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Is CASA a Model litigant?? Does it meet the requirements at all??

Model Litigant:

There is an absolute responsibility for a Government Department or intrumentiality to act as a model litigant in all cases.

There has been great concern and direct knowledge of CASA not behaving in such a way. This leads to the notion of individuals not being treated in a fair and equitable manner.

There are examples of this – Polar Aviation, Reppacholli, Anderson and others.

What is a Model Litigant??

In this paper, it is well discussed and should form a basis if any of us have a matter come to the attention of CASA.

This discusses the matter in a clear, although complex manner:

The development of this obligation on the Commonwealth in conducting litigation can be traced to Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 where Griffith CJ explained this as ‘*the old fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects’.1 The Court continued its criticism stating that ‘*the Crown should not take technical points’.2

The Courts have also expressed the idea of the model litigant principle in reference to specific acts of alleged default by the relevant government agency.

The paper goes further, drawing our attention to the obligations of the Commonwealth and the particular places an consequences. The main problem in this is to get the Attorney General to deal with the matters:

The obligation:

(1) Consistently with the Attorney-General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and its agencies are to behave as model litigants in the conduct of litigation.

Nature of the obligation:

(2) The obligation to act as a model litigant requires that the Commonwealth and its agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or an agency by:

(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation

(aa) making an early assessment of:

(i) the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and

(ii) the Commonwealth’s potential liability in claims against the Commonwealth

(b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid

(c) acting consistently in the handling of claims and litigation

(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate

(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:

(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true

(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum

(iii) monitoring the progress of the litigation and using methods that it considers appropriate to resolve the litigation, including settlement offers, payments into court or alternative dispute resolution, and

(iv) ensuring that arrangements are made so that a person participating in any settlement negotiations on behalf of the Commonwealth or an agency can enter into a settlement of the claim or legal proceedings in the course of the negotiations

(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim

(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement

(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and

(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.
The Model Litigant rules place an obligation on the Commonwealth to act as a model litigant, however, this ‘may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations’. 12


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