The Government as Model Litigant
When a government body such as a department or agency is a party to litigation, it is expected to behave as a model litigant. This means that it must uphold the highest ethical and professional standards by acting honestly and fairly and seeking to resolve the dispute as quickly as possible. Government bodies are recognised as having greater power than individuals and businesses and therefore, must not be seen to be abusing the power that comes with their greater experience, resources and authority. In Australia, there are model litigant guidelines that apply at Commonwealth level as well as in each individual state and territory. This article outlines the commonwealth model litigant guidelines.
Who is bound by the model litigant guidelines?
Any government department or agency that is a party to any form of litigation in any area of law is bound by the model litigant guidelines. This is the case regardless of whether the government is the plaintiff or the defendant and regardless of which court the matter is in. It applies in both criminal and civil matters.
Commonwealth model litigant guidelines
The Commonwealth model litigant guidelines state that government departments and agencies must do the following.
- Deal with claims promptly and without causing unnecessary delay. This includes making an early assessment of their prospects of success in legal proceedings they have brought and their potential liability in claims against them.
- Pay legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is apparent that liability is at least as much as the amount to be paid in settlement.
- Act consistently in the handling of litigation and claims.
- Endeavour to avoid, prevent and limit the scope of legal proceedings wherever possible, including by considering alternative dispute resolution before initiating legal proceedings and participating in alternative dispute resolution processes where appropriate.
- Where litigation cannot be avoided, keep the costs to a minimum. This includes not requiring the other party to prove matters which they know to be true not contesting liability if they know that the dispute is really about quantum, monitoring the litigation’s progress and using appropriate methods to resolve it, 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 government can enter into a settlement in the course of the negotiations.
- Do not take advantage of a claimant who does not have the resources to litigate a legitimate claim.
- Do not rely on technical defences unless their interests would be prejudiced by the failure to comply with a particular requirement.
- Do not undertake and pursue appeals unless they believe that it has reasonable prospects for success or the appeal is otherwise justified in the public interest.
- Apologise where they are aware that they or their lawyers have acted wrongfully or improperly.
What happens if the guidelines are breached?
The Office of Legal Services Coordination (OLSC) monitors the government’s compliance with the model litigant guidelines. Complaints about breaches can be made directly to the OLSC, which also becomes aware of such matters via media reports, judicial comments and self-reporting by government agencies. The Attorney-General can impose sanctions for breaches of the model litigant guidelines. However, there is no formalised complaints system and publicly available information about breaches or their investigation is not available.
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