Legal Insights

Being a model litigant

• 22 November 2018 • 7 min read
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In this article, we provide a refresher on the Victorian Model Litigant Guidelines and guidance on their application.

The State, its departments, agencies and officeholders (State), must comply with the Guidelines in the conduct of all litigation, inquiries, arbitration and other alternative dispute resolution (ADR) processes. The Guidelines are always relevant regardless of the litigation context.

The Guidelines arise from the State’s common law responsibility to act as a model litigant. They are fundamental to upholding the rule of law. The requirement for the State to act as the model litigant has been recognised by the Courts as originating from the “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”.[1]

There can be a substantial imbalance of power in litigation against the State. In particular, the State may have access to substantial resources, statutory powers to investigate and compel people to provide information, substantial experience and specialist expertise. This creates the need for the State to embody and behave as the model litigant and set the 'benchmark' for the appropriate conduct of litigation.

Consequences of non-compliance

There is no direct enforcement mechanism to ensure compliance with the Guidelines. Negative consequences of non-compliance include judicial and public criticism. In addition, breach of the Guidelines is likely to breach the overarching obligations on parties to litigation under the Civil Procedure Act 2010 (Vic) and thus expose the State to an adverse costs order.[2]

As such, it is important from a principled basis, and in order to avoid adverse commentary and costs implications, for the State to comply with the Guidelines.

What do the Guidelines require?

The Guidelines impose a duty to act honestly, fairly, with complete propriety and in accordance with the highest professional standards.

The key principles to be applied are:

  • deal with claims consistently
  • 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
  • endeavour to prevent or limit the scope of litigation and co-operate in ADR or settlement negotiations where appropriate
  • minimise costs of litigation, including by taking reasonable steps to resolve the dispute or narrow the issues
  • when participating in ADR or settlement negotiations ensure that State representatives have authority to settle and participate fully and effectively
  • do not take advantage of a claimant who lacks resources to litigate
  • do not pursue appeals unless there is a reasonable prospect of success or is justified in the public interest
  • consider apologising where the State is aware that it or its representatives have acted wrongfully or improperly.

Fundamentally these obligations require the State to consider and apply the Guidelines prior to, during and after litigation. At each stage, the State needs to focus on acting fairly.

The State should ensure that all relevant evidence is presented to the Court in order to ensure the State is truthful. For example, in Morley v ASIC (2010) 274 ALR 205, ASIC had failed to call as a witness a person who was central to the evidence in the proceeding. In finding that ASIC had a duty of fairness to present all material evidence necessary to assist the Court, the New South Wales Court of Appeal observed:

The starting point for any such consideration in the context of enforcement proceedings by a regulatory agency, as distinct from proceedings in which a government corporation may have some commercial interest, is the recognition that 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 such a context the usual rules and practices of the adversary system may call for modification. The most significant modification, likely to be true of most regulatory regimes, is that the public interest can only be served if the case advanced on behalf of the regulatory agency does in fact represent the truth, in the sense that the facts relied upon as primary facts actually occurred. It is not sufficient for the purposes of, at least, most regulatory regimes that, in accordance with civil laws of evidence and procedure in an adversary system, one party has satisfied the court of the existence of the relevant facts. The strength and quality of the evidence advanced on behalf of the State is a material consideration, which has received acknowledgement in the case law.

Self-represented litigants

The Guidelines should be 'front of mind' when dealing with a self-represented litigant or a party who is disadvantaged (perhaps due to a lack of resources). The Supreme Court of Victoria has emphasised the State should be cautious not to adopt an unnecessarily technical stance, particularly when a self-represented litigant has a meritorious case but has used the wrong form or procedure.[3]

For example, in Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294, an unrepresented litigant had failed to call a witness to provide evidentiary material as it did not appreciate the importance of the material. The Supreme Court found the Guidelines required the State to bring that material to the Court’s attention, stating:

Where, as in these proceedings, it was readily apparent that evidentiary material crucial to the outcome of the case was absent from the Tribunal hearing due mainly to an unrepresented litigant’s failure to appreciate the importance such evidence had to the proceedings, it should be seen as being incumbent upon a party who is subject to the Model Litigant Guidelines to ensure the other side is made aware that the evidence should be called, even in circumstances where the court or tribunal has failed to do so. Having failed to act to ensure that all the evidence was presented in these circumstances, the least which should have been expected is that the Commissioner would have refrained from relying on technical rules of evidence or procedure to gain a forensic advantage. That such restraint was not exercised, but rather a Jones v Dunkel inference sought and relied upon, must, in my view, be seen as a serious breach of the Model Litigant Guidelines, both in letter and spirit.

What the Guidelines do not require

The Guidelines do not require the State to concede or prevent the State from acting firmly and properly to protect its interests. They do not preclude all legitimate steps being taken to pursue claims by the State and to test or defend claims made against the State. The Guidelines do not prevent the State from enforcing costs orders or seeking to recover its costs.

Concluding remarks

The Guidelines are clearly an important reference document for the State. While the primary focus of the Guidelines is on litigation, the Guidelines are likely to be relevant to activities and interactions engaged in by the State prior to litigation and, therefore, need to be borne in mind at all times.

[1] Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342, at 342; See also Kenny v State of South Australia (1987) 46 SASR 268 at 273; Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

[2] North West Melbourne Recycling PTY LTD v Commissioner of State Revenue [2017] VSC 647.

[3] Port of Portland PTY LTD v State of Victoria [2007] VSC 488

Need further information on the Guidelines?

Contact the Competition & Regulation team.

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