Are the Cth's model litigant obligations about to become enforceable?
Dr Ashley Tsacalos
Partner, Clayton Utz/ Honorary Professor, University of Wollongong
On 15 November 2017, Senator David Leyonhjelm introduced the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 into the Senate. Essentially, the objective of the Bill is to provide for the enforcement of the Commonwealth's model litigant obligations.
The Bill proposes that a process is established by which the Commonwealth Ombudsman can investigate complaints regarding a contravention of the Commonwealth's model litigant obligations and would require the Ombudsman to include details of these complaints in its annual report. Importantly, the Bill also proposes that courts would be empowered to order a stay of proceedings and, if it is satisfied of a contravention, to make any order it considers appropriate.
The proposed legislation is significant given that it would, through statutory intervention, alter the common law position in relation to the manner in which courts ought to apply, and take into account, the Commonwealth's contravention of its model litigant obligations.
In the event that this Bill is passed, it would become even more important for those conducting litigation on behalf of the Commonwealth to understand the ambit of the model litigant obligations and to ensure that litigation is conducted in accordance with these model litigant obligations. It would also be the most significant development in the context of ensuring the Commonwealth's compliance with its model litigant obligations.
See the following link for a copy of the Bill and the Explanatory Memorandum: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1101
King’s Counsel. Member at Hemmant's List, & Level 16 Inns of Court
7yThey are presently enforceable, at the instance of the A-G: section 55ZG(2) of the Judiciary Act 1903. This is because they are embodied in a legal services direction, issued under the preceding section.
Bolitho
7yWill Victoria follow?
Health & Safety Manager at Tūaropaki, Taupo New Zealand
7yOk, so what does that mean to the layman Michael Tooma
Insolvency, business law and criminal law specialist at University of Sydney Law School
7yModel litigant obligations are now not so different from all lawyers' obligations under provisions like s 37M of the Federal Court Act and the Civil Dispute Resolution Act, and under the Uniform Law. The better focus might be on their enforcement.