News | 8 November 2022

Are the NDIA and their external lawyers being ‘model litigants’? Are they on their best behaviour with you at the AAT?

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A photo showing a part of the first page of Appendix B - The Commonwealth's obligation to act as a model litigant.

If people with disability don’t get what they need from the NDIS they might have to take their case against the NDIA to the Administrative Appeals Tribunal (AAT). The NDIA and their external lawyers are meant to follow ‘model litigant obligations’ – which are rules about being really decent and fair. If they don’t, there can be a big power imbalance, which is really unfair for people with disability. We want the NDIA to act like model litigants each and every time – but we need your help to make sure it really happens…

Every Australian Counts and Disability Advocacy Network of Australia (DANA) have been talking to people from the National Disability Insurance Agency (NDIA) who tell us they want to work with us to help to make things better.

They know that because things have been bad, most people would feel more safe and comfortable talking to us about your experiences with the AAT than them.

So they have asked us if EAC and DANA could work together on a quick project this November, on what Australian governments call model litigant obligations. Model litigant obligations are like a list of rules or principles, about how people representing the government should behave in formal disputes – situations where people are not happy and have to argue against the government, like when you take your NDIS matter up at the Administrative Appeals Tribunal (AAT), for example.

Model litigant rules exist because there is a big power imbalance between Australian citizens and the government if you have to argue with them about things they have or haven’t done. The rules in the most simple terms mean that people representing the government should always be on their very best behaviour, so that things can be as fair for you as possible.

We have heard many, many stories from people who have been to the AAT about the NDIS.

In lots of your stories people with disability and advocates tell us the NDIA have not been acting like ‘model litigants’. In fact, most people have told us they have behaved in really awful ways, making people with disability feel completely terrible, or made them feel like giving up.

We think everyone would be much better off if they did always act like model litigants. So we want to help make sure that starts happening!

But we can only do that with your help.

What will the NDIA do after this?

We think the NDIA want to make their own more detailed list of model litigant obligations, called a Model Litigant Framework. We reckon all of you might like to be involved in the design of something like that – especially if you have been in a dispute with the NDIA before.

We’re going to tell the NDIA and any Ministers involved that they need to give everyone more time and opportunities to make sure you all have the best chance to get involved. But we also hope that by starting the conversation now, every single person representing the NDIA gets the memo about how important it is to lift their game and behave like model litigants.

How can you help?

Could you help us show the NDIA and the government how the NDIA and their private lawyers have behaved with you, or a person with disability that you have supported? And could you tell us what they could and should do differently from now on?

✅ Our survey

To try and make it as easy, secure and quick for you as possible, we have made a new multiple-choice question survey. It’s mostly multiple-choice questions, which we think might make it a bit easier.

The survey doesn’t ask you to tell us anything that would tell us exactly who you are. That means it will be private. We think that might make everyone feel safer or more comfortable about doing the survey.

We won’t tell the NDIA or government about who did the survey – we won’t even know ourselves.

We will only tell them things we learn when we put all the answers together. We might say things like “80% of people from regional areas all agreed with this statement”, or “400 people who’ve been to the AAT all said x was very important to them.”

Check out the survey here (opens Survey Monkey in a new window or tab)

If you know other people who might be interested – this is the link to share with them:

Thank you!

🔗 Want to find out more?

🔗 NDIS Operational Guidelines: What’s our role and how can we support you at the Tribunal?

🔗 Special Voices blog: What are the model litigant obligations of the National Disability Insurance Agency in NDIS AAT appeals?

🔗 Joint submission to the Joint Standing Committee on the NDIS – NDIS Appeals at the AAT, Section 2: The NDIA’s Model litigant obligations (PDF)

🔗 Unreasonable and unnecessary harms: Joint submission regarding the NDIS internal review and external appeals processes (PDF)

🔗 QAI: Analysis of NDIS appeals report

🔗 QAI: NDIS Appeals presentation (PDF)

🔗 ABC News: NDIS participants, families and lawyers allege breaches of NDIA’s model litigant obligations

🔎 Do you represent or work for the government? Want to know how to be a model litigant? Great! The Attorney General’s Department has more info and resources on their website, including training.

📜 Legal Services Directions 2017 made under section 55ZF of the Judiciary Act 1903: Appendix B—The Commonwealth’s obligation to act as a model litigant – or use the plus sign below to read the text from Appendix B without leaving this page.

Appendix B—The Commonwealth’s obligation to act as a model litigant

Appendix B—The Commonwealth’s obligation to act as a model litigant

The obligation

1 Consistently with the Attorney‑General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation.

Nature of the obligation

2 The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency by:

(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation

(aa) making an early assessment of:

(i) the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and

(ii) the Commonwealth’s potential liability in claims against the Commonwealth

(b) 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

(c) acting consistently in the handling of claims and litigation

(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate

(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:

(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true

(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum

(iii) monitoring the progress of the litigation and using methods that it considers appropriate to resolve the litigation, including settlement offers, payments into court or alternative dispute resolution, and

(iv) ensuring that arrangements are made so that a person participating in any settlement negotiations on behalf of the Commonwealth or a Commonwealth agency can enter into a settlement of the claim or legal proceedings in the course of the negotiations

(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim

(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement

(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and

(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.

Note 1: The obligation applies to litigation (including before courts, tribunals, inquiries, and in arbitration and other alternative dispute resolution processes) involving Commonwealth Departments and other Commonwealth agencies, as well as Ministers and officers where the Commonwealth provides a full indemnity in respect of an action for damages brought against them personally. Ensuring compliance with the obligation is primarily the responsibility of the Commonwealth agency which has responsibility for the litigation. In addition, lawyers engaged in such litigation, whether AGS, in‑house or private, will need to act in accordance with the obligation and to assist their client agency to do so.

Note 2: In essence, being a model litigant requires that the Commonwealth and Commonwealth agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the Commonwealth and Commonwealth agencies will act as a model litigant has been recognised by the Courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.

Note 3: The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.

Note 4: The obligation does not prevent the Commonwealth and Commonwealth agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and Commonwealth agencies and testing or defending claims against them. It does not preclude pursuing litigation in order to clarify a significant point of law even if the other party wishes to settle the dispute. The commencement of an appeal may be justified in the public interest where it is necessary to avoid prejudice to the interests of the Commonwealth or a Commonwealth agency pending the receipt or proper consideration of legal advice, provided that a decision whether to continue the appeal is made as soon as practicable. In certain circumstances, it will be appropriate for the Commonwealth to pay costs (for example, for a test case in the public interest.)

Note 5: The obligation does not prevent the Commonwealth from enforcing costs orders or seeking to recover its costs.

Merits review proceedings

3 The obligation to act as a model litigant extends to Commonwealth agencies involved in merits review proceedings.

4 A Commonwealth agency should use its best endeavours to assist the tribunal to make its decision.

Note: The term ‘litigation’ is defined in paragraph 15 of these Directions in terms that encompass merits review before tribunals. There are particular obligations in relation to assisting a tribunal engaged in merits review to arrive at a decision. Commonwealth agencies should pay close attention to the legislation under which a tribunal is established, and any practice directions issued by the tribunal. In the case of the Administrative Appeals Tribunal see in particular subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975.

Alternative dispute resolution

5.1 The Commonwealth or a Commonwealth agency is only to start court proceedings if it has considered other methods of dispute resolution (eg alternative dispute resolution or settlement negotiations).

5.2 When participating in alternative dispute resolution, the Commonwealth and Commonwealth agencies are to ensure that their representatives:

(a) participate fully and effectively, and

(b) subject to paragraph 2 (e) (iv), have authority to settle the matter so as to facilitate appropriate and timely resolution of a dispute.

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