Model litigant issue arises in the Lawyer X Royal Commission – Do model litigant obligations apply in Royal Commissions and Inquiries?

It has been reported that, on 12 February 2020, Commissioner Margaret McMurdo - the Commissioner of the Royal Commission into the Management of Police Informants (also known as the Lawyer X Royal Commission) - expressed concerned in relation to Victoria Police not handing over documents. Commissioner McMurdo stated: "Victoria Police should be a model litigant, particularly when it's concerning a royal commission into its conduct".

Traditionally, model litigant obligations have been associated with litigation in courts or tribunals (as well as the conduct of civil claims by government). However, there is no reason why the model litigant obligations should not extend to the conduct of government departments, agencies and officers in any royal commission, inquiry or inquest. Since Melbourne Steamship Co Limited v Moorehead (1912) 15 CLR 333, there has been a recognition that government departments and agencies should act in accordance with standards of fairness in relation to the conduct of litigation. In Australian Securities and Investments Commission v Hellicar and Ors [2012] HCA 17, Justice Heydon suggested that government departments and agencies should "act as a moral exemplar" (at [239]) in litigation.

In addition, many of the jurisdictions around Australia have a model litigant policy in place. For example, the Commonwealth has a model litigant policy which is contained in Appendix B of the Legal Services Directions 2017, the New South Wales Model Litigant Policy can be found in Premier's Memorandum 2016-03 titled "Model Litigant Policy for Civil Litigation and Guiding Principles for Civil Claims for Child Abuse" and Victoria has the "Model Litigant Guidelines". There is often a misconception that model litigant policies apply strictly to litigation (and the conduct of civil claims) whereas the model litigant policy in each of the three specific jurisdictions mentioned extend the application of the model litigant policy to the conduct of departments and agencies in inquiries (see Note 1 of the Commonwealth's model litigant policy in Appendix B of the Legal Services Directions 2017; paragraph 1.2 of New South Wales' Model Litigant Policy; and Note 4 of the Victorian Model Litigant Guidelines).

Given the requirement and expectation that government will participate in any litigation process in a manner which is consistent with the standards of fair play and, when doing so, is expected to act as a moral exemplar, there is no reason why the requirement that stems from the model litigant policy, such as acting honestly and fairly with complete propriety, should not extend to inquisitorial processes such as royal commissions, inquiries and inquests. It is for this reason that the model litigant policy of the three jurisdictions referred to above have extended the application of the model litigant policy to inquiries in addition to litigation before courts, tribunals and other alternative dispute resolution processes (including the conduct of civil claims).