Premier's Memorandum

M1991-09 Litigation Between Government Departments and Authorities

Detailed Outline

It has been a principle of long standing that litigation between Government bodies is undesirable and should be minimised. It is generally inappropriate for the Government's resources and the courts' time to be spent on actions where both parties are Government organisations.

Guidelines for litigation involving Government bodies were promulgated in a Memorandum issued in 1959 by the then Premier, the Hon J. J. Cahill, MP. Those guidelines have been reviewed and new guidelines have been formulated. A copy is attached for your information.

The attached guidelines apply to civil and criminal proceedings and should be followed in all cases where a dispute arises involving a Government Department, instrumentality or State-Owned Corporation.

I would appreciate it if you would ensure that the guidelines are brought to the attentionof all organisations and authorities within your administration.

Nick Greiner MP


1.0 Application of these Guidelines:

1.1 These guidelines apply to:

a. All Government Departments;

b. All Government instrumentalities whether or not they represent the Crown; and

c. All State-owned Corporations whether or not they represent the Crown.

1.2 In these guidelines, the above will all be referred to as Government authorities.

1.3 These guidelines do not affect any statutory requirement for the consent of a particular person before proceedings are commenced.

1.4 These guidelines replace and expand those which were promulgated in 1959 by the then Premier, the Honourable J. J. Cahill.

2.0 Criminal Proceedings:

2.1 Government authorities may incur criminal liability and become liable to prosecution at the suit of other Governmental bodies. Prosecution of other Government authorities, whilst being a procedure of last resort, may be an entirely appropriate way to ensure the maintenance of prescribed safety and other standards, and the acceptance of a proper sense of responsibility for the consequences of the breach of such standards.

2.2 It is, however, appropriate that Government authorities vested with the power to commence prosecutions should consult those who are responsible for the Government authority against whom a prosecution is contemplated, before the commencement of the prosecution. This will ensure that Government resources are not wasted by the commencement of proceedings that would not achieve the object of sheeting home responsibility against the body prosecuted. One such instance is where an employee may be personally liable rather than the employer authority.

2.3 The consultation process should be initiated at senior officer level with a view to:

a. determining whether it is appropriate for proceedings to be commenced;

b. (where appropriate) resolving the matter in dispute without resort to legal proceedings; and

c. if there is no such resolution, identifying the issues in the matter and (where appropriate) reaching agreement on as many of those issues as possible.

2.4 If consultation between the Government authorities does not result in a resolution of the matter, it should be referred by the authorities to their respective Ministers. The Ministers should then confer in an attempt to resolve the matter.

2.5 If the matter remains unresolved, it should be referred to the Attorney General who will seek Crown Law opinion as to whether or not a prosecution against the Government authority is likely to succeed.

2.6 Whilst the Attorney General's opinion as to the likelihood of success of a prosecution does not fetter the prosecuting authority in the exercise of its discretion, it must, of course, be given due weight in any consideration of whether or not charges should be laid.

3.0 Civil Proceedings:

3.1 These guidelines apply where civil proceedings are being contemplated by one Government authority against another (including civil proceedings by way of cross claim) or if proceedings are commenced against two or more Government authorities.

3.2 Litigation is expensive to the parties and to the State which funds the legal system. Civil disputes between Government authorities should not be litigated before the procedure set out in paragraphs 3.3 and 3.4 has been followed. The Premier will not approve the institution of proceedings unless there are compelling circumstances. Furthermore, Government bodies should, if practicable, co-operate to ensure that the total liability of the government is kept to a minimum: this means that cross claims for indemnity or contribution between Government bodies should not be litigated.

3.3 Where a dispute arises between Government authorities which could give rise to civil proceedings all attempts must be made to resolve the dispute at senior officer level and, if necessary, by the relevant Ministers, with a view to resolving the matter without recourse to litigation.

3.4 Where it is not possible to resolve the matter in dispute, the matter should be referred to the Premier.

3.5 The Premier may decide to obtain the opinion of the Attorney General as to the merits of the dispute. No proceedings should be instituted without the approval of the Premier.

3.6 Where a number of Government authorities are defendants in the same civil proceedings, they should co-operate in the conduct of their defence with a view to avoiding inflating the damages recoverable by the plaintiff as well as unnecessary expense or use of resources. Unless impracticable, this co-operation should involve the sharing of legal representation.

4.0 Claims for Public Interest Immunity:

4.1 Except in cases of emergency, no Government authority should object to the production of documents or the disclosure of information on the ground of public interest immunity without first consulting the Solicitor General or, if the Solicitor General is unavailable, the Crown Solicitor. If it is not possible to consult first, notice should be given to the Solicitor General at the earliest opportunity.

4.2 This practice will ensure that those charged with the responsibility of advising the Attorney General (who in the last resort may have to swear an affidavit formulating and claiming the immunity) can have an appropriate opportunity to do so before a claim is publicly made. The practice can result in inappropriate or excessive claims being withdrawn before public embarrassment or waste of costs occurs.

4.3 Any process of discovery or subpoena relating to Cabinet documents or records should continue to be brought to the attention of the Director-General of The Cabinet Office before any decision regarding access is made.

5.0 General:

5.1 No Government authority should claim that any New South Wales legislation (including subordinate legislation) is invalid without first consulting the Attorney General.

6.0 Technical Defences:

6.1 No Government authority should take a "technical defence" (ie. defences not available to a normal litigant) withoutfirst consulting the Attorney General


Who needs to know and/or comply with this?

AR Details

Date Issued
Mar 30, 1991
Review Date
Mar 30, 2001
Replaced By


(02) 9228 5555
Publishing Entity
Department of Premier and Cabinet
Issuing Entity