The purpose of this Memorandum is to issue revised guidelines for litigation involving Government authorities. This Memorandum replaces Memorandum 91-9 issued on 18 April 1991. The guidelines issued by way of this Memorandum take effect immediately.

The guidelines apply both to civil and criminal proceedings. They are based on the general principle that litigation between Government authorities is undesirable and should be avoided whenever possible. Where litigation does occur, Government authorities should take steps, as set out in the guidelines, to consult with the authority against which litigation has been commenced and attempt to reach agreement on as many factual and legal issues as possible, to ensure only matters which need to be resolved by the Court are left in issue. In civil proceedings, alternative dispute resolution procedures should be utilised before resorting to the Court system.

The guidelines recognise that, in some circumstances, the only appropriate course is to commence prosecutions against Government authorities as a way of enforcing compliance with environmental, safety and other standards. The guidelines are not intended to interfere with the normal prosecution discretion of Government authorities.

The guidelines apply to all Government authorities, including Government Trading Enterprises. The guidelines are not expressed to apply to State Owned Corporations. However, as the guidelines provide a sound approach to the management of litigation and disputes, I urge shareholding Ministers and Boards of State Owned Corporations to agree to adopt the guidelines by incorporating them into their Statements of Corporate Intent. This Memorandum should therefore be forwarded to all State Owned Corporations for their consideration.

Any inquiries as to the operation and application of the guidelines may be directed to Mr Bill Grant, Deputy Director-General, Attorney General's Department
(Ph 9228 7017) or Ms Jane Smith, Legal Branch, The Cabinet Office
(Ph 9228 4000), or Louise Wattus, Legal Branch, The Cabinet Office
(Ph 9228 5546).

Would you please ensure that these guidelines are brought to the attention of all departments and other authorities within your portfolio.

Bob Carr
Premier

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GUIDELINES FOR LITIGATION INVOLVING OR BETWEEN GOVERNMENT DEPARTMENTS AND AUTHORITIES

1.0 Application of these Guidelines

1.1 These guidelines apply to:
 
(a) all Government Departments; and

(b) all Government agencies, instrumentalities and bodies, including Government Trading Enterprises, 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 apply to State Owned Corporations or local government authorities. However, as the guidelines and the principles underpinning them provide a sound approach to the management of litigation by publicly owned enterprises, State Owned Corporations are encouraged to adopt the guidelines as part of their policy. Similarly, prosecution agencies are urged to apply the principles of the guidelines to State Owned Corporations.

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

1.5 The aims of the guidelines are, so far as possible, to ensure that:
 
(i) in the prosecution of one Government authority by another the cost to the public purse is kept to a minimum;

(ii) only appropriate prosecution action is taken;

(iii) inappropriate or irrelevant defences are not pleaded;

(iv) the Court's time spent in resolving prosecutions or disputes involving Government authorities is kept to a minimum;

(v) that responsible Ministers are kept informed of pending prosecutions and possible disputes between Government authorities; and

(vi) Government authorities act, so far as is possible, as model litigants in proceedings before the Court.
 
1.6 These guidelines replace and expand those which were issued on 18 April 1991 by the then Premier, the Honourable N. F. Greiner.
 
 
2.0 Criminal Proceedings

2.1 Government authorities have a responsibility to comply with the law and can be subject to the same penal sanctions as the rest of the community.

2.2 Criminal proceedings against Government authorities may be the only appropriate method of enforcing compliance with prescribed safety, environmental and other standards. Such prosecution action may be necessary to ensure the acceptance of an appropriate sense of responsibility for the consequences of the breach of such standards or because it is otherwise in the public interest for proceedings to be commenced.

2.3 Nothing in these guidelines is meant to in any way interfere with the normal prosecution discretion as to whether or not to commence prosecution proceedings or to discontinue prosecution proceedings.

2.4 However, it is appropriate that Government authorities vested with the power to commence prosecutions should consult with the Government authority against whom a prosecution is contemplated. Such consultation will ensure that:
 
(i) inappropriate procedures are changed as soon as possible;

(ii) the facts surrounding the incident are ascertained and, if possible, agreed upon;

(iii) any defence to the prosecution is made known;

(iv) inappropriate proceedings which would not achieve the object of sheeting home responsibility against the body to be prosecuted are not taken; and

(v) the Government authorities co-operate to ensure the Court only has to deal with the real questions in issue.
 
2.5 This consultation process is consistent with the normal processes that are followed by a prosecution agency when determining whether or not, in all the circumstances, prosecution action is the most appropriate way of dealing with a possible breach of law and is not meant to imply that Government authorities are treated any more favourably than other defendants.

2.6 The consultation process should be initiated at senior officer level with a view to full discussion, on a without prejudice basis, of the incident in question. It may be appropriate that legal proceedings not be commenced. To illustrate, the Government authority liable to prosecution action may undertake some action which will ensure that similar breaches do not occur in the future and in particular circumstances, this may be acceptable to the prosecution authority.

2.7 If the matter is to continue then the consultation process should be used to identify the factual or legal issues in dispute in the matter and to assist with reaching agreement on as many of those issues as possible. To illustrate, it may be that there can be an agreed statement of facts or a significant number of the relevant facts can be agreed so that a Court's time is not wasted in establishing these facts.

2.8 It is incumbent on Government authorities to do all they can to narrow the issues before the Court and in this regard authorities are urged to be 'model litigants', ensuring that only matters which need to be resolved by the Court are left in issue.

2.9 It should be recognised that to enable the allegedly offending Government authority to participate with full knowledge in the consultation process it will be necessary for the prosecuting authority to supply a statement of facts outlining the nature of the alleged offence. Whilst it may not be appropriate, at this stage of proceedings, for the prosecuting authority to provide a full brief of evidence to the other authority, it is recognised that sufficient information should be provided to allow the other authority to evaluate its position.

2.10 The consultation process is to take place within an appropriate time frame. It is essential that these guidelines are not used by any Government authority to delay the resolution of a matter which could result in prosecution action. All necessary consultations should be finalised within a period of 30 days from the time that the statement of facts is provided.

2.11 If, after the consultation process the prosecution authority considers that prosecution action should be instituted, then the Chief Executive Officers must bring the matter to the attention of the responsible Ministers.

2.12 If there are points of law in dispute between the Government authorities, it may be appropriate that these questions be referred to the Attorney General for Crown Law advice.

2.13 Whilst the Crown law officers' opinion on the matters referred should be given due weight in any consideration of whether or not charges should be laid or defended, these questions must ultimately be resolved by the relevant Government authorities.

2.14 If the matter proceeds to prosecution action it is emphasised that all steps must be taken by the authorities to reduce the issues in dispute between the parties, including the admission of all facts not in issue, thereby saving court time and keeping the cost to the public purse to a minimum.

2.15 The level of representation for both the prosecuting authority and the defending authority should be appropriate to the difficulty of the facts and issues still in dispute, but every effort should be made to keep legal costs to a minimum.

2.16 Where a prosecution action has been finalised, appeals should only be considered in exceptional cases. If possible, the Attorney General should be asked to provide Crown law advice on the likelihood of success of any appeal proceedings. Whilst such advice is not binding, it must be given due weight in any consideration of whether or not there should be an appeal.
 
 
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, 3.4 and 3.5 has been followed. The Premier will not approve the institution of proceedings unless there are compelling circumstances. Furthermore, Government authorities 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 authorities 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 It is Government policy that, where possible, attempts should be made to settle disputes by utilising alternative dispute resolution techniques rather than by resorting to the Court system. If a dispute cannot be resolved at officer level then alternative dispute resolution procedures should be used prior to litigation being commenced.

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

3.6 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.

3.7 Where a number of Government authorities are defendants in the same civil proceedings, they should co-operate in the conduct of their defences 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 occur.

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" (i.e., defence not available to normal litigant) without first consulting the Attorney General.

7.0 Operation of the guidelines

7.1 These guidelines are not intended to affect substantial legal rights or to give rise to additional legal claims or defences. The guidelines should not be raised by Government authorities in legal proceedings.