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Guidelines - Commonwealth - Civil

Guideline 1 - General

1.1 Consideration of resolution processes other than litigation

  1. In a civil law matter Legal Aid Queensland must consider making a grant of legal assistance for an applicant for assistance to participate in dispute resolution services before it considers making a grant of legal assistance to that applicant for litigation services at any stage in the proceedings.
  2. Legal Aid Queensland may make a grant of legal assistance for an applicant for assistance to participate in dispute resolution services at any stage of a matter.
  3. Legal Aid Queensland may make a grant to investigate and report on the merits of a case.

Guideline 2 - Social Security and other Commonwealth Benefits

2.1 Representation at Administrative Appeals Tribunal

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance for representation at the Administrative Appeals Tribunal if:

  1. a. it is considered that the applicant may incriminate himself or herself, or
  2. b. the case is complicated, or
  3. c. requires significant medical evidence, or
  4. d. it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth and state legal aid service priorities, special circumstances of the applicant priorities, or
  5. e. Legal Aid Queensland determines that the appeal involves an important or complex question of law.

Guideline 3 - Migration cases

3.1 Assistance for migration matters

  1. 1. Legal Aid Queensland may make a grant of legal assistance for proceedings in the Federal Law Courts or High Court dealing with a migration matter, including a refugee matter, only if:
    1. a. there is a difference of judicial opinion that relates to a substantive issue in dispute that has not been settled by the Full Court of the Federal Court or the High Court, or
    2. b. the proceedings seek to challenge the lawfulness of detention, or
    3. c. there is an arguable error of law.
  2. 2. In making a decision under (1)(c), Legal Aid Queensland will have regard to:
    1. i. the importance of the case, and/or
    2. ii. whether the case is a suitable vehicle for establishing new legal precedent.

Note: Guideline 3.1(1)(b) does not include a challenge to a decision about a visa or a deportation order.

  1. 3. In all other cases, applicants should be referred to the Immigration Advice and Application Assistance Scheme (IAAAS) for possible assistance.

Guideline 4 - Equal opportunity and discrimination cases

4.1 Assistance for certain matters if substantial benefit

Subject to guideline 1.1(2) of these Commonwealth civil law guidelines, Legal Aid Queensland may make a grant of legal assistance for an equal opportunity or discrimination case if there is a real prospect of substantial benefit being gained by the applicant for assistance.

Guideline 5 - War veterans matters

5.1 Assistance for war veterans' matters

  1. Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance who is a war veteran or a dependent of a war veteran in relation to:
    1. a. appeals from decisions of the Veterans Review Board about war caused disability pension entitlement or assessment claims under Part II of the Veterans Entitlements Act 1986, and
    2. b. appeals from decisions of the Veterans Review Board about claims under the Military Rehabilitation and Compensation Act 2004 that relate to warlike or non-warlike service, in regard to:
      1. i. acceptance of liability (Chapter 2)
      2. ii. rehabilitation programs (Chapter 3, Part 2)
      3. iii. permanent impairment (Chapter 4, Part 2)
      4. iv. incapacity payments for former members (Chapter 4, Part 4)
      5. v. special rate disability pension (Chapter 4, Part 6), and/or
      6. vi. dependants benefits (Chapter 5).
  2. An application for a grant of legal assistance under this guideline 5.1 is not subject to:
    1. a. the means test, or
    2. b. the applicant for assistance making any contribution to the cost of his or her legal assistance provided by Legal Aid Queensland in relation to the matter, other than to the extent of any costs recovered from the respondent in the matter.

Guideline 6 - Other Federal and High Court proceedings

6.1 Assistance for certain matters if substantial benefit

Subject to the other guidelines in these Commonwealth civil law guidelines, Legal Aid Queensland may make a grant of legal assistance for any of the following types of matters if there is a strong prospect of substantial benefit being gained by the applicant for assistance in relation to the matter:

  1. a. appeals from decisions of the Administrative Appeals Tribunal
  2. b. initiating proceedings in the Family Law Courts or the High Court, and
  3. c. appeals in the Full Court of the Federal Court or the High Court.

Guideline 7 - Proceeds of crime

7.1 Proceedings under the Proceeds of Crime Act 2002

  1. Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance in relation to proceedings under the Proceeds of Crime Act 2002 if the applicant has property that is covered by a restraining order under the Act, or is likely to be covered by such an order.
  2. In assessing an applicant's eligibility under the means test for the purpose of determining an application for a grant of legal assistance under this guideline, Legal Aid Queensland must disregard any property of the applicant that is subject to a restraining order or confiscation order under the Proceeds of Crime Act 2002, or is likely to be covered by such an order.
  3. In assessing an applicant's eligibility under the merits test for the purpose of determining an application for a grant of legal assistance under this guideline, Legal Aid Queensland should disregard the appropriateness of spending limited public legal aid funds test.
  4. The costs of providing legal assistance to an applicant for assistance under a grant of legal assistance will be reimbursed to Legal Aid Queensland in accordance with sections 292 and 293 of the Proceeds of Crime Act 2002.
  5. Legal Aid Queensland must ensure that the costs claimed by it in accordance with guideline 7.1(4) are fair and reasonable, and in accordance with Legal Aid Queensland's usual fee scales for civil law matters.

Guideline 8 - Extradition proceedings

8.1 Assistance for certain extradition proceedings

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance in relation to the following types of proceedings under the Extradition Act 1988:

  1. a. extradition proceedings under section 19, and
  2. b. an appeal under section 21 in relation to a section 19 order.

Guideline 9 - Appeals

9.1 Assistance for appeals

Subject to the other guidelines in these Commonwealth civil law guidelines, Legal Aid Queensland may make a grant of legal assistance for an appeal of a court decision in a civil law matter.

Guideline 10 - Consumer Protection

10.1 Assistance for certain matters

  1. Legal Aid Queensland may make a grant of legal assistance for certain types of Commonwealth consumer protection matters involving:
    1. a. credit matters (including mortgages and guarantees)
    2. b. matters relating to unconscionable contracts and unfair contract terms
    3. c. matters relating to the purchase of goods and services
    4. d. matters relating to insurance contracts and superannuation
    5. e. matters involving a claim or cause of action against a person retained to advise and/or represent a client for the purpose of consumer transaction.

10.2 Other consumer matters

  1. In other consumer protection matters Legal Aid Queensland is unlikely to grant assistance unless the applicant for assistance falls within the category of disadvantaged client. In determining if the client is disadvantaged the Legal Aid Queensland may take into account those factors as set out in the Commonwealth legal aid service prioritiesspecial circumstances of applicants priorities.
  2. A grant of legal assistance will not be available for:
    1. a. matters about medical negligence
    2. b. matters about disputes which are the result of commercial or investment transactions conducted by the applicant
    3. c. matters concerning building disputes.

10.3 Consumer protection matters - External dispute resolution

  1. Legal Aid Queensland may make a grant of legal assistance for external dispute resolution in limited circumstances. A grant of legal assistance will only be made available where:
    1. a. no alternative services are available to assist the client to lodge or process their dispute within a reasonable period of time and
    2. b. the matter is complex or
    3. c. the particular circumstances of disadvantage of the client including
      1. i. the extent of the impact on the client
      2. ii. practical difficulties in self representing make it appropriate.

10.4 Consumer protection - Lodging a complaint

Legal Aid Queensland may make a grant of legal assistance to assist an applicant in lodging a complaint to the regulator in a consumer protection matter where:

  1. a. no alternative services are available to assist the client and
  2. b. the matter is complex or
  3. c. the particular circumstances of disadvantage of the client including:
    1. i. the extent of the impact on the client
    2. ii. practical difficulties in self representing make it appropriate or
  4. d. the public interest would be advanced in assisting the applicant to lodge the complaint.

10.5 Consumer protection matters - Court proceedings

  1. Legal Aid Queensland may make a grant of legal assistance for court proceedings where:
    1. a. the applicant has already participated in internal dispute resolution and external dispute resolution and the parties have not resolved the dispute, or
    2. b. participating in internal dispute resolution and external dispute resolution is unavailable, impracticable or not appropriate in the circumstances, or
    3. c. providing legal representation to the applicant for court proceedings would advance the public interest e.g. there is a significant point of law to be determined.
  2. Where the consumer matter is eligible for the small claims procedure set out at s199 The National Consumer Protection Act 2009 aid is limited and in addition to guideline 10.5 (1) consideration of the:
    1. a. complexity of the matter and
    2. b. the particular circumstances of disadvantage of the client including
    3. c. the extent of the impact on the client
      1. i. practical difficulties in self representing
      2. ii. will be taken into account in determining the appropriateness of granting assistance.

Guideline 11 - Employment Matters

1. Assistance for applicants in certain matters

Legal Aid Queensland may make a grant of legal assistance for certain types of Commonwealth employment matters involving:

1.1. Unfair dismissal proceedings under Fair Work Act 2009 (Cth)
1.2. Proceedings for contravention for the Fair Work Act 2009 (Cth) where there has been a breach of:
1.2.1. "Workplace rights" protection
1.2.2. "Other protections" limited to:
1.2.2.1. Discrimination
1.2.2.2. Temporary absence - illness or injury, and
1.2.2.3. Coercion.
1.2.3. "Sham contractor arrangements" protection (this excludes genuine independent contractors)

Note: grants will not be made in relation to industrial activity or objectional terms.

1.3. Where the applicant for assistance falls within the category of a disadvantaged client set in the Commonwealth legal aid service priorities - special circumstances of applicants priorities.

2. Unfair dismissal

Legal aid Queensland may make a grant of legal assistance to assist an applicant in proceedings for unfair dismissal through the Fair Work Commission where:

2.1. The applicant is a National System Employee
2.2. The applicant has met the minimum employment period requirements
2.3. The time limits for lodgement have been/can be met for a date for conciliation or hearing has been allocated, and
2.4. The applicant was earning less than the high income threshold under the Fair Work Act 2009 (Cth).

3. General Protections

Legal Aid Queensland may make a grant of legal assistance to assist an applicant in proceedings for contravention of the Fair Work Act 2009 (Cth) where there has been a breach of general protections and:

3.1. The applicant is a National System Employee
3.2. The time limits for lodgement have been/can be met or a date for conciliation or hearing has been allocated or an arbitration has been agreed to by the parties, and
3.3. If the client is still employed the issue is current or ongoing (within the last 12 months).

 

Guideline 12 - National Disability Insurance Scheme (NDIS) appeals

12.1 Assistance for NDIS appeals

Legal Aid Queensland may make a grant of legal assistance to assist an applicant in respect to an application before the Administrative Appeals Tribunal where:

12.1.1 The applicant is a NDIS participant seeking a review of decisions of the National Disability Insurance Agency, or

12.1.2 The applicant is seeking a review of NDIA decisions refusing their participation in the NDIS.

An application for a grant of legal assistance under guideline 12.1 is not subject to the means test. Representation in these matters is provided by the in-house civil law practice at Legal Aid Queensland and is subject to the availability of Commonwealth funds allocated for this purpose. 

 

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