Its a shame that the VWA doesn't follow its own guidelines!
The VWA does not act fairly or consistently
The VWA does not avoid litigation they create it
The VWA does not pay legitimate claims
The VWA does rely on technical defences i:e Private Investigators and
favoured medical Reports
The VWA does take advantage of claimants who cannot afford litigation of their claims
So who are they kidding here? Take note of the bolded text and send in your opinion!
Guidelines on the State of Victoria’s Obligation to Act as a Model Litigant
1. In order to maintain proper standards in litigation, the State of Victoria, its Departments and agencies behave as a model litigant in the conduct of litigation.
2. The obligation requires that the State of Victoria, its Departments and agencies:
(a) act fairly in handling claims and litigation brought by or against
the State or an agency,
(b) act consistently in the handling of claims and litigation,
(c) avoid litigation, wherever possible,
(d) pay legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount paid,
(e) where it is not possible to avoid litigation, keep the costs of litigation to a
minimum, including by:
(i) not requiring the other party to prove a matter which the State or the agency
knows to be true, and
(ii) not contesting liability if the State or the agency knows that the dispute is
really about quantum,
(f) do not rely on technical defences unless the State’s or the agency’s interests
would be prejudiced by the failure to comply with a particular requirement,
(g) do not take advantage of a claimant who lacks the resources to
litigate a legitimate claim, and
(h) do not undertake and pursue appeals unless the State or the agency
believes that it has reasonable prospects for success or the appeal is
otherwise justified in the public interest.
NOTES:
1. The State of Victoria acknowledges the assistance of the Commonwealth in developing these Guidelines. The Guidelines are based on the Directions on the Commonwealth’s Obligation to Act as a Model Litigant, which were issued by the Commonwealth Attorney-General pursuant to section 55ZF of the Judiciary Act 1903.
2. The obligation applies to litigation (including before courts, tribunals, inquiries, and in
arbitration and other alternative dispute resolution processes) involving State
Departments and agencies, as well as Ministers and officers where the State provides a full indemnity in respect of an action for damages brought against them personally. Ensuring compliance with the obligation is primarily the responsibility of the agency
which has responsibility for the litigation. In addition, lawyers engaged in such
litigation, whether Victorian Government Solicitor, in-house or private, will need to act in accordance with the obligation to assist their client agency to do so.
3. In essence, being a model litigant requires that the State and its agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards.
The expectation that the State and its agencies will act as a model litigant has been recognised by the Courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342; Kenny v State of South Australia (1987) 46 SASR 268 at 273;
Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.
Last update on 9 October 2007 2
4. The obligation to act as a model litigant 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.
5. The obligation does not prevent the State and its agencies from acting firmly and
properly to protect their interests. It does not therefore preclude all legitimate steps
being taken to pursue claims by the State and its agencies and testing or defending
claims against them. The commencement of an appeal may be justified in the public
interest where it is necessary to avoid prejudice to the interests of the State or an
agency pending the receipt or proper consideration of legal advice, provided that a
decision whether to continue the appeal is made as soon as practicable.
The obligation does not prevent the State from enforcing costs orders or seeking to recover its costs.(Government policies as referred to in Schedule 4 of the Legal Services to Government Panel contract).
Last update on 9 October 2007
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