11 May 2007

We're all model litigants, says NSW court

by John Collins, Timothy Webb

Governmental bodies have been regarded as having model litigant obligations extending in the past, at least, beyond those of private litigants. This case held that all litigants in civil proceedings in the NSW Supreme Court of NSW must act as model litigants. While it might seem that this is a novel extension of the model litigant obligations into the private sphere, in truth this decision merely reminds litigants of what they should be doing anyway

Justice Johnson's comment in Priest v State of New South Wales [2007] NSWSC 41 that section 56 of the Civil Procedure Act 2005 (NSW) requires all litigants in civil proceedings in the Supreme Court of NSW to act as model litigants might seem to impose new obligations on private parties. All sensible litigants should, however, already be complying with such duties and the decision is simply a reminder of a useful statutory basis to ensure that other parties do likewise.

What is a model litigant?

At common law, governmental bodies have been regarded as having model litigant obligations which extend beyond those of private litigants. The courts have, for example, spoken of the obligation to act fairly in litigation by:

  • dealing with claims promptly and not causing unnecessary delay in the handling of claims
  • assisting the court to arrive at the proper and just result
  • not taking purely technical points of practice and procedure
  • not taking advantage of a claimant who lacks the resources to litigate a legitimate claim; and
  • observing a duty of conscientious compliance with the procedures designed to minimise cost and delay.

The proceedings

The plaintiff, Tim Priest, served as a New South Wales police officer between 1983 and 2002. He has sued the defendant, the State of New South Wales, seeking damages in negligence and for breach of contract. In broad terms, it is alleged that the defendant breached its duty of care to the plaintiff and breached its contract of employment with the plaintiff by way of acts and omissions occurring from November 1998 surrounding the plaintiff's service as a police officer at Cabramatta Police Station, thereby causing psychiatric injury to the plaintiff.

An interlocutory dispute arose as to whether the defendant had complied with certain discovery orders.

Why are private litigants in NSW model litigants?

Justice Johnson looked at section 56 of the Civil Procedure Act, which says that:

  • the overriding purpose of the Act and the rules in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (section 56(1))
  • the Court must seek to give effect to that overriding purpose when it exercises any power given to it under the Act or by the rules (section 56(2))
  • a party to civil proceedings is under a duty to assist the Court to further that overriding purpose and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court (section 56(3))
  • a solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in section 56(3) (section 56(4)); and
  • the Court may take into account any failure to comply with section 56(3) or (4) in exercising a discretion with respect to costs (section 56(5)).

His Honour held that, in a sense, section 56 has the result that every litigant in civil proceedings in the Supreme Court of NSW must behave as a model litigant. By extension, this reasoning may apply to proceedings in other courts which are also subject to section 56 of the Act, namely, all civil proceedings in the District Court of NSW, the Dust Diseases Tribunal and certain civil proceedings in the Local Court.

What does this mean?

While it might seem that this is a novel extension of the model litigant obligations into the private sphere, in truth this decision merely reminds litigants of what they should be doing anyway. Courts have long had the power to penalise litigants who drag the chain or otherwise thwart the "just, quick and cheap resolution of the real issues in the proceedings" by awarding costs against them or ordering they pay costs on an indemnity basis. Section 56 of the Act simply gives the court a further statutory basis to do so and is a useful section to rely on if another party is not behaving as a model litigant. Hopefully the codification of these obligations in section 56 will encourage both litigants and the court to expect higher standards of conduct in litigation.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.