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The Merits Test

The Merits Test

  1. 1. To satisfy the merits test, the applicant for assistance must meet each of the following three tests:

    a the Reasonable Prospects of Success test
    b the Prudent Self-Funding Litigant test, and
    c the Appropriateness of Spending Limited Public Legal Grants of Legal Assistance Funds test.

  2. 2. The Reasonable Prospects of Success test is met only if, on the information provided to Legal Aid Queensland, it appears to Legal Aid Queensland that, on the legal and factual merits, the proposed action, application, defence or response for which a grant of legal assistance is sought is more likely than not to succeed.
  3. 3. The Prudent Self-Funding Litigant test is met only if Legal Aid Queensland considers that a prudent self-funding litigant would risk his or her own financial resources in funding the proposed action, application, defence or response for which a grant of legal assistance is sought.

    Note: Legal aid is a benefit funded by Australian taxpayers. Many taxpayers who are above the means test threshold for the granting of legal assistance have their own access to justice constrained in whole or in part because of limited financial resources. To reduce the inequity between those who have access to assistance and those who are marginally excluded, the Commonwealth and State aim to have strategies adopted that will provide solutions to assisted clients; problems at minimum cost. The test of the prudent self-funding litigant, one without deep pockets;, is one such strategy. It aims to put assisted litigants into an equal but not better position than private litigants without deep pockets; who risk their own funds.

  4. 4. The Appropriateness of Spending Limited Public Legal Grants of Legal Assistance Funds test is met only if Legal Aid Queensland considers that the costs involved in providing the assistance are warranted by the likely benefit to the applicant or, in appropriate circumstances, the community.

Note: Legal Aid Queensland has numerous competing interests for its resources, and accordingly Legal Aid Queensland must be satisfied that the matter for which legal assistance is sought is an appropriate expenditure of Legal Aid Queensland resources. Examples considered to be inappropriate expenditures of Commonwealth legal resources are:

a. applications to the court to dispense with a spouse's consent to a passport so that the applicant and child can travel overseas (as the Commonwealth considers that the contingent documentary costs of overseas travel should form part of the overall expense of the trip), and
b. some aspects of family law time with and property disputes, where the issue appears to be of minor significance in relationship to the legal costs that will be incurred in providing the legal assistance, for example, in a time with dispute, where the issue in dispute is who will pay for the child's bus or taxi fare, or who washes the child's clothes, or who provides the child's morning or afternoon tea.

That is - the dispute must be substantial

  • 5. The merits test is to be applied to all applications for a grant of legal assistance, unless otherwise specified in this Policy Manual.
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