In the State of New South Wales v Quirk  NSWCA 216 (a recent decision of the New South Wales Court of Appeal, presided over by Beazley JA, Hoeben JA and Tobias AJA), the Court of Appeal made a number of observations about the model litigant obligations imposed on the State of NSW (State). The decision serves as another reminder to government lawyers of the importance of complying with the model litigant obligations.
In 2006, Mr Quirk was arrested on two occasions by NSW Police. Mr Quirk alleged that during the first arrest he was assaulted and detained in custody for a significant length of time (First Arrest). On the second occasion of his arrest, Mr Quirk claimed that he was again assaulted and forcibly taken into custody (Second Arrest). Mr Quirk was charged with certain offences by NSW Police which were ultimately dismissed. Mr Quirk then instituted proceedings against the State, on the basis that it was vicariously liable for the actions of the police officers. In terms of the First Arrest, Mr Quirk sued for malicious prosecution and abuse of process. In relation to the Second Arrest, he claimed for assault, malicious prosecution, false imprisonment and abuse of process. The trial judge dismissed Mr Quirk's claims on the First Arrest, but upheld his claims of assault, malicious prosecution and false imprisonment for the Second Arrest and awarded him damages of $175,000. The State appealed, challenging the trial judge's findings on the three claims arising from the Second Arrest as well as the award of damages and costs.
On the day before the hearing in the Court of Appeal, the State informed the Court that it wished to abandon its appeal against the assault and false imprisonment findings and that it would only proceed with its appeal against the malicious prosecution finding and the amount of damages. While the Court of Appeal overturned the trial judge's finding of malicious prosecution and awarded a significantly lesser sum for the assault and false imprisonment claims, because of the State’s late abandonment of two of its appeal grounds, the Court of Appeal ordered the State to pay Mr Quirk's costs of the appeal on an indemnity basis up to and including the day before hearing.
The Court was critical of the State's decision to abandon the appeal grounds the day before the hearing. Tobias AJA stated (at ):
“Contrary to good practice, it is apparent that the final decision to abandon the relevant grounds of appeal occurred only on the day before the hearing with the consequences to which I have referred. This is simply not good enough given that the State is required to be a model litigant by assisting the court to arrive at a proper and just result.”
The Court found that the State's advisors should have properly assessed their prospects of successfully appealing the findings of assault and false imprisonment at a far earlier point in time, preferably before the notice of appeal was even issued. At , Tobias AJA further observed:
“These remarks are in no way intended to criticise the decision of senior counsel who appeared for the appellant on the hearing of the appeal. Rather, it is to bring home the message to the appellant and its advisers that the prospects of succeeding on the assault and false imprisonment causes of action should preferably have been assessed before the notice of appeal was filed. It is apparent that this was not done and that is reflected in the standard of the written submissions on those issues filed in the Orange Book.”
Practical tips for government lawyers to comply with Model Litigant Obligations
This decision is important for all government clients as it highlights the government’s role as a model litigant and the potential cost implications of failing to comply with the model litigant obligations. While much has been written on the model litigant obligations and the numerous cases where courts have been critical of governments for breaches of the model litigant obligations, there are a number of practical steps which can be taken to minimise the risk of a breach of model litigant obligations (or, in some cases, more importantly, an accusation of non-compliance). They are not overly complicated and on one level reflect common sense and good legal practice.
They are set out below:
- Be organised and have a good diary system to ensure court orders are complied with.
- Ensure you get proper instructions (to the extent possible) on pleadings, discovery, subpoenas etc.
- Consider ADR pre-litigation and at regular intervals.
- Ensure all lawyers involved in acting for government are generally aware of the breadth and scope of the model litigant obligations.
- Be aware of possible costs implications for breaching model litigant obligations including putting other parties to unnecessary expense, pursuing overly technical points, etc.
- Before any step or strategic decision is taken in any claim or litigation ensure it will pass the ‘model litigant test’.
- Consider new lawyers undertaking a second review to identify possible changes in strategy.
- Be aware of the increased importance of the model litigant obligations when dealing with unrepresented litigants.
- Avoid delay or non-compliance with court orders – if under resourced due to volume of work or magnitude of a particular claim or litigation, then seek to address this at the earliest available opportunity.
- Do not be a ‘post office box’ for Counsel – lawyers are required to reach an independent assessment of a client’s prospects – last minute changes due to Counsel’s late involvement or a change in Counsel provide no excuse for substantial changes in approach to a cause of action or defence.
The decision of the Court of Appeal stresses the importance of undertaking an early assessment of the prospects of success in legal proceedings, especially when acting for government. By abandoning grounds of appeal the day before the hearing, the State placed itself at risk of adverse costs order and exposed itself to the prospect of criticism from the Court in light of its obligations as a model litigant.