Legal Aid NSW Policy Online
Document Type: Policy
Chapter:18. Forum Test and Reciprocity Test


18.1 Forum Test

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:

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:

Exceptional Circumstances

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

Note: From 1 July 2019 through to 30 June 2020, 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:

18.2 Reciprocity Agreement between interstate legal aid commissions

18.2 Reciprocal agreement between interstate legal aid commissions

This is the Reciprocity Agreement introduced by National Legal Aid Commission Directors in January 1991.

18.2.1 Responsibility for assistance

Where the applicant for legal aid is resident in a State or Territory and the grant of aid relates to an action to be taken outside that State or Territory, the Forum Test is to be applied and the question of aid will be the sole responsibility of the legal aid commission in the State or Territory in which the matter is or should be proceeding. See Forum Test Guideline 11.3.1 for clarification on the interpretation of this policy.

18.2.2 Transfer of proceedings

Where a grant of legal aid has been made to a resident in a State or Territory and the proceedings are transferred to a court or tribunal of the equivalent jurisdiction outside that State or Territory, the grant of aid will continue to be the responsibility of the legal aid commission where aid has been granted.  That legal aid commission which will administer the grant of aid and will be responsible for any interstate agent's fees incurred, provided the legally assisted person was and remains a resident in the granting State or Territory. See Forum Test Guideline 11.3.2.

If the proceedings are transferred to a court of higher jurisdiction,  the applicant for legal aid must make a fresh application for legal aid to the legal aid commission in that State or Territory. See Forum Test Guideline 11.3.3.

Grants of aid will continue to be subject to the relevant legal aid commission’s eligibility tests.

18.2.3 Assisted person moves but proceedings not transferred

Where a person to whom legal aid has been granted ceases to reside in a State or Territory and the proceedings remain in that particular State or Territory, the grant of aid will continue to be the responsibility of the legal aid commission in the State or Territory where the proceedings remain.

18.2.4 Assisted person moves and proceedings transferred

Where a person to whom legal aid has been granted ceases to reside in a State or Territory and the proceedings are transferred to a court/tribunal outside that State or Territory, the grant of aid will be terminated and the assisted person will be required to re-apply for legal aid in the responsible state or territory. See Forum Test Guideline 11.3.2.

Grants of aid will be subject to the relevant legal aid commission’s eligibility tests.

18.3 Addresses of interstate legal aid commissions



18.3 Addresses of the interstate legal aid commissions

When New South Wales residents apply for legal aid for proceedings outside New South Wales, they are to be referred to the appropriate interstate organisation. The addresses and telephone numbers of the interstate legal aid organisations are set out in the telephone list on the Legal Aid NSW Intranet site.

18.4 Payment of costs and disbursements of solicitors outside New South Wales

18.4 Payment of costs and disbursements of solicitors outside New South Wales

Legal Aid NSW regards a solicitor as the agent of the New South Wales solicitor when legal aid is granted to a resident outside New South Wales for New South Wales proceedings and the interstate solicitor is authorised to act on behalf of the legally assisted person.

See the Legal Aid NSW Fee Scales on payment of The agent’s fees and travel.

18.5 Travelling expenses of the legally assisted person

18.5 Travelling expenses of the legally assisted person

The travelling expenses of the legally assisted person are not normally covered by a grant of legal aid.