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Merit Test B - Commonwealth matters
Merit Test B is to be applied to all initial applications, extensions and appeals in Commonwealth non-criminal matters, except where otherwise stated.
Merit Test B has three facets:
- Legal and factual merits - the "reasonable prospects of success" test
Where it appears on the information, evidence and material provided by the applicant that the proposed actions, applications, defences or responses for which legal aid funding is sought, have reasonable prospects of success, then legal aid may be granted.
To satisfy this test, the proposed proceedings for which legal aid funding is sought must be more likely to succeed than not.
- The "ordinarily prudent self-funding litigant" test
Only where it is considered that the "ordinarily prudent self-funding litigant" would risk his or her funds in proceedings, may a grant of assistance be made.
The approach to litigation of an "ordinarily prudent self-funding litigant", one without "deep pockets", would be to seek to resolve the matter within a specified limited dollar allocation.
- The "appropriateness of spending limited public legal aid funds" test
Grants of legal aid may be made only when the costs involved in providing legal aid are warranted by the likely benefit to the applicant, or in some circumstances, the community.
The Commission needs to be satisfied that the matter for which legal aid is sought is an appropriate expenditure of public legal aid funds. Examples are:
- A clear example of inappropriate expenditure (and accordingly aid is refused) is where it is sought to make an application to the Court to dispense with a spouse's consent to a passport, so that the applicant and child can travel or proceed overseas. The contingent documentary costs of overseas travel should properly form part of the overall expense of the trip, and is not an appropriate matter in which to grant legal aid.
- Some aspects of contact and property disputes - where the issue appears to be of minor significance in relationship to the legal costs which will be incurred, eg who will pay for the bus fare/taxi fare etc on the visit, who washes the clothes, provides the morning or afternoon tea etc, then again the Commission will decline to use its funds for such purposes. |
