ACTING AS A MODEL LITIGANT – A CRASH COURSE

In a nutshell what is required of a model litigant?

In civil litigation, it is not enough for government litigants to act honestly and according to court rules. The state and its agencies are held to a higher professional standard in civil litigation than other litigants and must act fairly with complete propriety. I flesh out what these higher professional standards mean in practice below.

Who has to act as a model litigant?

The state and its agencies must act as a model litigant in civil litigation as well as in dispute resolution. The Commonwealth government, state governments, local councils, and government departments must all act as a model litigant. Lawyers working in-house for the government and lawyers in private practice acting for government clients need to be aware of the obligations of the government as model litigant, as the principles place limits on strategy and conduct commonly used in civil litigation.

Why are government litigants held to a higher professional standard?

The obligation to act as a model advocate can be traced to the broad concept of the rule of law. Everyone, including the government, must abide by the laws of Australia. No one is above the law. All are to be equal before the law. It is assumed that the government is the more powerful party in civil litigation. To address this power imbalance and therefore respect the rule of law, government litigants are held to higher professional standards than other litigants. The model litigant principles also reflect the fact that government and its agencies must act in the public interest. A set of principles is required to assist government lawyers act in the public interest and ensure government power is not abused. 

Where can I find the law and who can enforce the model litigant principles?

Model litigant principles were first developed by the courts and can be found in the common law. Most Australian jurisdictions have usefully summarised these principles either in regulations or policies. It is important to note that individuals cannot enforce the model litigant principles as a cause of action in separate court proceedings. This was clarified by the Federal Court in Caporale v Deputy Commissioner of Taxation [2013] FCA 427 where the court stated the relevant model litigant policy was created by the Commonwealth for their own internal supervisory purposes. The model litigant principles did not give rise to private rights. The issue of non-compliance is to be dealt with:

1.        Through the government’s own mechanisms; and

2.       By the judge in the original court proceedings.

In practice, the model litigant principles are monitored by judges during the matter and are monitored by the relevant government audit authority after the dispute resolution or litigation has concluded.

At the Commonwealth level, the model litigant principles can be found in the Legal Services Directions 2005 (Cth). Breaches are investigated by the Office of Legal Services Coordination.

NSW government and its agencies are bound by the Model Litigant Policy, which contains detailed guidelines on best practice. This statement of principles reflects the existing common law. If an individual wishes to complain about a government litigant’s non-compliance with the policy, complaints are referred to the CEO of the relevant government agency. Victoria has its Model Litigant Guidelines 2001 (revised 2011), and other states have similar policies or guidelines.

The obligations of a model litigant include:

1.       Promptly dealing with claims

Unnecessary delay must be avoided. This means some delay tactics commonly used in commercial litigation may be inappropriate. Agencies should not purposely prolong litigation.

2.       Paying out legitimate claims

This may extend to partial payment of a claim even before litigation commences where it is clear the matter will be about quantum and government liability will be at least that amount.

3.       Acting consistently in handling claims and litigation

4.       Avoiding litigation, where possible

There are a few reasons why model litigants must strive to avoid litigation. First, litigation is expensive and it is in the public interest not to waste resources or tax payer money. Second, it is assumed alternative dispute resolution assists to overcome the perceived power disadvantage of persons in a dispute with the government. There is a real focus on alternative dispute resolution within government and their agencies. Government agencies should attempt to settle outside of court through offers of settlement, offers of compromise and alternative dispute resolution.

5.       Making an early assessment of the case

Related to the above point, a government agency should ensure early assessments are made of matters to identify the government’s likelihood of success in pursuing the case and the government agency’s potential liability.

6.       Keeping litigation costs to a minimum including:

a.       Not requiring the other party to prove a fact where the state knows it to be true; and

b.      Not contesting liability where the state knows the real issue is quantum rather than liability.

Government agencies should ensure they do not incur extra costs by taking technical points. The focus should be on the real issue in dispute. Rule of thumb: “good points should be pressed hard; technical points should not be”. There are some situations where taking a technical point would be permissible, but technical points should only be pursued where the government’s interests would be prejudiced by the failure to take that technical point.

7.       Not taking advantage of claimants with limited resources

Resources include money and knowledge. Government lawyers should be particularly alert where the other side is an individual who is self represented.

8.       Not appealing unless there is a reasonable likelihood of success or there is a public interest in seeking the appeal

If the government decides there is a justifiable reason for appeal the decision to appeal should be made as soon as practicable.

9.       Apologising where the state or its lawyers have acted improperly

It is important to note that the obligation to be a model litigant does not prevent the government from winning cases or putting their best case assertively forward. The obligation to be a model litigant does NOT prevent the state from:

1.       Acting firmly and properly protecting its interests;

2.       Enforcing costs orders;

3.       Claiming legal professional privilege or other forms of privilege;

4.       Claiming public interest immunity;

5.       Pleading limitation periods;

6.       Seeking security for costs;

7.       Opposing unreasonable or oppressive claims or processes;

8.       Requiring opposing litigants to comply with procedural obligations; and

9.       Making applications to strike out untenable claims.

If you are the lawyer and your client is a government agency, it is your responsibility to ensure that your litigation and dispute resolution work reflects the obligations of the model litigant. Situations could arise where there is a conflict between what your government client is instructing you to do and your obligations as model litigant.

Key cases:

The obligations of the model litigant have been described in the key cases as requiring “the State and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards”. This catchphrase has been adopted in the model litigant policies of most jurisdictions. For further information see the earlier key cases of:

1.       Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342;

2.       Kenny v State of South Australia (1987) 46 SASR 268 at 273; and

3.       Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

Highlights of judicial commentary in recent cases includes:

1.       Morely & Ors v Australian Securities and Investments Commission [2010] NSWCA 33

 This case was one of the James Hardie group asbestos cases. The NSW Supreme Court discussed the model litigant obligations and emphasised that government litigants do not have a private interest and their actions should reflect this. The NSW Supreme Court held that the failure to call a particular witness was a breach of ASIC’s obligations as model litigant:

“[716] the government agency has no legitimate private interest of the kind which often arises in civil litigation. It acts, and acts only, in the public interest as identified in the regulatory regime.

In partial answer to the first of the questions, whether its failure to call a witness can constitute a breach of the obligation of fairness, in our opinion it can.”

2.       ACCC v Australia and New Zealand Banking Group Ltd (No.2) [2010] FCA 567

The Federal Court held ANZ had failed to follow its obligations as model litigant and the ACCC was ordered to pay 80% of ANZ’s costs. The ACC’s breach centred on the nature of their interrogatories, which included 98 separate and unclear questions:

“[26] ACCC must frame the interrogatory in a way which does not cast an obligation on the other side to do the best it can with the interrogatory and reframe it. The intention must be made clear...if the intention is not clear, the person interrogated does not have an obligation to frame what it perceives to be the intention.”

3.       Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470

The Federal Court emphasised the importance of government litigants being “impartial”, as they do not have a private interest akin to an individual in litigation.

“[192] The submissions were, in my opinion, a little too partisan at times for a statutory officeholder. By partisan I mean infused by a measure of zeal rather than detachment. I would have thought that the Ombudsman should aspire to be a model litigant rather than a partisan one.”

4.       LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90

This case suggested that acting as model litigant is particularly important where independent legal representatives are not involved.

“Speaking generally and without reflecting on counsel who appeared before us, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards.

This obligation may require more than merely acting honestly and in accordance with the law and court rules.

… [A]s Melbourne Steamship Limited v Moorhead (1912) 15 CLR 333 at 342 reveals,  that expectation, even a century ago, was of long standing. To bring the matter up to the present we note that in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 286 ALR 501, Heydon J said ASIC accepted that there was, in the words of Griffith CJ in Moorhead, an “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”. Its powers are exercised for the public good. It has no legitimate private interest in the performance of its functions. And often it is larger and has access to greater resources than private litigants. Hence it must act as a moral exemplar ….

In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.”