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Merit Test

The Merit Test consists of three tests.  These are:

  • the reasonable prospect of success test;
  • the prudent self-funding litigant test; and
  • the appropriateness of spending limited public legal assistance funds test.

A matter will be assessed as having merit if all three of these tests are met.

As a matter progresses, the merit of the case may change. Consequently, merit is kept under review. If a matter no longer has merit, funding may cease or may be confined to a particular purpose, such as negotiating a resolution.

Reasonable prospect of success

Legal aid funding will only be granted for a matter that has a reasonable prospect of success unless

  1. the matter is a serious criminal case proceeding by way of trial in the District or Supreme Court, in which case a reasonably arguable defence is sufficient; or
  2. funding is sought for the hearing of an application for special leave to appeal to the High Court of Australia, in which case aid will be approved where the Director, having consulted with either Chief Counsel for the Commission or other appropriate counsel, is of the opinion that there is a point of law, which is reasonably arguable, in a case appropriate to be put to the High Court.

A 50% chance of success does not satisfy the reasonable prospect of success test.

Prudent self-funding litigant

To satisfy this test the matter must, if successful, produce a real benefit to the aided person, such that the ordinarily wise and sensible self-funding litigant would risk his or her own funds for such a matter.

Situations in which this test will not be met include where

  1. the cost of the matter outweighs the benefit;
  2. the applicant wants to defend a claim, but has nothing of substance to lose;
  3. the applicant wants to sue for money, but the other party will not be able to pay; or
  4. there is no real likelihood of enforcing orders obtained.

Appropriateness of spending limited public funds

To satisfy this test, the matter must be one on which it is appropriate to spend limited public funds. Accordingly, aid will only be granted for a deserving and proper purpose.

Situations in which this test will not be met include where

  1. the dispute is trivial, or is minor in proportion to the cost;
  2. it is not fair that the public should pay for the matter, such as where a parent wants to take a child on an overseas trip, and seeks court orders for a passport;
  3. there is little or no evidence to support the matter, and aid is sought to make wide-ranging enquiries just in case evidence should come to light;
  4. the case is vexatious;
  5. the applicant's purpose is merely to delay, harass or frustrate the other party, or avoid proper obligations; or
  6. the applicant's purpose is to vindicate his or her reputation, or contradict another party's evidence, where this will make no practical difference to the outcome of the case.