Model Litigant Guidelines (Vic)
When a government department or agency is a party to litigation, it is expected to act as a model litigant. This means that it must conduct itself in accordance with model litigant principles, which include behaving fairly and consistently and keeping the costs of litigation to a minimum. These principles are based on the recognition that governments have greater power than individuals and should act in the public interest and according to the law. Governments should be seen to be setting a good example in how they conduct their litigation and not as being unduly litigious, adversarial or as having a vendetta against another party.
There are model litigant guidelines that apply to the Commonwealth government and to the governments of each state and territory of Australia. This article deals with the model litigant guidelines in Victoria.
Victorian model litigant guidelines
The Victorian government has its own guidelines on how it must conduct itself as a model litigant. These guidelines are based on a direction issued by the Commonwealth Attorney-General under the power conferred by section 55ZF of the Judiciary Act 1901. These guidelines were introduced in 2001 and revised in 2011.
The Victorian model litigant guidelines are as follows.
Act fairly, consistently and do not cause unnecessary delay
The government and its agencies are required to act fairly in handling claims and litigation, to act consistently in the handling of claims and litigation and to deal with claims promptly and not cause unnecessary delay.
Make an early assessment
The state must make an early assessment of its prospects of success in legal proceedings and its potential liability in claims against the state.
Pay legitimate claims without litigation
The state should make settlements and partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount paid.
Seek to resolve the dispute by agreement
The government must consider seeking to avoid and limit the scope of legal proceedings by taking such steps as are reasonable with regard to the nature of the dispute, to resolve the dispute by agreement, including by participating in appropriate alternative dispute resolution (ADR) processes or settlement negotiations.
Where it is not possible to avoid litigation, keep the costs to a minimum
Government litigants should not require other parties to prove matters which the government knows to be true. They should not contest liability if they believe that the main dispute is about quantum and they should take such steps as are reasonable to resolve matters by agreement. They should not draw out litigation in order to obtain a tactical advantage and should clarify and narrow the remaining issues in dispute.
When participating in ADR or settlement negotiations, ensure that as far as practicable the representatives of the state or agency have the authority to settle the matter so the matter can be resolved in a timely manner. They should participate fully and effectively.
The state should not rely on technical arguments unless its interests would be prejudiced by the failure to comply with a particular requirement;
Claimants who lack resources
The state should not take advantage of a claimant who lacks the resources to litigate a legitimate claim.
Appeals without reasonable prospect of success
The state should not undertake and pursue appeals unless it believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest.
The state should consider apologising where it is aware that it or its representatives have acted wrongfully or improperly.
Civil Procedure Act and the model litigant guidelines
The guidelines are to be read in conjunction with the Civil Procedure Act 2010. Part Two of that act sets out the duties and obligations owed by parties to litigation and by legal representatives to the court. These include the obligation to be honest to the court, not to mislead or deceive and to make reasonable efforts to resolve the dispute.
When do the model litigant guidelines apply?
The model litigant guidelines apply to litigation in any court, and in any area of law and regardless of whether the government is the plaintiff or defendant. They are supposed to ensure that the government uphold the highest ethical standards.
The Victorian government is the biggest user of the Victorian courts, with hundreds of matters on foot at any time in which the government is a party. These matters include inquests, personal injury claims and criminal matters. The model litigant principles aim to ensure that government agencies do not abuse the power they have by virtue of their resources and experience.
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