From 1 July 2021, Victoria Legal Aid (VLA) and Legal Aid New South Wales (NSW) introduced a flexible forum test guideline. The flexible forum test guideline arose from the Cross-border Justice Report which identified the need for VLA and Legal Aid NSW to work together more effectively to support the legal needs of people living along our shared border.
What is the forum test?
The forum test was established in 1991. The aim of the forum test is to clarify which legal aid commission (LAC) is responsible for providing a grant of legal assistance to clients. While it is intended that the legal aid forum test would be applied consistently across all LACs, the way the forum test is worded at each LAC differs and gives the impression that the test is not uniform. This is particularly confusing for private practitioners who have panel membership in multiple states.
What is the change?
We are expanding the forum test guideline so that applicants for a grant of legal assistance that reside in the ‘cross-border buffer zone’ along the Victoria-NSW border will be either:
- assessed under the broader nationwide forum test to determine which LAC is responsible for their grant of legal assistance and therefore which lawyers would be able to assist, or
- able to instruct a lawyer to assist them, provided the panel lawyer’s principal place of practice is also within the buffer zone and the lawyer is on VLA’s family law panel if the application is made to VLA, or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW.
If option 2 is selected, the lawyer will apply to the LAC that they have panel membership for and apply for a grant of assistance for their client. This is regardless of whether the nationwide forum test is met.
Who qualifies under the flexible forum test guideline?
The flexible forum test applies to applicants in the following circumstances:
- The applicant resides in a local government area (LGA) or law society area (LSA) along the NSW and Victorian border
- The applicant is seeking a grant of assistance for a Commonwealth law matter
- The applicant has a Commonwealth law matter that is being heard or going to be heard in either Victoria or NSW
- The applicant’s lawyer is on a relevant VLA panel
- The applicant’s lawyer's principal place of practice is also in a relevant LGA/LSA.
Applicants who satisfy the flexible forum test may apply to VLA for a grant of assistance, even if the matter is going to be heard in NSW, as long as their lawyer is on the VLA family law panel.
Applicants must still meet relevant guideline, merit and means test requirements.
Example
A person living in Wodonga, Victoria, wants legal representation to respond to a family law matter being heard in Albury, NSW. The lawyer they want is also based in Wodonga and on VLA's family law panel.
Under the flexible forum test, the person can apply to VLA for a grant of legal assistance even though the matter is being heard in NSW.
What are the relevant LGAs/LSAs?
The flexible forum test applies to applicants living in the following LGAs/LSAs:
| Victoria | New South Wales |
|---|---|
| Mildura | Wentworth |
| Swan Hill | Balranald |
| Gannawarra | Murray River |
| Campaspe | Berrigan |
| Moira | Federation |
| Wangaratta | Greater Hume |
| Indigo | Albury |
| Wodonga | Snowy Valleys |
| Towong | Snowy Monaro |
| East Gippsland | Bega Valley |
What if the applicant moves out of an eligible LGA/LSA area?
Where an assisted person moves out of an eligible LGA/LSA while their matter is ongoing, the usual forum test will apply, and their grant of legal assistance will be reassessed.
More information
For queries about the flexible forum test guideline, please email grants@vla.vic.gov.au.
Updated