Model litigant principles in proceedings under the Fair Work Act 2009

23 Sep 2016

In Director of the Fair Work Building Inspectorate v McDermott [2016] FCA 1147 (21 September 2016), her Honour Charlesworth J provides a helpful summary of the extent of the Commonwealth's model litigant obligations in civil penalty proceedings under the Fair Work Act 2009. In answer to an allegation that the Director of the Fair Work Building Inspectorate had breached his obligations as a model litigant because he submitted into evidence an affidavit that did not include material revealing a certain conversation, her Honour stated at [95]:

... The model litigant principles do not require a litigant to include in his or her affidavit all evidence that may conceivably be of assistance to an opposing party. Nor does a model litigant in civil penalty proceedings have any obligation to give disclosure in any event, apart from such disclosure as may be ordered under the Rules of this Court against any other litigant in civil proceedings: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 at [240]; Brandon v Commonwealth of Australia [2005] FCA 109 at [11]. An applicant in civil penalty proceedings does not owe the Court or the respondent a prosecutorial duty of the kind that applies in criminal proceedings.

At [100], her Honour provided some words of caution that an allegation that a party who is subject to model litigant obligations has departed from those obligations is a serious one. Her Honour further stated that the allegation should not be made without proper factual foundation and should only be made after a careful and considered reflection upon what the model litigant obligations in fact require in the particular circumstances.


Dilan Mahendra

Solicitor 2006
Barrister 2010

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