‘Let’s name, shame agencies behaving badly’
This recent article published in ‘The Australian’ suggests an alarming trend in the increase in incidents of Commonwealth Agencies failing to comply with their obligations to act as a model litigant under the Legal Services Directions (2005). Those currently undertaking litigation or administrative review processes in relation to Commonwealth Agencies should ensure that they are familiar with the Legal Services Directions (2005). This is particularly important for anyone self-representing in such matters. The most common potential breaches anecdotally reported to Victims of CSIRO include:
* undue delays in resolving matters before a court of tribunal (constant unreasonable requests for an extension of time in which to comply with directions of a Court or Tribunal in filing documents, particularly when those requests are filed just before the deadline for such directions)
* Threatening or coercive behaviour with the intention of inducing a party into acting in a certain manner, particularly one which is not in the best interests of that party.
* Failure to settle matters of compensation in which the agency has a reasonable expectation of liability. (refusing to pay compensation for matters not in contention before a court or tribunal under the justification that it is inappropriate because of the proceedings. This may also meet the definition of coercion if it can be demonstrated that such a refusal intended to persuade a party into dropping a matter because it would otherwise disadvantage them financially. This may also form a breach in exploiting a parties financial circumstances)
* Providing misleading directions in relation to matters currently before a Court or Tribunal (i.e. telling a party in such proceedings that they cannot do something which the are legally entitled to do)
* Failure to provide evidence which would prejudice the proper decision of a court or tribunal. (i.e. withholding documents that would prove the applicant’s case)
* Reliance upon legal technicalities (i.e. you haven’t filed a document in a certain manner)
* Taking advantage of an applicant’s financial status to disadvantage them. (unduly increasing the cost of litigation by delaying proceedings or introducing evidence coincidental or irrelevant to the proceedings)
If you believe you have been unfairly treated in matters of litigation by the Commonwealth or its representatives we would urge you to seek legal advice, and/or raise a complaint with the Commonwealth Attorney-General or the Office of the Legal Services Coordinator (OLSC)
The article is as follows:
- Chris Merritt
- The Australian
- September 20, 2013 12:00AM
Source: The Australian
THE Abbott government has been urged to overhaul the rules governing the conduct of federal agencies in court so the organisations with the worst behaviour can be identified.
Research by the Rule of Law Institute has revealed a surge in breaches of the government’s legal services directions – which cover the conduct of federal agencies in court as well as the way in which they buy legal services.
But the Attorney-General’s Department, which assembles details on these breaches, does not disclose which agencies have been found to have breached their duty to act fairly and efficiently when they take legal action against companies and individuals.
It also does not disclose which agencies have been buying legal services from law firms and barristers in ways that do not comply with the government’s rules.
Rule of Law Institute chief executive Kate Burns said the limited information made available by the department shows that the number of breaches rose from 17 to 42 last financial year. A further 50 matters were still under investigation.
“The difficulty we have is the lack of transparency surrounding this process, so we don’t know who they are,” Ms Burns said.
The department’s website says the breaches of the legal services directions “generally related to failures to act as a model litigant”.
It says 24 of the breaches concerned the failure to provide certificates of compliance or report expenditure on legal services within 60 days of the end of the financial year.
Ms Burns said the Attorney-General’s Department should be required to disclose the exact nature of each breach of the legal services directions as well as identifying the agency involved, what they had done wrong and what action had been taken.
The agencies at fault should be required to provide a statement outlining what redress had been provided to the parties adversely affected by their conduct.
She also urged the new government to introduce a formal system of dealing with complaints about the courtroom conduct of government agencies instead of relying on the agencies to report their own shortcomings.
She was concerned that the large number of alleged breaches still under investigation suggested that many matters had been carried over from the previous year.
Ms Burns said the institute would like to see the commonwealth’s obligations under the model litigant rules enacted as legislation.
“At the moment it seems to be a rather discretionary process and all that is required is that agencies report to the Office of Legal Services Co-ordination, which apparently limits itself to educating agencies,” she said. “We would like to see a transparent process so we know what is going on with breaches and they are properly reported.”
She said Attorney-General George Brandis already had the power to impose sanctions on federal agencies that breached the model litigant rules. She believed parties to cases that had been affected by breaches of the rules should be involved in the process of imposing sanctions on the agency at fault.
“At the moment there seems to be a history of courts making adverse costs orders against the commonwealth where there have been breaches of the model litigant obligations, but those costs orders are in effect paid by the taxpayer,” Ms Burns said.
“We would want to see some kind of assurance that the agency conforms to its obligations and is monitored to ensure that it does.
“If the model is based on education to stop agencies from breaching their obligations, then it does not seem to be working.”
She said there was also a need to properly disclose the use of coercive powers by federal agencies.