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Donnelley, Jason --- "Abuse of Power and the Issue of Prerogative Writs - Implications for Breach of the Commonwealth Model Litigant Policy" [2021] CanLawRw 14; (2021) 18(2) Canberra Law Review 82


Abuse of Power and the Issue of Prerogative Writs – Implications for Breach of the Commonwealth Model Litigant Policy

Jason Donnelly[*]

The grant of the prerogative writs and relief under s 39B of the Judiciary Act 1903 (Cth) in Australia is a matter of discretion. The discretion to refuse relief is not to be exercised lightly. One of the established grounds for refusing the grant of the prerogative writs is “bad faith” on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. In a little-discussed topic, this article considers the question of whether it is appropriate to withhold the grant of prerogative relief in circumstances where the Commonwealth, as a party to judicial review proceedings, has engaged in conduct considered an infringement of the Model Litigant Policy (MLP) made under the Legal Services Directions 2017 (Cth). The article argues that contravention of the MLP by a Commonwealth party in judicial review proceedings should be considered a ground for a court, exercising judicial power, to refuse the grant of prerogative relief as an extension of the common law model litigant obligations imposed on Commonwealth entities.

Introduction

The grant of the prerogative writs and relief under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) is a matter of discretion.[1] The discretion to refuse relief is not to be exercised lightly.[2] Certiorari[3] vindicates the public interest in executive power being exercised according to law.[4] Mandamus, being a demand by a particular applicant for the power to be exercised, may have a private aspect to it.[5]

One of the established grounds for refusing the grant of judicial review remedies is “bad faith” on the part of the applicant, “either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made”.[6] In a little-discussed topic, this article considers the question of whether it is appropriate to withhold the grant of prerogative relief in circumstances where the Commonwealth, as a party to judicial review proceedings, has engaged in conduct considered an infringement of the Model Litigant Policy (the MLP).

The article argues that contravention of the MLP by a Commonwealth party in judicial review proceedings should be considered a ground for a court, exercising judicial power, to refuse the grant of relevant judicial review remedies sought. Presently, a contravention of the MLP is not an established ground for refusing the grant of the relevant prerogative writs in Australia.

Model Litigant Policy

The MLP, as it is commonly described, is a Legal Service Direction (the LSD) issued by the Attorney-General under s 55ZF of the Judiciary Act.[7] The LSD was first issued in 1999. The current version is Appendix B of the Legal Services Directions 2017.

Paragraph 1 of the MLP indicates that consistently with the Attorney‑General’s responsibility for maintaining proper standards in litigation, the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation.

Paragraph 2 outlines the nature of the obligation concerning the MLP. The paragraph indicates that the obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency by, inter alia:

• dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation, making an early assessment of the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth

• acting consistently in the handling of claims and litigation, endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate

• where it is not possible to avoid litigation, keeping the costs of litigation to a minimum[8]

• not taking advantage of a claimant who lacks the resources to litigate a legitimate claim

• not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest.[9]

Paragraph 5.1 outlines that the Commonwealth or a Commonwealth agency is only to start court proceedings if it has considered other methods of dispute resolution (eg alternative dispute resolution or settlement negotiations).

Some judges have equated the Crown’s model litigant obligation with the obligations of probity and fair dealing of judicial officers.[10] There is considerable overlap between the obligations reflected in the MLP and those under the Federal Court Act 1975 (Cth).[11]

In 2007, Johnson J said the following in the decision of Priest v State of New South Wales [2007] NSWSC 41: ‘In a sense, s.56 has the result that every litigant in civil proceedings in this Court is now a model litigant’. That statement may be true as far as the description “model litigant” goes.[12] However, it is clear that some of the duties imposed under the MLP go beyond those imposed on private litigants.[13]

The additional obligations imposed on the Commonwealth can be seen to be directed more to good governance and administration than mere conduct as a litigant in court – examples include: acting consistently across cases; avoiding technical arguments; not appealing unless there are reasonable prospects or it is in the public interest; etc.[14] Such restrictions do not apply to a private litigant – even if they are a large, well-resourced, and repeat litigant.[15] The principles and justifications underpinning the MLP are rooted in the relationship between the Crown and its subjects.[16]

In a modern-day context, it arises because of the obligation on the Attorney-General (as “First Law Officer”) for the preservation of proper standards in litigation.[17] As King CJ said in Kenny v South Australia,[18] the court and the Attorney-General have “joint responsibility for fostering the expeditious conduct of and disposal of litigation”.

In Hughes Aircraft Systems International v Airservices Australia,[19] Finn J held:

There is, I consider much to be said for the view that, having no legitimate private interest in the performance of its functions, a public body ... should be required as of course to act fairly towards those with whom it deals at least in so far as this is consistent with its obligation to serve the public interest (or interests) for which it has been created.

His Honour went on to observe that the obligation serves to (a) protect the reasonable expectations of those dealing with public bodies that they will act honestly and fairly; (b) ensure public bodies exercise their powers for the public good; and (c) require that public bodies act as “moral exemplars”.[20]

Lack of Enforcement?

An obvious question arises as to how the MLP is enforced. Section 55ZG of the Judiciary Act provides, in effect, that any person who may be a client of the AGS – for example, the Commonwealth, a Commonwealth Minster, a Commonwealth body, or an employee of the Commonwealth – must comply with the Legal Services Direction as well as any legal practitioner or firm of practitioners acting for such a person.[21]

Critical, s 55ZG(3) of the Judiciary Act provides compliance with a LSD (i.e. MLP) is not enforceable except by, or upon the application of, the Attorney-General.[22] Furthermore, subsection (3) mandates that the issue of non-compliance with a LSD may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.[23]

Given the preceding context, a question arises, therefore, what can a private litigant do if the Commonwealth or one of its lawyers breaches the MLP in a judicial review context. The first thing they can do is make a complaint through administrative channels.[24] However, in many instances, a litigant will want more immediate redress from the court.[25]

Here it becomes imperative to distinguish between a breach of the MLP itself, being the Direction issued by the Attorney-General (and which cannot be raised in court), and a breach of the model litigant obligation imposed on governments and their legal representatives under common law.[26]

Before exploring the model litigant obligation reflected in the common law, two observations need to be made. First, it is readily accepted that a breach of the LSD (such as the MLP) cannot, of itself, form a basis for the withholding of prerogative relief against a Commonwealth party in judicial review litigation. Secondly, however, it does not follow that the contravention of the MLP by a Commonwealth party is not relevant to the broader question as to whether the relevant prerogative writ(s) should issue in a case where the Commonwealth has otherwise demonstrated jurisdictional error.[27]

In ASIC v Rich,[28] and a matter of some importance, Austen J held that the LSD might be referred to as an aid to understanding the content of the common law duty:

Those restrictions prevent the defendants from raising the issue of non-compliance with the directions, as such, but it seems to me that the notion of Commonwealth agencies as “model litigants”, the subject of the [LSD], is a notion that also underlies the special duty of fairness of Commonwealth agencies in civil litigation, as articulated in Scott and other cases. In principle, therefore, the directions can be referred to as an aid to understanding the content of the litigation duty, notwithstanding s 55ZG(2) and (3).

Wheelahan has observed that there are a number of ways in which a court may exercise their powers to redress a perceived breach of the common law obligation:[29]

• it may be a factor that weighs into the exercise of a discretion to grant a stay or adjournment, order discovery, order the calling of a witness, or various other interlocutory or procedural matters

• there are also cases the court has made an adverse costs order against a government litigant at the conclusion of proceedings because of a perceived breach of the obligation.

Citing various cases, Wheelahan concluded that, generally, there is a growing tendency on the part of Federal and State courts and tribunals to enforce or exact the standard of fair dealing to be expected from government litigants in this way.[30] However, none of the cases cited by Wheelahan dealt with the question the subject of this article.[31]

The Argument

There are at least four reasons why a court should consider withholding prerogative relief where a Commonwealth party in judicial review proceedings has been successful in demonstrating jurisdictional error (but has otherwise engaged in conduct contrary to the MLP under the LSD).

Reason 1 (Public Interest)

As observed in the introduction to this article, certiorari vindicates the public interest in executive power being exercised according to law.[32] It is likely upon that foundation that the High Court of Australia in Ex parte Aala[33] determined that the discretion to refuse relief (concerning the issue of the prerogative writs) is not to be exercised lightly—even accepting that legal principle, that are good reasons for departing from the apparent presumption that the writ of certiorari should issue almost as of right.[34]

However, there is an equally strong public interest consideration that a Commonwealth party is behaving as a model litigant in the conduct of judicial review litigation. It could hardly be argued, for example, that the obligation to act as a model litigant requiring that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency is not a matter of public interest.

Commonwealth parties are funded from the public purse at the expense of Australian taxpayers.[35] In that context, members of the Australian community have a public right to know how Commonwealth entities conduct themselves in the context of judicial review proceedings in Australian courts.[36]

Implicitly, the public interest nature of the MLP also derives from the fact that it is an Appendix to the latest Commonwealth LSD. It is an instrument made under s 55ZF of the Judiciary Act. The fact that the MLP has legislative recognition inherently demonstrates the apparent importance of the obligations reflected in that document.

Given the preceding, at a broader level of generality, there appears to be competing public interest considerations: the public interest in executive decision-makers acting within the confines of statutory power on the one hand, and on the other, Commonwealth parties to litigation promoting the administration of justice by duly observing the fundamental objectives and obligations reflected in the MLP.[37]

If it is accepted that there are competing public interest considerations[38] as described above, as a matter of logic, it may be the case, given the particular circumstances, that the public interest concerning infringement of the MLP outweighs countervailing public interest considerations; such that a court (in the context of judicial review proceedings) would withhold the issue of prerogative relief to a Commonwealth party that has engaged in conduct contrary to the prescribed MLP. Such a conclusion would vindicate the public interest in executive power being exercised according to established policy principles given legal effect under the contemporary LSD.

In PDWL,[39] the Full Court of the Federal Court of Australia recently held that like prohibition, certiorari has a public content in the sense that it is “concerned with the exercise by ... an official of administrative powers in want of, or in excess of, jurisdiction”.[40] Citing Aala[41] in the High Court of Australia, the Full Court said certiorari would issue “almost as of right”.[42] The Full Court went further, so holding that certiorari should not ordinarily be withheld where the result would be to confer a benefit to a non-citizen in contravention of the Act.[43]

Although the reasoning of the Full Court in PDWL above is persuasive, there are at least three responses. First, contravention of the MLP (in the context of a LSD) also has public content because it is concerned with the Commonwealth acting in conformity with a statutory instrument made under the Judiciary Act.

Secondly, the writ of certiorari should not necessarily issue ‘almost as of right’; keeping in mind that one is dealing with the exercise of a broad discretionary power vested in a court exercising judicial power (and otherwise noting that there may be competing powerful public interest factors that require due consideration).

Thirdly, as to the perceived benefit issue outlined in PDWL, that is hardly to the point. If a Commonwealth entity contravenes the MLP, they should not otherwise benefit from such contravention by implication (by merely demonstrating jurisdictional error).[44] A contrary view would mean, in effect, an infringement of the MLP in a LSD would have no legal or practical effect.

As will be explored shortly, there is a close relationship between the statutory MLP and the common law model litigant obligations imposed upon the Commonwealth; the latter of which can have practical and legal consequences for a Commonwealth party in proceedings before a court exercising judicial power.

It should also be kept ready in mind that there is “no universal proposition that jurisdictional error” necessarily has the effect of bringing about legal consequences.[45]

Reason 2 (Implications of Section 55ZG of the Judiciary Act)

Compliance with a LSD is not enforceable[46] except by or upon the Attorney General's application.[47] The word ‘enforceable’ is not defined in the Judiciary Act; thus, there is no reason why the phrase should not be construed literally. Enforceable is taken to mean ‘possible to make people obey, or possible to make happen or be accepted’ (own emphasis).[48] Given that language, where a Commonwealth party has contravened the MLP, it is difficult to see how that impugned conduct could not be relevant to a Court potentially withholding prerogative relief against the Commonwealth in judicial review proceedings; this is because the aggrieved party would not necessarily be seeking the ‘enforcement’ of the contravened MLP, but rather to argue that there should be legal consequences by the Commonwealth failing to comply with relevant prescribed duties under the MLP.

Section 55ZG of the Judiciary Act should be read in light of s 55ZI. There, by subsection (1), a person (other than the Attorney-General) is not liable to an action or other proceeding, whether civil or criminal, for or in relation to an act done or omitted to be done by the person in compliance, or in good faith in purported compliance, with a Legal Services Direction.

The statutory effect of section 55ZI(2) would have no application in circumstances where a party contends that prerogative relief should be withheld for the Commonwealth on account of contravening the MLP (since the relevant aggrieved party would not be seeking the enforcement of an ‘action’ in the context of judicial review proceedings). At its highest, the aggrieved party would simply be contending that in circumstances where the court has identified a jurisdictional error, relief should not issue to the successful party (i.e. the Commonwealth) because of their impugned conduct relevantly associated with the proceedings.

Despite the potential avoidance of sections 55ZG(2) and 55ZI(2) of the Judiciary Act in the context of the prerogative relief argument, section 55ZG(3) is more problematic. Under that subsection, Parliament has made plain that the issue of non-compliance with a LSD may not be raised in any proceeding (including a court) except by, or on behalf of, the Commonwealth. The statutory effect of section 55ZG(3) would thus make, on its face, inadmissible any argument that prerogative relief should be withheld to the Commonwealth on account of non-compliance with the MLP.

Thankfully, it appears that Australian courts have been creative in getting around the statutory effect of section 55ZG of the Judiciary Act. By way of example, in the case of Scott v Handley,[49] the Full Federal Court overturned the trial judge’s decision to refuse an application for adjournment by the appellants (who were self-represented). The respondent, an officer of the Commonwealth, filed three lengthy affidavits six days before the trial – and three months after they were due under the trial directions. This fact was not relied upon by the self-represented appellants. The Full Court held that the respondent took advantage of the appellants’ inability to articulate the basis for the adjournment properly. Given his position of obvious advantage, this amounted to a miscarriage of justice.

In one of the Melbourne Voyager cases,[50] the NSW Supreme Court made adverse costs orders against the Commonwealth because of its delay in seeking to cross-examine the author of an expert report tendered by the plaintiff. It also criticised its approach to applications for extension of limitation periods in claims by former HMAS Melbourne personnel, noting that only three were successfully resisted after 30 applications to the court. It referred to the common law model litigant obligation and the case of Scott.

In Mahenthirarasa v State Rail Authority of New South Wales (No 2)[51] the NSW Court of appeal made an adverse costs order against the Authority for, among other things, filing submitting appearances in the Supreme Court and then the Court of Appeal despite an invitation from the court to participate in the hearings. It held that it was inappropriate for the court to be deprived of the assistance of the executive branch of government.[52]

A survey of the cases reveals that the courts have been willing to recognise common law obligations on government litigants that, in some instances, go beyond those set out in the LSD.[53] For example, courts have held that the obligation extends to, inter alia, informing the court of the full circumstances of the case, not adopting a strategy that aims to impair the other party’s capacity to defend itself, not claiming legal professional privilege to prevent documents falling into the hands of a potential claimant and making appropriate concessions and not taking every point.[54]

The preceding cases demonstrate that Australian courts have been willing to exercise a discretionary power unfavourably to a Commonwealth party acting contrary to the common law model litigant obligation. Given that the grant of prerogative relief is a matter of discretion, there appears to be no reason in principle why the common law model litigant obligation should not have implications in the context of the grant of prerogative relief in judicial review proceedings. And, as Austen J made plain in Rich, regard may be had to the LSD in understanding the scope and nature of the common law model litigant obligation.

Reason 3 (Promotion of Overarching Purpose of Litigation)

If it is accepted that non-compliance with the MLP can have adverse consequences for a Commonwealth party in the context of whether certain prerogative writs should issue, the implications of recognising such a ground are consistent with advancing the overarching purpose of Australian practice and procedure in civil practice.

For example, by s 37M(1) of the Federal Court of Australia Act 1976 (Cth), the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. By subsection (2), Parliament has made clear that the overarching purpose includes, inter alia, objectives related to the just determination of all proceedings before the court, the efficient use of the judicial and administrative resources available for the court, the disposal of proceedings promptly, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.[55]

The formulation of techniques and procedures that will enhance speed, efficiency, or fairness in the resolution of civil disputes is within the court's power.[56] Novelty is no bar to such power or duty; however, the trammelling of fundamental common law or statutory rights is such a bar.[57]

In truth, the model litigant obligations imposed upon the Commonwealth closely align with the overarching objectives of civil litigation in Australia. That observation is important because nothing in ss 55ZG and 55ZI of the Judiciary Act can be taken to prohibit courts from giving effect to the overarching purpose of civil practice and procedure provisions in the context of civil litigation in Australia.

Suppose there was an established ground that meant the issue of prerogative writs could be withheld on account of the Commonwealth entity acting inconsistently with the MLP; in that case, this principle could provide a good deterrent against the Commonwealth acting contrary to the overarching purpose of the civil practice and procedure provisions (keeping steadily in mind the close overlap between the MLP and the respective objectives concerned with civil practice and procedure provisions in Australia).[58]

Reason 4 (Necessity for Bad Faith?)

One of the established grounds for refusing the grant of judicial review remedies is “bad faith” on the part of the applicant, “either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made”.[59] It has been argued that “bad faith” in the relevant sense ordinarily requires significant dishonesty to subvert the proper processes of, secure an advantageous outcome in, the relevant transaction or court proceeding; moral obloquy; or fraud.[60]

The established ground of bad faith poses a high threshold for an aggrieved party to meet. Given that high threshold, it might be thought that the introduction of an established ground related to the infringement of the MLP undermines the necessity for the bad faith ground (since it might be easier to demonstrate an infringement of the MLP without showing bad faith on the part of the Commonwealth).

However, given the broad discretionary power vested in a court exercising judicial power, the established ground of bad faith should be no roadblock for introducing a new ground related to an infringement of the MLP and common law model litigant obligations.

In F Hoffmann-La Roche,[61] a case in the United Kingdom, Lord Denning held that one of the circumstances in which prerogative relief may be refused is if the applicant’s conduct “has been disgraceful and he has in fact suffered no injustice”. This ground may be demonstrated without the necessity to prove bad faith on the part of the Commonwealth. In other words, there is no necessity for bad faith to be demonstrated before a court might consider exercising its broad discretionary power to refuse prerogative relief to an otherwise successful Commonwealth party who has demonstrated jurisdictional error with an executive decision.

A Missed Opportunity?

In PDWL,[62] Flick J took the brave step of refusing prerogative relief in the form of a grant of certiorari to the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs on account of the Minister’s impugned conduct in the context of that case.[63] Justice Flick determined that given the Minister did not explain why the non-citizen was still in immigration detention contrary to an order of the Administrative Appeals Tribunal (Tribunal) and otherwise has failed to comply with an order of the court, warranted an exercise of discretion to refuse the applicant Minister an order quashing the Tribunal decision.[64]

Justice Flick reasoned as follows at [62] in PDWL:

At the heart of the decision-making tasks being undertaken by the delegate, the Minister and the Tribunal were questions going to the ability of PDWL to remain lawfully in this Country and to avoid persecution, and questions going to his very liberty. Such matters were peremptorily placed to one side by the Minister simply because of a personal dislike of the Tribunal decision and an unwillingness to explain his conduct, even when ordered to do so.[65]

At [68], Flick J concluded that in a proceeding in the Federal Court, be it a Minister of the Crown or otherwise, he cannot fail to comply with findings and orders made by the Tribunal or the Federal Court simply because he “does not like” them. Decisions and orders or directions of the Tribunal or a court, made under the law, are to be complied with.[66] The Minister cannot unilaterally place himself above the law.[67]

The Full Court of the Federal Court of Australia allowed the Minister’s appeal against the judgment of Flick J.[68] The Full Court reasoned that the primary judge had not put with sufficient clarity the unlawful findings directed at the Minister, such that he had been denied procedural fairness in not being permitted to respond to those adverse findings.[69]

Justices McKerracher, Burley, and O’Callaghan JJ in PDWL further reasoned that raising the exercise of the discretion to refuse relief issue based on “bad faith” (as the primary judge did) was not sufficient to draw all these matters (i.e. unlawful findings) to the attention of the Minister.[70] As such, the Full Court took it upon itself to determine the exercise of discretion issue.[71] In that regard, at [73], the Full Court held that: ‘[t]here is no good reason that this Court should not, acting on the principles just stated, resolve to exercise the discretion in place of the primary judge so as to grant the relief sought by the Minister which simply requires the Tribunal to exercise its jurisdiction according to law’.

Ultimately, the Full Court reasoned that ‘[w]hile the relevant conduct left much to be desired and gave rise to the purported unlawful detention of an individual, the evidence contained in the [Minister’s affidavit] ... reveals that such conduct did not amount to “bad faith” on the part of the Minister or the Department’.[72]

Accordingly, for the Full Court, as the Minister’s conduct was not co-extensive with bad faith, there was no basis for withholding prerogative relief in favour of the Minister (as jurisdictional error had otherwise been demonstrated for the Tribunal’s decision). With respect, the difficulty with the Full Court’s reasoning in PDWL is that it did not squarely consider whether prerogative relief should be withheld to the Minister on account of acting contrary to the MLP and otherwise engaging in conduct that would contravene model litigant obligations at common law.

Critically, at [35] of the Full Court’s judgment, the following was said:

... there is no doubt that the primary judge and others were correct in strongly criticising the non-release of the respondent and, in effect, the concealment of the true reasons for the failure to release him. The affidavit did not even explain that the Minister considered the respondent did not hold a visa, or state why. Although this course was adopted on advice of counsel, such conduct fell well short of the standard that is to be expected of a model litigant such as a Minister of the Commonwealth acting through his or her Department, or indeed any litigant, and particularly so where the court was seeking information on the purported unlawful detention of a subject (own emphasis).

A fair reading of paragraph [35] of the Full Court’s judgment in PDWL appears to accept that the Minister had engaged in conduct that was contrary to the MLP (since the Full Court found that the Minister, acting through his Department, had engaged in conduct that fell well short of the standard expected of a model litigant). Having made that finding, it would not be a significant leap to consider whether the Minister’s impugned conduct, which contravened model litigant obligations, provided a foundation upon which to withhold prerogative relief in favour of the Minister.

Conclusion

Abuse of power by a Commonwealth party to the litigation, not amounting to bad faith, should be no bar to withholding prerogative relief (if it can otherwise be accepted that the relevant party has engaged in an infringement of the model litigant obligations at common law, readily informed by the MLP under the LSD).

In fairness to the Full Court in PDWL, the reasons for judgment do not precisely make clear whether the non-citizen, in that case, had expressly advanced the contention that prerogative relief should be withheld on account of the Minister acting in contravention of the model litigant obligations at common law (to be understood, in context, having regard to the MLP). At its highest, the non-citizen appears to have contended that one of the circumstances in which relief may be refused is if the applicant’s conduct “has been disgraceful and he has in fact suffered no injustice”.[73]

Being a discretionary remedy, there are powerful reasons why an infringement of the MLP may have relevance as to whether the grant of prerogative relief should issue in a particular case where a Commonwealth party has otherwise demonstrated jurisdictional error. Although there is undoubtedly a public interest in purported executive decisions being corrected, there is also a public interest consideration that a Commonwealth entity does not engage in conduct that has the effect of undermining the administration of justice. Nothing within the meaning of s 55ZG of the Judiciary Act should be taken to act as a prohibition on the argument advanced in this article.

What is being contended for is an extension of the common law model litigant obligation (readily informed by the current MLP).[74] That common law obligation may be enlivened without the necessity of an aggrieved party having to demonstrate bad faith on the part of a Commonwealth party. Depending on the circumstances of the case, there well may be consequences in a public law context for a Commonwealth party engaging in less than desirable conduct that does not necessarily meet the threshold of bad faith, to be refused prerogative relief. We expect the government as a litigant to play fair.[75]

***

REVIEWS


[*] Dr Jason Donnelly, Barrister-at-Law (Sydney Bar) and Senior Lecturer (WSU), BA (MACQ), LLB (Hons 1 & University Medal) (UWS), GDLP (COL) and PhD (UNSW).

[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2021] FCAFC 48 [62] (PDWL).

[2] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [54]- [56].

[3] The function of an order in the nature of certiorari, it has been said, “is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights”: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, (2018) 264 CLR 1 at [28], (2018) 264 CLR at 13 per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. See also: DMI16 v Federal Circuit Court of Australia [2018] FCAFC 95 at [38], [2018] FCAFC 95; (2018) 264 FCR 454 at 464 per Collier, Logan and Perry JJ.

[4] PDWL [63].

[5] SZQBN v Minister for Immigration and Citizenship [2013] FCAFC 94; (2013) 213 FCR 297 at [43]- [49].

[6] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400.

[7] Eugene Wheelahan, ‘Model Litigant Obligations: What Are They and How Are They Enforced?’ (Speech, Federal Court of Australia Ethics Series, 15 March 2016), 1.

[8] See further John Basten, ‘Disputes Involving the Commonwealth: Observations from the Outside’ (1999) 92 Canberra Bulletin of Judicial Administration 38.

[9] See further Zac Chami, ‘The Obligation to Act as a Model Litigant’ [2010] AIAdminLawF 28; (2010) 64 AIAL Forum 47.

[10] See discussion of Sebel Products v Commissioner of Customs and Excise [1949] Ch 409, 413 (Vaisey J) and R v Tower Hamlets LBC [1988] AC 858 in Camille Cameron and Michelle Taylor-Sands, “Playing Fair”: Governments as Litigants’ (2007) 26 Civil Justice Quarterly 497, 499

[11] Wheelahan, n 7 above, 2.

[12] Ibid.

[13] ibid.

[14] ibid.

[15] ibid.

[16] ibid. In the 1912 case of Melbourne Steamship Co Ltd v Morehead [1912] HCA 69; (1912) 15 CLR 333, 342, Griffith CJ described the obligation of the Crown in litigation as: “[T]he 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.” This standard is said to apply because of the Crown’s position as “the source and fountain of justice”: Sebel Products v Commissioner of Customs and Excise [1949] Ch 409, 413.

[17] Wheelahan, n 7 above, 3.

[18] (1987) 46 SASR 268, 273. See also: Gabrielle Appleby, “The Government as Litigant” [2014] UNSWLawJl 4; (2014) 37(1) UNSW Law Journal 94, 96.

[19] [1997] FCA 558; (1997) 76 FCR 151, 196.

[20] Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151, 197.

[21] For further analysis of the operation and effectiveness, see Michelle Taylor-Sands and Camille Cameron, ‘Regulating Parties in Dispute: Analysing the Effectiveness of the Commonwealth Model Litigant Rules Monitoring and Enforcement Process’ (2010) 21 Public Law Review 188.

[22] Paul Finn, The Crown as a Model Litigant: The Crown as a Litigator (Law Society of South Australia, 2005), 4.

[23] Charles Gardner Geyh found that the possibility of disciplinary sanctions can serve as the ‘shotgun behind the door’: Charles Gardner Geyh, ‘Informal Methods of Judicial Discipline’ (1993) 142 University of Pennsylvania Law Review 243, 283.

[24] Wheelahan, n 7 above, 4.

[25] Ibid.

[26] ibid.

[27] Jurisdictional error on the part of an administrative decision-maker, it may be accepted, may lead to a decision having no legal consequences: cf. Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2009) 209 CLR 597.

[28] [2009] NSWSC 1229; (2009) 236 FLR 1 [527].

[29] Wheelahan, n 7 above, 4-5.

[30] Ibid, 5.

[31] ibid, 5-7.

[32] PDWL [63].

[33] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [54]- [56].

[34] Some scholars have argued that enunciating core values or ethics of government is superior to relying on the concept of ‘public interest’ alone: See Bradley Selway, ‘The Duties of Lawyers Acting for Government’ (1999) 10 Public Law Review 114, 122; Paul Finn, ‘A Sovereign People, A Public Trust’ in P D Finn (ed), Essays on Law and Government: Volume 1 Principles and Values (The Law Book Company, 1995), 22-32; John C Tait, ‘The Public Service Lawyer, Service to the Client and the Rule of Law’ (1997) 23 Commonwealth Law Bulletin 542, 548.

[35] In a different context, the Joint Committee of Public Accounts has explained that government entities could be expected to meet more social responsibilities than their private entities counterparts because they were ‘charged with the expenditure of public money and public trust in the operation of government entities: Joint Committee of Public Accounts, Parliament of Australia, Social Responsibilities of Commonwealth Statutory Authorities and Government Business Enterprises (1992), 15.

[36] See further Camille Cameron and Michelle Taylor-Sands, ‘“Corporate Governments” as Model Litigants’ (2007) 20 Legal Ethics 154.

[37] Conrad Lohe, the former Queensland Crown Solicitor, has further explained that ‘[t]he power of the State is to be used for the public good and in the public interest, and not as a means of oppression, even in litigation: Conrad Lohe, ‘The Model Litigant Principles’ (Paper presented at the Legal Managers’, Breakfast Briefing, Queensland, 28 June 2007), 1.

[38] Cf, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354 [67] (PDWL first instance).

[39] PDWL [72].

[40] SZQBN v Minister for Immigration and Citizenship [2013] FCAFC 94; (2013) 213 FCR 297 at [48].

[41] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [51] and [149]. See also R v Ross-Jones; Ex Part Green [1984] HCA 82; (1984) 156 CLR 185 at 194.

[42] PDWL [72].

[43] PDWL [72].

[44] PDWL first instance [74].

[45] Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 at [42], (2003) 145 FCR 1 at 16.

[46] The word ‘enforceable’ is not defined in the Judiciary Act 1903 (Cth); thus, there is no reason in principle why the phrase should not be construed literally.

[47] Judiciary Act 1903 (Cth), s 55ZG(2).

[48] https://dictionary.cambridge.org/dictionary/english/enforceable

[49] [1999] FCA 404; (1999) 58 ALD 373.

[50] Galea v Commonwealth of Australia (No. 2) [2008] NSWSC 260 at [20]- [21].

[51] [2008] NSWCA 201; (2008) 72 NSWLR 273.

[52] Wheelahan, n 7 above, 5.

[53] Ibid, 6.

[54] Appleby, n above 18, 106-108. See further Comaz (Aust) Pty Ltd v Commissioner of State Revenue [2015] VSC 294 [78].

[55] In a New South Wales context, by way of example, see Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. In that case, at [29], Spigelman CJ said that in New South Wales, J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005 (NSW), which requires the Court in mandatory terms — “must seek” — to give effect to the overriding purpose — to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” — when exercising any power under the Act or Rules. See further Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 French CJ at [6]; Gummow, Hayne, Crennan, Kiefel and Bell JJ at [111]; Heydon J at [133].

[56] Civil Trials Bench Book, Case management, [2-0010] Overview, Judicial Commission of New South Wales 2021.

[57] State of NSW v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200; (2011) 81 NSWLR 394.

[58] Christine Parker found that to be effective, training and education must be backed up with incentives, rewards and sanctions: Christine Parker, The Open Corporation: Effective Self-Regulation and Democracy (Cambridge University Press, 2002), 121-124.

[59] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 400.

[60] PDWL [64].

[61] F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320.

[62] PDWL first instance.

[63] PDWL first instance [61]-[62], [69], [74].

[64] PDWL first instance [61]-[62], [69].

[65] Justice Flick further reasoned another matter that was also of relevance to the exercise of the discretion is the absence of any application made by the Minister to the Tribunal to defer the “coming into effect” of its decision: PDWL first instance [63].

[66] PDWL first instance [68].

[67] PDWL first instance [68].

[68] PDWL [88].

[69] PDWL [58], [60].

[70] PDWL [58].

[71] PDWL [62]-[73].

[72] PDWL [73].

[73] PDWL [70].

[74] It is not a matter of sanctioning or ‘punishing’ the government litigant for their behaviour: Christopher Peadon, ‘What Cost to the Crown a Failure to Act as a Model Litigant’ (2010) 33 Australian Bar Review 239, 255. Peadon argues that the cases are better understood as turning on the particular conduct of the government litigant rather than a failure to act as a model litigant. Once it is accepted that in some of those cases that the conduct of the government litigant would not have been dealt with in the same way had the litigant been a private body, Peadon’s position appears to be drawing a distinction without a difference.

[75] Appleby, n above 18, 94.


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