No declaration available for a model litigant breach

In Hutchinson v Comcare (No 2) [2021] FCA 284, the Applicant in a judicial review application in the Federal Court sought (amongst other orders) a declaration that Comcare had breached the model litigant obligations found in Appendix B to the Commonwealth's Legal Services Directions 2017. However, Justice Jackson found that s 55ZG of the Judiciary Act 1903 (Cth) "effectively precludes that claim". Justice Jackson went on to state (at [8]):

"The Legal Services Directions are made under s 55ZF  and under s 55ZG(1)(a), Comcare must comply with them. But s 55ZG(2) provides that compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General, and s 55ZG(3) provides that the issue of non?compliance with a Legal Services Direction may not be raised in any proceeding except by, or on behalf of, the Commonwealth. The section does not expressly provide for the consequences if a person other than the Commonwealth nevertheless does raise the issue in a proceeding. But even if it is assumed that Comcare has breached the Legal Services Directions here (on which I make no finding), s 55ZG(3) is, at least, an unanswerable discretionary reason to refuse to make the declarations sought. I dismiss that aspect of Ms Hutchinson's applications at the outset." 

This is a timely reminder of the operation of s 55ZG of the Judiciary Act 1903 (Cth) in relation to any alleged breaches of the Commonwealth's model litigant obligations or the Legal Services Directions 2017 generally.  

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