The Government as Litigant

The Productivity Commission is currently tasked with reviewing Australia’s civil justice system, focusing on constraining costs and promoting access to justice and equality before the law. Part of this larger review is a review of the government’s obligation to act as a model litigant. Dr Gabrielle Appleby has recently considered reforms to the obligation in her article, ‘The Government as Litigant’, published in the University of New South Wales Law Journal.

We expect the government as litigant to play fair. The government’s obligation to act fairly in the conduct of litigation is frequently invoked by litigants in matters against the government or by judicial officers in litigation that comes before them. But there is still uncertainty about where the government’s special obligations to fairness in litigation come from. Further, there is an inherent indeterminacy in notions such as ‘fairness’ and ‘model litigant’. We often define these concepts by reference to extreme transgressions into unfairness; yet short of this there is a significant zone of uncertainty where conflicting principles that underpin the duty of fairness may dictate different outcomes. Bearing in mind the difficulties of definition and resultant uncertainty as to the content of the duty of fairness, there is a question about whose view of what is ‘fair’ or ‘model’ in any particular circumstances should be determinative. This article explores separate attempts by the executive and the judiciary to define and enforce the model litigant obligation. It will also consider the extent to which the model litigant obligation is an enforceable obligation under the common law and an argument that it may be constitutionalised as part of the observation of fair process required by Chapter III of the Constitution.

Dr Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School.

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