Thursday, February 17, 2011

South Australian bureaucracy claims to be a Model Litigant! Bollocks!!

Wednesday morning, tuned to ABC radio, I was intrigued as I listened to Matt Abraham and David Bevan lock horns with the South Australian Attorney-General (now, Deputy Premier) Mr John Rau.

My morning was relatively peaceful. Breakfast was good. My granddaughter’s first birthday the next day. Cat strolled past and flicked her tail.

All was fine until I heard Mr Rau utter two words, MODEL LITIGANT. In that same breath, he stated that The Crown, as in, I suppose, the Crown Solicitor’s Office, conforms to a Model Litigant policy. Mind you, in all my years of interfacing with these people, I have never, ever seen a document purporting to be thee Policy. Every other state has one. Google it!

As many will know, I have not enjoyed good health for some time, since leaving the public service. But, I have learned how to recognise ‘my moments’ and how to manage them.

The more I listened to this interview, the more livid I became.

So, what does Model Litigant mean? Here are a few pieces from the New South Wales Policy:

‘......The obligation to act as a model litigant requires more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations. Essentially it requires that the State and its agencies act with complete propriety, fairly and in accordance with the highest professional standards....’

‘..... where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by not requiring the other party to prove a matter which the State or an agency knows to be true, and not contesting liability if the State or an agency knows that the dispute is really about quantum...’

‘....Not taking advantage of a claimant who lacks the resources to litigate a legitimate claim, not relying on technical defences unless the interests of the State or an agency would be prejudiced by the failure to comply with a particular requirement...’

‘...... apologising where the State or an agency is aware that it or its lawyers have acted wrongfully or improperly.....’

Let me put the State Government to the test.

In 2004, after several years of blowing the whistle on sexual harassment and workplace bullying, within Mister Rau’s own portfolio, self-represented I caused a trial to be conducted in the District Court by the Equal Opportunity Tribunal.

Whilst the sexual harassment claims were prominent, my focus was on the Court determining that the bureaucracy sat back on its fat arse ignoring my complaints for years. The Justice Department was simply validating the bullying and the harassment, by doing nothing.

I am happy to say the findings of the Tribunal totally vindicated my position. I was very, very pleased!

I was again in Court, last September. Same idea. I said one thing, in defence, the government said another.

Those two court cases have a common thread. Obviously under instruction from the government agency, the Crown Solicitor’s Office was to convince the Judge I was a liar, that I tended to re-write history, and that I was a man with questionable motives.

So, how did they go about trying to discredit me? Specifics.


I was in the Witness Box for two days. It was savage. The Crown lawyer hit me with accusation after accusation. Some of them downright bizarre. Absolutely nothing to do with the case itself. Just good old-fashioned mudslinging. I am a strong person, but I took one helluva pummelling those two days. It was bad.

The night before the case began, the Crown lawyer and THE BULLY and the CEO of Public Trustee called my star witness to the executive boardroom. She called me in tears that night. I had lost my witness. Infer what you may.

Unfortunately, for the government, anything they thought achieved by that pummelling did not make it to the Determination handed down 25 June 2004. Although the sexual harassment allegations did not hold water, TECHNICALLY, I certainly got what I wanted. Proof the government lied. Proof I was not a bullshit artist. Proof they damn well knew about the bullying, about the harassment! The government agency, Public Trustee, was found to be vicariously liable for the actions of an employee.


Same crap! Only this time, it was downright gutter tactics. The Hearing was one of Administrative Law. Leading up to court day, there were several Preliminary Hearings. That was a hoot! From memory, the majority of my requests for discovery were, yeah, just ignored. Yet, each time Crown wanted something, it was pistols at dawn stuff!

A few days before day one, I had a conversation with the Crown lawyer. Nice guy, only doing his job, I guess. He made it very clear to me that providing I did not introduce any new evidence, it would be a 10-minute in & out affair. We hand up or read out our statements. Home in time for lunch.

Well, as I walked into the courtroom and up to the Bench, the tomes of material he had strewn across that bloody great big bench puzzled me.

He put me in the Witness Box.

That was in the morning. Sometime after four, I slid out. Yep, just like in 2004, he did his best to convince the Judge I was a liar, and a re-writer of history. He introduced paperwork I had never seen before. Paperwork from years prior. Sitting in that box, my brain went into meltdown. I got confused. I was upset. But, hey, he was only following instructions. I had been ambushed.


If the elusive South Australian Policy is anything like that of the NSW Policy, I hope you draw the same conclusions. Is Crown a Model Litigant?

In my second case, I had my sickness insurance entitlements withheld due to an alleged pre-existing condition non-disclosure back in December of 2002.

During Preliminary Hearings, Crown did agree with some of my allegations: that my insurance form had been filled-in by counter staff, that there were no policies or procedures for counter staff, that many of the staff were contractors. HOWEVER, they did not agree with me when I said I had told the staff member all of my medical history.

Hell, but that was why I went there in the first place. This government superannuation manager does not have any medical questionnaires. The form has one question, and asks you to report what you think, in your past, may cause you to become disabled in the future. Too bad if that freckle does turn out to be cancer many years later.

Well, they did a great job of ambushing me. Of deceiving me. Crown Law lied to me. I was set-up. But, hey, I have lodged an Appeal with the full bench of the Supreme Court. Give it another shot. Be more alert this time.

So, give me a verdict. Did Crown behave as a Model Litigant?

Dear Attorney-General Rau.

With the greatest of respect, I must disagree with what you said on ABC891. Moreover, if you are even half the man I believe you to be, you will seek time with me. I have been and I remain a victim of a very cruel and adversarial system that is entrenched within the public service.

As a taxpayer, well, if I ever get a job again, you should want to hear it from my side. From one of many  who has been through eleven years of hell. Years of no one wanting to help me. Years of bullying, victimisation. Years of ill health. Years of frustration with an employer who deserted me, who now is screwing me, all over again!

You have the findings of Judge Rice. You have the findings of the Alan Moss Inquiry. You have the findings of the Parliamentary Inquiry. Vindication. Vindication. Vindication.

And, do you want to know how it all started? Back when I was a normal person, a great father, a good husband. All I did, one day in March of 2000, was to say to the CEO; “That new guy is touching himself in front of staff members.”

This is nothing to do with law, with legislation, or with policy. This is to do with the truth. And, certainly in my experiences, truth is the first casualty in this adversarial system we call justice. A Model Litigant? I do not think so!


Anonymous said...

You are sooooo right Rob. Similar thing happened to my friend who still works in the public service. They treated her like dirt. Said she was a liar. Broke her down. It was disgusting. If I could help you with your court case I would. You are the type of guy we look up to. We know you from your days in the service. You are a great person. We hope you stick it right up them.

Parker Pen said...

Another excellent story from you. Straight to the point, plenty of meat and no wishy-washy bits or pieces. Good luck mate. You put some of our so-called investigative journos to shame.

Anonymous said...

Hello Robert. My heart goes out to you. I was in the back row those days the man from the crown law office was examining you. That was most disgusting. He made you out to be like a mobster. The judge wasn't into it. I watched judge rice carefully. You did really well you were so composed. My dad went through the same thing only THEY BROKE HIM. He quit after having a breakdown. You are right. When anyone stands up for what is right against the government they do two things. They do not want to consider the possibility there is truth in what you say and they attack you. Good luck my friend.

The Hooded One said...

Great post mate. Doubt you will ever get to eyeball John Rau. But, I think you know that!

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adelcomp said...
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Anonymous said...

I doubt you will find anyone to disagree with you. The Crown Solicitors Office has never been a model litigant. Let's face it, they don't give a toss about settling or negotiating. They still get paid every fortnight. Rau either lives in lala land, or, like all the others is full of it.

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Anonymous said...

I work for WHS QLD Justice and Atorney Generals Department and I have been bullied for 7 years and blatantly been Discriminated against by the bosses and to top it off i have had our own legal department interfear with an investigation where by a person died from work a accident and they tried to cover it up by getting me to dispose of evidence after the person died. I have been off work for 8mths and it hasn't changed a bit, bosses discriminate aginst lower paid workers and lie, I hope to have my day in court as this death i believe shows there is severe neglection of duty by the employer under their own Act sect29 (failing to provide a safe place of work)and to the other party. They also so broke the privacy Act and this was done by an RM (Regional Manager) Discriminaction against mysel and others by the ROM reginal office manager) and the RM. The department has lost integrity and lost all faith, due to their deplorable actions and constant lies by those who think that they are beyond the Act and the Law.

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adelcomp said...

Go for it.

Anonymous said...

Hey - I am definitely glad to find this. great job!

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Anonymous said...

I really liked the article, and the very cool blog

Daughter of a broken employee said...

Oh my god! Everything you say is so true. It all happened to my dad when he was a public servant. They did not care about him and set about to break him because he stood up for what he believed was right. Thank you Rob for this story and your blog. I am so sorry to know your circumstances. This is what happens.

Victims of Comcare said...

Well, it's the end of 2012 and nothing has changed. Still the same corruption, cover ups, colluding and cronyism between agencies from the top down going on.

Anonymous said...

You are so right. It's the culture and nobody wants to know. "Always blame the victim" is the way it's handled.