For legal aid to be granted retrospectively the following tests must be satisfied:
- the applicant meets the means test, and
- the applicant meets the relevant guidelines as outlined in the Grants Policy Manual, and
- the applicant meets the merits test (if applicable), and
- there were exceptional circumstances that led to the failure to apply for aid, and
- it will cause substantial financial hardship if aid is not granted.
Practitioners applying for a grant of legal aid retrospectively should provide the following information with the application for aid or request for extension:
- the date the applicant first consulted the practitioner about the case
- details of the applicant's financial circumstances at that date and throughout the conduct of the matter
- details of the applicant's current financial circumstances
- a copy of the practitioner's account or an estimate of fees (if applicable), and
- written confirmation that, should retrospective aid be granted, the private practitioner and counsel, if any, and any other service provider, are prepared to accept payment of fees at the legal aid rate.
Legal Aid Queensland considers there are exceptional circumstances where:
- The practitioner who conducted the matter did not have notice of the need to apply for legal aid and could not have foreseen the need to apply for legal aid.
- The applicant signed an application for legal aid but the applicant's solicitor refused and/or failed to send the application to the LAQ and if he/she had, it would have been probable that legal aid would have been granted.
- The applicant was in receipt of legal aid for a matter or matters and the applicant's solicitor performed work in relation to other matters which the solicitor claims were outside the scope of the grant(s) of aid, but for which an extension of aid would probably have been granted had the solicitor applied.
Exceptional circumstances does not cover the situation where the solicitor, with the knowledge of the applicant, acts on a pro bono or speculative basis.
Legal Aid Queensland may consider an applicant will suffer financial hardship where the:
- applicant has borrowed to pay for their legal costs and the repayments substantially reduce their earnings or
- payment of legal costs by the applicant has substantially reduced the applicant’s assets or
- payment of legal costs has resulted in the applicant incurring a real risk of losing their home.
Review of decisions
A decision to refuse a request for retrospective grant of aid may be appealed to the external review officer (refer to review of decisions).