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Appeal to the Federal Court

Assessment criteria

Applications for legal aid for war veteran appeals are not subject to the means test. For legal aid to be granted to appeal a decision made by the Administrative Appeals Tribunal (AAT) to the Federal Court the following tests must be satisfied:

  • The appeal relates to:
    • a war caused disability pension entitlement or assessment claims under Part II of the Veterans Entitlements Act 1986, or
    • a claims under the Military Rehabilitation and Compensation Act 2004 (MRCA) that relate to warlike or non-warlike service
  • The applicant meets guideline 5 – war veterans matters, and
  • The applicant meets the merits test.

Documentary requirements

Application received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form.
  • Advise as to whether a notice of appeal has been filed and a copy of the notice, if applicable.
  • Details of why they consider the decision of the AAT to be wrong and which parts of the decision they intend to appeal, if only part of the decision is being appealed.

Application received from preferred supplier

Preferred suppliers seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system and provide the following information to Legal Aid Queensland:

  • Advise as to whether a notice of appeal has been filed and a copy of the notice, if applicable.
  • Details of why the applicant considers the decision of the AAT to be wrong and which parts of the decision the applicant intends to appeal, if only part of the decision is being appealed.

The practitioner must also ensure that the following documents are retained on file:

Interpretation

War veteran

Legal Aid Queensland defines a war veteran as a person who has performed eligible war service or operational service.

Eligible war service means service performed in Australia during World War II up to and including 1947.

Operational service means service performed overseas during times of war.

In most circumstances, Legal Aid Queensland will determine whether or not an applicant has performed eligible war service or operational service from the Veterans’ 
Review Board decision. If it is not apparent from the Veterans’ Review Board decision as to whether or not the applicant has performed eligible war service or operational service, the applicant or their solicitor will be required to provide further details relating to the applicant's service.

War caused disability

Legal Aid Queensland considers a disability to be war caused when a war veteran has suffered a disability, disease or death as a result of their eligible war service or operational service.

Warlike service

Under the Military Rehabilitation and Compensation Act 2004 (MRCA) warlike service means service with the defence force that is of a kind determined in writing by the defence minister to be warlike service.

Non warlike service

Under the Military Rehabilitation and Compensation Act 2004 (MRCA) non warlike service means service with the defence force that is of a kind determined in writing by the defence minister to be non warlike service.

Issues for appeal

The issues for appeal (disabilities, diseases or cause of death) must be the same issues that were considered by the Veterans’ Review Board.

Legal aid is not available for applicants to introduce new issues in an appeal which have not previously been considered by the commission or Veterans’ Review Board. Legal aid is not available in these circumstances as it is considered that the internal review process has not been exhausted as the commission has not previously considered these issues. If the applicant wants new issues to be introduced they must make a fresh application to the commission for consideration at first instance.

Dependants of war veterans

What is considered to be a dependant of a veteran is defined in both the Veterans Entitlements Act 1986 and the Military Rehabilitation and Compensation Act 2004.

Legal Aid Queensland however, considers that a dependant of a war veteran is a person who was dependant on the veteran for their daily financial upkeep immediately prior to the death of the veteran.

Where the war veteran is deceased, and there are no eligible dependants, Legal Aid funding is not available for appellants who are not a dependant of the war veteran, but are the ultimate beneficiary of the late veterans’ estate, as the applicant does not meet guideline 5.1 – war veteran’s matters. 

Prospects of success

When an application is received to appeal a decision of the AAT to the Federal Court, the assessing officer may obtain counsel’s opinion on the applicants prospects of success.

Allocation of a solicitor

As veterans appeals work is a specialised field, Legal Aid Queensland has a specific panel list of preferred suppliers who practice in this area of law, only preferred suppliers on this panel can be referred war veterans’ matters.

Grant(s) of aid

The grant of to obtain to counsel’s opinion on the applicants prospects of success is a VOP.

Extension(s) of aid

The grant of aid for solicitor and counsel to institute or defend a Federal Court Appeal in relation to a veteran’s matter is VET4.

The grant of aid for solicitor and counsel to prepare for and attend day one of a Federal Court Appeal for a veterans matter is VET5.

The grant of aid for solicitor and counsel to prepare for and attend additional days of a Federal Court Appeal for a veterans matter is VET6.

Decision makers

All applications for aid for veterans matters are determined by a designated grants officer.

Retrospective contributions

Applicants who are funded under the War Veteran Legal Aid Scheme are not subject to a retrospective contribution.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

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