Model litigant rules (obligations) are guidelines for how a government ought to behave before, during, and after litigation with another government body, a private company, or an individual.
It is vital that government bodies should not be ‘out to get’ people, but should be acting in the public interest, according to law. These guidelines seek to address an inherent and substantial power imbalance.
See our comprehensive Analysis of the Model Litigant Rules here.
These guidelines are integral to the rule of law where a substantial imbalance of power in litigation with a government agencies such as the Australian Taxation Office may occur. Government bodies may have access to substantial resources, powers to investigate and compel people to provide information, and more experience and specialist expertise in dealing with complex and contentious legal matters.
As a result, governments at a State and Federal level across Australia have produced a range of guidelines known as model litigant rules. At their heart, these guidelines focus on:
- Acting honestly, consistently, and fairly in the handling of claims and litigation;
- Dealing with claims promptly;
- Making an early assessment of the government’s prospects of success;
- Paying legitimate claims without litigation;
- Not taking advantage of a claimant who lacks resources;
- Not relying on a merely technical defence against a claim; and
- Considering alternative dispute resolution (ADR) options.
However, these guidelines are not designed to prevent the government body from “acting firmly and properly to protect their interests,” taking “all legitimate steps” to pursue or defend claims, or even from “pursuing litigation in order to clarify a significant point of law even if the other party wishes to settle the dispute.”
The guidelines are designed to tread a middle ground. On the one hand, they recognise that a government body is often better-resourced than small companies or individuals, and is supposed to lead by example, protecting the public interest as opposed to its own private interest.
On the other hand, the guidelines also must recognise that government bodies pursuing or defending claims are doing so on behalf of the public, and the public’s rights ought not to be undermined in the face of genuine litigation. This is particularly so when the government body is up against, for example, a very well-resourced individual or company.
Case Note of recent Breach of Model Litigant Obligations
A Case Note has been prepared which considers the case Walpole & Secretary. The Case Note considers the judgment of the Full Court of the Family Court of Australia and their observations regarding the Agency’s breaches of its Model Litigant Obligations. Reflection questions look at the Model Litigant guidelines and what action should occur to hold the agency accountable.
Advocacy for Model Litigant Rules
In 2015, the Institute made a submission to the Inspector-General of Taxation’s Review into the Taxpayers’ Charter and Taxpayer Protections, arguing that:
“Taxpayers need to be confident that the tax laws will be administered fairly. The model litigant rules seek to impose the basic duty of fairness on all Commonwealth agencies, including the ATO. These rules should be enforceable and complaints dealt with transparently.”
Download the submission: Submission to the Review into the Taxpayers’ Charter and Taxpayer Protections.
The Institute will continue to promote community awareness and understanding of the importance of the model litigant rules at both a State and Federal level, with a view to securing the consistent compliance of government bodies with their model litigant obligations.
Detailed explanation of the nature of the Commonwealth’s model litigant obligations and the oversight and compliance undertaken by the Attorney-Generals Department, with our critique of the current compliance framework.
Summarises key cases in which model litigant obligations arise.
- Legal Services Directions 2017 (Cth)
- Commonwealth Office of Legal Services Coordination
- Government Solicitors Committee, ‘Handy Hints for Government Legal Practitioners’, Law Society of NSW, August 2019
- Dr Gabrielle Appleby, ‘The Government as Litigant’, UNSW Law Journal, March 2014
- Zac Chami, The Obligation to act as Model Litigant, 2010 AIAL National Administrative Law Forum, Sydney, July 2010
- Woellner and Zetler, ‘Judge not lest ye be Judged: the Trials of a Model Litigant‘, Journal of the Australasian 2013
- Justice G T Pagone, ‘The Model Litigant and Law Clarification‘ ATP Leadership Workshop, September 2008
- Stephen Lee, Assistant Victorian Government Solicitor, ‘The State as Model Litigant’ September 2006.