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Rule of Law and the Model Litigant

In today’s Australian, there is a most pertinent letter to the editor, about the players of the Essendon Football Club being denied natural justice in the findings released last week.

It bears some thought as to how Jack [Jason] Pantovic was treated by #casa and the #aat in the judgement released on 18th December 2015 and how parallel the treatments of individuals are in the eyes of the “regulator” and the Arbitrator.

The matter is further one where the “Model Litigant Provisions” [see below] should be invoked. In fact, there are a whole range of matters where the evidential chain, or that which organisations such as #casa say is “…good evidence…” and used in such a way that the person being charged or accused of an offence.

There are a significant number of cases with similar occurrences, with a summary in www.ruleoflaw.org.au and also is worth a read here. Rule-of-Law-Institute-Key-Cases-on-Breaches-of-the-Model-Litigant-Rules

The letters are produced below:

Essendon saga exposes flaw in the AFL’s drug code

The Australian

The Essendon saga has highlighted a fundamental flaw in the AFL’s code with respect to performance enhancing drugs. The flaw is that criminal grade penalties, including loss of reputation and livelihood, are being applied without criminal grade protections. In particular, the code does not require proof beyond reasonable doubt, only the nebulous and largely untested “comfortably satisfied”.

The operation to the much lower standard of proof has meant the players have not been afforded a trial, let alone anything that could remotely be regarded as fair. There has been no independent judge and or jury, no presumption of innocence, no rules of evidence and no allowance of any mitigating factors.

Rather, there was just an investigation carried out by a conflicted organisation (the Australian Sports Anti-Doping Authority) that did not have the powers, resources, independence or experience to conduct it to any reasonable standard of proof.

This has allowed the “conviction” of the players despite the absence of any unambiguous evidence that a transgression took place. There were no failed, refused or tampered-with drug tests, and no direct evidentiary chain between any particular banned substance and any particular player. The obvious mitigating factor, to the extent any of the players did transgress the code, was, in my view, because they were systematically duped by the club and the protocols they thought ensured they were compliant were considered irrelevant.

The definition of “comfortably satisfied” is “greater than a balance of probabilities but less than a reasonable doubt”. That is, better than 50/50. This is a laughable standard on which to sacrifice the reputations and careers of 34 men.

The AFL should reconsider and reject the penalties brought down in the Court of Arbitration for Sport ruling. It cannot expect people who sincerely believe they have done no wrong to accept such a manifest injustice.

R. Maddox, Pacific Palms, NSW

The CAS decision, where two non-Australian judges were comfortably satisfied that 34 Essendon players had been injected with a thymosin supplement is based on circumstantial evidence. There is no evidence that 31 players were injected with the supplement in question and the results for the three players who were adjudged to have raised thymosin levels in their urine have been negated by the finding that more than 30 per cent of a random selection of 54 AFL players from all teams recorded abnormally high thymosin levels.

As thymosin is a naturally occurring substance in the human body, it is not surprising that it may be detected at varying levels in urine. What is astonishing is that CAS took the finding of high thymosin levels in the players’ urine as evidence of guilt.

In addition, CAS treated Essendon players as a job lot. Rather than being treated as individuals according to the evidence, such as it was, they were pronounced guilty on the basis that if CAS was comfortably satisfied that any two players were guilty then they were all guilty. Does this sound like a fair go? Particularly as at least one of the players did not take part in the supplements program, yet was somehow found guilty.

I have read that the Australian member of CAS rejected this travesty of justice because he was not comfortably satisfied that a persuasive case had been made against all the players. I am not merely comfortably satisfied, I am convinced beyond reasonable doubt that the decision by the two European judges in regard to the Essendon players is a woeful miscarriage of justice.

Bill Anderson, Surrey Hills, Vic

For more than three years the Essendon Football Club has been vilified over its internal investigation of the peptide saga. During that time, the World Anti-Doping Agency and its Russian counterpart failed to act on allegations of systemic doping of an untold numbers of athletes, and only acted when its hand was forced through media publicity.

The subsequent so-called independent commission investigation by ex-WADA boss Dick Pound is a self-reporting exercise similar to the internal investigation of the peptide saga by Ziggy Switkowski.

The hypocrisy of WADA’s stance against Essendon and its call for maximum penalties against 34 players, when it betrayed its own code of ethics involving risk to the health of Russian athletes, is disgusting. The WADA board should resign.



Appendix B The Commonwealth’s obligation to act as a model litigant

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.

Note 1

The obligation applies to litigation (including before courts, tribunals, inquiries, and in arbitration and other alternative dispute resolution processes) involving Commonwealth Departments and agencies, as well as Ministers and officers where the Commonwealth provides a full indemnity in respect of an action for damages brought against them personally. Ensuring compliance with the obligation is primarily the responsibility of the agency, which has responsibility for the litigation. In addition, lawyers engaged in such litigation, whether Australian Government Solicitor, in‑house or private, will need to act in accordance with the obligation and to assist their client agency to do so.

Note 2 In essence, being a model litigant requires that the Commonwealth and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the Commonwealth and its agencies will act as a model litigant has been recognised by the Courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342; 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.

Note 3 The obligation to act as a model litigant 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.

Note 4 The obligation does not prevent the Commonwealth and its agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and its agencies and testing or defending claims against them. It does not preclude pursuing litigation in order to clarify a significant point of law even if the other party wishes to settle the dispute. The commencement of an appeal may be justified in the public interest where it is necessary to avoid prejudice to the interests of the Commonwealth or an agency pending the receipt or proper consideration of legal advice, provided that a decision whether to continue the appeal is made as soon as practicable. In certain circumstances, it will be appropriate for the Commonwealth to pay costs (for example, for a test case in the public interest.)

Note 5 The obligation does not prevent the Commonwealth from enforcing costs orders or seeking to recover its costs.

Merits review proceedings

3 The obligation to act as a model litigant extends to agencies involved in merits review proceedings.
4 An agency should use its best endeavours to assist the tribunal to make its decision.

Note The term ‘litigation’ is defined in paragraph 15 of these Directions in terms that encompass merits review before tribunals. There are particular obligations in relation to assisting a tribunal engaged in merits review to arrive at a decision. Agencies should pay close attention to the legislation under which a tribunal is established, and any practice directions issued by the tribunal. In the case of the Administrative Appeals Tribunal see in particular subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975 and the explanatory memorandum to the Administrative Appeals Tribunal Amendment Bill 2005.
Alternative dispute resolution

5.1 The Commonwealth or an agency is only to start court proceedings if it has considered other methods of dispute resolution (eg alternative dispute resolution or settlement negotiations).
5.2 When participating in alternative dispute resolution, the Commonwealth and its agencies are to ensure that their representatives:
(a) participate fully and effectively, and
(b) subject to paragraph 2 (e) (iv), have authority to settle the matter so as to facilitate appropriate and timely resolution of a dispute.




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