The State as a Model
Litigant: Recent
Analyses by the Courts:
Challenges for
Government Lawyers
Ian Freckelton SC
I.Freckelton@vicbar.com.au
Barrister, 616 Crockett Chambers
Melbourne, 92257666
1. The ethical basis of the Model Litigant
obligation.
2. The content of the obligation
3. Applications of the obligation
by the courts
4. Practical challenges of abiding by the
obligation.
An Australian Origin of the Doctrine:
Melbourne Steamship Co Ltd v Moorehead
(1912) 15 CLR 333 at 342, Griffith CJ
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“I cannot refrain from expressing my
surprise that [a purely technical point of
pleading] 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.”
Dale Boucher “An Ethical Code… Not a Code of Conduct”
(1996) 79 Canberra Bulletin of Public
Administration 3 at 4.
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The meaning of [model litigant] is sometimes
expressed as being firm but fair. Sometimes,
too, I have heard the obligation described as
one of being fair and reasonable… [Some
commentators] seem to reason that
commercialisation means doing what your
clients want without any questioning on a
professional level at all and that being the
model litigant means that you try not to win.
We do not agree with that
GA Del Pont, Lawyer’s Professional Responsibility
in Australia (2006, Thomson) 296-297.

[G]overnment lawyers’ conduct must be
above reproach and be seen to be
above reproach. … In conducting
litigation government lawyers should act
in an exemplary fashion and in a
manner indicative of those standards
that lawyers representing private
litigants should seek to emulate.
Model Litigant Thinking in Context
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Non-adversarial justice
Restorative justice
Therapeutic jurisprudence
Justice as a service
Dispute resolution in broader context
Litigation involving government seen as
distinct from other forms of litigation
The Victorian Model Litigant Guidelines:
http://www.justice.vic.gov.au/resources/3/4/34fd7f00459fb2b0b6a2b6e6d4b02f11/revisedm
odellitigantguidelines.pdf
The obligation requires that the State of Victoria, its Departments and agencies:
(a) act fairly in handling claims and litigation brought by or against the State or an
agency;
(b) act consistently in the handling of claims and litigation;
(c) deal with claims promptly and not cause unnecessary delay;
(d) make an early assessment of:
(i) the State’s prospects of success in legal proceedings; and
(ii) the State’s potential liability in claims against the State;
(e) pay 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 paid;
(f) consider seeking to avoid and limit the scope of legal proceedings by taking such
steps, if any, as are reasonable having regard to the nature of the dispute, to
resolve the dispute by agreement, including participating in appropriate dispute
resolution (ADR) processes or settlement negotiations;
The Victorian Model Litigant Guidelines
(g) where it is not possible to avoid litigation, keep the costs of litigation to a minimum, including
by:
(i) not requiring the other party to prove a matter which the State or the agency knows to be true;
(ii) not contesting liability if the State or the agency believes that the main dispute is about quantum;
(iii) taking such steps, if any, as are reasonable to resolve such matters as may be resolved by
agreement and to clarify and narrow the remaining issues in dispute; and
(iv) monitoring the progress of the litigation and, where appropriate, attempting to resolve the litigation,
including by settlement offers, offers of compromise and ADR;
(h) when participating in ADR or settlement negotiations, ensure that as far as practicable the
representatives of the State or the agency:
(i) have authority to settle the matter so as to facilitate appropriate and timely resolution; and
(ii) participate fully and effectively.
(i) do not rely on technical arguments unless the State’s or the agency’s interests would be
prejudiced by the failure to comply with a particular requirement;
(j) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim;
(k) do not undertake and pursue appeals unless the State or the agency believes that it has
reasonable prospects for success or the appeal is otherwise justified in the public interest;
and
(l) consider apologising where the State or the agency is aware that it or its representatives have
acted wrongfully or improperly.
The Victorian Model Litigant Guidelines:
Notes
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In essence, being a model litigant requires that the
State and its agencies, as parties to litigation, act with
complete propriety, fairly and in accordance with the
highest professional standards.
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.
The obligation does not prevent the State and its
agencies from acting firmly and properly to protect
their interests.
Moline and Comcare [2003] AATA 827
at [6], Mr Sassella SM, Dr Miller M:
the ethical underpinning
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The Commonwealth in its dealings with its
citizens occupies a powerful and privileged
position. The judiciary has long recognised
that this power imbalance imposes special
obligations on the Commonwealth not to
abuse its power. Indeed, in its dealings with
its citizens the Commonwealth is held to
standards higher than those of private
individuals or corporations. …The Crown
should not submit late evidence, even if
technically such a course is open
Scott v Handley [1999] FCA 404 at [44][45], Spender, Finn & Weinberg JJ
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The courts have, for example, spoken positively
of a public body's obligation of "conscientious
compliance with the procedures designed to
minimise cost and delay”; and of assisting "the
court to arrive at the proper and just result”. And
they have spoken negatively, of not taking purely
technical points of practice and procedure of not
unfairly impairing the other party's capacity to
defend itself; and of not taking advantage of its
own default
Scott v Handley [1999] FCA 404 at
[46], Spender, Finn & Weinberg JJ
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In the present instance [the
Commonwealth] (i) was in a position of
obvious advantage in relation to
unrepresented litigants; (ii) was
significantly in default in complying with
procedures designed to secure the fair
and orderly preparation of the matter for
hearing; (iii) served the affidavits on the
appellants at an extremely late date with
the consequential likely impairment of
their capacity to prepare properly for a
final hearing
Scott v Handley [1999] FCA 404 at
[46], Spender, Finn & Weinberg JJ
(iv) did not inform his Honour of the
default and of its possible consequences;
and (v) took advantage of the inability of
the appellants to articulate properly the
basis for, and to secure, an adjournment.
In our view the conclusion is inescapable
that the second respondent has fallen
considerably short of the standard
properly to be expected of the
Commonwealth.
Yong Jun Qin v the Minister for Immigration &
Multicultural Affairs [1997] FCA 495, Beaumont,
Burchett & Goldberg JJ
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Obligation to avoid court error
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If it appeared to the Crown that a court
lacked jurisdiction, the Crown was not
only justified, but bound, to draw the
possible absence of jurisdiction to the
attention of the court.
The Obligation used as a Sword
There is a growing propensity of parties
opposed by Government to accuse it
(often gratuitously and emotively) for
tactical reasons of being in breach of its
Model Litigant obligations.
 The forensic attempt is to
transmogrify the ethical obligations
into an offensive weapon
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Argo Pty Ltd v A-G (No 4) [2006]
TASSC 22 at [80]-[81], Blow J
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Counsel for the plaintiffs made a submission
to the effect that the Crown has a duty to act
as a model litigant; that a model litigant would
have consented to an order …
I do not accept that a model litigant would
have consented to the application. This is a
case in which the Crown and the TDA face a
substantial risk of an unfair trial as a result of
delays over many years which, to a large
extent, are attributable to the plaintiffs.
Woodcroft-Brown v Timercorp Securities
Ltd (in liq) [2011] VSC 427 at [255], Judd J
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The Defendants contended that ASIC had not
disclosed its true case in a timely fashion
through its s of cl and particulars.
Held that in civil penalty proceedings brought
by a model litigant a court should not allow
the case to change shape during the trial
without any proper reconsideration of the
pleadings, if there is an identifiable risk of
prejudice to the defendants in terms of having
a a fair opportunity to meet the case
presented against them.
Environmental East Gippsland Inc
v VicForests (No 2) [2009] VSC
421 at [35], Forrest J
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There is no force in the submission by EEG
that VicForests, in making its submission as
to the provision of security, was acting
contrary to a model litigant. Not only was
there no evidence as to the contents of the
code or as to whether it applied to VicForests,
it seems to me that this is not an issue for the
Court to determine on an application such as
this.
Groser v Equity Trustees Ltd [2008]
VSC 163 at [49]-[50], Habersberger J
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I agree with the submission on behalf of
the A-G that the A-G’s status as a
model litigant is irrelevant to the issue of
costs.
Morgan v State of Victoria [2008] VSCA
267, Nettle & Ashley JJA, Pagone AJA
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Victoria’s position was hardly that of the
model litigant which it purports to be and
should have been. Throughout, whatever be
the explanation for it, Victoria’s position
towards the appellant was very aggressive,
repayment being sought prematurely and
otherwise inappropriately, and contempt
proceedings being threatened on several
occasions and ultimately being brought when
on proper analysis contempt could not be
established.
Solak v Registrar of Titles [2011] VSCA 279 at
[86]-[88], Warren CJ, Neave JA, Hargrave AJA
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The Registrar’s conduct in the second proceeding and in this appeal fell short of
these high standards. As I have explained, the Credit Code point was so
tenuous that this alone suggests that the Registrar should not have attempted to
rely on it.
However, what makes the Registrar’s reliance on the Credit Code point even
more unacceptable is the fact that, if successful, the Credit Code point would
significantly undermine indefeasibility of registered mortgages. It would cut
across the policy of the TLA. It would increase the risk to lenders, who may pass
on the cost to borrowers.
It is puzzling that the government agency entrusted with administering the
Torrens system would advance the Credit Code point. Furthermore, the
Registrar appears to have forgotten that he is administering a beneficial fund.
The purpose of the fund is not to accumulate money but to provide
compensation to persons who are deprived of an interest in land by the
operation of the indefeasibility provisions. The Registrar’s primary role is to
ensure that persons who are entitled to compensation receive it. The
responsibility to protect the fund from unmeritorious claims is not paramount.
The Registrar ‘has no legitimate private interest of the kind which often arises in
civil litigation. [He] acts, and acts only, in the public interest’.[
Slaveski v State of Victoria [2010]
VSC 569 at [93]-[95], Kyrou J
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The State is well-resourced and aspires to act as a model litigant. The
Court is entitled to expect that the State will have a detailed
understanding of its discovery and document retention obligations, and
that it will comply with those obligations in a timely manner. In this
proceeding, that expectation was not fulfilled.
Although in my Substantive Judgment I concluded that the deficiencies
in the State’s discovery and document retention caused only short-term
inconvenience to Mrs Slaveska and to the Court and did not result in
any substantive prejudice or unfairness, those deficiencies were
sufficiently serious that the Court ought to take them into account in
exercising its discretion in relation to costs.
In all the circumstances, it is appropriate to reduce any costs awarded
in favour of the State by 10 per cent to reflect the Court’s displeasure in
relation to the deficiencies in the State’s discovery and document
retention.
Noone, Director of Consumer Affairs Victoria v
Operation Smile [2011] VSC 153 at [12], Pagone J
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The overriding duty for the Court must
be to achieve justice between the
parties and to ensure that it is satisfied
that the burden which a party bears is
adequately and reliably discharged. A
government official exercising a
statutory function or duty shares a
common interest with the Court in cooperating to achieve the correct result
Noone, Director of Consumer Affairs Victoria v
Operation Smile [2011] VSC 153 at [14], Pagone J
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In some cases it may be incumbent upon those appearing for the represented party to assist
the Court in its task of ascertaining the rights of the parties. That may, in an appropriate
case, require those appearing for the represented party to draw attention to matters that
might reasonably bear upon the Court’s decision which, in a case where all parties were
represented, could be expected to be referred to by the opposing practitioners. It is only the
parties, and not the Court, who know the facts which do or could bear upon the Court’s
decision and deliberation. The Court should be confident that what the represented party
seeks is justified and should be confident of having received all proper assistance including
in having had drawn to its attention matters that might be adverse to what is sought but
which the Court ought fairly to consider even if only to reject. The Court should expect such
assistance especially in cases where the party with representation has a duty, or is
expected, to act as a model litigant. In this case it would have been of assistance for the
Director’s submissions to have drawn attention to matters in the text and content of the
defendants’ impugned statements that might reasonably have tended against the
conclusions otherwise urged upon me by the Director. In most cases where such a task is
undertaken by legal practitioners for a represented litigant it will benefit, rather than harm,
the case of the party for whom the practitioners appear since it will provide a more secure
foundation for what is sought by ensuring that what will have been relied upon will, to some
extent, have been “tested”.
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See too Pagone, Justice Tony --- "Speech - The Model Litigant and Law Clarification"
(VSC) [2008] VicJSchol 17.
Model Litigant Obligations and Rigorous and
Effective Conduct of Litigation
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Model litigant obligations are not a mandate
for weakness, capitulation or
preparedness to submit to bullying or unfair
criticism
It remains appropriate for the State to contest
litigation assertively and robustly
The Guidelines should be regarded not as an
unwelcome straitjacket but as a liberation
from the pressures of unreconstructed
adversarial litigation styles
Need for Awareness of Content and
Purpose of Model Litigant Guidelines
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With use of term (like natural justice,
and resort indiscerningly to “the
Charter”) as a diffuse mechanism for
critique and even vilification, need to be
able to respond by reference to
Guidelines and key authorities.
Areas of particular vulnerability
for government litigation
Pleadings
 Discovery
 Timeliness
 Lack of focus
 Oppressive conduct of litigation
 Use of media / confidentiality
 Failure to assist unrepresented litigants
sufficiently
 Opting against ADR
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Effectively implementing model
litigant behaviour
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Mindfulness of the inequality of power
Adoption of mindset of
– Humility,
– Tolerance and patience,
– Efficiency,
– Attentiveness,
– Transparency,
– Cost-consciousness, and
– Helpfulness
toward other parties and the court.
Model Litigant Behaviour
– Avoidance of sharp practices
– Awareness of need to behave and be seen
to behave in an exemplary fashion,
including attempting to resolve disputation
through ADR, assist the court and other
parties (especially the unrepresented)