Acting for Government in
Criminal and Civil
Jurisdictions: Expectations
and Ethical Obligations
By the Honourable Justice Jeffrey
Spender of the Federal Court of
Australia
Expectation and Ethical
Obligation
The Commonwealth of Australia is required
to be a model litigant.
This obligation
• Is expressed in the Commonwealth
Attorney-General’s Legal Services
Directions 2005, a binding legislative
instrument; and
• Is an accepted principle at Common Law
The obligation on State and Territory
governments to be model litigants is the
same as the Commonwealth’s
Background to the Model
Litigant Obligation
Section 64 of the Judiciary Act provides:
In any suit to which the Commonwealth or a State is a
party, the rights of parties shall as nearly as possible
be the same, and judgment may be given and costs
awarded on either side, as in a suit between subject
and subject.
Notwithstanding substantive equality as a
party, additional expectations are imposed
on the Commonwealth.
The Standard of conduct is higher than that
required by Court rules or professional
standards.
Rationale for the Model Litigant
Obligation
• The notion that government litigants should be held to a
higher standard than private litigants is justified by the
nature of the Commonwealth as a litigant;
• Government litigants are taxpayer-funded, and are said
to represent the public interest – that is, they are funded
by, and act on behalf of, all members of the general
public;
• The Commonwealth is perceived to have superior access
to resources and experience.
Thus, primarily because of the public character of their role
and the consequent community expectations of their
behaviour it is ‘well settled’, as Basten states, that
government lawyers
in Australia and other common law countries …
are required in civil cases, as well as criminal
cases, to meet higher professional standards and
to conduct themselves in a manner which
advances the interests of justice.
Statutory Basis for the
Obligation
• The Commonwealth Attorney-General has outlined the
Commonwealth’s model litigant obligation in Appendix B to Legal
Services Directions 2005 (‘the Directions’).
• The Directions were made under section 55ZF of the Judiciary
Act 1903 (Cth), which empowers the Attorney-General to issue
directions applying to ‘Commonwealth legal work’.
• The Legal Services Directions 2005 commenced on 1 March 2006 and are
an updated version of the Legal Services Directions 1999, which
commenced on 1 September 1999. The changes which were made to the
Directions are:
i. New clause 2(d) has been inserted to draw agencies’ attention to the
need, in accordance with the obligation, to consider and participate in
alternative dispute resolution.
ii. Note 4 has been clarified to include information about the
Commonwealth’s obligations and discretions in relation to cases of
public interest.
iii. New clauses 3 and 4 and the note following have been inserted to make
explicit the requirement that the model litigant obligation extends to
agencies involved in merits review processes, and to provide information
about the requirement to act as a model litigant in the merits review
context.
iv. New clause 5 has been inserted to elaborate on the requirement of the
Commonwealth to act as a model litigant in merits review proceedings.
These provisions reflect the Government’s commitment to the
appropriate use of alternative dispute resolution.
What is the Model Litigant
Obligation?
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
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, and
ii. not contesting liability if the Commonwealth or the agency knows that the
dispute is really about quantum
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.
What is the Model Litigant
Obligation (continued)
The Notes to the Directions flesh out this content
Note One
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.
What is the Model Litigant
Obligation (continued)
Note Two
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.
What is the Model Litigant
Obligation (continued)
Note Three
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.
What is the Model Litigant
Obligation (continued)
Note Four
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.)
Enforceability
The Explanatory Statement to Legal Services
Directions 2005 states:
The Directions are a legislative instrument and
have the force of law. Sanctions can be imposed
for non-compliance. These sanctions may
include the issue of a specific Direction by the
Attorney-General, in relation to the conduct of a
particular matter or the use of a particular legal
services provider. They may also include adverse
comment on an agency or a provider being made
to the Attorney-General or the relevant Minister.
Section 55ZG(2) of the Judiciary Act provides
that only the Attorney-General can enforce the
Directions. Further, the issue of non-compliance
with a Direction may not be raised in any
proceeding (whether in a court, tribunal or other
body) except by, or on behalf of, the
Commonwealth: s 55ZG(3)
Fairness vs Firmness
• I have referred to Note Four of the Direction.
• As to firmness, the Commonwealth should not
cave in to spurious or vexatious claims; or
take a ‘soft’ approach. Instead, it should
appropriately test all claims; rely on legal
professional privilege where appropriate;
make public interest privilege claims objecting
to disclosure of information; seek security for
costs where appropriate (in one case the
Commonwealth obtained an order for $4
million security for costs); oppose oppressive
subpoenas/discovery; seek to strike out
untenable claims; and act properly to protect
the Commonwealth’s interests.
(Leader B, “The Model Litigant Principle: Can the AGS
Stay Competitive?” (1998) 73 Reform 52)
The Model Litigant Obligation
at Common Law
The Model Litigant Obligation has been recognised by the Common Law.
The key case in this area is Melbourne Steamship Co Ltd v Moorehead (1912)
15 CLR 333 (‘Moorehead’), in which Griffith CJ observed (at 342-343):
The point is a purely technical point of pleading, and I cannot refrain from
expressing my surprise that it should be taken on behalf of the Crown. It
used to be regarded as axiomatic that the Crown never takes technical
points, even in civil proceedings, and a fortiori not in criminal proceedings.
I am sometimes inclined to think that in some parts – not all – of the
Commonwealth, the old-fashioned traditional, and almost instinctive,
standard of fair play to be observed by the Crown in dealing with subjects,
which I learned a very long time ago to regard as elementary, is either not
known or thought out of date. I should be glad to think that I am mistaken
The substance of this obligation is recognised in the UK, Canada and the
United States. In the US, Chief Judge Mikva of the US Court of Appeal for the
District of Columbia Circuit said in Freeport-McMoran Oil and Gas v FERC 962
F2d 45 (DC Cir 1992):
… A government lawyer “is the representative not of an ordinary party to a
controversy,” the Supreme Court said long ago in a statement chiseled on the walls of
the Justice Department, “but of a sovereignty whose obligation ... is not that it shall
win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88,
55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). The Supreme Court was speaking of
government prosecutors in Berger, but no one, to our knowledge (at least prior to oral
argument), has suggested that the principle does not apply with equal force to the
government's civil lawyers. In fact, the American Bar Association's Model Code of
Professional Responsibility expressly holds a “government lawyer in a civil action or
administrative proceeding” to higher standards than private lawyers, stating that
government lawyers have “the responsibility to seek justice,” and “should refrain from
instituting or continuing litigation that is obviously unfair.” Model Code of Professional
Responsibility EC 7-14 (1981).
The Model Litigant Obligation
at Common Law in Australia
Many Australian cases refer to this obligation:
• P&C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2
NSWLR 366 at 384 per Mahoney J
• Kenny v South Australia (1987) 46 SASR 268 at 373 per King CJ
• SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346 at 368
per Beaumont and Einfeld JJ
• Hughes Aircraft Systems International v Airservices Australia (1997) 76
FCR 151 at 196-7 per Finn J
• Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997)
75 FCR 155 at 167 per Beaumont, Burchett and Goldberg JJ
• Scott v Handley (1999) 58 ALD 373 at 383 per Spender, Finn and
Weinberg JJ
• Wodrow v Commonwealth [2003] FCA 403 at [42], [43] per Stone J
• Pacific National (ACT) Ltd v Queensland Rail (2005) 215 ALR 544 at
559-560 per Jacobson J
• Federal Commissioner of Taxation v Indooroopilly Children Services
(Qld) Pty Ltd [2007] FCAFC 16; (2007) 158 FCR 325 at 326-7 per
Allsop J
• Australian Competition & Consumer Commission v Leahy Petroleum
Pty Ltd [2007] FCA 1844 at [25] per Gray J
• Australian Competition and Consumer Commission v Visy Industries
Holdings Pty Ltd (No 2) [2007] FCA 444 at [105] per Heerey J
The Judge’s View of the Model
Litigant Obligation
I direct your attention to an extensive
discussion of this topic by the Hon
Darryl Davies QC in (1999) 92
Canberra Bulletin of Public
Administration 36