Model litigant principles have been relevant to the conduct of litigation, civil and criminal, involving government agencies for many years. The question is Model Litigant Principles ? To Apply to All? They have Common-law origins to do with ensuring fairness between the maker State and the individual – restoration of balance “fair play”; though somewhat fluid and adaptive to circumstances
Griffiths CJ in Melbourne Steamship V Morehead 1912 is probably the most well-known judicial source in Australian decisions
The obligations flowing from model litigant principles extend beyond mere compliance with the law and ethical obligations of practitioners. Somewhat surprisingly, in my opinion, historically compliance enforcement has been more in the hands of the CEO of an individual organisation rather than the Courts.
More recently, though under the Commonwealth Legal Services directions there is now a report arrangement back to Commonwealth Attorney General and there is some case law to do with costs award in context of model litigant principles not being properly complied with.
The common law principles are reflected in State and Commonwealth policy documents, with the Commonwealth principles now forming part of the Commonwealth Legal Service Directions.
The general principles applicable both to agencies of the Commonwealth of Australia and the State of NSW much the same, though the policies of the two are slightly different. Full details of the text of the policies are available at Commonwealth and NSW.
Conceptually nothing in the rules to with model litigants prevents a crown agency properly exercising and defending its position though.
Whilst most commonly thought of in context only of a big ability to Government agencies, recent judicial query on the wording of relatively recent legislation such as section 56 of the Civil Procedure Act 2005 (NSW“) “the overriding purpose of this Act and rules of court…. is to facilitate the just, quick and cheap resolution of the real issue in the proceedings” does not raise the question whether the effect of that provision is not to extend the policy to all litigants in civil proceedings – perhaps something more for the future than at present.
Time will tell whether the model litigant principles will, in time, be seen as extending across the board.