It has long been accepted that the government must hold itself to high standards when conducting litigation. There was, as High Court chief justice Samuel Griffith observed in 1912, an "old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects". Bemoaning the apparent ignorance of that standard in a particular dispute, Griffith continued: "It used to be regarded as axiomatic that the Crown never takes technical points."
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A century later, these strictures find written expression in the Legal Services Directions 2005, issued by the attorney-general pursuant to the Judiciary Act 1903. The relevant appendix mandates that the Commonwealth and its agencies are to behave as "model litigants" in the conduct of litigation, before providing relatively detailed obligations as what this actually means. The obligations include "not taking advantage of a claimant who lacks the resources to litigate a legitimate claim", "endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible" and "not requiring the other party to prove a matter" which the government knows to be true. It also involves "dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation".
While these particular obligations apply only at the federal level, similar rules (whether via statute or common law) also bind state and local governments. In essence, as the Federal Court has explained, governments "must act, and be seen to act", as model litigants.
Yet such requirements, whatever their source, are not intended to prevent governments from legitimately defending their rights and interests. Justice Tony Whitlam observed in a 2005 case: "While the Commonwealth is no doubt a behemoth of sorts, it is not obliged to fight with one hand behind its back in proceedings. It has the same rights as any other litigant notwithstanding it assumes for itself, quite properly, the role of a model litigant."
While these obligations may seem abstract and nebulous, they have practical relevance for Australian Public Service staff in the workplace context. When employment disputes turn nasty, the actions of government departments and their lawyers (internal or external) are constrained by the model litigant rules.
At base, litigators on behalf of the Commonwealth must act with fairness, propriety and in accordance with ethical and professional standards. While the directions do not prevent the government from recovering normal costs in successful litigation, they might caution against seeking unusual costs orders, such as indemnity costs, in all but the most extreme cases.
The directions also prohibit the government from pursuing weak or tenuous legal arguments, and from contesting liability in circumstances where it should be admitted and the dispute ultimately turns on damages.
Unfortunately, though, for disgruntled APS employees expecting to be treated with utmost fairness by their Commonwealth employer in a litigious dispute, the model litigant obligations are lacking in the area of enforcement. When legislative amendments were first introduced to facilitate these directions in 1998, shadow attorney-general Robert McClelland observed in Parliament that "there are very few teeth to enforce those directions". He continued: "... one would think that most of the complaints about breaches of the model litigant principle that the Commonwealth has adopted will come from opposing litigants, but those opposing litigants do not have standing to evoke any remedy against the legal services directions."
With aggrieved parties lacking this ability, the only available enforcement mechanisms are judicial criticism and reporting by the office of legal services coordination within the Attorney-General's Department. As a result, the directions provide obligations, but really leave compliance to the individual agency. Although the exact status of the model litigant obligation is itself a matter of contest, it has been suggested that they represent "an ethical, rather than legal, standard".
Both the practical relevance of these directions to employment disputes and their lack of efficacy are highlighted by a 2011 Fair Work Commission arbitration. In Barber v Commonwealth, the self-represented litigant had advanced his argument on the basis of departmental guidelines for managing code of conduct breaches. Late in the process, it became evident that in fact the parliamentary service commissioner's directions were material to the dispute, rather than the departmental guidelines.
Commissioner Colin Thatcher launched a scathing critique of the department's failure to promptly bring this to the commission's attention, writing that "whilst applications can be defended fully and firmly, the tactic adopted is not the way that [Fair Work] proceedings should be conducted ... I am bewildered at [the Department of Parliamentary Services'] approach – particularly given the Commonwealth's obligation to act as a model litigant". Yet beyond this rebuke, there was little the commissioner could do to reprimand the department's lawyers.
Judicial and parliamentary directions dictate that the government must act as a "moral exemplar" in the conduct of litigation. For some APS employees who fall foul of their employer, this will have considerable benefit, as they might not be fully subject to the strategic warfare into which litigation often descends. Yet many more will complain that the government and its lawyers have failed to comply with the model litigant directions, and find themselves frustrated when no redress is available.
Perhaps, though, this is a necessary compromise. In 2007, Federal Court justice Peter Gray observed that "the policy is of significant value to parties against whom the Commonwealth is involved in litigation, and to the courts in which that litigation is conducted". Punishing the government for lapses in compliance, such as through adverse awards of court costs, might mean the policy is abandoned. "This," Gray said, "would be detrimental to the public good."
John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender for his help in preparing this article. john.wilson@bradleyallenlove.com.au
