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CASA - Moral Exemplar Duty - The end of the Friday Afternoon Fax?
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) |
The Office of Legal Services Coordination investigates reports of non-compliance with the Legal Services Directions: Office of Legal Services Coordination
Please put in a report and let us know the response. :ok: |
The former AG the Hon Robert McClelland MP was the main driver of the principles of the Model Litigant Rules and in particular its application to the AAT see here:Pages - 26 August 2009 - The Obligation to Assist: Model Litigants in Administrative Appeals Tribunal Seminar
Since McClelland's demise, because of his support for KRudd, the new AG is too busy politicising the highest law officer's department. Subsequently any matters dealing with the principles of the 'Rule of Law' or simple civil liberties has unfortunately fallen down the list of priorities!:ugh: Within the body of the Legal Services Direction 2005 is a clause that does not allow the MLR to be submitted as a defence in a Court of Law, however there are several cases where a Justice has drawn attention to a Federal Agency's obligations under the MLR. My opinion, amongst others (aroa), on the MLR are stated here:http://www.pprune.org/dg-p-reporting...s-game-13.html..and here:http://www.pprune.org/dg-p-general-a...riminal-2.html |
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............................................ |
OLSC..and others
Creamie. I lodged a report. The answer showed ...either didnt understand the request.... or didnt want to deal.:mad:
Next hoop was a review of that.., which chat was about other things and DID NOT deal with the REAL issue at question. :mad: Went FOI to find out why. Anything BUT the Q :mad: My request to Roxon was...if the request for MLO is valid... and the agency does NOT oblige what next.??? Can the highest legal office in the land NOT get them to so oblige.? Obviously NOT !!:mad: Pprune is an excellent comms medium:ok:...no surprise to get an email response from Ags office/ Roxon TODAY ( no coincidence there!!)telling me to jump thru some more hoops :{...namely... 1. The CASA ICC ( that blew my bullsh*tometer) You know,.. that place that tells me it wont touch anything older than 12 months...!! (that blew my bullsh*tometer, as well) :mad: 2. The Comm Ombudsman. Been there earlier re why AFP wouldnt deal with the perjuring buggers either.( Legal let-off... CASA would have loved that ! :D) Helpful, and they also have an investigative branch. Might as well "hava go". At least then I can sing "Ive been everywhere, Man" song What's another year in the scheme of things ??? as the citizen is passed around as a game of "pass the parcel" in CB La-La Land. How does that statement go again...?? "It behoves Governments to see that justice is done, and swiftly, because if it is not, anarchy will eventually prevail" Damn. there goes my Bullsh*tometer AGAIN. ! :{ |
Might as well "hava go". At least then I can sing "Ive been everywhere, Man" song What's another year in the scheme of things ??? as the citizen is passed around as a game of "pass the parcel" in CB La-La Land. Pages - Heads of Commonwealth Operational Law Enforcement Agencies (HOCOLEA) 'HOCOLEA' at least the anacronym is more impressive and it may only be a pebble lobbed on the roof but you never know who might be lobbing a rock from the other side!:ok: |
Justice delayed is justice denied.
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The former AG the Hon Robert McClelland MP was the main driver of the principles of the Model Litigant Rules… The Legal Services Directions have been around for decades and compliance with them has been monitored and enforced for decades. I lodged a report. The answer showed ...either didnt understand the request.... or didnt want to deal Maybe we need a (plain English) law that says: Any allegation made against CASA is deemed to be true. Then we wouldn’t have to worry about all the facts and both sides of the story. :ok: |
Rock chucker..
HOCOLEA...never heard of that one before. Read up on today.
HOCO got MOJO?? I have plenty of time ( to waste?) putting in submissions, so I guess I'll give it a go. Might make a small noise on the roof...hopefully? :ok: |
Unadulterated twaddle. The Legal Services Directions have been around for decades and compliance with them has been monitored and enforced for decades. Maybe if our resident, cynical, self appointed, interpreter of legalese and the 'rule of law' had of bothered to read the former AG's speech he may have seen how seriously unconsidered (notice I didn't use the words 'stupid or ignorant'!) the above comment was: I’d also like to briefly touch on the obligations introduced last year to the Directions. These oblige parties to consider means of alternative dispute resolution prior to initiating legal proceedings. The Legal Services Directions and the Model Litigant Obligation Although I am sure you are all familiar with these terms – I think it’s important to reflect on what the Legal Services Directions require from Commonwealth agencies as parties to Tribunal proceedings. And also the underlying values reflected in the model litigant obligation. The Directions set out, in broad terms – the requirement that the Commonwealth and its agencies are to uphold the highest possible standards of fairness, honesty and integrity – going beyond the required ethical or professional standards of lawyers appearing before a court or tribunal. Specifically, the model litigant obligation requires that the Commonwealth and its agencies:
This however does not require the Commonwealth to take a soft approach to legal proceedings. The Commonwealth is able to act firmly and properly to protect its interests. The obligation also doesn’t prevent the Commonwealth from legitimately seeking to recover its costs where appropriate. Clearly, holding the Commonwealth and its agencies to a high standard is not a new concept. Although the model litigant obligation was formally articulated in its current form in 2005 – reference is often made in courts and tribunals to the 1912 case of Melbourne Steamship v Moorhead, where Chief Justice Griffith made the following observation: I am sometimes inclined to think that in some parts - not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.[2] Almost a century later, this statement is still relevant to Commonwealth’s obligation to act as a model litigant and participant in AAT proceedings. The old-fashioned standard of fair play remains. aroa said: I have plenty of time ( to waste?) putting in submissions, so I guess I'll give it a go. Might make a small noise on the roof...hopefully? |
Just goes to show that even the First Law Officer can be badly briefed. The Legal Services Directions, including the model litigant rules, were around long before 2005.
And sarcs: Alternative Dispute Resolution has got nothing to do with ‘the Friday afternoon fax’ – a reference, I assume, to notices of suspension or cancellation decisions, made in the exercise of regulatory powers. :ok: PS sarcs: you might find this one, among many, interesting: Edebone and Comcare [2000] AATA 937 (25 October 2000) You only need to read the first 2 paragraphs. A Commonwealth agency getting a kicking. From the AAT. For failure to comply with model litigant obligations. Under the Legal Services Directions. The version issued in 1999. (The version issued in 1999 wasn’t the first version.) |
Creampuff:
The Legal Services Directions, including the model litigant rules, were around long before 2005. |
Do you think that Federal Court Judges and AAT members aren't aware of the Legal Services Directions and the Model Litigant rule?
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CP - Any allegation made against CASA is deemed to be true. But, both the level and type of complaint about 'authority' over the last few years have changed, as has the perception of a honest (if hide bound) reliable, industry serving regulator. There is some real, deep seated hostility out there now, a marked lack of respect and a real sense of fear. All counter productive. No amount of legal wrangling, spin doctoring, plain or fancy Pony pooh will fix up the mess. Bang away at the quotes boys, but nothing except an independent, deep investigation into the current aberration will restore a normal relationship between the industry and the authority which is paid handsomely to serve it. Rant over. |
Creampuff:
Do you think that Federal Court Judges and AAT members aren't aware of the Legal Services Directions and the Model Litigant rule? The reason the directions and rule is in place is precisely because judges have to rule on matters of fact and law, not whether the litigant has followed the spirit of the law. To put that another way, a judge is not allowed to say "Yes CASA, you are correct I find that XXX is guilty of breaching the law, but I think you have been such an arsehole in prosecuting him that I'm going to find him not guilty." To put that yet another way, judges are not allowed to give marks for neatness and technique, the law is the law. In fact it is precisely why the directions and rule exist - to stop Government litigants from fcuking over the general population. So don't try and push your perverted argument at me, do you think I was born yesterday? I was priviledged to work in the Victorian public service for a few years at a relatively senior level and I know perfectly well that it is easy to fcuk a member of the public over while remaining safely within the law. It's a public sector art form. If I had known at the time that CASA has the capacity to behave as it has done in the Butson case, I would have never bothered learning to fly, but would have taken up golf instead. CASA is slowly killing general aviation. |
Sunfish
I’m confident that I have a far better understanding than you of what the Legal Services Directions are and do, and who monitors and enforces compliance with them. The Judiciary Act 1903 is a law. Section 55ZF of the Judiciary Act 1903 is a law. Legal practitioners representing the Commonwealth and its agencies are obliged to comply with directions made under section 55ZF. Judges and AAT members monitor and enforce compliance with the law – that’s their day job. Did you not bother to read just the first 2 paragraphs of the AAT decision at the link I provided? When you suggest that Butson and Quadrio are examples of breaches of the Model Litigant rules, what you are in effect saying is that all the judges and tribunal members involved in those matters are unable to, and do not enforce, the Model Litigant rules. That suggestion is utter bunkum. You just need to read just the first 2 paragraphs of the AAT decision at the link I provided. And please go to the information about the Office of Legal Services Coordination at the link I provided. Naturally you’ve sent your complaint about CASA’s alleged behaviour in Butson and Quadrio, to the OLSC? What response did you get? |
CP - When you suggest that Butson and Quadrio are examples of breaches of the Model Litigant rules, what you are in effect saying is that all the judges and tribunal members involved in those matters are unable to, and do not enforce, the Model Litigant rules. But is it ? – to quote the much missed Backhand – there's the rub. Just sayin' it's so don't make it so. Not by a bloody long shot (when the deck is honest, that is). CP - Naturally you’ve sent your complaint about CASA’s alleged behaviour in Butson and Quadrio, to the OLSC?. |
Creampuff:
When you suggest that Butson and Quadrio are examples of breaches of the Model Litigant rules, what you are in effect saying is that all the judges and tribunal members involved in those matters are unable to, and do not enforce, the Model Litigant rules. That suggestion is utter bunkum. You just need to read just the first 2 paragraphs of the AAT decision at the link I provided. And please go to the information about the Office of Legal Services Coordination at the link I provided. Naturally you’ve sent your complaint about CASA’s alleged behaviour in Butson and Quadrio, to the OLSC? What response did you get? To put that another way, for judges to give a flying fcuk about this matter it would have to be encapsulated in a Model Litigant LAW, otherwise the subject is only of passing interest to a judge. Judges do not enforce rules, they enforce the law. The model litigant rule has no force of law, unlike the rules of evidence for example. To put that yet another way that you might possibly comprehend, a very large number of appeals against judicial rulings are caused by a judge expressing some form of partiality to one side or the other in a case which is why judges stick very, very close to the law and to nothing else. To put that yet another way, appeals have been allowed because a judge, in instructing a jury, has used the word "could" instead of "might" as in "you could find the defendant guilty". P.S. I'll take your suggestion of complaining to the OLSC as the sick joke it is. It would have no effect except to ensure that I was flagged for "the treatment" if I ever engaged with CASA over some matter involving me. I've seen that done in the public service a number of times. |
The second respondent is, as we have noted, an officer of the Commonwealth. As such he properly is to be expected to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect - and where there has been a lapse therefrom, to exact - from the Commonwealth and from its officers and agencies. The spirit of this "model litigant" responsibility, now long enshrined in a policy document of the Commonwealth, is perhaps best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead … In our view the conclusion is inescapable that the second respondent has fallen considerably short of the standard properly to be expected of the Commonwealth. … … . The consequence was, in our opinion, a miscarriage of justice. … In these circumstances the appeals must be allowed and the orders of Heerey J of 15 October 1998 must be set aside. Clearly the Full Court of the Federal Court does not have the benefit of Sunfish’s and Kharon’s vast knowledge of the legal consequences of failing to discharge the model litigant responsibility. BTW, sarcs: that’s a 1999 case. |
Creamy not arguing that the principles of the MLR and indeed the Legal Services Directions haven't been around for donkeys years, even the former First Law Officer refers to Melbourne Steamship Co Ltd v Moorehead:
Although the model litigant obligation was formally articulated in its current form in 2005 – reference is often made in courts and tribunals to the 1912 case of Melbourne Steamship v Moorhead, where Chief Justice Griffith made the following observation: I am sometimes inclined to think that in some parts - not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.[2] However as Sunny pointed out, also written in the body of the Legal Services Directions, the MLR cannot be used as a defence (because they're rules not laws) in a Court of law. Which only leaves complaining to the OLSC about apparent breaches of the MLR, which you have already cynically pointed out (along with aroa's experience) is a total WOFTAM! So that leaves poor Joe Citizen to continue to rock up to AAT hearings, continue to be severely pineappled by a 'bully boy' regulator with unlimited resources and hope that the DP will point out that the regulator isn't playing fair according to the MLR! Creamy although you point out cases where this has happened the regulator's legal teams (Harvey and Co) know that the odds are severely stacked in their favour i.e. they've got this AAT system sussed!:ugh: What gets me is how they can say such reactive behaviour is all for the good of a 'proactive' aviation safety regulator, it's definitely not about 'safety' it's all about 'liability'! |
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