Summaries of Court and Tribunal model litigant cases - 2005
Summary of Federal court cases - Model litigant principle
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Case |
Facts of case |
Comments on Model litigant policy | |
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SCI Operations Pty Ltd and ACT Operations Pty Ltd v Commonwealth of (1996) 139 ALR 595 PRIOR TO ISSUING OF LEGAL SERVICES DIRECTIONS |
Federal Court Sydney Beaumont, Einfeld, Sackville JJ |
Appeal against a decision of a single judge dismissing claims for interest on customs duty refunded pursuant to a Commercial Tariff Concession Order (CTCO). Held: per Beaumont & Einfield JJ (Sackfield dissenting) allowed appeals. Note: Full Court decision overturned by High Court without comment on model litigant issues. |
Beaumont & Einfield JJ at 613: "the position of the Crown itself, especially given its default in failing to make the CTCO, should also be taken into account. Otherwise the Crown would be taking, or seen to be taking, advantage of its own default, whereas it is well established that the Crown must act, and be seen to act, as a model litigant." Also at 613: "It is also pertinent to note that there is an obligation on all decision-makers (and of course the courts themselves are not exempt from this obligation) to ensure that they not only address the correct legal question, but do so within a reasonable time. A decision excessively delayed is a bad decision." At 621: the Court should not at all embrace a situation where the Crown as the model litigant, should be seen to take advantage of its own default. |
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Yong Jun Qin v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 695; (1997) 75 FCR 155 PRIOR TO ISSUING OF LEGAL SERVICES DIRECTIONS |
Full Federal Court Sydney 30 May, Beaumont, Burchett & Goldberg JJ |
· Special case stated for determination - whether respondent's objection to competency ought to be upheld or overruled. · Held: overruled. · Applicant filed an application for an order of review of a decision of the Immigration Review Tribunal in the · Respondent contended that because the applicant did not name the Minister as respondent, the Court did not have jurisdiction to try the application for an order to review under the Migration Act 1958. |
Court noted at 704 that 'we are bound to say that we share Hill J's reaction that an injustice was involved as a result of taking this point by the Crown. That is the more to be regretted when the point is taken by a party which is expected to act, and to be seen to act, as a model litigant." The Court then quoted the Griffith CJ in Melbourne Steamship regarding the Crown taking technical points. |
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Hughes Aircraft Systems International v Airservices PRIOR TO ISSUING OF LEGAL SERVICES DIRECTIONS |
Federal Court Finn J - |
· Hughes, a Californian company, was the unsuccessful tenderer in a 2 party bid for the award of a contract from the Civil Aviation Authority (CAA). · Hughes made complaints about the conduct of the CAA. · Alleged breach of contract, breach of TPA, negligence and equitable estoppel Model litigant issue raised in relation to the fair dealing as part of a competitive tender process |
At 40: Not only is the contract of a type in which... the tenderers could properly expect the other contracting party to act fairly in its performance, that other contracting party (CAA) is an agency of government and as such can properly be expected to act fairly with those with whom it deals in such contracts. At 41: That the law entertains expectations of fair dealing of government and of public bodies is manifest in some number of spheres. First, and most obviously there is the general application of the requirements of procedural fairness to "governmental executive decision-making"...Secondly, there is what Griffith CJ referred to as "the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects." This fair play principle has its most common manifestation in the "model litigant" standards exacted from the Crown in legal proceedings. |
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Ralph Scott and Sophie Scott v SM Handley, AAT and Secretary, DSS (1999) 58 ALD 373 PRIOR TO ISSUING OF LEGAL SERVICES DIRECTIONS |
Federal Court - Victorian District Registry Spender, Finn and Weinberg JJ - April 99 |
· Appeals from Order made by Heery J that 2 separate proceedings which were being heard together be dismissed. · Appellants argued that Heery J had wrongly refused to accede to an adjournment. · 2nd Rs served Applicants with 3 affidavits 6 days before hearing instead of 3 months prior to hearing as directed & did not make court aware of this. · Issue: whether Trial Judge's refusal to grant Scotts an adjournment resulted in a miscarriage of justice. Held: was a miscarriage of justice because applicants were not given adequate time to prepare. |
Court held that the 2 considerations were: 1. Litigants were unrepresented 2. Cth had an obligation to behave as model litigant In relation to the 2nd Respondent, court said that (i) position of obvious advantage in relation to unrepresented litigants (ii) significantly in default in complying with procedures to serve the fair and orderly preparation of the matter for hearing (iii) service of Affidavits at extremely late date with consequential likely impairments of their capacity to prepare properly for a final hearing (iv) did not inform his Honour of the default and the consequences (v) took advantage of the inability of the appellants to articulate properly the basis for & secure an adjournment At 383-4: The 2nd respondent ...is an officer of the Commonwealth. As such he properly is to be expected to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect - and where there has been a lapse therefrom, to exact - from the Commonwealth and from its officers and agencies. The spirit of this "model litigant" responsibility, now long enshrined in a policy document of the Commonwealth, is best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd. Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all 3 tiers of government. The burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body's obligation of "conscientious compliance with the procedures designed to minimise cost and delay" ...and of assisting "the court to arrive at the proper and just result." ... In our view the conclusion is inescapable that the 2nd respondent has fallen considerably short of the standard properly to be expected of the Commonwealth. |
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White v Minister for Immigration and Multicultural Affairs 1999] FCA 1433; BC 9906891 (unreported) |
Federal Court Ryan, North & Weinberg JJ |
· Appeal from decision of a trial judge confirming the decision of the respondent to cancel the applicant's visa and declare the applicant an excluded person under certain provisions of the Migration Act. Issue · The applicant sought to adduce further evidence to support his contention that the respondent approached the exercise of his discretion under particular provisions in the Migration Act in his case in a biased manner. · The reception of further evidence is provided for by s27 of the Federal Court of Australia Act 1976. |
· The Court stated that as the applicant is unrepresented it would be inappropriate to dispose of his appeal without affording him the opportunity to adduce further evidence. · The Court then went on to say at para 81: "we assume that the respondent acting as a "model litigant" will make the concession that the statements attributed to him in the judgment of Spender J in Jia Le Geng were made unless there is some proper basis for challenging any such finding" · That is, in the case of Jia, Spender J made comments about how the respondent was biased in exercising his discretion under certain provisions in the Migration Act. |
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One.Tel Ltd & Ors v Deputy Commissioner of Taxation (2000) 171 ALR 227 |
Federal Court NSW Burchett J- |
· The 1st, 2nd, 3rd applicants challenged the validity of notices issued by the Commissioner, the Respondent (R). · R, when answering a notice to produce, acknowledged that he was unable to locate the instrument of authorisation pursuant to which he said the notices had been issued. · R objected to an application to amend the application to put the authorisation in issue & served notice to admit facts from applicants with a view to eliciting an admission of authorisation · Applicants said did not know & therefore could not admit facts · R said consistent with his obligation as a model litigant, he would prefer to be in a position to +vely produce or otherwise prove that authorisation · R suggested the parties consent to order setting aside notices & each party bear own costs · Applicants sought costs Issue: whether order for costs should be made in applicant's favour |
· Held: the respondent should be ordered to pay the costs of the applicants. · The Court assessed whether both parties acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation came to an end by the respondent's decision not to seek to uphold his notices. At 233: The respondent asserts that his decision to desist from defending the proceeding was reached "consistently with his obligation as an officer of the Cth to as a model litigant." Since reliance upon clear proof, by secondary evidence, that an authorisation actually existed would be in no way inconsistent with the attitude of a model litigant, this can only mean that there was some degree of dubiety about the secondary evidence. Moreover, if a model litigant would not have maintained the validity of these notices as respondent to proceedings to set them aside, a fortiori a fair minded officer of the Cth would not have sought to enforce the same notices by criminal sanctions against an unsuspecting citizen or corporation - or even against a protesting one. |
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ACCC v Warner Music Australia Pty Ltd [2000] FCA 647, BC 200002570 (unreported) |
Federal Court 11 May 2000 Hill J |
· Motions brought by the ACCC establishing a regime whereby documents tendered in one proceeding may be available for use in the other proceedings but subject to questions of confidentiality. Issue · The ACCC did not accept that it, its officers, counsel or solicitors should be required to give undertakings. Argued that should not be required to do so because model litigants & s.70 of the Crimes Act provides for an offence in the event of publication or communication by them of information. |
· Hill J held:"while generally it is right that the govt is, or at least should be, a model litigant, it does not follow that it is inappropriate for confidentiality orders to be imposed as a condition of a privilege being extended to the Commission that implied undertakings to the Court be dispensed with." · The Court went on to say that: "while perhaps use of the documents would not be expected of a model litigant the fact that an undertaking is given to the Court (not as the initial document was prepared both to the court and the parties) emphasises the significance that the Court places upon the need to not use information." |
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Barry W Challoner v MIMA (N0 2) [2000] FCA 1601 |
Drummond J |
Minister sought to adjourn hearing of application for order to review decision of Minister's delegate cancelling the applicant's Electronic Travel Authority. Applicant had obtained stay of decision to prevent his removal from Aust |
Over the Court's offer of an expedited hearing, the Cth had urged an even quicker hearing. At 5pm on the day before the hearing the Cth sought an adjournment on grounds which made it clear that the Cth could never have been ready to proceed on that day, the date originally proposed by the Court or for several weeks. The Court stated - It seems immensely regrettable that the Cth has conducted the litigation in the way I have outlined, against the background of Mr Challoner's continued detention, upon which the Cth insisted until this late stage. ... The extent to which it is regrettable is enhanced because it is the Cth which has left itself open to this criticism. [the Court set out the Model Litigant obligations under the LSDs and continued] There appears to me in the circumstances of this case to have been a completely regrettable departure by the Cth from compliance with the obligations reflected in the A-Gs directions. |
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NAFK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1374 |
Federal Court of Sydney 1 Nov 02 Lindgren J |
Facts: The applicant, a detained immigrant, sought to attend at the hearing of his case. The respondent informed the court that the applicant would be removed from the country and would be unable to attend the hearing. Held: The court ordered that the applicant be brought to court. Lindgren J noted that the conduct of the respondent inappropriate for a model litigant. |
At 8: "The applicant said, perhaps not unexpectedly, that he wanted to attend the hearing of his case this morning and asked for an order that he be brought to the Court. I informed the solicitor for the Minister that I was in the process of making such an order. In fact I made an order that the Minister and the Officer-in-Charge of the Villawood Detention Centre cause the applicant to be brought to the Court at 10.15 am this morning for the hearing. The order was served on the Minister's solicitor and on the Officer-in-Charge at Villawood by facsimile transmission. I regard the order as having been made ex parte and without the benefit of submissions on behalf of the Minister as to the power or discretion involved. This was the direct result of the lateness and the peremptory nature of the advice conveyed to the Court. It is unacceptable that a proceeding should be conducted in this manner on behalf of the Minister, who is supposed to be a "model litigant". I note that there was no request that, for example, the Court commence the hearing at an earlier hour or that it be conducted by teleconference or videolink, in order to overcome any logistical difficulties which might be involved if the deportation was to proceed. The Court was simply told that the applicant would not be brought to the Court for the hearing. It is, of course, no answer to suggest that the applicant had no right to participate in the hearing because his application for an extension of time could be seen on the papers to be hopeless (as it could be). The same Parliament which enacted subss 474(1) and (2) of the Migration Act 1958 (Cth) also enacted subss 39B(1) and (1A) of the Judiciary Act 1903 (Cth). The Court is required to exercise the jurisdiction given it by the Parliament and to comply with the rules of natural justice in doing so. A different approach to this case on behalf of the Minister would have avoided a waste of time and taxpayers' money, while still according to the applicant the fair hearing to which he was entitled." |
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NAOY v Minister for Immigration [2002] FMCA 275 |
Federal Magistrates Court of Sydney 6 Nov 02 Driver FM |
Facts: This was an application for two consent orders, one for the dismissal of a matter, the other as to costs. Driver FM stated that Model litigants should not conceal from a self represented applicant the opportunity he or she may have to avoid a costs order by terminating proceedings promptly after advice is received. |
At 8: "Bearing in mind the operation of this Court's rules and the views I have expressed in NAGY, in my view, the Minister's lawyers, pursuant to the model litigant principle, should not conceal from a self represented applicant the opportunity he or she may have to avoid a costs order by terminating proceedings promptly after advice is received. In this case Ms Warner was clearly unaware of the relevant rules of the Court and my decision in NAGY. There was no impropriety on her part in acting in the manner in which she did in securing the agreement of the applicant to a costs order. However, solicitors for the Minister need to be aware both of the rules of the relevant court and relevant jurisprudence on the subject of costs. Assuming they are aware, the proper course in my view, is either to invite an applicant to obtain independent advice on the question of costs or to draw the attention of the applicant to relevant court rules and relevant court decisions. In my view, the preferable approach is the latter." |
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Wodrow v Commonwealth of Australia [2003] FCA 403 |
2 May 03 Stone J |
Issue: Delay in filing taxation of costs. Facts: In 1993, a costs order had been made against the applicant in Wodrow v Commonwealth of The Commonwealth delayed filing an application for taxation of costs until 2001 when the applicant had a greater capacity to pay. Held: Application dismissed. |
At 41, Stone J quoted with approval the statements on model litigant policy made by the the Stone J stated at 42 "The Commonwealth's role as a model litigant influences the way in which the Commonwealth conducts litigation, it does not impinge the Commonwealth's ability to enforce its substantive rights. I see nothing in the judicial discussion of the concept of the Commonwealth as a model litigant which is contrary to note five in Appendix B to the Legal Service Directions referred to above. Indeed, in seems to me that, as evidenced by the Australian Government Solicitor's Legal Briefing No. 48, the Commonwealth considers that it is part of its role as a model litigant to generally pursue costs awards in its favour." Stone J At 43. "Although the Commonwealth, through its delay, may have fallen short of its own standards in pursuing the costs order made in 1993, this does not lead to the conclusion that it should be precluded from enforcing the order. I do not think the applicant's case is assisted by the model litigant policy." |
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ABB Power Transmission Pty Ltd v Australian Competition & Consumer Commission [2003] FCAFC 261 |
Full Federal Court of Canberra 20 Nov 03 Heerey, Stone And Bennett JJ |
Facts: The appellant sought leave to appeal from decisions regarding without-prejudice privilege and legal professional privilege. Held. Leave was refused. The Model Litigant Rules do not require a litigant to abandon claims to well established privileges. |
The Court at 35: "Nonetheless major litigation usually has severe consequences for the losing party and that in itself is no ground for abrogating privilege. It was said that the Commission was required to conduct the prosecution as a "model litigant" by virtue of the Attorney-General's Legal Services Directions. That may be so, but claiming a well-established privilege, and having that claim upheld by a judge, is not unreasonable conduct for a litigant, whether model or otherwise." |
SUMMARY OF TRIBUNAL CASES - MODEL LITIGANT PRINCIPLE
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Ntinos Loucas v Comcare |
AAT July 99 SMLewis, Member Campbell |
Review of a determination by Comcare to cease liability for the applicant's 'right lateral epicondylitis' |
The Tribunal stated that it was impressed that Comcare chose to tender Dr Carr's reports which on their face appeared to support the applicant. They hoped this reflected a move away from the adversarial process in their jurisdiction, consistent with recent thinking in the APS, allowing the Tribunal to make its decision based on all the relevant evidence. |
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Alvappiliai Arulanantham v Comcare |
AAT SM Dwyer, Member Argent |
Appeal to the AAT for a review of a decision rejecting claim for 'stress, anxiety and depression.' Issue Whether the matter could have been resolved without 'litigation'. |
Argument by Comcare that applicant's claim for injury not work related. AAT contended there was a lot of information in 'T' documents that the condition was work related. AAT say there was never any evidence contradicting applicant's evidence. AAT 'left wondering why claim was contested. It would seem to us, having now heard all the evidence, to have been a claim which should have been resolved without litigation, in accordance with the Commonwealth as a Model Litigant policy'. |
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Barbara Hamdorf v Comcare [2000] FCA 837, BC 200003414 |
AAT SM Handley |
Appeal to the AAT to review a reviewable decision made by the respondent in relation to paying compensation to the applicant for a condition of right rotator cuff syndrome. Issue Comcare raised in evidence that the applicant's injuries were consistent with sporting activity, but did not make that submission in its Statement of Facts and Contentions (filed in the week before the hearing), nor did it refer to the report of Mr Troy of Feb and April 99, which it then held but had not exchanged. |
AAT said: 'This case was a tragedy and should never have occurred. With some goodwill, proper management and sound consistent decision making this application could have been resolved early, cheaply, efficiently ... [I]nstead the hearing involved an attempted annihilation of the applicant by overt and overzealous litigious behaviour ... [t]he employer's conduct and that of its advisers offend the Cth's Model Litigant Policy'. AAT said: 'To raise in evidence that the applicant's injuries were consistent with sporting activity was most unfair because the applicant was denied the opportunity to meet the respondent's case. It subjected the applicant to unnecessary and discriminatory innuendo.'. Other comments by AAT suggesting Comcare produced irrelevant evidence and unnecessary cross-examination. |
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Deborah Mauldon v Secretary, Department of Family & Community Services |
AAT SM Handley |
Appeal to AAT to review a decision of the Social Security Appeals Tribunal which affirmed a decision previously made by a review officer to reject a claim for parenting payment. Issue Documents (including a statement of facts and contentions, copies of bank statements and a valuation report) were released to the applicant 1 hour before the hearing commenced. Also during the hearing the respondent's representative made available for the first time other relevant documentation. |
The Court stated that the practice of release of documents immediately before and during a hearing in Social Security applications is virtually unheard of and is inconsistent with the respondent's policy of fairness, applying the social security legislation beneficially and its observance of the model litigant policy. The Court then went on to say that the conduct exhibited in the release of these documents should never be repeated. It is inconsistent with the policies of the Tribunal for release of documents prior to the hearing and is inconsistent with the equality of opportunity available to parties in citizen review to challenge and defend decisions of Govt and its agencies. |
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Derek Ernest Bessey v Australian Postal Corporation |
AAT 23 May 2000 SM Bayne, Members Miller and Gration |
Appeal to the AAT to review decisions which disallowed claims for comp under the SRC Act. Issue The respondent informed the Tribunal and the applicant that it proposed to adduce evidence of 2 more reports from its medico legal consultants. They were received on 23/9 amd 27/9/ respectively- the hearing was held on 29/9/. |
The Court stated that a respondent must behave as a model litigant. By providing these reports in this manner, the respondent denied to the applicant an opportunity to present his case. This tactic could also have disrupted the management of the matter in the 3 days that had been set down for the hearing. The Court went on to say that these medico-legal consultants had never examined the applicant, and in order both to examine and cross-examine them it may well have been necessary to put to them a great deal of material. Delays, and possible adjournments, would have put pressure on the applicant, whose pocket is not as deep as that of the respondent. In some cases, such pressure could force an applicant to accept terms of settlement offered by a respondent. |
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Steven John Chaplin v Repatriation Commission |
AAT (Veterans Appeals Division) SM MD Allen |
Appeal from Respondent's decision that the applicant is not entitled to pension for the dfence caused disease of post traumatic stress disorder. Issue On the basis of a doctor's reports the respondent accepted the applicant's post traumatic stress disorder for treatment under provisions of the Veterans Entitlements Act. The Tribunal stated it was incongruous that the Department of Veteran Affairs should accept an illness as present for the purposes of treatment but argue in the AAT proceedings that it does not exist. |
The Tribunal stated that because of the Respondent's conduct in this manner, the Tribunal regarded this approach as contrary to the obligation upon the Respondent as a Commonwealth instrumentality to be a model litigant. Part of the obligations undertaken by the Commonwealth as so called model litigant is said to be to act consistently in the handling of claims and not to require the other party to prove a matter which the Commonwealth knows to be true. It is legitimate to accept an injury or disease as present but to deny it was was caused or related to defence service. |
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Francis Broadbent v Minister for Immigration & Multicultural Affairs |
AAT Dr D Chappell Deputy President |
Application for review of decision by the Minister to cancel the applicant's permanent transitional visa as a result of a finding that the applicant was not of good character |
During directions hearings the applicant was unrepresented and held in immigration detention. Respondent representative stated would be inappropriate for Minister to become involved in obtaining & presenting evidence about a primary consideration of what was in the best interests of the applicant's child. The Tribunal indicated this was not an appropriate response - as a model litigant the respondent should seek to provide the information to the Tribunal since Tribunal was precluded from exercising its own inquisitorial functions by timeframe set in the legislation. Respondent then agreed to obtain relevant evidence. |
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Howard A Jackson v Comcare |
AAT Mrs Dwyer SM Mr ILG Campbell, Assoc Prof Maynard Members |
Whether injuries sustained in an accident in 1969 caused, or contributed to in a material degree, degenerative disc disease from which the applicant suffered since 1983. A determination for certain injuries had been ceased. Issue arose during hearing as to action Comcare should take upon reviewing earlier determinations |
The AAT said: 'In our view the approach of making a further determination during the review process in order to shift an inconvenient burden of proof is not consistent with what is required of a model litigant. It does not recognise that the principles discussed in Commonwealth of Australia v Borg, Commonwealth v Muratore, Telstra Corporation Ltd v Arden express the standard which the Courts have decided is required by law and as a matter of justice, where a decision maker decides to cease liability in respect of a compensation entitlement which had previously been determined to be ongoing. To try to avoid the application of those principles does not seem to us to 'act with complete propriety, fairly and in accordance with the highest professional standards'. ...As it turned out the scheme foreshadowed by [Comcare's counsel] of making new determinations in an attempt to shift the burden of proof was not implemented ... We have felt it appropriate to set out our thinking as to the application of the Commonwealth as a Model Litigant policy so that it is available to those representing the Commonwealth if similar issues should arise in other matters in the future.' |
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Ray Edebone v Comcare |
AAT Mr J Handley Snr Member |
Whether impairment of right leg was related to compensable left leg injury, whether Tribunal had jurisdiction to review in absence of specific determination |
AAT said: 'The tragedy of these applications is that the[model litigant] Policy was not observed by the respondent or its representatives.' AAT critical that: · Jurisdictional argument raised on morning of hearing · Parties had at all time proceeded on basis that claimed injury was for right leg and Comcare reps had indicated to applicant that he did not need to submit a new claim for right leg as accepted left leg injury could be extended · A medical report obtained by Comcare indicated applicant could establish injury to permanent impairment to right leg · Comcare must have known applicant sought permanent impairment comp and should have dealt with request by determining liability |
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Denise Leha v MIMA [2000] AATA 105 |
AAT Mr BJ McMahon Deputy President |
Review of a decision by the Minister to refuse a spouse visa application on the basis of failure to pass character test. False information provided by migration agent not corrected. Applicant initially unaware of information supplied and refugee status not pursued. |
Migration agent unable to be located by applicant to give evidence. Alleged she had worked for DIMA. Dept requested to assist but did not respond. The tribunal stated - As the A-G has pointed out in recent speeches, the Cth should aspire to be a model litigant. In administrative enquiries, it should, at the very least, attempt to seek out all relevant information, whether favourable to the dept or not, and put it before the Tribunal. |
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GB Radio(Aust) P/L v Aust Communications Authority & P Marchant |
AAT 25 Jan 01 Mr J Handley Snr Member |
Issue: transfer and registration of radio licences - whether the respondent made any decisions and whether the tribunal has jurisdiction to review any such decisions. |
Ten minutes into submissions on behalf of applicant, counsel for respondent advised that respondent proposed to abandon all previous written submissions and make new oral submissions. No previous notice had been given to applicant or tribunal. Tribunal stated - I am not aware whether respondent is aware of the Model Litigant policy issued by the A-G. If it is, it has chosen to take no heed of it. If it is not aware, it would be in its interests to become acquainted with it. |
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Sydney Harbour Sea Planes P/L v CASA |
AAT N 2000/1697 8 Feb 01 Dr Chappell Dep Pres |
Review of decision refusing to renew air operator certificate because of breaches of Act, Regs and Orders. Parties argued their cases on the basis of the decision of the respondent's delegate on However, amended provisions had come into effect on Applicant's legal representative advised the Tribunal of amendments on final day of hearing and conceded that the applicant was unable to comply with certain of the new requirements. |
Comments by the Tribunal - The Tribunal was not assisted by the frequently highly adversarial approach taken by the parties which led to a failure even to agree on an accepted chronology. In reaching these conclusions about the scope of its review the Tribunal also wishes to express its sense of disquiet and frustration about the way in which it has been asked to determine this matter. It is quite remarkable that the respondent's own legal advisers seem to have been so ill-informed about the status of the regulatory framework applying to the issue of the AOC for the applicant that as late as 15 January 2001, when the respondent filed its detailed written submissions, no mention was made of Civil Aviation Amendment Order (No.20) 2000. It would seem that this particular CAO was only discovered through the diligence of the applicant's legal advisers - a discovery which as has been noted was only drawn to the attention of the Tribunal on 18 January 2000 after all of the evidence had been heard and in the course of closing oral submissions. The Tribunal has no doubt that the applicant must have been prejudiced in the way in which it presented its case by these actions of the respondent. They are not the actions of a model litigant, nor those of a regulatory body which appears well-informed concerning the way in which its own senior officials exercise their very extensive delegated powers. |
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Aust Postal Corp ats Phillip Savill |
AAT V99/1161 Snr Mem Dwyer |
Review of decision not to grant compensation for back injury. Respondent failed to serve medical reports supportive of applicant (obtained 12 months earlier) until week prior to hearing |
Voluntary report by AGS Snr Member Dwyer wrote to APC and AGS detailing breaches of model litigant policy including: lack of honesty & fairness, delay, no attempt to avoid litigation, contest on liability when only quantum was really disputed. AGS response - APC not bound by LSDs but accept need to act fairly. Reports served as soon as counsel's advice on evidence was received. Other evidence relevant to APC decision to contest. |
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Rodriguez and Telstra Corporation Limited [2001] AATA 1053 |
AAT Brisbane Ms S A Forgie, Deputy President Dr K P Kennedy OBE, Member |
Facts: The issue in this case was as to whether an order should have been made requiring Telstra to pay the applicant's costs. The Tribunal stated that Commonwealth adherence to Model Litigant policy should be taken into account when taxation of costs is considered. Breaches do not require the Commonwealth to pay a premium on what it would otherwise be required to pay. NOTE THAT TELSTRA IS NOT LEGALLY BOUND BY THE MODEL LITIGANT OBLIGATION |
Tribunal held that ""the express limitations and the framework of the [SRC] Act point to the reasonableness of the applicant's conduct being relevant to the exercise of the Tribunal's discretion with respect to an order for costs. The applicant's rejections of the respondent's offers were not unreasonable. If the respondent was in breach of the model litigant policy, that matter should be considered during the taxation of the costs. The complexity of the proceeding was no justification for an award of costs on a different basis from that normally ordered." At 36: "Although ultimately not accepted, it was reasonable in the circumstances of the case for Telstra to proceed on the basis that Mr Rodriguez was not entitled to compensation either because he was not telling the truth or, if he was suffering from major depressive disorder, it did not arise from or as a result of his employment as required by the SRC Act. It has been asserted on behalf of Mr Rodriguez that it has acted unreasonably and in breach of standards such as those set out in the Model Litigant Policy. If it has, those breaches do not justify its being required to pay a premium, as it were, on the costs it would otherwise be required to pay. The taxation of those costs will be the appropriate time to consider those assertions when both the relevance of any costs to the proceedings, their reasonableness and their being necessitated by any unreasonable behaviour on behalf of Telstra will be relevant to the Registrar, District Registrar or Deputy Registrar. " |
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Posetti and Comcare [2002] AATA 773 |
AAT Canberra Mr M J Sassella, Senior Member 4 Sep 02 |
Facts: The Commonwealth sought to prevent the Applicant from viewing certain purportedly privileged information that was relevant to her case. The Respondent was ordered to provide this material. The Tribunal said that this order was not inconsistent with the Commonwealth's model litigant obligation. |
At 25: "The tribunal has inspected the Sparke Helmore advice and has decided that, although it attracts client legal privilege, s 39 of the AAT Act is better served by applying the approach in the McMaugh decision (above) and requiring the formal provision of that material in accordance with s 37(2) of the AAT Act to the tribunal and to the applicant in accordance with s 37(1AE) of the Act. This is on the basis that the material is relevant to the issues in contention in the instant case and there is no particular reason not to provide a copy to the applicant in this case. The tribunal can see no way in which the applicant having access to this material would hamper the presentation of the respondent's case consistent with the respondent's obligation as a Commonwealth agency to be a model litigant. There are not the credibility interests at play here that existed in such cases as Hayes (above) and Bessey (above). " |
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Blade and Comcare [2003] AATA 272 |
AAT Sydney 3 March 03 MS S.M. Bullock, Senior Member |
Facts: The Applicant applied for review to the AAT in relation to a review of a Comcare decision on non-economic loss. Held: The Tribunal did not consider that the Applicant's 1992 claim for permanent impairment could be construed as a claim for non-economic loss. Hence there had been no decision on the matter of non-economic loss, and it was not reviewable. |
"In relation to the Applicant's submissions concerning the Commonwealth's model litigant policy, the Respondent submitted that at the heart of that policy is the view that Comcare has the responsibility to pay benefits even though the Applicant did not properly seek them. It was submitted that the legislation does not require Comcare to pay particular benefits when a claim for them has not been lodged and the Applicant has not provided sufficient information to allow the benefit to be properly assessed. The fact remains, the Respondent submitted, that the Applicant did not lodge an application for non-economic loss before The provisions of section 72 of the Act appear in other legislation and in this regard Mr Elliott referred the Tribunal to Qantas Airways Ltd v Gubbins and Others (1992) 28 ALD 538 a decision which was a decision in relation to the Anti-Discrimination Act 1977. There is a quote Mr Elliott pressed upon the Tribunal from that decision: ""In our view the duty to act according to equity and good conscience, in the context of this Act, did not free the tribunal from its duty to apply the general law in deciding the issues raised by the defences of release by deed."" Mr Elliott noted that this case was referred to by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611." |
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Pistone; Secretary, Department of Family and Community Services and [2003] AATA 375 |
AAT Melbourne 14 Apr 03 Mr J Handley, Senior Member |
Facts: The unrepresented Applicant sought a review of a decision of the Social Security Appeals Tribunal. The Tribunal stated that the Commonwealth should act consistently, give due notice to litigants and not treat administrative reviews as a contest. |
At 31: "Despite the Practice Direction of this Tribunal, the applicant lodged its Facts & Contentions on the afternoon prior to the day of hearing but resiled from some concessions that it made in that document at the commencement of the hearing. The advocate also argued there was no entitlement at the date of claim, yet he failed to record this in his Statement of Facts and Contentions, thereby denying Ms Pistone the prior opportunity to meet this argument. The applicant also lodged - at the commencement of the hearing - a proof of evidence of a disability officer in the employ of Centrelink which had not previously been exchanged." At 32: "I consider that departmental advocates and representatives should be mindful of their duty to citizens who challenge adverse decisions or who respond to appeals initiated against them as per the Attorney General's model litigant policy. It is their duty to ensure that benefits are paid if that material supports entitlement or to act in a manner which informs of entitlement. It does not extend, particularly in this Tribunal, to taking a position of adversary or treating Administrative Review as a contest. The submissions raised by the applicant's advocate on the day of hearing, absent from the Statement of Facts and Contentions, clearly put Ms Pistone at a disadvantage, because she had no opportunity to prepare to meet them. She was adamant that the proceedings should be concluded and rejected an offer of adjournment. There was much discussion concerning these issues (refer earlier) because extensive discussions were initiated and comment and responses were invited. The Tribunal, adopting an inquisitorial approach, does offer some protection to parties such as Ms Pistone yet without the assistance from departmental advocates the disparity remains largely unredressed." |
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Moline and Comcare [2003] AATA 827 |
AAT Canberra Mr M J Sassella, Senior Member Dr M D Miller AO, Member |
Issue: Submission of evidence late. Facts: Comcare had withheld documentary evidence until the hearing had commenced. Held: The original Comcare review officer's decision was affirmed. |
The Tribunal noted (at 5) that under s 66 of the Safety, Rehabilitation And Compensation Act 1988 an applicant may not submit late evidence. However the Commonwealth was not prevented from submitting late evidence: "[...] it was considered that respondents as model litigants, and because of provisions such as s 37 of the Administrative Appeals Tribunal Act 1975[2], would do the right thing without the threat of sanctions. That confidence is clearly misplaced when events such as happened here take place. This lack of symmetry between the obligations of each party before the tribunal is regrettable." The Tribunal at 6 "The Commonwealth in its dealings with its citizens occupies a powerful and privileged position. The judiciary has long recognised that this power imbalance imposes special obligations on the Commonwealth not to abuse its power. Indeed, in its dealings with its citizens the Commonwealth is held to standards higher than those of private individuals or corporations. Where the Commonwealth is a party engaged in a tender process intended to lead to the negotiation of a commercial agreement it is required, in effect, to be a model contractor." Referring to the Model Litigant Rules, the Tribunal stated at 11, "Notes 2 and 3 are especially instructive. These require a standard of ethical fairness such that an emanation of the Commonwealth who is a respondent in a tribunal proceeding has an obligation to assist the tribunal to make the correct or preferable decision. That party's role is not to win at all costs. There will be occasions where a respondent is aware of material favourable to the applicant's case, sometimes when the applicant's advisers are unaware of such material. There is an obligation on the Commonwealth in such cases to apprise the tribunal of this material." |
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The Tribunal at 12, "The tribunal considered whether to refuse to accept some of the late produced material as evidence in the case. However, the material was clearly relevant and the tribunal should take account of all relevant material in making a decision if it is to ensure that it is acting lawfully. The best the tribunal could offer the applicant in the circumstances was an adjournment so as to permit full consideration of the evidence. The applicant declined this offer for perhaps understandable reasons" | |||
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Mulder and Secretary, Department of Family and Community Services [2003] AATA 874 |
AAT Canberra 5 Sep 03 Mr S Webb, Member |
Facts: The applicant sought to review a Centrelink decision. The original decision was upheld. |
At 13, "The Respondent, for its part, failed to comply with Tribunal directions in a timely manner, thereby significantly delaying progress in this matter prior to the hearing. This behaviour is both obstructive and detrimental to the satisfactory resolution of the matters in issue in this case. It is contrary to the General Practice Direction and at odds with the Commonwealth's responsibility to behave as a model litigant." |
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Howard and Secretary, Department of Family and Community Services [2003] AATA 1187 |
AAT Melbourne 24 Nov 03 J Handley, Senior Member |
Facts: The applicants applied for a review of a decision of the Social Security Appeals Tribunal. Consideration was being given to the bringing of a criminal prosecution against the applicants. |
At 77, "The circumstances surrounding the first day of hearing of this application at Ballarat were very troubling. It appears that a Departmental officer in a regional office of Centrelink decided - without notifying the Advocacy Branch - that the potential for prosecution of Mr and Mrs Howard would be considered after the Administrative Appeals Tribunal had completed its review. This is hardly consistent with the model litigant policy pronounced by the Commonwealth Attorney-General but ran close to causing a contempt (refer Re Secretary, Department of Social Security and Pluta (1991) 23 ALD 317). |