Can a model litigant run a different argument in a later case?

Due to the scale and nature of their work, government agencies frequently encounter disputes that resemble other proceedings they have been engaged in previously. Government agencies are expected to act as model litigants in resolving those disputes.

At times, as a result of changes in the law or policy, it may be necessary for government agencies to adopt interpretations of the law that differ from positions taken in previous proceedings. This raises the question: can a model litigant adopt a different interpretation of the law in a subsequent proceeding while maintaining its duty to act consistently when handling claims?

In this article, we consider the recent case of Canal Aviv Pty Ltd v Roads and Maritime Services[1] and whether a model litigant policy binds government agencies to positions they have adopted in earlier cases.

What happened?

In brief, this case concerned a parcel of land owned by Canal Aviv Pty Ltd (Canal Aviv) that was to be compulsorily acquired by the New South Wales Roads and Maritime Services (RMS) for part of Sydney’s WestConnex project.

In early 2017, the Valuer General made its assessment of the value of the land, the impact of the acquisition and its tax implications. Canal Aviv disputed these assessments and brought an action in the Land and Environment Court.

During the hearing, Canal Aviv argued that RMS should not be able to make the submissions it proposed because they contradicted the position it had taken in another proceeding, the case of SNS Pty Ltd v Roads and Maritime Services (SNS),[2] decided earlier in 2018.

Canal Aviv referred to paragraph 3.2 of the NSW Model Litigant Policy, which states that a model litigant must ‘[act] consistently in the handling of claims and litigation.’ It submitted that the position taken in this case was ‘diametrically opposed’ to the position taken in SNS, thereby breaching the principle in paragraph 3.2.

Canal Aviv suggested that the effect of Model Litigant Policy should be similar to an estoppel; if a model litigant had taken one position on the law, it should not be permitted to take a different position in a later case. In its view, ‘The RMS should not … be permitted to blow hot and cold on the same legal issue and say one thing one week and the complete opposite thing the next.’[3]

Decision of the Court

Moore J rejected the argument that a model litigant could not change its position on the law in a subsequent proceeding. His Honour held that the Model Litigant Policy did not have a constraining effect and the RMS could run its case as pleaded.

Moore J appeared critical of Canal Aviv for raising the complaint with the Court, stating that the Court was not the appropriate forum for the complaint. His Honour said that the Court ‘should not, through its judgments, provide commentary (let alone any determinative conclusion) based on such a complaint.’[4]

Rather, in his Honour’s view, the complaint should have been made to the responsible

Minister, being the Minister for Roads in this case. Alternatively, an aggrieved party might make a complaint to the Ombudsman.[5]

Model Litigant Principles In Qld

Similar to the Model Litigant Policy discussed in the Canal Aviv case, the Queensland model litigant principles provide:

‘1. The State and all agencies must conduct themselves as model litigants in the conduct of all litigation by adhering to the following principles of fairness:

• acting consistently in the handling of claims and litigation;’[6]

It is unlikely that this model litigant principle alone would prevent a government department from raising an argument that differed from the position it had taken in an earlier case. Case law in Queensland suggests that although the Court has higher expectations of model litigants, this does not lead to a different set of rules being applied to them. As Jackson J explained in GRC Crown Law v Mathews,[7] citing the judgment of Heydon J in ASIC v Hellicar,[8] ‘[P]rocedural rules are not modified against model litigants – they apply uniformly.’

Two examples of this are:

1. In Deputy Commissioner of Taxation v Gleeson,[9] McMurdo J noted that a breach of the model litigant principles would not be a bar to the State obtaining summary judgment.

2. In State of Queensland v Allen,[10] Fryberg J said that although the State is a model litigant, it is entitled to act not only fairly, but also firmly. This means that, where appropriate, the State is entitled to make claims of legal professional privilege.

This is not say, however, that compliance with the model litigant principles is not important. Model litigant principles are a policy that guide the way government agencies ought to behave.

Depending on the circumstances of the case, a failure to act in accordance with them will be viewed unfavourably and may result in the Court exercising its discretionary powers unfavourably against the State, including in respect of the issue of costs.

For example, in the Canal Aviv case, the Court was taken to the decision of Mahenthirarasa v State Rail Authority of New South Wales.[11] In that case, Basten JA criticised the State Rail

Authority (SRA) for breaching its model litigant duty. His Honour said that if the SRA did not believe that the order at first instance could not reasonably be defended, it should have made that position clear to the Court. It was inappropriate for the SRA to stand by and leave it to the applicant to persuade the Court that the first instance decision was incorrect.

The SRA should have provided appropriate assistance to the Court, and should not have caused unnecessary delay by resisting relief that it considered to be appropriate. As such, Basten JA ordered the whole of the applicant’s costs be paid by the SRA.

In Smith v Ash,[12] a local council decided to enforce the payment of a fine through the Magistrates Court, rather than dealing with the matter administratively, the applicant having indicated at an early stage that she would pay the fine through SPER.

Although the council was successful in its enforcement, the magistrate at first instance awarded costs against the council, and the Court of Appeal held that that order should not be disturbed. McMurdo P commented that it was contrary to the council’s duty as a model litigant to unnecessarily expend costs against a cooperative opponent.[13]

Concluding Remarks

The Canal Aviv case suggests that a Court will not restrict a government agency from adopting an interpretation of the law different to that raised in earlier proceedings because of its obligations as a model litigant. Model litigants are expected to act to a higher standard, but this does not prevent them from firmly pursuing their interests, including adopting a different positions on the law where appropriate.

Compliance with model litigant principles nevertheless remains important. Non-compliance will be viewed unfavourably by a Court and could result in negative consequences including adverse costs orders. This is particularly the case where disregard for model litigant principles results in unnecessary expense or delay.

Ultimately, a model litigant should determine on a case-by-case basis whether it is appropriate to adopt a different position on the law and if it does so, it should be able to provide a valid explanation for that change of position if required.