Model litigant

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Big Four Banks Publicly Committed

In March 2019 the CEO's of all of the Big Four Banks made a public commitment before the House of Representatives Standing Committee that their banks would now act as 'Model Litigants' when resolving disputes with their customers.

NAB Commitment

Tim Wilson MP, Committee Chair, asked NAB CEO Phil Chronican:


"A lot of the people in the room and elsewhere are concerned about the inability to get access to certain documents from banks, obviously related to their cases, that they feel would provide clarity around their circumstances. It's a common theme that gets raised with me even by constituents. As a model litigant, what is the time frame that you have set and the disclosure regime you have set for the release of documents relevant to people's cases so that they feel they can take action or not?".


Phil Chronican testified in reply:


"We find it and we hand it over.If it's a relatively recent document that we should have at hand, you would expect to get it within a week. If it's a document that has been archived off in a storage centre then it may take two to three weeks to identify it, find the box, extract the document, verify it and send it."



Being Held to the Disclosure Commitment

 

Tim Wilson MP, Committee Chair, continued:


"That's a standard which I think we can frankly, hold NAB against into the future -"


Phil Chronican testified in reply"


"Correct"



Discovery through a Court Process should not be required

 

Tim Wilson MP, Committee Chair, continued:


"This should, in many cases, remove the obligation to and then try and push for access to documents through discovery processes, which are expensive. That would be fair?


Phil Chronican testified in reply"


"I think that's fair"



Access to Documents

Note: Members and beneficiaries of regulated superannuation funds already have a legal right to have access to certain prescribed "fund documents" pursuant to Section 1017C of the Corporations Act 2001 and related Regulations. Criminal sanctions apply to the contravention of Section 1017C


It might be necessary to expand this legal right to certain "bank documents" in loan and credit disputes with financial service providers.


Draft Model Litigant Principles

{Draft Australian Banking Association Version for Review}


The nature of the obligation requires that members of the ABA act honestly and fairly in handling claims and litigation brought by or against a member of the ABA by:


- Dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation;

- Paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid;

- Acting consistently in the handling of claims and litigation;

- Endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate;

- Where it is not possible to avoid litigation, keeping costs of litigation to a minimum, including by:

o Not requiring the other party to prove a matter which the member knows to be true,

o Not contesting liability if the member knows that the dispute is really about quantum.

o Monitoring the progress of litigation and using methods that it considers to be appropriate to resolve the litigation, including settlement offers, payments to court or alternative dispute resolution, and

o Ensuring that arrangements are made so that a person participating in any settlement negotiation on behalf of the member can enter into a settlement of the claim or legal proceedings in the course of the negotiations

- Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim;

- Not relying on technical defences unless the Members interests would be prejudiced by the failure to comply with a particular requirement, 

- Not undertaking or pursuing appeals unless the Member believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and apologising where the Member is aware that it or its lawyers have acted wrongly or improperly, and

- Identifying and undertaking “friendly” litigation where a dispute can be resolved in a Court where neither partly is exposed to adverse cost orders.

Enforcement of Model Litigant Principles

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Enforcement of Commonwealth Model Litigant Obligations

Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017.


 https://bit.ly/2DXPRk4 

About this Bill

 Amends the: Judiciary Act 1903 to: require the Attorney-General to issue directions applying generally to Commonwealth legal work that contain requirements for Commonwealth litigants to act as model litigants (model litigant obligations); and enable a court to order a stay of proceedings or make orders in relation to contraventions of model litigant obligations; and Ombudsman Act 1976 to: require the Commonwealth Ombudsman to investigate complaints in relation to contraventions of model litigant obligations; and provide for annual reporting requirements. .

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