A recent case in the Federal Court of Australia highlights the importance of Government agencies’ model litigant obligations, and the consequences of failing to abide by them.
Summary of matter
Scholes v Commonwealth of Australia [2021] FCA 1593 involved an unrepresented litigant, MR Scholes against the Commonwealth of Australia in a false imprisonment claim.
In December 2017, Mr Scholes, an Australian citizen, and his fiancée, a Nigerian citizen, were kidnapped in Nigeria for a period of eight days.
The reason for Mr Scholes’ travel to Nigeria was on the pretext of receiving thanks from the family of a woman and child whom he had hosted in Melbourne for ten months. During that period, he had provided the woman approximately $60,000.00 of his funds at her request. Mr Scholes described the arrangement as a “non-sexual family unit” and at the time, was happy to have company. On his arrival to Nigeria, he met the woman’s sister, with whom he quickly formed a close loving relationship and proposed marriage. The two were ambushed in a remote and dangerous part of Nigeria and held captive in a jungle.
The Department of Foreign Affairs and Trade was promptly made aware of Mr Scholes’ predicament.
A demand for ransom was made and Mr Scholes and his fiancée, whom he had met just weeks before, were assisted in communications concerning the kidnapping and ransom with DFAT by a relative of the fiancée. Whilst sympathetic to Mr Scholes’ kidnapping, DFAT made it clear that it could not assist in paying a ransom.
Mr Scholes and his fiancée were released after the ransom was paid.
Following his release, Mr Scholes was taken l by heavily armed security agents for the Commonwealth to Lagos to allow his passage to Australia.
Mr Scholes, by this proceeding sought damages for false imprisonment – not from the kidnappers, but from the Commonwealth Government, on the basis that he had expressly rejected offers of consular assistance.
Unfortunately for Mr Scholes at the trial, none of his witnesses as to the events in question made themselves available to give evidence. The evidence of the security detail on behalf of the Commonwealth was viewed as clinical and impressive and was thus preferred. Largely for that reason, Mr Scholes’ claim of false imprisonment failed as the Court was not satisfied that the Commonwealth improperly detained him against his will.
The Commonwealth’s obligation to act as a model litigant
In accordance with the Legal Services Directions 2017 (Cth), Commonwealth agencies are to behave and conduct litigation as model litigants. Broadly, the obligations require that government agencies and their lawyers act with utmost propriety, fairly and to the highest professional standards.
In abiding by its model litigant obligations, lawyers for the Commonwealth assisted the Court by making a concession as to the form of Mr Scholes’ pleadings; being adduced solely from his Affidavit, rather than seeking to have his pleading struck out. Such a concession allowed the trial to proceed on the real issue of what occurred to Mr Scholes after he was ransomed. Additionally, by agreement, Mr Scholes was permitted to combine the opening of his case with his evidence in chief.
However, the Commonwealth attracted express criticism from the Court concerning adherence to its model litigant obligations in two instances.
Lawyers for the Commonwealth mocked Mr Scholes’ cross examination in open Court
Justice Kerr noted that ‘On day 3 of the trial an unfortunate event occurred. It involved significant and cruel mockery of Mr Scholes as he was attempting to cross-examine Mr Lemmer. As the transcript of the following day reveals I noted I did not accept Mr Dinelli’s submission that the conduct in question was not to be attributed to his client.’
Justice Kerr chose not to repeat the nature of the mockery to save Mr Scholes the hurt in reliving the moment and also to avoid exposing the maker of the remark to public humiliation.
Made submissions in closing as to Mr Scholes’ character and credit where those matters were not put to him prior
In closing submissions, Counsel for the Commonwealth sought to discredit Mr Scholes by raising the circumstances leading up to Mr Scholes’ kidnapping – including him cohabiting with a younger woman; she apparently swindling him of large sums of money; and he subsequent engaging in a relationship with her sister.
Counsel for the Commonwealth described Mr Scholes’ conduct as “bizarre” and invited the Court to accept that his conduct justified questioning of Mr Scholes’ general credit.
Justice Kerr was “entirely unpersuaded” by this invitation, finding that: ‘Without Mr Dinelli ever having directly put to Mr Scholes that he was dishonourable in his conduct or dissembling in respect to that history, I am satisfied that the Commonwealth’s submission not only must be rejected but also that there was never a sound foundation for it to have been advanced by a model litigant.’
Consequences for failing to abide by model litigant obligations
These two shortcomings resulted in the Court exercising its discretion to reduce the costs that the Commonwealth was entitled to following its successful defence of the claim.
Justice Kerr found that: ‘ … the Court is entitled to be satisfied that a) Mr Scholes was mocked during the proceeding and (b) that not a significant aspect of the trial involved an extended attack on Mr Scholes’ character by the Commonwealth absent an available forensic justification.’ For those reasons, the Court’s cost order excluded the Commonwealth’s costs for the three day trial, which included senior and junior counsel.
Broadly, such behaviour if displayed consistently has the potential to undermine the public’s confidence in the administration of justice.
The obligations to act fairly are not limited to government agencies: the Civil Procedure Act 2010 (Vic) imposes obligations on all parties in proceedings.
Out of court, practitioners acting on behalf of clients who have a resource advantage over another party should be mindful of any power imbalance in their conduct and act accordingly.
For more information, please contact Claire Stratton on +613 9614 7111 or at cstratton@nevettford.com.au.