Tidbindilla referred us to a case in the Full Federal Court that has reinforced the requirement that all Government Agencies have an absolute duty to be model litigants.
This requirement has to extend to every CASA action.
The games played with Butson at Polar Air and Quadrio are now, by this ruling, off limits.
Unless I am mistaken, the judgement relates to a complex taxation appeal - where the AAT rejected the applicants submission basically because the 23,000 pages of evidence they submitted were not in the precise form the AAT specified because it was almost impossible to comply with their specifications..
Speaking generally and without reflecting on counsel who appeared before us, being a model litigant requires the Commonwealth and its agencies, as parties to litigation, to act with complete propriety, fairly and in accordance with the highest professional standards. This obligation 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...........................................
. That statutory instrument reflects an expectation the courts in our system of justice have of the executive government and its emanations....................................
in the words of Griffith CJ in Moorhead, an “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”. Its powers are exercised for the public good. It has no legitimate private interest in the performance of its functions. And often it is larger and has access to greater resources than private litigants. Hence it must act as a moral exemplar............................................
. In our opinion, counsel representing the executive government must pay scrupulous attention to what the discharge of that obligation requires, especially where legal representatives who are independent of the agency are not involved in the litigation.
LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 (22 June 2012)