civil law matter of a kind not specified above if the matter falls within a Commonwealth priority and special circumstances apply.

Guideline 11. Matters unlikely to be funded

For the avoidance of doubt, a grant of aid will not usually be available for–

1. a commercial matter, including a dispute over a failed business or a business debt, a guarantee, a liquidation, directors' liability, a contract, a commercial mortgage or the sale or purchase of a business,
2. a compensation matter, including a claim for injury caused by a traffic accident, medical or dental negligence, a work injury, a criminal injury, a matter resulting from unsafe premises or a claim for loss due to professional negligence,
3. a complaint against a professional or the police,
4. a conveyancing matter,
5. a defamation matter,
6. a neighbour dispute, including a dispute involving fences, trees, noise, car parking or water run-off,
7. a probate matter, administration or a claim on a deceased estate,
8. an action to obtain an intervention order,
9. opposing an application for an intervention order, or
10. an unfair dismissal matter.