Legal Aid NSW Policy Online
Document Type: Guideline
Chapter:3. Civil law matters


3.1. Introduction

These are the guidelines to the civil law policies and are intended to be read with the civil law policies. The guidelines are intended to provide guidance to the reader on how the civil law policies are to be applied and set out certain requirements which need to be observed when determining and administering grants of legal aid.

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




Date Last Published: 06/12/2010

3.2. Alternative Dispute Resolution

State matters

Legal aid applicants and people who have received a grant of legal aid may be asked or required to participate in alternative dispute resolution as a condition of the grant of legal aid.

Legal Aid NSW officers authorised under the Delegation Instrument may authorise a payment under s33 of the Act to assist a legal aid applicant to mediate a dispute.

Commonwealth matters

When determining an application for legal aid, Legal Aid NSW will consider whether it is appropriate to provide funding for an alternative dispute resolution provess before providing funding for litigation.

Legal Aid NSW may determine to fund a dispute resolution provess at any stage of a matter.


Date Last Published: 15/01/2019

3.3. Employment law matters

3.3 The ‘At Social Disadvantage’ Guidelines

What is the At Social Disadvantage Test?

An applicant is ‘at social disadvantage’ if Legal Aid NSW is satisfied they are a person who is at significant risk of suffering social or financial detriment as a result of matters relating to their current or recent employment.

In assessing whether an applicant is at social disadvantage Legal aid NSW will consider factors including:

For Legal Aid NSW to be satisfied the applicant meets the 'At Social Disadvantage’ Test, the applicant must satisfy the financial and personal vulnerability criteria set out in the ‘at social disadvantage' guidelines.

3.3.1 Financial vulnerability

In determining whether an applicant meets this aspect of the test, Legal Aid NSW must be satisfied that the applicant satisfies three financial vulnerability criteria, which include the applicant:

  1. is in debt and they are unable to repay
  2. has to rely on a welfare agency for support (eg. Mission Australia, Anglicare or Centrelink)
  3. has no savings that can be called upon
  4. has no access to credit from a bank, building society or credit union
  5. is behind or at risk of falling behind in rent or mortgage payments
  6. is in difficulty meeting utility payments such as electricity, water, phone or gas
  7. could not raise $2000 in a week for an emergency (eg. to fix a broken appliance).

3.3.2 Personal vulnerability

In determining whether an applicant meets this aspect of the test, Legal Aid NSW must be satisfied that the applicant satisfies three personal vulnerability criteria, including:

  1. has an ongoing health condition or disability
  2. has unstable/temporary housing
  3. has very poor ability to communicate in English
  4. has a low level of education, literacy, training or skills
  5. is at risk of long term unemployment
  6. has a criminal record
  7. lives in a suburb that has high levels of disadvantage and unemployment
  8. is fifty five (55) years of age or over
  9. is under twenty five (25) years of age.

3.3.3 Or Other disadvantage

The applicant will satisfy this aspect of the guidelines where the applicant is:

Date last published: 14/01/2019

3.4. Visa cancellation matters

For Legal Aid NSW to be satisfied that a matter in relation to a visa cancellation under s501 of the Migration Act 1958 (Cth) raises a significant human rights issue, one or more of the following criteria must be satisfied:

 

Date Last Published: 07/05/2015

3.5. Lump sum grants for test cases and public interest matters

In the event a lump sum grant is provided for a public interest matter or a test case, the indemnity under s47 of the Act will apply to the lump sum grant, unless exceptional circumstances exist.

3.6. Motor accident matters

3.6.1 Instituting proceedings under the Motor Accident Act

Grants of legal aid for instituting court proceedings under the Motor Accidents Act 1988 (NSW) or the Motor Accidents Compensation Act 1999 (NSW) must date from the receipt by Legal Aid NSW of:

which ever date occurs later.


3.6.2 Notice of Claim forms

Legal aid is not available for matters under the Motor Accidents Act 1988 (NSW) or the Motor Accidents Compensation Act 1999 (NSW) for preparing a Notice of Claim form, either through:


Date Last Published: 06/12/2010

3.7. Proceeds of crime matters- Commonwealth only

Legal Aid NSW can make grants of aid for Commonwealth civil proceeds of crime matters. The following guidelines apply to the grant of aid:


Date Last Published: 06/12/2010

3.8. Test Cases

State matters

Legal aid may be granted for test cases and public interest cases in any of the classes of matters for which legal aid is available.

Commonwealth matters

Legal Aid NSW may grant legal aid for a matter that it considers may be a test case within the meaning of the Commonwealth Public Interest and Test Cases Scheme (the Scheme) if Legal Aid NSW determines that the matter is a Commonwealth matter and:



Date Last Published: 06/12/2010

3.9. Industrial relations matters

Grants of aid for matters in the Local Court Industrial Relations Division under Chapter 2 Pt 9 Div 2 of the Industrial Relations Act 1996 (NSW) are to be closely monitored by Legal Aid NSW staff.

Private legal practitioners who have conduct of the matter are required to report to the Grants Division at reasonable stages on the progress of the matter.


Date Last Published: 06/12/2010

3.10. Commonwealth civil law matters

Legal aid may be granted for an application in a Commonwealth civil matter, if:

Legal Aid NSW should apply the criteria above in the order that they are listed.

If a matter is within the criteria, Legal Aid NSW must determine, in accordance with the policies, whether legal aid is to be granted, and if so, the nature and extent of the aid.

Legal Aid NSW must also consider available funds and competing priorities in making the decision.

If there is no Commonwealth policy relating to a Commonwealth priority, Legal Aid NSW may grant aid in the manner, and to the extent, it considers appropriate in that priority area.

Legal Aid NSW must ensure that any litigation, for which a grant of legal aid is made under the Commonwealth guidelines, is conducted in a cost-effective manner.




Date Last Published: 06/12/2010

3.11. Statutory and administrative financial assistance schemes by the Commonwealth Attorney-General - Administered by the Legal Aid Branch

3.11.1 Financial assistance direct from Commonwealth Attorney General

Financial assistance is available direct from the Commonwealth Attorney-General in limited categories of proceedings. This assistance is administered by the Legal Aid Branch and is provided under a number of statutory and administrative (non-statutory) schemes.


3.11.2 Statutory Schemes providing financial assistance direct from Attorney-General

There are a number of Statutory Schemes through which the Commonwealth Government provides financial assistance to people requiring help to address matters involving Commonwealth law, or in circumstances that give rise to a special Commonwealth interest and legal aid is not available.

Information about the schemes can be viewed on the Federal Attorney-General's website: http://www.ag.gov.au/www/agd/agd.nsf/Page/Legalaid_FinancialAssistance


3.11.3 Native Title Funding Schemes available through the Commonwealth Attorney-General

Financial assistance may be provided to a party or a person who intends to become a party to an enquiry, mediation or proceedings relating to native title, including an Indigenous land-use agreement or an agreement about certain rights of access for traditional purposes, or who are in dispute with another person about such rights of access.

For information about the Scheme see the Federal Attorney General website: http://www.ag.gov.au/www/agd/agd.nsf/Page/Legalaid_FinancialAssistance


3.11.4 If legal aid is available from Legal Aid NSW apply first to Legal Aid NSW

In considering whether to make a grant of aid Legal Aid NSW may take into account whether funding is available from another Commonwealth scheme such as the Commonwealth Public Interest and Test Cases Scheme. Cases seeking special funding for a public interest or test case under a law of the Commonwealth must be referred to the Legal Aid Branch.

Where Legal Aid NSW refuses to grant legal aid and/or a Legal Aid Review Committee dismisses any appeal against such a refusal, the application for legal aid is to be referred by Legal Aid NSW to the Legal Aid Branch for consideration.

For information on public interest and test cases see Guidelines at page 12: Guidelines for Provision of Assistance by the Commonwealth for Legal and Related Expenses under the Commonwealth Public Interest and Test Cases Schemes


3.11.5 Applications to the Legal Aid Branch and criteria for determination of applications

Address applications under these schemes to:

Assistant Secretary

Legal Aid Branch

Financial Assistance Section

Attorney General's Department

National Circuit

BARTON ACT 2600

Telephone: (02) 6250 6770

The criteria for determining applications under these schemes vary considerably. For the guidelines appropriate to each scheme and information regarding costs contact the Legal Aid Branch.

See Attorney-General's website: http://www.ag.gov.au/www/agd/agd.nsf/Page/Legalaid_FinancialAssistance


3.11.6 Time limits

Applicants who have applied to Legal Aid NSW are to be advised to contact the Legal Aid Branch as soon as possible because time limits may apply.




Date Last Published: 06/12/2010

3.12. Consumer Protection matters and External Dispute Resolution

For the purposes of Civil Policy 6.5.2, external dispute resolution (or EDR) means the external dispute resolution of a consumer claim or dispute using an EDR scheme. This includes, but is not limited to, EDR schemes run by the following organisations:

Funding is available under Civil Policy 6.5.2 regardless of whether a claim has been through a company's Internal Dispute Resolution (IDR) process.




Date Last Published: 06/12/2010

3.13. Fees in Veteran's matters

Unless Legal Aid NSW determines that a matter is complex, funding for grants in Veterans' matters will be administered as Stage 1 and Stage 2.

The funding for Stage 1 and Stage 2 grants is set out in the Commonwealth Civil Law Fee Scale.


3.13.1 Fees in complex matters

Legal Aid NSW determines whether a Veterans' matter is complex.

Where Legal Aid NSW determines that a matter is complex, appropriate lump sum fees will be negotiated with the legal practitioner in accordance with the Commonwealth Civil Law Fee Scale.




Date Last Published: 06/12/2010

3.14. Public Interest

The following are guiding principles for determining whether the "public interest" requirement is satisfied:


Date Last Published: 06/12/2010

3.15. Legal Aid NSW Civil Law Policies

The Legal Aid Board develops and approves policy in relation to civil law matters.

The Legal Aid NSW policies set out:

The Civil Law Guidelines set out other requirements that must be observed when determining applications and administering grants of legal aid.




Date Last Published: 06/12/2010

3.16. At special disadvantage

In the civil law policies a person is at special disadvantage:

Where proceedings are taken by or for the benefit of:

Note: Taking into consideration available funds and competing priorities, Legal Aid NSW has determined that from 6 May 2013 until further notice, funds are not available under the "special disadvantage" policy for State matters. State matters are defined as matters brought under State legislation, regardless of whether the matter is being heard in a State or Commonwealth Court or Tribunal.

Date Last Published: 31/01/2017

3.17. Family disputes

Civil policy 6.4.2 in relation to Loss of Home may include proceedings under the Property (Relationships) Act 1984 (NSW) if the applicant for legal aid comes within the definition under s5(1)(b) of the Property (Relationships) Act 1984 (NSW). If appropriate, refer disputes between family members to family law policy.  

Date Last Published: 31/01/2017

3.18. National Disability Insurance Scheme

Legal Aid may be available for an NDIS matter in the AAT where a Grants Officer decides that:

3.18.1 Wider community benefit

The factors to which a Grants Officer may have regard in making a decision that a matter will lead to wider community benefit, may include, but are not limited to, the following:

Factors relating to the National Disability Insurance Scheme Act 2013 (NDIS Act) and rules

(a) Whether interpretation or application of a provision under NDIS Act, or rules made under the NDIS Act (rules):

(b) The evidence base (including where there is limited or no evidence base) in relation to a disability, therapy or support.

Factors relating to the administration of the National Disability Insurance Scheme (NDIS)

(c) Whether a decision in relation to the matter:

3.18.2 Whether a person experiencing disadvantage would likely realise a substantial benefit from legal representation

In deciding whether a person experiencing disadvantage would likely realise a substantial benefit from legal representation, the LAC may consider:

The Grants Officer may determine the weight to be given to relevant factors.

Date last published: 20/08/2019

3.19. Special circumstances

A special circumstance is defined in Legal Aid NSW policies as one of the following:



Date Last Published: 06/12/2010

3.20 Breach of civil liberties

The following are examples of the types of circumstances where a breach of civil liberties may have occurred.