18.1 Forum Test

The Forum Test has been adopted by all legal aid commissions in Australia. This Test decides which legal aid commission should be responsible:

• for determining an application for legal aid, and
• when legal aid is granted, for the funding of that matter

in circumstances set out in the Reciprocity Agreement.

The test requires that an application for legal aid be made in the State or Territory where the court action should proceed, or is proceeding.

The State or Territory where the court action should proceed will differ depending on the type of law and whether the matter is to be heard in a Commonwealth or State court/tribunal.

The different circumstances arising in the area of Commonwealth law are set out below.

18.1.1  Commonwealth Family Law

A) In Commonwealth family law matters, where an applicant for legal aid is seeking parenting orders, proceedings should be commenced in the State or Territory where the child/ren live, unless exceptional circumstances can be demonstrated.

B) Where an applicant for legal aid:

• lives in and commences proceedings in NSW and the child/ren reside in a different State or Territory and there are no exceptional circumstances, an application made to Legal Aid NSW should be refused on the basis of forum.  The applicant must be provided with the details of the legal aid commission in the correct State or Territory. See Forum Test Guideline 11.3.1.

• lives outside of NSW and is the applicant/respondent to a successful change of venue application in NSW, ie the substantive proceedings are transferred to another State or Territory, Legal Aid NSW is responsible for funding the change of venue application, subject to the relevant eligibility tests.  However, any applications made to Legal Aid NSW for ongoing representation in relation to the substantive proceedings should be refused on the basis of forum. The applicant must be provided with the details of the legal aid commission in the State or Territory where the proceedings have been transferred to

• where a change of venue application made in NSW is unsuccessful, ie the proceedings remain in NSW, Legal Aid NSW is responsible for funding the change of venue application and any ongoing representation, subject to the relevant eligibility tests. See Forum Test Guideline at 11.2 & 11.3.4.

• makes an application for Family Dispute Resolution (FDR) for a parenting matter and no court proceedings have commenced, Legal Aid NSW will only consider funding applications in matters where the child/ren reside in NSW, unless there are exceptional circumstances.
• is seeking parenting orders and the child/ren reside in a State or Territory other than NSW and there are no exceptional circumstances , an application made to Legal Aid NSW should be refused on the basis of forum. See Forum Test Guideline 11.3.1. The applicant must be provided with the details of the legal aid commission in the correct State or Territory.

Exceptional Circumstances

Circumstances that may be considered when determining whether an application falls within the category of exceptional are when:

• the children live on the border of two states (one of these states being NSW) and it would therefore be appropriate to commence proceedings in either State or Territory, or
• legal aid is sought to commence proceedings seeking a recovery order for a child/ren who have been taken to a State or Territory other than NSW, but who usually live with the applicant in NSW; or
• legal aid is sought to commence proceedings where the applicant lives in NSW and is seeking a location order for a child/ren whose whereabouts are unknown.

Note: From 1 July 2019 through to 30 June 2022, Legal Aid NSW and Victoria Legal Aid (VLA) will be piloting a flexible approach to the Forum Test for clients who live in the border areas of Victoria and NSW. See Flexible Forum Test

18.1.2  Commonwealth Criminal Law

In Commonwealth criminal law matters, the State/Territory where the court action should proceed is the State or Territory in which the offence occurred and where charges are laid, unless the Commonwealth determines otherwise. For example a person charged with people smuggling, where the alleged crime has occurred in international waters, can be arrested and tried in any State or Territory the Commonwealth deems appropriate, which is supported by s70 of the Judiciary Act 1903 (Cth).

18.1.3  Commonwealth/State Civil Law

In Commonwealth and State civil law, a person is at liberty to commence proceedings in whichever state they choose. However, it should be noted that a change of venue application can be made at any time seeking that the proceedings be transferred to a court/tribunal in a different State or Territory.

Cost Implications when commencing civil law proceedings in the incorrect State/Territory

Where an applicant for legal aid makes an application to commence proceedings in the incorrect State or Territory in civil law matters, Legal Aid NSW may be liable to pay costs on behalf of the plaintiff. See s47 of the Legal Aid Commission Act 1979 (NSW).

In deciding whether Legal Aid NSW is the appropriate commission to fund a civil law application for legal aid, the following factors should be considered and given weight according to the type of dispute:

• where does the applicant for legal aid reside?
• were is the principal place of business as per searches conducted via the Australian Securities and Investments Commission (ASIC)?
• where is the property/properties in question located?
• where is the person domicile?
• where did the breaches occur?
• where did the act of discrimination occur?
• where was the contract entered into?
• where is the place of work?