All legal aid commissions in Australia have entered into a ‘reciprocity agreement’. The agreement is used to decide which commission is responsible for making a grant of legal assistance to:
- a person who lives in another State or Territory
- a person in one State or Territory whose legal proceedings have been transferred to a court or tribunal in another State or Territory
- a person who moves interstate but whose legal proceedings have not been transferred interstate
- a person who moves interstate and whose legal proceedings are also transferred to that second State or Territory.
Applicant who lives in another State or Territory
If the person who is applying lives in one State or Territory but their legal action is to be taken in another State or Territory of Australia, then Victoria Legal Aid (VLA) will apply the forum test.
Under the forum test, the grant of legal assistance is the sole responsibility of the legal aid commission in the State or Territory in which the action is to be taken.
Transfer of proceedings to a court or tribunal in another State or Territory
If the legal proceedings of a person who has been given a grant of legal assistance in one State or Territory are transferred to a court or tribunal in another State or Territory, then the grant of legal assistance remains the responsibility of the first State or Territory.
Example
An applicant living in Victoria commenced legal proceedings in the Family Court at Melbourne. However, by order of the Family Court at Melbourne, the proceedings were transferred to Newcastle.
In this case, VLA retains the responsibility of funding the applicant’s case.
Proceedings that are not transferred when an assisted person moves State or Territory
If an assisted person moves to another State or Territory but their legal proceedings are not transferred to that State or Territory, then their grant of legal assistance continues to be the responsibility of the legal aid commission that granted it initially. However, if there are, or may be, changes in the financial position of the assisted person, then that legal aid commission may review the amount of the grant.
Example
An assisted person living in Victoria applies for and obtains a grant of legal assistance to conduct proceedings in the Family Court at Melbourne. Some months after the case commences, the assisted person moves to Tasmania, but the proceedings are continuing in Melbourne.
In this case, VLA continues funding the case, as the forum for the case remains within Victoria.
Proceedings that are transferred when an assisted person moves State or Territory
If an assisted person moves interstate, and their legal proceedings are also transferred out of the state, then the grant of legal assistance will be transferred to the legal aid commission in that State or Territory.
However, that legal aid commission may review the amount of the grant if:
- there are, or may be, changes in the financial position of the assisted person
- that commission has different guidelines and a different State or Territory merits test.
If the person must pay any costs and outlays to the first commission when the matter is finalised, then the new commission may collect those amounts from the assisted person on behalf of the first commission.
Example
A person living in Victoria applies for a grant of legal assistance to VLA to fund proceedings in Melbourne. After the grant of legal assistance is given, the proceedings are transferred to Newcastle. They continue for some time. At this stage, VLA is still responsible for funding the matter.
Later, however, the applicant decides to be nearer to his children and moves to Sydney. In this case, as both the applicant and the court case have lost their connection with Victoria, any grant of legal assistance for the case must now be transferred to the state in which the proceedings are being heard.
Updated