Merit Test

The Merit Test consists of three tests.  These are:

1. the reasonable prospect of success test;
2. the prudent self-funding litigant test; and
3. 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.

If it is not clear whether a matter has merit, limited funding may be granted to determine the merits of the matter.

The Merit Test must continue to be satisfied throughout the grant of aid. Any information or documents relevant to merit such as expert reports, court orders or legal practitioner advice must be provided throughout the matter so that the merit of the application can be kept under review.

If a matter is assessed as no longer having merit, funding may cease or be confined to a particular purpose, such as negotiating a resolution.

Reasonable Prospect of Success Test

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

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

This does not apply to–

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

Prudent Self-funding Litigant

A matter will only be considered to have merit if its success would produce a real benefit to the funded person, such that the ordinarily wise and sensible self-funding litigant would use his or her own funds for such a matter.

Appropriateness of Spending Limited Public Funds

It is only appropriate to spend limited public funds where there is 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 appropriate 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 funding is sought to make wide ranging enquiries in an attempt to uncover evidence,
4. the matter is vexatious,
5. the applicant's purpose is to delay, harass or frustrate the other party or avoid proper obligations,
6. an application is being brought to vary or remove home detention conditions, or
7. 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 matter.