For legal aid to be granted for an application / response in a proceeding for a protected confidences direction the following tests must be satisfied:
- the applicant has substantive funding in the proceedings, and
- there has been a requirement for disclosure to the court of material which is asserted to be a protected confidence, and
- the issue cannot be resolved through negotiations, and
- the request meets the merits test.
If the matter has or will exceed the cap as outlined in guideline 18.2 - limit on costs, the matter will be referred to a Grants Manager for consideration.
Where a request for an application for a protected confidences direction exceeds 2 per file (1 before trial directions are issued and 1 after trial directions have been issued), the request will be referred to a Senior Grants Officer.
Documentary requirements
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance must electronically submit an extension of aid request via the Grants Online system along with the relevant information request, and provide:
- Certification that negotiations to resolve the issue without the need for an application of this nature have occurred, and
- A summary of the evidence which is sought to be admitted and a description about how this request meets the merits test, and
- An opinion from the practitioner that their client has not unreasonably withheld their consent to admission of the material (where applicable).
The following documents are to be retained on file but may be requested by Legal Aid Queensland:
Interpretation
Merits test
When considering the merit of a request in relation to a protected confidences direction, the practitioner must address the following:
- The information is so important or has such probative value to the proceedings that its admission into evidence / production / inspection or copying far outweighs any harm which might be caused to a party to the proceedings, or the child/ren the subject of the proceedings; or
- The harm caused by the admission into evidence / production / inspection or copying of the information to a party to the proceedings or child/ren the subject of the proceedings far outweighs desirability of adducing the evidence or producing / inspecting or copying the information.
- Where the applicant is seeking to prevent the admission of evidence, an opinion that their client has not unreasonably withheld their consent to admission of the material noting the criteria which must be considered by the Court when determining an application of this nature.
Limitation of funding
Due to the limited funding Legal Aid Queensland has for Commonwealth family law matters, funding to make an application for a protected confidences directed are limited to 1 before trial directions are issued, and 1 after trial directions have been issued, with a maximum of 2 per file.
In exceptional circumstances LAQ will consider requests outside of this limitation. When considering exceptional circumstances, consideration will be given to whether the documents and / or information was available or in existence at the time of an earlier application for a protected confidences direction.
To ensure funding is provided in a cost-effective manner, practitioners should:
- Attempt to resolve the matter through negotiation and advice to their client before making an application; and
- Consider making a single application which applies to multiple documents or information and / or multiple sources of documents or information to which the protected confidences direction/s will apply; or
- Consider inclusion of protected confidences direction application in:
- their initiating application or response to an initiating application; or
- when an application in a proceeding is required for substantive issues.
Grant(s) of aid
The grant of aid for an application for protected confidences direction is FMPC for parties other than the ICL.
Retrospective contributions
If the dispute includes property settlement, funding will be provided subject to the right to recover 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).