Comcover Legal Service Provider Forum Series Legal Services Directions and Model Litigant Obligation 26 November 2013. Marianne Peterswald, Australian Government Solicitor and Catherine Fitch, Assistant Secretary, Office of Legal Services Coordination. Outline of presentation.
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Marianne Peterswald, Australian Government Solicitor
Catherine Fitch, Assistant Secretary, Office of Legal Services Coordination
Claims and litigationby or against the Commonwealth
Model Litigant Obligation (para 4.2 and Appendix B of LSDs)
Claims are to be handled and litigation is to be conducted by the agency in accordance with the Directions on The Commonwealth’s Obligation to Act as a Model Litigant, at Appendix B, noting that the agency is not to start legal proceedings unless it is satisfied that litigation is the most suitable method of dispute resolution
– honesty and fairness throughout legal work
– avoiding/narrowing disputes
– emphasis on alternative and appropriate dispute resolution (ADR)
– does not prevent Commonwealth from acting firmly
– on one view, same obligation now applies to all litigants
(d) endeavouring to avoid, prevent and limit scope of legal proceedings, including giving consideration to ADR in all cases, before commencing litigation and participating where appropriate;
Cases emphasise how points in Appendix B are distilled into a higher standard of conduct for the Commonwealth
Dyson v Attorney General  1 KB 410
The Crown is ‘the fountain and head of justice and equity’.
Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 per Griffith CJ
‘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in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date.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.’
Thomas v Mowbray  HCA 33 at 
The Commonwealth is ‘the best-resourced litigant in the nation. It has access to lawyers of the highest talent. It has reason to uphold legislation, where it choose to do so. It is always supposed to act as model litigant, in the tradition of the Crown.’
Court rules imposes similar obligations to act appropriately on all
litigants rather than just government bodies:
Section 37M and 37N of Federal Court Act 1976 (Cth)
obligation on parties to act consistently with overarching purpose to facilitate resolution of disputes as quickly, inexpensively and efficiently as possible
Section 56 of Civil Procedure Act 2005 (NSW) outlines duty on all parties to assist the Court to resolve and narrow issues in dispute and a failure to do so may result in costs orders
Key paragraphs are probably 5,6,8 and 23.
Para 5 says expenditure should normally be approved in civil and criminal proceedings if they arise out of employment and the employee acted “reasonably and responsibly”.
Para 6 says do not grant assistance if the Commonwealth is likely to claim contribution or indemnity from the employee if the Commonwealth is sued.
Can the Commonwealth seek contribution from an employee? Yes.
But surely only where that employee has acted terribly? No, merely negligent employees can be sued by an employer at common law.
If it is not clear whether or not the employee’s behaviour meets the test for assistance, the decision may be deferred altogether or the employee’s defence funded until after the facts are ascertained (para 7).
The levels of assistance are at paragraph 11:
If funding a defence, the employee must comply with App D – generally Comcover appoint a panel member to act.
“The indemnification of an employee against any costs or damages payable to another party by the employee … in civil proceedings is only to be approved on condition that the employee’s defence will be controlled by the Commonwealth”.
“Any damages” means all damages including exemplary damages.
There can be no conflict of interest between the Commonwealth and the employee so the Commonwealth can assume conduct of the employee’s defence without risk.
Paragraph 23 means that employee must therefore comply with MLO.
Civil proceedings where no indemnity