Appeal to the Federal Court

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    Assessment criteria

    For legal aid to be granted to appeal a defence matter to the AAT the following tests must be satisfied:

    • The applicant meets the means test, and
    • The applicant meets guideline 6 - other Federal and High Court proceedings, and
    • The applicant meets the merits test, and
    • Legal Aid Queensland considers that there are one or more of the following factors:
      • the applicant may incriminate himself or herself, or
      • the case is complicated, or
      • the applicant, because of a disability or disadvantage, cannot adequately prepare or present the case without legal assistance, or
      • the appeal raises important or complex questions of law, or
      • the case relates to an overpayment exceeding $5000, or
      • the applicant is at significant risk of prosecution, or
      • the applicant cannot afford to pay for medical reports and the appeal is about the applicant’s health.

    Documentary requirements

    Application received from client

    Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

    • A completed and signed Legal Aid Queensland application form.
    • Proof of income and assets (refer to the means test).
    • Advice as to whether a notice of appeal has been filed and a copy of the notice, if applicable.
    • Details of why the applicant considers the decision of the AAT to be wrong and which parts of the decision they intend to appeal, if only part of the decision is being appealed.

    Application received from preferred supplier

    Preferred suppliers seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system and provide the following information to Legal Aid Queensland:

    • Proof of income and assets (refer to the means test).
    • Advice as to whether a notice of appeal has been filed and a copy of the notice, if applicable.
    • Details of why the applicant considers the decision of the AAT to be wrong and which parts of the decision they intend to appeal, if only part of the decision is being appealed.

    The practitioner must also ensure that the following documents are retained on file:

    Interpretation

    The applicant may incriminate himself or herself

    Legal Aid Queensland may consider an applicant may incriminate himself or herself in a social security and other commonwealth benefit matter when:

    • the applicant has knowingly and intentionally under declared or not declared income and assets, and
    • the overpayment sought to be recovered is relatively large.

    The case is complicated

    Legal Aid Queensland may consider a case is complicated where:

    • The overpayment has occurred over a lengthy period of time and there is a significant volume of financial records.
    • There is a significant aspect of the legislation that needs to be challenged where limited case law is available.
    • There is a discretion in social security law.

    It is the responsibility of the practitioner to provide details of the complex nature of the specific case in order to receive funding under this guideline.

    Significant medical evidence

    Legal Aid Queensland may consider there is significant medical evidence when:

    • The matter relates to a disability support pension being claimed or where there is a question of incapacity.
    • A large volume of medical evidence has been obtained by the applicant to support their claim.
    • The medical evidence is contested.

    Special circumstances

    For legal aid to be funded under this policy please refer to special circumstances of the applicant priorities in the commonwealth legal aid service priorities.

    The appeal involves an importance or complex question of law

    Legal Aid Queensland may consider an appeal involves an important or complex question of law when:

    • It appears that the applicant has not been provided with constituted adequate notice under law
    • It appears that the eligibility or qualification of the applicant has been misinterpreted, or
    • Where the consequences may be far reaching or involve systemic errors.

    It is the responsibility of the practitioner to provide details of the important or complex question of law for the specific case in order to receive funding under this guideline.

    Allocation of a solicitor

    As veterans appeals work is a specialised field, Legal Aid Queensland has a specific panel list of preferred suppliers who practice in this area of law, only preferred suppliers on this panel can be referred war veterans’ matters.

    Grant(s) of aid

    The grant of aid to appeal a decision of the AAT is DEF4.

    Extension(s) of aid

    The grant of aid to apply to prepare for and attend the Federal Court to appeal a decision of the AAT for a defence matter is DEF5.

    The grant of aid to attend additional days of appeal before the Federal Court for a defence matter is DEF6.

    Retrospective contributions

    All applications funded for this type of matter are subject to 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).

    External links

    Last updated 4 November 2021

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