Australia: NSW Government Bulletin - 29 November 2017: Part 2 - Commonwealth Model Litigant Rules

Last Updated: 4 December 2017
Article by Eleanor Grounds and Joshua Clark
Most Read Contributor in Australia, October 2018

Bill seeks to make model litigant rules enforceable against Commonwealth

A Bill has been introduced to the Senate which would allow litigants to enforce the model litigant rules against the Commonwealth in legal proceedings. The Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 (Cth) (Bill) was introduced by Senator Leyonhjelm on 15 November 2017 to address a primary recommendation of the Productivity Commission in its 2014 Access to Justice Arrangements report; that enforceable model litigant rules be imposed on Commonwealth agencies.

The Commonwealth Model Litigant Policy

The Model Litigant Policy (Policy) is a Legal Services Direction issued by the Attorney-General pursuant to s 55ZF of the Judiciary Act 1903 (Cth) (Judiciary Act). The current version of the Policy is housed in Appendix B to the Legal Services Direction 2017 (Cth). The obligation requires the Commonwealth and its agencies to act honestly and fairly in handling claims and litigation brought by or against it or its agencies by, among other things:

  • dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation
  • settling legitimate claims without litigation
  • endeavouring to avoid, prevent and limit the scope of legal proceedings where possible (including utilising alternative dispute resolution processes where appropriate)
  • keeping the costs of litigation to a minimum
  • not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
  • only pursuing appeals that have a reasonable prospect of success; and
  • apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.

The Judiciary Act 1903 (Cth) (Judiciary Act) currently provides (section 55ZG) that only the Attorney-General may enforce the requirement to comply with a Legal Services Direction and that the issue of non-compliance can only be raised in a proceeding by or on behalf of the Commonwealth.

While Attorney-General George Brandis expanded the nature of the Commonwealth's obligation to act as a model litigant with the introduction of an updated Legal Services Direction in March this year, in 2016 the Commonwealth Government rejected the recommendation of the Productivity Commission that would make the rules generally enforceable, citing fears of increased costs and delays in litigation.

Key elements of the Bill

The Bill would amend the Judiciary Act and the Ombudsman Act 1976 (Cth) in order to:

  1. require that Commonwealth litigants and persons acting for Commonwealth litigants abide by model litigant rules, which must be issued by the Attorney-General;
  2. enable a party to a proceeding involving a Commonwealth litigant, or person acting for a Commonwealth litigant, to complain to the Commonwealth Ombudsman that the relevant party has contravened or is likely to contravene the model litigant rules;
  3. empower the Commonwealth Ombudsman to investigate complaints about alleged contraventions of the model litigant rules;
  4. require the Ombudsman to include details of complaints in its annual reports; and
  5. empower a court to order a stay of proceedings pending the investigation of a complaint, and make orders as it considers appropriate if it is satisfied that a contravention has occurred or is likely to occur. The Bill would allow courts to make orders promoting future compliance by a Commonwealth litigant, or address a failure to act as a model litigant through a costs order, for example.

The proposed changes would not apply to situations in which the Australian Government Solicitor provides legal services to a State litigant under s 55(2) of the Judiciary Act. This means the Commonwealth Ombudsman would not be required to investigate complaints about State Government litigants who do not abide by the model litigant rules, even where they are represented by the Australian Government Solicitor.

The rationale behind this is that allowing State Government litigants to come within the Commonwealth Ombudsman's investigative mandate would undermine the federation's division of powers and infringe the established doctrine of intergovernmental immunities recognised by the High Court.

For more information on the Bill, follow these links to access the explanatory memorandum and the second reading speech.

How the position in NSW differs

The NSW Model Litigant Policy for Civil Litigation (NSW Policy) provides guidelines for best practice for the State or its agencies when involved in civil litigation matters. The model litigant obligations under the NSW Policy are equivalent to the Commonwealth obligations under the Legal Services Direction 2017.

However, although the memorandum setting out the NSW Policy provides that "compliance with this document is necessary", there is no mechanism for enforcing the NSW Policy.

Compliance with the NSW Policy is primarily the responsibility of the head of each individual agency in consultation with that agency's principal legal officer. There is no equivalent provision allowing the NSW Attorney General to enforce the policy, let alone a provision (as proposed under the Bill) to allow a party to complain to the Ombudsman and for the courts to make orders as a consequence.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Eleanor Grounds
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