The SRC Report: Unveiling Model Litigant Obligations in the AAT

Welcome, everybody, to the SRC report. I'm Athena Cains, principal at McInnes Wilson Lawyers, and today, I'm joined by Yas Tiry, an associate in our team. Welcome, Yas.

Thanks, Athena. It's good to be here.

Today, Yas and I are going to talk about model litigant obligations of Commonwealth departments and agencies, specifically when an agency brings an agency appeal against Comcare in relation to one of Comcare's decisions. I think certainly, some really interesting model litigant obligation issues arise in relation to agency appeals. So we'll start with Yas just talking a bit about what the model litigant obligation is. Yas?

Thanks, Athena. So the model litigant obligation stems from the common law principles which has been enshrined in the Legal Services Directions 2017. But before I get onto the directions, what that common law principle looks to do or seeks to do is to try to balance out that David and Goliath situation between the Commonwealth having a large amount of resources, funding and arguably power, and balancing that out between your everyday person. So I'll touch on now the model litigant obligations. That'll be found in the Legal Services Directions 2017, but particularly under appendix B. I won't go through all of them in this form because we'll be here for quite some time, but I'll hash through them as quickly as I possibly can.

What I'd like to say before I get into that is they're non-exhaustive. I wouldn't read through these directions. The legal services directions and the model litigant obligations aren't a shopping list. The model litigant obligations are sometimes described, and I know I'm going to get picked on and criticized for saying this, but it's almost like the vibe. It's a feeling, it's a sense of-

Bravo.

That's right. It's a feeling of looking at all the facts and situation, looking at the person you've got on the other side. The Commonwealth shouldn't be exerting overall power and persuasiveness against that everyday person. So I'll just touch on the Legal Services Directions 2017 now, and particularly the main obligations which I'd point out are dealing with claims promptly and not causing unnecessary delay in handling claims and litigation, acting consistently in the handling of those claims and litigation, not taking advantage of a claimant or an applicant who lacks the resources, and not undertaking and pursuing appeals unless the Commonwealth has reasonable or believes that it has reasonable prospects of success. An extra obligation on the Commonwealth and agencies is that the Commonwealth and the agencies have to use their best endeavors to assist the tribunal in making its decision.

That's right, Yas, and I think that's a really important point, that the model litigant obligations don't just apply to the Commonwealth in relation to litigation in the courts. They do apply in relation to merit's review in the AAT, and I think when we talk about the model litigant obligation and the obligation to assist the tribunal, certainly in my experience, people tend to focus on that obligation to assist the tribunal to make the correct or preferable decision. But I think that's taking a really narrow view of the Commonwealth's model litigant obligation because I think that the obligation is actually using our best endeavors to assist the tribunal to make its decision.

And it refers to section 33 1 AA of the AAT Act, which says we must assist the tribunal to make its decision in relation to the proceeding. And to me, that is broader than just making the correct or preferable decision. It's also how the tribunal makes its decision and how the tribunal achieves its objectives into A, section 2A, which is a fundamental provision in the AAT. And I do think that the model litigant obligations extend to agencies, assisting the tribunal to meet that objective in the course of merit review proceedings, and that includes assisting the tribunal to be fair, to be accessible, and certainly accessible to self-represented applicants, which usually is quite a high risk of model litigant breaches when we are dealing with self-represented applicants, and we'll talk a bit about that later, promoting public trust and confidence and that the application itself is proportionate to the importance and complexity of the matter. So we take the view that agencies have quite a broad model litigant obligation in tribunal proceedings that is probably far more than what they would in court proceedings.

And of course, there's the other model litigant obligation that is probably the one that people talk about the most, and that is ensuring that we have the right people at ADR, which would be conciliation conferences in the tribunal, to make decisions at that ADR conference and have the delegation to make decisions that might resolve the application in that ADR conference.

So that's a bit of background about the model litigant obligation, and I think probably one of the overarching obligations is that the Commonwealth must be fair and honest. And parties are supposed to be honest and they're supposed to be fair of course, but I think that the Commonwealth, you're not going to come afoul of the model litigant obligation if when you're conducting your proceedings, you are the most honest, you are the most fair, you are the most transparent, because as Yas said, there is always a David and Goliath situation when the Commonwealth is appearing in litigation and that's almost irrespective of the status of the party or the funds of the party, because the Commonwealth has immense power and not just financial, I guess, deep pockets.

So if we take that as our obligation, I think that it's probably a good time now to talk about agency appeals, and potentially where Yas and I see some possible model litigant issues arising in agency appeals. And the first one is, is there a legal basis for the appeal? So often, we can get situations where we have employees with complex interacting issues who can from time to time be difficult for agencies to deal with, and that's not pejorative, that just is reality, and that can lead to possibly a bias against that employee when it comes to these situations, whether or not to launch an agency appeal. But the most important and fundamental point before an agency considers launching into an appeal is is there a legal or evidentiary basis upon which we can challenge Comcare's decision? Because of course, this isn't about the employee. This is about Comcare's decision. Is there a legal basis for a challenge? Is there an evidentiary basis for a challenge? And there can be both of those things at the same time. In fact usually, one would go hand in hand with the other, not always.

And I think that's really important. A failure to do that, a failure to address that before you file your application could lead to a breach of the model litigant obligation, and in particular, the prospects of success and whether or not the appeal believes you have reasonable prospects of success. Now, do you have anything to say about that, Yas, or any further potential?

Yeah, I do. Thanks, Athena. I think what would help agencies is to try and take that emotion out of the decision making process and take a step back and assess the facts, assess the evidence and assess the merits of each individual situation, and try and take out that emotion or other non-relevant issues that might convolute the matter and might persuade a decision maker to go down one specific path. I guess that's a practical suggestion I would do, and I know it's quite hard to do and quite difficult to try and separate that emotion from the legal and factual situations because we are all human. We can always try and do the best we can to try and make a proper decision a correct and preferable decision.

Yeah, because I think at the end of the day, when we look at a case and whether or not there's a legal basis, we're very focused on what evidence we have, and obviously, the legal tests. And evidence, and I think I've spoken about this in other podcasts, evidence is not rumor, evidence is not assumption. Evidence is actual evidence, and those things can get muddied sometimes in quite complex employee cases. So that's legal basis and I think there's a real obligation as well that can get lost sometimes in these appeals that the obligation is that we continually assess our prospects of success, that we are continually understanding whether or not the legal basis is there, whether or not the evidence is there. And I think obviously in AAT, there's a lot of powers that are unavailable to agencies, and specifically, I'm referring to summonses and obviously asking certain questions in IME, independent medical examinations as well, and there can be a desire to see what comes up in a summons to support potentially something you may not have evidence for but you strongly suspect.

And I'm not here to say that's inappropriate. As long as you have a legal basis or an evidentiary basis for an appeal, that is part of the process. However, it is incumbent upon agencies to ensure that they're reviewing that evidence to see, does it improve their prospects, does it improve their case, or does it in fact mean that their appeal is highly unlikely to succeed or there are in fact no meaningful prospects of the appeal succeeding? And if that is the case, if that's what the evidence is demonstrating, then the agency in continuing the appeal or the application could be straying into some model litigant territory. So I guess the point behind that is that it's an ongoing obligation. It's not enough to just have it at the start when you make your application. This is something we need to be looking at and considering constantly.

Yeah, and I think it's a broad obligation too. And I like what you mentioned there about asking IESs questions because I think as a practical sense, what I try and do is I will look at the questions that ask an IME and think about do I need to ask that or do we already know that? And I think that ties back into that model litigant obligation of are we going beyond what we need to do in this situation and trying to draw out something or are we actually going down and asking questions about the specific legal issue that we need to determine?

Because of course, IMEs are incredibly invasive of course, and this is something that we touched on before, is it's less likely an agency appeals, but often, an employee will be self-represented, and that does give rise to obligations, I think obligations above and beyond for the two agencies appearing in the AAT. And how that's managed will be different every time, because of course in an agency appeal, Comcare is the respondent so they're there too and Comcare will have their own obligations, but it's certainly something to be mindful of. And as I said, we go back to that section 2A of the AAT Act and the agency's obligation to assist the tribunal in making its decision, and which is obviously to assist the tribunal to meet its objectives. Yas, do you have any observations about model litigant areas with self reps?

Just assisting them on the day to day.

Helping them provide access to justice? That's almost how I see it.

Yeah.

It's an important fundamental role of the tribunal, is giving people access to the opportunity to have their case heard or their application heard. Of course, agency appeals are slightly different. We're taking the employee in a sense to the tribunal against their will and against com care's will in some ways, which-

That's right. I think it's also-

And that we need to be mindful of that.

Yeah. I think it's also helping, tying in with that model litigation obligation of assisting the tribunal. By assisting the self-represented applicant, you are assisting the tribunal.

Absolutely.

You're making the process more efficient, better access to justice for the applicant, and I guess it goes back to that common law principle and you are balancing out that David and Goliath situation. You are providing that assistance. You're giving that olive branch there where you are assisting the applicant, and ultimately, once you get on the phone and you reach out and you open up negotiations and you open up discussions with the applicant, usually, positive things happen from that situation.

And we should labor the point here that that obligation to assist a self rep does not extend to providing legal advice under any circumstance. So whilst providing help navigating through the process, understanding how the tribunal works, understanding how decision-making occurs, taking on board their feedback, ensuring you're not re-traumatizing any applicant or any employee in any situation, but being mindful of trauma and all of those kinds of things is what we're talking about, not obviously being a legal advisor to any self-represented applicant. But I completely agree, Yas.

And I think something also that Yas and I, it could sound like we're being very soft. In a sense, the model litigant makes you a soft litigator. Of course, that is not the case and it is absolutely incumbent upon the Commonwealth to firmly and properly protect their interests in litigation. And so an agency appeal, agencies have a legal right in the SRC Act to appeal Comcare's decisions.

And if there is a legal basis or an evidentiary basis for that appeal to be made, then an appeal can be entirely appropriate and proper and does not in itself give rise to model litigant issues. As we've said, there are some situations in agency appeals where you may be potentially at risk of a model litigant obligation breach, but it's certainly not the case that by simply putting in an agency appeal, you have breached a model litigant and it doesn't even come close, and I think that's something that employees need to understand as well, that the Commonwealth has every right to make an appeal and properly protect its interest because this does affect agencies, it does affect I guess the financial capacity of agencies as well.

And I think as a final point, every agency and every Commonwealth department I've ever worked with has taken its model litigant obligations incredibly seriously, and I have never worked with an agency who is anything other than ensuring at all times that it is meeting its model litigant obligation. Of course, issues occur and things fall through the cracks, and potentially, there are model litigant breaches from time to time in different agencies, but if an employee or some other person or if an applicant or a party, sorry, if a party makes a model litigant complaint, it doesn't actually affect the outcome of the litigation. Allegations of model litigant breaches can't be made in submission. They don't affect what you can obtain. They don't give rise to compensation. They don't give rise to any kind of legal outcome in the litigation. So in and of themselves, a breach of the model litigant obligation doesn't usually or won't affect how the Commonwealth conducts the litigation or what the potential decision might be, and I think that's something that should be understood by litigants in relation to the model litigant obligation. Yas?

That's right, Athena. Maybe we should just touch on what an agency should do if they get a model litigant complaint. Firstly, the agency should reach out to an internal legal area or coordinator and then they will discuss the steps that you should take in the matter in dealing or handling the application with the applicant. As you'll see, there's a lot of resources on the attorney general's department website, and that can direct you to how to handle a model litigant complaint and what you should do from there forward and reporting obligations and so forth. But I think what we've got to remember here is a lot of the times, when we do get a model litigant complaint, it's just as easy as picking up the phone or having a chat with the applicant and seeing what the real issue is and maybe you can work together to resolve that issue, but sometimes, it's as simple as that, as someone being heard.

Yeah, I completely agree, because the majority of model litigant complaints I have seen over the years and model litigant complaints that have been made against me and made against lawyers in my team from time to time because they do occur, come from frustration. Frustration about a process that the person is not in control of and can feel very daunting. And usually, I would say in 99% of cases, they don't give rise to an actual model litigant issue.

Excellent. Well, thank you everybody for joining us, and I'd like to remind you all, we do have our Law Fix Flicks subscription network available if you want to watch any of our CLEs or CPDs in relation to all sorts of various aspects of law, and thank you so much for joining us and we will speak to you next time. Thank you.

Thank you.