15 December 2020
#Government, #Native Title & Indigenous Cultural Heritage
The ambit of the model litigant principles that apply to Commonwealth, state, local governments and other government entities were tested in the context of a recent Queensland native title claim proceeding, Malone on behalf of the Western Kangalou People v State of Queensland  FCA 1188.
The standard of conduct required by the Commonwealth government under the model litigant principles has been previously considered by the Federal Court. In Brandon v Commonwealth, the Court had observed that “while the Commonwealth is no doubt a behemoth of sorts, it is not obliged to fight with one hand behind its back in proceedings. It has the same rights as any other litigant notwithstanding it assumes for itself, quite properly, the role of a model litigant” .
The Queensland government’s published model litigant principles policy (2010) describes their obligation as “The power of the State is to be used for the public good and in the public interest, and not as a means of oppression, even in litigation. However, the community also expects the State to properly use taxpayers’ money and, in particular, not to spend it without due cause and due process” .
The applicant in this proceeding argued that the State of Queensland was in breach of the model litigant principles when it filed documents indicating it would contest the existence of the Western Kangalou’s native title. This was despite, the applicant argued, all the expert witnesses conferring and agreeing that there were no impediments to the parties progressing to recognise native title by agreement – a consent determination.
The applicant filed an interlocutory application to strike out the State’s documents, arguing that the State needed to establish that it was in the interests of justice for the State to take a contrary position to its own expert’s conclusions.
It relied on a number of principles in support of its strike out application, including that there was an abuse of process and lack of good faith. The applicant also argued that the State’s model litigant principles require the State to:
In response, the State argued that whilst the model litigant principles require it to litigate according to stated principles of firmness and fairness, the State is also required to appropriately test native title claims. The State also submitted that it was not offending against the principle of fairness – that the State not require a party to prove a matter that it knows to be true – as it didn’t know the matters stated by the applicant to be true.
His Honour Justice O’Bryan was not persuaded that the State’s conduct justified the remedy sought by the applicant. His Honour observed that the applicant’s source of complaint was that the State had refused to accept the opinion of its own expert. However, as an expert is not an agent of the party (merely a potential witness) and an expert report does not constitute a formal admission by a party, it remained, in His Honour’s view, for the State to persuade the Court that there is no proper basis to accept the conclusions reached by the experts.
His Honour also noted that whilst the model litigant principles provide direction from a government to its officers, they do not create a separate set of rights that another party can use as grounds to support a strike out application. He was also not satisfied that there was an absence of good faith or an abuse of process established in this case.
This decision illustrates that, while private litigants should ensure that the difficult balancing exercise that government must undertake as a model litigant in an adversarial legal system is approached professionally, the Court will also place limits on the application of the model litigant principles if the consequence is to impede the rights of government, compared to any other litigant.
Authors: Deanna Cartledge & Jenny Humphris
 Brandon v Commonwealth of Australia  FCA 109 at 
 Malone on behalf of the Western Kangalou People v State of Queensland  FCA 1188 .
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