Australia: The state as a model litigant: reading between the Guidelines

Last Updated: 1 August 2016
Article by Amy Granger and Dan Trindade

Underpinning the Guidelines is the State's duty to act honestly, fairly, with complete propriety, and in accordance with the highest professional standards.

The Revised Model Litigant Guidelines require the Victorian Government to reduce costs, avoid litigation, and pursue alternative dispute resolution in the conduct of litigation. The recent decision of the Victorian Supreme Court in Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 has highlighted the need for the Government and its agencies to be particularly aware of the obligations imposed by the Guidelines.

The Victorian Model Litigant Guidelines

The State, its departments, agencies and officeholders, must comply with the Model Litigant Guidelines in the conduct of all litigation, as well as in inquiries, arbitration and other alternative dispute resolution (ADR) processes. The Guidelines, originally introduced in 2001 (and revised in 2011), are based on the Commonwealth's model litigant rules, and are incorporated into a schedule to the standard Legal Services to Government Panel contract.

Common law roots

The Guidelines have evolved from judicial recognition of the Crown's obligations in the early 20th century. In Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, Sir Samuel Griffiths commented that it is axiomatic that the Crown never takes technical points, and is to observe a "traditional and almost instinctive standard of fair play".

The importance of the State setting an example of "conscientious compliance with the procedures designed to minimise cost and delay" was also noted by Chief Justice King in Kenny v South Australia (1987) 46 SASR 268. Adopting this tone, a revised version of the Guidelines, approved in 2011, places renewed emphasis on cost minimisation and the use of ADR.

Purpose of the Guidelines and consequences of non-compliance

The necessity for the State to assume the position of a "moral exemplar" before the Courts, which is enforced through the Guidelines, arises from a number of policy considerations, including that:

  • it has no legitimate private interest in performing its functions;
  • the inherent power of government, and the corollary that it is usually better resourced in litigation that the other party;
  • the need to maintain public confidence in officials and lawyers conducting litigation on behalf of the State; and
  • the need for the State to set benchmarks for the appropriate conduct of litigation.

Whilst there is no direct enforcement mechanism to ensure compliance with the Guidelines, the State, its departments, agencies and officers should be aware that aside from other negative consequences that may flow from non-compliance (such as judicial criticism), non-compliance may also result in adverse cost orders being made against the State.

Such adverse costs orders may arise on the basis that the overarching obligations on parties to litigation under the Civil Procedure Act 2010 (Vic) are largely mirrored by the Guidelines, and therefore any breach of the Guidelines may also give rise to a contravention of the Act, exposing the party to penalties for that contravention.

How have the courts interpreted the Guidelines?

Most substantive guidance in respect of the obligations of model litigants arises from cases which interpret the Commonwealth model litigant guidelines. Given the similarities with the Victorian Guidelines, those decisions are helpful in providing guidance on the likely interpretation of the Guidelines by Victorian Courts.

For example, in Morley v ASIC [2010] NSWCA 331, ASIC failed to call a witness who could present evidence which was crucial to the proceeding. In emphasising that ASIC was required to act in the public interest and had no legitimate private interest in the proceeding, the New South Wales Court of Appeal considered that ASIC had a duty of fairness to present all material evidence necessary to assist the Court, and stated:

"...ASIC cannot be regarded as an ordinary civil litigant when it institutes proceedings. This is so particularly for proceedings of the character before this Court. No other person could have brought these proceedings. 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."

In Comaz, Justice Croft stated that where an unrepresented litigant has failed to bring evidentiary material to the attention of the Court due to that party's failure to appreciate the importance of such material, the Victorian Guidelines require a party subject to the Guidelines to do so, stating that:

"... the role of a government agency in litigation – absent any legitimate commercial interest in the outcome – is to ensure that all the relevant material is brought before the court or tribunal to ensure that a decision informed by all of the evidence is reached... Having failed to act to ensure that all the evidence was presented in these circumstances... must, in my view, be seen as a serious breach of the Model Litigant Guidelines, both in letter and spirit."

What is required in practice?

Underpinning the Guidelines is the State's duty to act honestly, fairly, with complete propriety, and in accordance with the highest professional standards. The key principles that the State should apply in practice are:

  • deal with claims promptly and minimise delay in proceedings;
  • make an early assessment of the prospects of success and potential liability;
  • pay legitimate claims without litigation;
  • act consistently in handling claims and litigation; and
  • endeavour to prevent or limit the scope of litigation, and co-operate in ADR where appropriate.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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