Does a breach of the State of Queensland's Model Litigant Principles confer a private right of action?

In Brief

The Supreme Court of Queensland considers the State of Queensland's Model Litigant Principles and conduct of a barrister at a compulsory conference in Collins v Metro North Hospital and Health Service & Ors [2023] QSC 194.

Background 

The proceedings concerned three interlocutory applications to strike out allegations against them by the plaintiff, Kenneth Charles Collins (plaintiff), commenced by:

1. The first defendant, a hospital service operated by the State of Queensland (the State); and 

2. The second and third defendants, both barristers

The plaintiff's claim can be separated into two "streams":

1. The conduct of the State and second defendants during two applications for urgent mediation dates in a proceeding relating to the grounding of the plaintiff's yacht on South Stradbroke Islands (the applications stream); and

2. The conduct of the State and the third defendant during a compulsory conference held in relation to a claim arising for personal injuries from medical services delivered by the first defendant (the compulsory conference stream). 

At the time of commencing his claims, the plaintiff had been diagnosed and was seeking treatment for advanced cancer and mental health disabilities. The plaintiff states that the State knew of his illnesses and conditions. 

This article will focus on the allegations made by the plaintiff in respect of the State's Model Litigant Principles (MLP). The plaintiff did not make allegations against the second defendant in respect of any breaches of the MLP. 

Model Litigant Principles

The State Cabinet issued MLP which provide guidelines for the conduct of litigation where the State or an agency of the State is a party to the litigation. Relevantly, the MLP state (among other principles) that the State and all agencies must conduct themselves as model litigants in the conduct of all litigation by adhering to the following principles of fairness and firmness: 

1. Not seeking to take advantage of an impecunious opponent; and

2. Not contesting matters which it accepts as correct, in particular by not requiring a party to prove a matter which the State knows to be true, and not contesting liability if the State knows that the dispute is really about quantum.

The compulsory conference stream

The plaintiff alleged that the third defendant breached the MLP by (at [44]) submitting at the conference the following:

1. The plaintiff was at risk of an adverse costs order which the State could then enforce;

2. The plaintiff already had an adverse costs order against him which the State could enforce;

3. The requirement to provide a comprehensive care plan was a matter for expert evidence; 

4. The parties could not go to trial until at least March 2024. 

The plaintiff alleged that he suffered a psychiatric injury, which was described as a significant depressive injury, as a result of how the compulsory conference for the medical services claim was conducted. 

The plaintiff argued, with reference to a letter from a solicitor who attended the conference to assist the plaintiff (though the plaintiff states he was self-represented), that the submissions made by the third defendant:

1. Included a veiled threat that the State could pursue the plaintiff for a costs order;

2. Contested matters which the State knew to be true, including that the State should have known whether the requirement for a comprehensive care plan applied to Queensland Health; 

3. Included that the matter would not proceed to a trial until March 2024 where the third defendant knew the plaintiff suffered from a terminal condition and was approaching 80 years of age. 

The court considered the solicitor's letter was an expression of his opinion, and not statements of fact. 

Discussion and findings 

The court considered the application of the MLP in the context of the plaintiff's allegations.

His Honour considered the unilateral adopting of the MLP by the State and its agencies, such as the first defendant, does not create a form of freestanding legal duty enforceable by an opposing party in litigation (at [132]).

The court considered Malone Obh of Western Kangoulu People v State of Queensland [2020] FCA 1188 which concerned alleged breaches of various provisions in the MLP. O'Bryan J stated (as outlined in [133]):

Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory applications brought by the applicant cannot be resolved on the basis of those Principles.

His Honour considered the statement of O'Bryan J was "clearly correct".

His Honour further held that any alleged breaches of the MLP do not give rise to an independent cause of action vested in the plaintiff entitling him to seek compensation for personal injury. His Honour ordered that the allegations against the first defendant and third defendant concerning breaches of the MLP (among other allegations) be struck out. 

Implications of the Decision 

The MLP were issued by Cabinet to be used for the public good and in the public interest, and to properly use taxpayers’ money and, in particular, not to spend it without due cause and due process. 

This decision highlights that whilst the MLP are adopted by the State and its agencies, any alleged breach of the MLP does not confer a private cause of action. 

Despite the plaintiff's allegations regarding alleged breaches of the MLP being struck out, His Honour was critical of nature of some of the submissions made by the third defendant at the compulsory conference. This serves as a timely reminder that submissions during a compulsory conference must be undertaken in accordance with the principles of MLP (where applicable), and in a manner which is conscientious of the capacity of the parties, particularly a self-represented plaintiff.

Solicitors and barristers acting on behalf of the State or its agencies must be familiar with, and act in compliance with the MLP. A copy of the MLP can be found here.