Legal Services Directions 2005
If you are involved in legal action against your APS agency, you have a right to assume that your APS agency and its legal representatives (which will usually be the Australian Government Solicitor or a private top tier law firm) will comply with their obligations under Appendix B of the Legal Services Directions 2005 to act as model litigants. This includes:
In respect of the obligation to participate fully and effectively in alternative dispute resolution, Thomas Howe QC of the Australian Government Solicitor (AGS) provided some guidance in a speech presented at the ADR in Government Forum 2008 (see the PDF document below). He stated that:
'Monetary claims must, under the Legal Services Directions, be settled in accordance
with legal principle and practice, which requires the existence of a meaningful prospect of
liability. However, that requirement should not be overstated. It does not mean that liability has to be more probable than not. The requirement is really directed to ensuring that spurious claims are not settled. Without descending into an exercise in arithmetic, I think that a meaningful prospect of liability could exist, depending on the circumstances, where there is only a 10-20% chance of a court finding in favour of a claimant. Of course, in such cases a settlement should reflect, in a sensible way, the strengths and weaknesses in the respective cases of the parties, as well as (i) the other matters set out in para 2 of Appendix C to the Legal Services Directions, and (ii) any other relevant considerations. In doubtful cases the Office of Legal Services Coordination should be consulted. I simply offer this as but one example of the fact that the Legal Services Directions do not require Commonwealth departments and agencies to "set their jaw" against settling cases which involve a genuine and "not insignificant" risk of liability being found.'
In relation to the terms of a settlement, part 1, paras 4.5 of the Directions states that an APS agency can only impose or agree to a confidentiality term of a settlement where it is necessary to protect the Commonwealth's interests. An example of when it may be in the Commonwealth’s interests to agree to a confidential settlement is if the Commonwealth seeks to settle a claim against it on condition that the terms of settlement not be disclosed, with a view to avoiding prejudice in responding to other similar claims against it. The APS agency should also seek to incorporate an exception to enable voluntary disclosure of the settlement (in whole or in part) to the Parliament or to a Parliamentary Committee.
Complaints are to be made to the Office of Legal Services Coordination (OLSC) of the Attorney-General's Department. Make sure that your complaint succinctly and clearly explains why you believe your APS agency or the Australian Government Solicitor or other law firm has not complied with the Directions and provide as much relevant documentary evidence as possible to support your claims. The OLSC's Legal Services Directions Team is relatively small, so be prepared that your complaint may take some time to process. The process for investigation of alleged non-compliance is set out in the OLSC's Guidance Note No. 3. Any findings of non-compliance will be reported to the Attorney-General and she can enforce compliance with the Directions or impose sanctions for non-compliance.
In order to minimise any angst and frustration in dealing with the OLSC, it is probably beneficial not to have high expectations of the OLSC's impartiality and fairness. The Rule of Law Institute has stated the OLSC's figures on breaches of the Legal Services Directions 2005 are significantly lower than the number of breaches that have been identified by the courts. For more information, see the Rule of Law Institute publication in the PDF document below.
Be aware that, under section 55ZG(3) of the Judiciary Act 1903, you cannot raise breaches of the Legal Services Directions 2005 by your APS agency and its legal representative in court proceedings. However, in the case of Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited (No. 2) (2010) FCA 567, the Federal Court was able to hear evidence of breaches of the Legal Services Directions 2005 when obtaining a costs order.
If non-compliance with the Directions occurs during an alternative dispute resolution conference, to which you have agreed that discussions would remain private and confidential, you should still be able to make a complaint about non-compliance to the OLSC. This is because, in the law of equity, confidentiality undertakings are provided on the assumption that parties will approach discussions with 'clean hands', which should include the expectation of compliance with all laws. If you are unsure about whether you can make a complaint, ask an officer at the OLSC.
- apologising for wrongful or improper conduct;
- not taking advantage of a litigant who lacks the resources to litigate a legitimate claim;
- not requiring a complainant to prove a matter which the Commonwealth knows to be true;
- dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation;
- paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid;
- acting consistently in the handling of claims and litigation;
- not contesting liability if the agency knows that the dispute is really about quantum;
- not relying on technical defences unless the agency's interests would be prejudiced by failure to comply with a particular requirement;
- acting with complete propriety, fairly, honesty, and in accordance with the highest professional standards, and legal and ethical obligations;
- participating fully and effectively in alternative dispute resolution.
In respect of the obligation to participate fully and effectively in alternative dispute resolution, Thomas Howe QC of the Australian Government Solicitor (AGS) provided some guidance in a speech presented at the ADR in Government Forum 2008 (see the PDF document below). He stated that:
'Monetary claims must, under the Legal Services Directions, be settled in accordance
with legal principle and practice, which requires the existence of a meaningful prospect of
liability. However, that requirement should not be overstated. It does not mean that liability has to be more probable than not. The requirement is really directed to ensuring that spurious claims are not settled. Without descending into an exercise in arithmetic, I think that a meaningful prospect of liability could exist, depending on the circumstances, where there is only a 10-20% chance of a court finding in favour of a claimant. Of course, in such cases a settlement should reflect, in a sensible way, the strengths and weaknesses in the respective cases of the parties, as well as (i) the other matters set out in para 2 of Appendix C to the Legal Services Directions, and (ii) any other relevant considerations. In doubtful cases the Office of Legal Services Coordination should be consulted. I simply offer this as but one example of the fact that the Legal Services Directions do not require Commonwealth departments and agencies to "set their jaw" against settling cases which involve a genuine and "not insignificant" risk of liability being found.'
In relation to the terms of a settlement, part 1, paras 4.5 of the Directions states that an APS agency can only impose or agree to a confidentiality term of a settlement where it is necessary to protect the Commonwealth's interests. An example of when it may be in the Commonwealth’s interests to agree to a confidential settlement is if the Commonwealth seeks to settle a claim against it on condition that the terms of settlement not be disclosed, with a view to avoiding prejudice in responding to other similar claims against it. The APS agency should also seek to incorporate an exception to enable voluntary disclosure of the settlement (in whole or in part) to the Parliament or to a Parliamentary Committee.
Complaints are to be made to the Office of Legal Services Coordination (OLSC) of the Attorney-General's Department. Make sure that your complaint succinctly and clearly explains why you believe your APS agency or the Australian Government Solicitor or other law firm has not complied with the Directions and provide as much relevant documentary evidence as possible to support your claims. The OLSC's Legal Services Directions Team is relatively small, so be prepared that your complaint may take some time to process. The process for investigation of alleged non-compliance is set out in the OLSC's Guidance Note No. 3. Any findings of non-compliance will be reported to the Attorney-General and she can enforce compliance with the Directions or impose sanctions for non-compliance.
In order to minimise any angst and frustration in dealing with the OLSC, it is probably beneficial not to have high expectations of the OLSC's impartiality and fairness. The Rule of Law Institute has stated the OLSC's figures on breaches of the Legal Services Directions 2005 are significantly lower than the number of breaches that have been identified by the courts. For more information, see the Rule of Law Institute publication in the PDF document below.
Be aware that, under section 55ZG(3) of the Judiciary Act 1903, you cannot raise breaches of the Legal Services Directions 2005 by your APS agency and its legal representative in court proceedings. However, in the case of Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited (No. 2) (2010) FCA 567, the Federal Court was able to hear evidence of breaches of the Legal Services Directions 2005 when obtaining a costs order.
If non-compliance with the Directions occurs during an alternative dispute resolution conference, to which you have agreed that discussions would remain private and confidential, you should still be able to make a complaint about non-compliance to the OLSC. This is because, in the law of equity, confidentiality undertakings are provided on the assumption that parties will approach discussions with 'clean hands', which should include the expectation of compliance with all laws. If you are unsure about whether you can make a complaint, ask an officer at the OLSC.
| adr_in_government_forum_2008.pdf |
| rule_of_law_institute_-_model_litigant_rules_key_facts_and_cases.pdf |