Page 2610 - Week 07 - Thursday, 18 June 2009
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For the period 2006-09, I have been briefed by ACTGS on less than five matters which have involved actual or possible complaints relating to a breach of the Guidelines.
(2) The complaints during the period 2006-09 generally reflected a person's dissatisfaction with the decision by the Territory to contest their claim rather than a specific concern in relation to the Guidelines. None of the complaints were found to disclose a breach of the Guidelines. Most reflected some misunderstanding of their purpose and effect.
Invariably such complaints have their source in the person feeling aggrieved as to the outcome of a matter and that it thereby must be because the Territory failed to act fairly – that is, to accept the claim made without question. The complaints can range from differing views by lawyers as to the procedure to be adopted in particular matters, to a fundamental misunderstanding as to the nature of model litigant obligations and the Territory’s right to properly test allegations that are being made.
The model litigant guidelines expressly provide that:
4.1 The obligation does not prevent the Territory and its agencies from acting firmly and properly to protect their interests. It does not prevent the Territory and its agencies from taking all legitimate steps in pursuing Litigation, or from testing or defending claims made against them.
4.2 In particular, the obligation does not prevent the Territory and its agencies:
• enforcing costs orders or seeking to recover costs;
• relying on claims of legal professional privilege or other forms of privilege;
• pleading limitation periods;
• seeking security for costs;
• opposing unreasonable or oppressive claims or processes; or
• requiring opposing litigants to comply with procedural obligations.
What may be considered acting firmly and properly to protect the Territory’s interests from one perspective may be seen by another as requiring the other party to prove a matter about which they have no doubt regarding the truth of that matter. Any complaint is drawn to the attention of the Chief Solicitor and in a small number of appropriate circumstances I am provided with a brief with an outline of the matter and the action taken or proposed.
(3) There have been no instances of disciplinary action for a breach of the Guidelines.
(4) No formal processes exist, but the centralisation of legal services through the ACTGS, and the common law duties attaching to the Crown, make this largely unnecessary.
The obligation of the Territory to act as a model litigant, is well established in the law. The Territory’s obligation is independent of the adoption of model litigant guidelines; the guidelines only provide standards to aid compliance with an existing obligation recognised by the Courts. A comprehensive statement of the general obligation of the Crown to behave as a model litigant in all proceedings is found in the decision of the Full Federal Court in Scott v Handley [1999] FCA 404 and it has been the subject of subsequent judicial comment. The ACT Supreme Court commented favourably on the model litigant behaviour of the ACTGS, even before the model litigant guidelines were formally adopted, in Harrison v Commissioner for Housing [2003] ACTSC 22.
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