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Model Litigant Principles: More shield than sword

There is a view held by some sections of the profession, to the effect that the operation of the Model Litigant Principles generally means that government lawyers should simply run up the white flag at the first hint of a contest.

This is of course incorrect, but the myth persists.

At the outset it is worth noting that the Model Litigant Principles (MLPs), which can be found on the Queensland Department of Justice and Attorney- General website, are generally reflected in the Australian Solicitors Conduct Rules, and similar expectations of sensible concessions and efficient litigation are made of private solicitors.

More specifically, however, a recent Federal Court case, Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188, has confirmed that the MLPs exist to provide guidance to lawyers acting on behalf of the State. They set out the expectations that government holds of its legal representatives, but do not create rights on behalf of other parties.

Briefly, the case is one regarding the question of native title, with orders having been made for a hearing on several issues, including the question of connection. Expert conclaves were held between the anthropologists for both parties, resulting in two joint reports. The court found that the effect of those reports was that the experts agreed that the applicant held native title in the relevant area.

Notwithstanding that, the respondent took the position that it disagreed with the experts, and that it was not satisfied that there existed a credible basis for the claim. A consequence of that stance was that the respondent was unwilling to negotiate a consent determination under s87 of the Native Title Act 1993 (Cth).

The applicant took the view that this was an improper position on the part of the respondent, and sought to strike the matter out, on the basis that the respondents’ stance was:

  • inconsistent with the overarching purpose of civil litigation stated in Part VB of the Federal Court of Australia Act 1996 (Cth)
  • an abuse of process
  • a failure to act in good faith and contrary to the legislative intention of the Native Title Act 1993
  • a breach of the model litigant principles which require the State to deal with claims promptly, not to cause unnecessary delay, to endeavour to avoid and limit the scope of litigation wherever possible, keep the costs of litigation to a minimum where litigation is unavoidable and participate in alternative dispute resolution processes where appropriate.1

In relation to the first three points, the court effectively found that, while there were unusual – and indeed, regrettable – elements to the stance taken by the respondent, none of these points were established. The applicant mostly complained that the respondent was rejecting the advice of its own expert, but the court found that this was open to the respondent, and that the opinions of the expert were neither binding on the respondent nor determinative of the issues.

Regarding the fourth point, the State submitted that the MLPs provide guidance by the executive government to officers instructing in litigation on behalf of the State, but they are not matters that other litigants can rely upon.2 The MLPs require the State to litigate according to stated principles of firmness and fairness. The court importantly determined that the MLPs were a guide for the respondent, not something on which a strike out application could be founded, noting (at 74):

“Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory application brought by the applicant cannot be resolved on the basis of those Principles.”

In short, the MLPs are a shield, ensuring that the public are protected from overzealous hard-nosed litigation by the state. Practitioners undertaking litigation involving governments should bear in mind the purpose and limitations of the Modern Litigant Principles, and should not seek to utilise them as a sword to actively prevent the proper testing of an argument.

Shane Budden is a Queensland Law Society ethics solicitor. He would like to thank Paula Freeleagus of the QLS Government Lawyers Committee for bringing this case to his attention.

Footnotes
1 Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188, [54].
2 Ibid, [64].

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