Legal Aid NSW Policy Online
Document Type: Policy
Chapter:8. Merit Test

8.1. What is a merit test?


Once Legal Aid NSW has assessed an application for legal aid, and

Legal Aid NSW must also consider in some cases whether the matter meets the relevant merit test.

The merit test looks at a number of issues including whether Legal Aid NSW considers that the applicant's matter has reasonable prospects of success.

The policies setting out the requirements that need to be met in criminal, family or civil law matters include whether a merit test is applied or not. See the following chapters for detail on how the merit test is applied in different types of matters.

How many merit tests are there?

There are two types of merit tests that Legal Aid NSW can apply.

The tests are:

Merit Test A which is applied in all civil and criminal law matters and State family law matters.

Merit Test B which is applied in Commonwealth family law matters.

Date Last Published: 23/12/2016

8.2. Merit Test A – State and some Commonwealth matters

Merit Test A is the merit test applied in State matters and in Commonwealth civil and criminal matters. The purpose of Merit Test A is to assess whether it is reasonable in all the circumstances to grant legal aid.

In deciding whether it is reasonable Legal Aid NSW will take into account amongst other issues:

Note: Merit test A has additional criteria in certain state matters such as coronial inquest matters.

Note: See Criminal Law Guideline 1.14 for guidance on considering whether there are reasonable prospects of success for an appeal to the Court of Criminal Appeal.

8.3. Merit Test B – Commonwealth family law matters

Merit Test B is the merit test applied in Commonwealth family law matters.

In applying the test, Legal Aid NSW must consider:

The reasonable prospects of success test

The reasonable prospects of success test is met if, on the information, evidence and material provided to the Commission, it appears that the proposed action, application, defence or response for which legal aid is sought is more likely than not to succeed.

The prudent self-funded litigant test

The prudent self-funding litigant test requires the Commission to be satisfied that a prudent self-funding litigant would risk his or her funds in proceedings for which legal aid is sought.

The appropriate spending of limited public funds test

The appropriate expenditure of public funds test requires Legal Aid NSW, in assessing an application, to consider the overall benefit to the applicant, or in some circumstances, the community, of spending limited legal aid funds on the proposed legal action.

Date Last Published: 23/12/2016