“ETH THICA CAL CONSIDERATIONS AFFECTING G GOVE VERN RNMENT LITIGANTS NTS” CHAIR: MICHAEL FLYNN QC PANEL: MEREDITH SCHILLING KATHERINE A BRAZENOR MATTHEW MENG
Wher ere d e do t the mod odel el litigant r rules es c come e from om? Special power […] inheres in the nature of government itself, so judges expect high standards of competence, candour and civility from government parties and their lawyers. These expectations are typically embodied in model litigant rules , which set out acceptable standards and boundaries for the conduct of litigation with the aim of resolving disputes efficiently and appropriately . Productivity Commission, 2014 final report into “Access to Justice Arrangements”
• Exist both at common law and pursuant to statute (Legal Services Directions) • Statutory ML rules exist for both Cth and State entities (but the focus of this presentation is Cth ML rules) • The content and methods of enforcement of common law and statutory ML rules differ, which is important for non-government litigants to be aware of
Why m migh ght m mod odel el l litigant rules es b be required ed? the inherent power of government; the proper role of government being to act in the public interest (as it has no legitimate private interest); and the large quantity of resources at governments’ disposal […] These can contribute to a power imbalance in favour of governments when pitted against private individuals […] Governments also derive power from their frequent-player status, giving rise to advantages over other litigants through their greater expertise, experience, access to specialist knowledge and established reputation before courts and tribunals […] Governments can be important role models in setting benchmarks for behaviour and conduct across the system […] Productivity Commission, 2014 final report into “Access to Justice Arrangements”
Sta tatute: Cth Legal S Services es Direc ection on What & & Where? • The Commonwealth “Model Litigant Policy” is a Legal Services Direction issued by the Commonwealth Attorney-General pursuant to s 55ZF of the Judiciary Act 1903 (Cth). • Appendix B, Legal Services Direction 2017 (Cth). • Para 1, “The Obligation”, states: Consistently with the Attorney-General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation. • Para 2: being a model litigant requires that the Commonwealth and Commonwealth agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards.
Sta tatute: Cth Legal S Services es Direc ection on When & & to whom does it apply? • The obligation applies to litigation (including before courts, tribunals, inquiries and in arbitration and other alternative dispute resolution processes) involving (para 2): • Commonwealth Departments; • other Commonwealth agencies; and • Ministers and officers where the Commonwealth provides a full indemnity in respect of an action for damages brought against them personally. • The Cth agency with responsibility for the litigation is primarily responsible for compliance with the Cth MLP – but lawyers engaged in the litigation (both AGS and private, e.g. Counsel) must comply with the Cth MLP and assist their client to do so (para 2, s 55ZG, Judiciary Act 1903 (Cth)).
Sta tatute: Cth Legal S Services es Direc ection on Who can e enforce t the Cth ML MLP? • Key distinction between model litigant rules at common law (addressed later) and under statute is enforcement. • Section 55ZG, Judiciary Act 1903 (Cth): (2) Compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General. (3) The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth. * Office of Legal Services Coordination is charged with administering the Legal Services Directions (inc Cth MLP) – but role is more guidance than active monitoring or imposing sanctions.
Sta tatute: Cth Legal S Services es Direc ection on Who can e enforce t the Cth MLP LP? (cont.) t.) If you are a party to a claim and/or litigation involving the Commonwealth and you want to make an allegation of non- compliance, you should contact the agency directly and particularise your concerns relating to their compliance with the Directions. OLSC does not resolve complaints from members of the public about agency compliance. If you contact OLSC, you will be advised to forward your complaint to the relevant agency. That agency will notify OLSC of your concerns in accordance with the Compliance Framework. Guidance Note 3, OLSC, [29]
Sta tatute: Cth Legal S Services es Direc ection on What is s the e con ontent of of the e Cth ML MLP? Para 2 (“The Nature of the Obligation”): The Commonwealth and its agencies must “act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency”, by: • Dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation; • Making an early assessment of: • The Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and • The Commonwealth’s potential liability in claims against the Commonwealth; • Paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid; • Acting consistently in the handling of claims and litigation;
Sta tatute: Cth Legal S Services es Direc ection on What is s the e con ontent of of the e Cth MLP? P? (con ont.) • Endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate; • Where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by: • Not requiring the other party to prove a matter which the Commonwealth or agency knows to be true; • Not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum; • Monitoring the progress of the litigation and using methods that it considers appropriate to resolve the litigation, including settlement offers, payments into court or alternative dispute resolution; and • Ensuring that arrangements are made so that a person participating in any settlement negotiations on behalf of the Commonwealth or a Commonwealth agency can enter into a settlement of the claim or legal proceedings in the course of the negotiations.
Sta tatute: Cth Legal S Services es Direc ection on What is s the e con ontent of of the e Cth MLP? P? (con ont.) • Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim; • Not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement; • Not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest; and • Apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or inappropriately.
Sta tatute: Cth Legal S Services es Direc ection on Limit its s on on t the e sc scop ope of of t the e Cth ML MLP • The Cth MLP does not preclude: • the Commonwealth and its agencies from acting firmly and properly to protect their interests; • all legitimate steps being taken to pursue claims by the Commonwealth and its agencies and testing or defending claims against them; • pursuing litigation in order to clarify a significant point of law, even if the other party wishes to settle the dispute (although in certain circumstances, such as a test case in the public interest, it will be appropriate for the Commonwealth to pay costs); or • the Commonwealth from enforcing costs orders or seeking to recover its costs.
Commo mon law – model lit litig igant obli ligations • Long-standing principle at common law. • The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333: Griffiths CJ could not “refrain from expressing […] surprise” that a “purely technical point of pleading” was taken on behalf of the Crown. • “It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings”. • “I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.”
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