The Commonwealth merits test is a threshold test which must be satisfied in most Commonwealth law matters. The test has three parts which must be met:
- the reasonable prospects of success test
- the prudent self-funding litigant test
- the appropriateness of spending limited public legal aid funds test.
Additional criteria in parenting disputes
When a person seeking assistance in relation to parenting disputes is in custody, there are additional factors the lawyer is required to take into account in assessing merit. See Parenting disputes where the person is in custody.
When does the merits test apply?
The Commonwealth merits test does not apply in some matters. All relevant criteria that must be met are set out in individual guidelines.
The test must be satisfied at the start of the matter and throughout its duration. If at any point the test is no longer met, assistance will cease.
Who assesses merit?
The merit of an application for assistance is assessed by us in some circumstances, and by the lawyer making the application on behalf of a client in others.
Victoria Legal Aid (VLA) assessment
If the application cannot be assessed using the Simplified Grants Process (SGP), staff from the Grants and Quality Assurance Unit will assess the request and make the decision.
Lawyer assessment
If we process an application for a grant of assistance through our SGP, the applicant’s lawyer assesses the merits of the application and makes a recommendation to our Grants and Quality Assurance Unit. For assistance to be granted, the lawyer must genuinely consider that the person and their matter satisfy each relevant test within the Commonwealth merits test. If not, the lawyer must recommend against a grant of assistance. We will base our eventual decision in part on the lawyer’s recommendation.
Lawyers cannot assess ‘the appropriateness of spending limited public legal aid funds test’ within the Commonwealth merits test if the application is based on only ‘the likely benefit to the community’. If the person’s lawyer is considering such an application, only our Grants and Quality Assurance Unit may assess this question.
Lawyers must keep a file note of the issues and the facts on which their assessment is made.
Reviewed 18 February 2022
In this section
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- Handbook
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- 3 – Criminal law guidelines
- Guideline 1.2 – ‘guilty’ plea in the Magistrates’ Court
- Guideline 1.3 – Assessment and Referral Court List matters
- Guidelines 1.4 and 1.5 – social security prosecutions
- Guideline 2 – traffic offence charges in the Magistrates’ Court
- Guideline 4.1 – County Court and Supreme Court pleas
- Guideline 5.1 – proceedings in the Criminal Division of the Children’s Court
- Guideline 6 – bail applications in the Children's, Magistrates’, County and Supreme courts
- Guideline 7.1 – criminal appeals to the County Court
- Guideline 7.2 – interlocutory appeals to the Court of Appeal
- Guideline 7.3 – appeals to the High Court
- Guideline 7.4 – leave to appeal against sentence in the Court of Appeal
- Guideline 7.5 – appeal against sentence in the Court of Appeal
- Guideline 7.6 – leave to appeal against conviction/conviction and sentence in the Court of Appeal
- Guideline 7.7 – appeal against conviction/conviction and sentence in the Court of Appeal
- Guideline 7.8 – election to renew leave to appeal against conviction and/or sentence in the Court of Appeal
- Guideline 8 – stay applications under the Criminal Procedure Act
- Guideline 9 – hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act
- Guideline 10 – Serious Offenders Act 2018
- Guideline 11 – Supreme and County Court breach proceedings
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- 4 – Commonwealth family law and child support guidelines
- Notes on the guidelines
- 4.4 – Family Law Property Program professional costs
- Introduction to Commonwealth family law and child support guidelines
- Notes on the introduction to the guidelines
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- Guideline 1 − parenting disputes
- Guideline 1.1 – advice and negotiation for adults in parenting disputes
- Notes on guideline 1.1
- Guideline 1.2 – FDRS for adults in parenting disputes
- Notes on guideline 1.2
- Guideline 1.3 – litigation for adults in parenting disputes
- Notes on guideline 1.3
- Guideline 1.4 – appointment of an ICL in litigation relating to parenting disputes
- Notes on guideline 1.4
- Guideline 1.5 – appointment of an ICL for litigation intervention FDRS in parenting disputes
- Notes on guideline 1.5
- Guideline 1.6 – advice and negotiation for child litigants in parenting disputes
- Notes on guideline 1.6
- Guideline 1.7 – FDRS for child litigants in parenting disputes
- Notes on guideline 1.7
- Guideline 1.8 – litigation for child litigants in parenting disputes
- Notes on guideline 1.8
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- Guideline 2 – recovery, location and information orders
- Notes on Guideline 2
- Guideline 2.1 – assistance for a recovery order
- Notes on Guideline 2.1 – assistance for a recovery order
- Guideline 2.2 – assistance for a location or information order
- Notes on Guideline 2.2 – assistance for a location or information order
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- Guideline 3 – international child abduction
- Notes on Guideline 3
- Guideline 3.1 – litigation in matters involving international child abduction
- Notes on Guideline 3.1
- Guideline 3.2 – FDRS in matters involving international child abduction
- Notes on Guideline 3.2
- Guideline 3.3 – appointment of an ICL for litigation relating to international child abduction
- Notes on Guideline 3.3
- Guideline 3.4 – appointment of an ICL for FDRS in matters involving international child abduction
- Notes on Guideline 3.4
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- Guideline 5 − child support and child maintenance
- Guideline 5.1 – advice and negotiation for adults in child support matters
- Notes on Guideline 5.1
- Guideline 5.2 – litigation and administrative review for adults in child support matters
- Notes on Guideline 5.2
- Guideline 5.3 – advice and negotiation for adults in child maintenance and adult child maintenance matters
- Notes on Guideline 5.3
- Guideline 5.4 – FDRS in adult child maintenance matters
- Notes on Guideline 5.4
- Guideline 5.5 – litigation for adults in child and adult child maintenance matters
- Notes on Guideline 5.5
- Legal assistance for children in child support and child maintenance matters
- Guideline 5.6 – advice and negotiation for children in child support and child maintenance matters
- Notes on Guideline 5.6
- Guideline 5.7 – litigation for children in child support and child maintenance matters
- Notes on Guideline 5.7
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- Guideline 7 − special medical procedures involving children
- Guideline 7.1 – litigation for adults for special medical procedures involving a child
- Notes on Guideline 7.1
- Guideline 7.2 – appointment of an ICL in litigation relating to special medical procedures involving a child
- Notes on Guideline 7.2
- Guideline 7.3 – litigation for child litigants for special medical procedures involving them
- Notes on Guideline 7.3
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- Guideline 9 – property disputes
- Notes on Guideline 9
- Guideline 9.1 – Family Dispute Resolution Services in family law property disputes
- Notes on Guideline 9.1
- Guideline 9.2 – litigation in family law property disputes
- Notes on Guideline 9.2
- Guideline 9.3 – urgent ligation in family law property disputes
- Notes on Guideline 9.3
- Family law costs management
- Important information about FDRS
- Jurisdiction of family law proceedings
- 4.1 – Family Violence and Cross-Examination of Parties Scheme
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- 5 – Commonwealth civil law guidelines
- Guideline 1 – general guideline for Commonwealth civil matters
- Guideline 2 – social security and other benefits: administrative appeals
- Guideline 3 – assistance for migration cases
- Guideline 4 – equal opportunity and discrimination cases
- Guideline 5 – war veterans' matters
- Guideline 6 – other Federal Court and High Court proceedings
- Guideline 7 – Proceeds of Crime Act 2002
- Guideline 8 – extradition proceedings
- Guideline 9 – NDIS administrative appeals
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- 6 – Child protection guidelines
- Introduction to child protection guidelines
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- Guideline 7 – judicial review of the Family Division of the Children's Court, County Court or Victorian Civil and Administrative Tribunal decision
- Notes on Guideline 7 – judicial review of the Family Division of the Children’s Court, County Court or Victorian Civil and Administrative Tribunal decision
- Notes on fees and other costs payable in child protection matters
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- 7 – State civil law guidelines
- Guideline 1 – general civil claims of $5000 or more
- Guideline 2 – Mental Health Tribunal cases
- Guideline 3 – supervised treatment orders
- Guideline 4 – guardianship and/or administration cases in the Guardianship List
- Guideline 5 – coronial inquests
- Guideline 6 – equal opportunity or discrimination cases
- Guideline 7 – Victims of Crime Assistance Tribunal cases
- Guideline 8 – family violence protection order cases
- Guideline 10 – adoption
- Guideline 11 – evictions at VCAT
- Guideline 12 – Supreme Court
- Guideline 13 – infringements cases
- Guideline 14 – witnesses appearing before the chief examiner or examiner
- 8 – Public interest and strategic litigation
- 9 – Standard grants assessment process
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- 16 – Applying for a grant of legal assistance
- How to apply
- Does a person need a lawyer to help them apply?
- Helping a client apply for a grant of legal assistance
- How to fill in the application form
- Giving false information or omitting relevant information in the application
- Late applications and time limits
- How to apply for further assistance, or additional assistance
- Submitting the application
- Urgent applications
- Applications by children
- 19 – Standard terms and conditions
- 20 – Abandoning legal assistance
- 21 – Finalising grants of legal assistance
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- 23 – Payments to lawyers and service providers
- Professional costs
- Counsel's fees
- Payments to agents
- Duty lawyer schemes
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- Disbursements
- Minimum evidence to be retained on file for claims for disbursements and counsel fees
- Interim claims for authorised disbursements
- Table OO – VLA rates for reimbursement of authorised disbursements/expenses
- Table Q – Expert reports and court attendances in family law matters
- Table S – Expert reports and court attendances by psychologists and psychiatrists in criminal matters
- Cost ceilings
- Stage of matter limits
- Lump sum fees
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- Costs payable in criminal law matters
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- Fee Schedule 1 – Lump sum and other fees payable in criminal law matters
- Conditions for paying lump sum fees in criminal law matters
- Principles applying to payment of preparation fees to solicitors
- Summary criminal proceedings
- Table A
- Table B
- Table C
- Table D – Lump sum fees for bail applications in the Supreme Court
- Principles applying to payment of fees for Magistrates' Court stage of indictable matters
- Table E – Lump sum fees for the Children's Court and Magistrates’ Court stage of an indictable crime matter
- Principles applying to payment of fees for the County or Supreme Court stage of an indictable crime matter
- Table F – Lump sum fees for County Court and Supreme Court stage of an indictable crime matter
- Table F(i) – Lump sum and other fees for serious indictable crime matters in the Children’s Court
- Table G – Lump sum fees for sentence appeals in the County Court
- Table H – Lump sum fees for appeals against sentence and conviction in the County Court
- Table J – Lump sum fees for Supreme Court and County Court breach matters
- Table K – Lump sum fees for appeals to the Court of Appeal
- Table K(i) – Lump sum fees for appeal by the Director of Public Prosecutions to the Court of Appeal
- Table K(ii) – Lump sum fees for interlocutory appeal
- Table L – Lump sum fees for criminal appeals in the High Court
- Table NN
- Fee Schedule 1A – Fees payable in criminal matters if an Appeal Costs Certificate has been granted
- 24 – Quality Assurance
- 26 – Complaints and feedback
- Invoice, forms and worksheets
- Interim fees
- Handbook archive
- Contact us