Reforms Needed to the Duties of Government Litigants

Adelaide Law School academics, Dr Gabrielle Appleby and Dr Suzanne Le Mire, recently made a submission to the Productivity Commission’s public inquiry into Access to Justice Arrangements. This inquiry has been asked to examine the critical issue of ‘Australia’s system of civil dispute resolution, with a focus on constraining costs and promoting access to justice and equality before the law’.

The submission (which can be accessed here) is focused on litigation conducted by and against government, and in particular the way the duties of government litigants, as set out in part by the Commonwealth’s Model Litigant Rules, are currently understood, articulated and enforced.  We argue that the current articulation and enforcement of the model litigant rules are in need of reform to provide greater clarity to government litigants and those appearing in matters against government litigants, as well as ensuring unfairness encountered between government litigants and others is properly addressed.

In particular the submission notes the absence of any clarity around the duty of fairness.  This duty is imposed on government litigants under the common law and is recognised in the model litigant rules.  The litigation involving the directors of James Hardie demonstrates that the uncertainty about the nature and content of this duty can be problematic. In that case the NSW Court of Appeal found that ASIC had breached its duty of fairness by failing to call a particular witness;[1] the High Court found that it had not.[2] The level of indeterminacy that remains in relation to the duty provides significant uncertainty and can lead, as it did in the James Hardie litigation, to significant additional costs and delay incurred by parties as a result. These consequences could also impact other litigants waiting for adjudication of their causes, as well as increase the cost of the justice system generally. The submission proposes a methodology for assessing the demands of fairness, by reference to justice and equality, and recommends that specific criteria be included in the preamble to the model litigant rules to provide greater clarity to litigants and courts. Further assistance could be provided by practical illustrations of the way the model litigant obligations have been interpreted by the courts.

There are also significant difficulties with the current lack of oversight and enforcement of the rules. The model litigant rules are enforced predominantly through a system of self-monitoring by the government agency. This raises serious questions as to whether breaches of the rules are going unnoticed and the resultant unfairness to litigants unaddressed.

The submission notes that it is appropriate that the courts and the executive share responsibility for enforcement of the model litigant obligations.  However, it argues that the division of responsibility between the courts and government needs to be more clearly addressed.

Further, the submission notes that the current system relies on self-reporting by agencies, which can mean that breaches are not picked up. The current process of monitoring by the Office of the legal Services Coordination could also be improved by establishing a more formal and robust complaints-handling process within the Office so that complaints are not simply forwarded to agencies to investigate and respond. Greater transparency about complaints and transgressions could provide private litigants with an understanding of the way in which the model litigant obligation is applied, the standards they can expect, and reassurance that the government’s enforcement is sufficiently rigorous. It also provides an opportunity for the government’s behaviour to be shaped in positive ways. A transparent complaints procedure would also provide litigants with a sense of redress if they feel wronged by government conduct in litigation.

The Productivity Commission’s draft report is expected to be released in April 2014.

[1]           Morley and Ors v ASIC (2010) 27 ALR 205.

[2]           Australian Securities and Investments Commission v Hellicar [2012] HCA 17.

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