The Australian Taxation Office is subject to Model Litigant Policy under Legal Services Directions made by the Attorney-General. In a recent case a self-represented litigant sought to stay a judgment for a tax debt obtained against her on the basis of non-compliance with this Model Litigant Policy by the Deputy Commissioner of Taxation.
However the problem for the taxpayer is that the provisions of the legislation under which the Legal Services Direction was made by the Attorney-General specifically provided that compliance with such a direction is not enforceable except by, or upon the application of, the Attorney- General and the issue of non-compliance with such a direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.
To avoid this problem the taxpayer sought to argue that these provisions were invalid.
The Federal Court rejected this argument. The Court held that the provisions do not operate as a privative clause to take jurisdiction from any courts and do not direct courts that they should not, for example, enforce or give effect to a right which a litigant may have. The obligations are limited in nature and are obligations which are owed to the Commonwealth and not individual litigants. It is clear from the Explanatory Memorandum that the provisions were inserted for the benefit of the Commonwealth being designed to protect the legal interests of the Commonwealth in relation to the delivery of legal services. Therefore it follows that a litigant may not rely on a breach of an obligation not owed to him or her.