Legal Services Directions 2005 and the Model Litigant Obligation

Legal Services Directions 2005 and the Model Litigant Obligation

Introduction

Understanding the Legal Services Directions (LSDs), including the Model Litigant Obligation (Appendix B) is vital for those officers in agencies who are involved in Commonwealth legal work. This session is designed to both refresh and refine your understanding of this critical context underpinning the way that the Commonwealth resolves disputes, and hopefully to avoid some of the pitfalls.

We will also spend some time on the rules covering assistance to Commonwealth employees for legal proceedings (Appendix E), which is of particular importance where allegations, including misfeasance allegations, are made against Commonwealth officers.

Finally, we will touch on the recent revision of the LSDs by the Office of Legal Services Coordination (OLSC), and the likely timing and impact of any changes in that context.

Key principles

Why is compliance necessary? Why is it important?

We will cover the source of power for the LSDs and look at:

·  Judiciary Act 1903

·  general directions and those ‘in relation to a particular matter’

·  definition of Commonwealth legal work

·  do not give rise to action in own right

Key points about model litigant obligation (Appendix B)

What’s involved?

·  act honestly and fairly

·  avoid delay

·  act consistently

·  limiting areas of dispute by early admissions

·  does not prevent Commonwealth from protecting its interests

·  common law/other legislation

Practical issues and implications

How does an agency comply?

We will cover practical issues about how the obligations inform agencies in their conduct of disputes:

·  avoiding delay – resourcing

·  ensure proper understanding of issues in dispute early to limit possible areas of contention

·  briefing within agency

Compliance

·  compliance framework

·  reporting

·  directions issued by Attorney-General

The obligation in practice

·  use of obligation as a tactic

·  some scenarios

Key points about Assistance to Commonwealth employees (Appendix E)

·  how indemnity operates

·  distinction between indemnity and assistance and implications

·  control of employee’s defence – implications

·  limits on Commonwealth control

·  practical considerations

Future directions

Revision of LSDs– timing and themes

Presenters

Marianne Peterswald
Senior Executive Lawyer
Australian Government Solicitor
T 02 6253 7260 M 0407 274 948
E / Catherine Fitch
Assistant Secretary
Office of Legal Services Coordination
Attorney-General’s Department
T 02 6141 3185 M 0477 375 971
E