Saturday, April 14, 2012

Now the Law Society is banging on about a Model Litigant Policy. AND, a warning to members of SuperSA

Recently, the President of the South Australian Law Society, Mr Ralph Bonig, gave media comment about the Attorney-General, the state bureaucracy, and the 'ghostly' Model Litigant Policy.

Well, bugger me. Guess what just became available through a Google search:  Model Litigant guidelines published by the Crown Solicitor's office. Authored 2011.

In response, I penned a letter to the newspaper's Editor. It was not published. Here it is:

I was dumbfounded to read Ralph Bonig's letter 'No Way at Present for Action on McGhee' (Sunday Mail April 1).

“…the Attorney is bound by the model litigant rules…”

What set of rules might that be Mr Bonig?

Surely not the same set I have doggedly pursued for nearly 12 years!

Hang on. Maybe you are confusing yourself by the sets made available on-line by the Federal Government, by the Victorian Government, by the NSW Government, by the West Australian Government, by the Tasmanian Government, et al.

The Model Litigant Policy does not exist, has never existed.

It is a shame to see the Law Society of South Australia banging on the same drum as Attorney-General Rau.

About a Policy that if existed would expose this government for what it truly is; the most aggressive, adversarial, litigious government in living memory.

Model Litigant?

As Willy Wonka put it in Pure Imagination, ‘Hold your breath, Make a wish, Count to three’.

For nearly 20 years, the Labor Government and its underlying bureaucracy, the public service,  both have proven to be adversarial serial litigants WHEN challenged.

Here is a great example. My example.

In 2002, I ambled across to the government Superannuation Fund office to apply for an increase to the  death and sickness benefits attached to my superannuation account.

I went there because of a question on the Form that asked if I was aware of any medical condition in my past that may give me problems in the future.

No detailed questionnaire. Just one question that puts you, the 'pseudo doctor' right under the pump.

I did not have a clue. Jaundice? Chickenpox? Concussion? Hickies? The freckle on my arm?

I sat down with a staff member and plodded my way through everything and anything. I answered her questions. She filled in my Form. No doubt I was there.

Jump forward a bunch of years to when I got really crook.

To cut the long story short, I was approved to receive a payout, BUT…not the additional benefits I had been paying for since 2002. Why?

Pre-existing condition. It was claimed I did not tell them about one particular past illness.

Well, I damn well did! That was why I went over there in the first place. I remember!!

So, instead of believing me, they claimed I had deliberately held back information. This allowed SuperSA to avoid the payout.

And despite the fact Crown Law has been unable to locate that staff member from 10 years ago, they still attacked me. The Judge declared he had difficulty believing that a SuperSA public servant could have made such a mistake! Now there's a huge red alarm bell!!! People don't make mistakes?

I was a Public Servant. Why would his way of thinking not apply to me equally? Why could he not believe me, as opposed to someone no one could find!

As a consequence, I have spent the past 4 years, unrepresented, dragging my sorry arse through the judicial system in an attempt to get my money.

And what has been the government’s reaction? To fight me all the way! To accuse me of re-writing history to suit.

In one particular court appearance, Crown Law delved deeply in to the technicalities of the superannuation legislation.

Also, before that Hearing, Crown told me we would only be handing up our submissions, as the case was one of Administrative law. 'In and Out in 10 to 20 minutes' he said.

Not so, on the day. He stuck me in the Witness Box. I was there ALL DAY!

I was lied to!

Yeah. Why would they want a Model Litigant policy.

I sat there like an empty application form wondering how the hell my whole appeal process had spiralled away from the simplicity of what really happened back in 2002, to an egghead disquisition that may as well been given in some Wookie dialect for my ears.

Now, this is where it can get interesting. The provisions of a Model Litigant Policy.

Here are a few pieces from the New South Wales government 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.....’

Some time ago I gave up trying to get a copy of the much referred-to South Australian Policy. Even when I was working within the Attorney-General’s department, that slippery little sucker was no where to be found.

It does not exist. And when you consider the gist of the NSW Policy, you can probably see why.

If you are one of the 200,000+ members of SuperSA, can I suggest you obtain a copy of your medical records and hand them across to SuperSA? Get a receipt? Trust me, when you lodge that claim, they will pledge 6 months, as they did with me, to turning over stones beneath the damn stones.

Fortunately for private sector Funds, the Insurance Contracts Act does give appellants a 'fair go' to challenge such decisions. An honest oversight, or a cockup by the Fund can be given an aspect other than a suggestion, for example, that a claimant was deliberately holding back, was nefarious in plotting a raid on the Fund years into the future!

There is also a Superannuation Appeals Tribunal (SAT).

You have options. Independent options.

Unfortunately, state government superannuation funds are literally a law unto themselves. The ICA cannot be used. The SAT is out of bounds.

Admistrative Law. The words HAM and STRUNG come to mind!

What a crazy situation. I felt totally impotent. What could I do? With no money, I was buggered.

You might be wondering if my circumstances raised the heckles of any elected members in Parliament House. Not really. A couple showed interest. But those interests kinda slid away somewhere along the email trails.

What I consider more disturbing is that our Justice doyen the Attorney-General John Rau, and the big kahuna of the Law Society, Ralph Bonig so readily trot out references to a Model Litigant Policy when it suits, when they need to placate. A Policy that does not exist. And they both know this as fact. THAT is a worry!

Oh. And regarding the SuperSA Board. I wouldn't bother with its internal appeal process. Your appeal just goes back to the same Board that denied your claim in the first place.

Considering the unusual circumstances, I had the audacity to seek the opportunity to present my Appeal in person to the Board .


As I was told, in writing, an Appeal can only be based upon medical evidence. Presenting your case to the Board is simply 'not on'. The bureaucracy's idea of Procedural Fairness in all it's splendiferous glory.

I was buggered from the getgo.

No surprise though, considering the calibre of the bureaucrats currently supping lattes in the Justice Department:


Anonymous said...

It is a concerning issue when every administrative or privacy website you go to shows that South Australia has no Privacy commissioner, information Commissioner, ICAC or Model Litigant Rules, yet the powers that be inform us that the system is fair. Due to none of the above systems being available to us in SA, we are unable to fairly access information about ourselves that we require. So if you require information from one government agency you have to ask that government agency, and if they refuse it you have no point of recourse. It is in itself corrupt, for one agency alone to control the access to information of that agency, kept by that agency. And on a monthly basis the government is trying to instigate new legislation that allows them to retain and not disclose information they use for the purposes of litigation against others. But that is what our government wishes for, a Marxist society where we have to live by their rules and be discriminated against without any explanation of why.

Supersa member said...

Unbelievable, but not surprising. I too have had reason to challenge the bureaucracy over what began as a simple matter. They came out blazing. I just gave up trying to deal with the nonsenses that the Crown Solicitors Office threw at us. It was a disgraceful display of arrogance and not really caring about the facts of the matter. I am a member of Supersa and I will be ensuring they have my complete gp records. I know of others Supersa has played technicalities with and it is not a pretty sight. They are never wrong, are they. Good luck Rob. Keep at them.

Anonymous said...

hey robert. crown turned me inside and out in an attempt to make me go away. Eventually it all became too much and I gave up. Time someone showed the public what stinks in there. Good onya mate. Love your blog been following your stories for years.

sick of them all said...

I heard the AG waffling on about the model litigant rules on 891 not long ago. When i heard him i remembered your older post about this topic. Bet they hurredly scribble some rubbish up and say "here it is". It really is amazing they think they can get away with lies when they know different. Still that's the way its been and thats the way it will always be. Keep up the sterling work.

Anonymous said...

I gave up on the Law Society a long time ago. Every now and then it pops up and squawks about something then just heads off into the sunset. Ever tried to get funding out of them? Now thats a joke. Good luck Rob. Luv your work. Sue.

adelcomp said...

I did go down that road once. The Litigation Fund. It knocks you back if it's learned scrutinisers cannot see any merit in your case. Wish I had a buck for every time those knocked back have steamed ahead and scored victories! I remember being told by 11 Adelaide Law Firms that I could not get a successful ruling of Vicarious Liability against the bureaucracy under the Equal Opportunity Act. Not one wanted to help. Well...I forged ahead, self-represented, in 2004 and did just that! I got my Ruling. Now that Ruling is being used as a precedent.

Anonymous said...

Well Rob, ever wondered why there is a dearth of silence from the bureaucrats to your blog? Because you are right and they are wrong! And the media? Too busy being wined and dined by the Pollies! Our mate Kevin - jobs for the boys????? Cheers.

45 Pirie Street said...

As usual you have hit all the nails on the heads with your factual reporting. I was in AGs for a while. The meetings I sat in on had to be seen to be believed. You are so spot on. They don't care about right and wrong and justice. They have a bunch of solicitors hanging out in 45 Pirie void of consciences. I know the various people they threw at you when you were going through your various court cases. Their jobs were to shove it up you Robert. Keep going please as you deserve better. Good luck.

45 Pirie Street said...
This comment has been removed by a blog administrator.
Anonymous said...

Hello Rob. Thanks for bringing this out in the open. I just ticked the boxes on my form. I'm going to my doctor to discuss this matter as I don't want to end up like you have should I ever make a claim. From what you say this is a disgrace. I am aware of two people who supersa gave a hard time. Same thing. You are so right. One cruddy question with all the responsibility thrust upon you to be a 'pseudo doctor' as you put it. Again thank you.

public servant said...

This is disgraceful. How do these people sleep at night. You are right. If that fund was exposed to the Insurance Contracts Act they would have been sent packing. Absolute shocking case of the most irresponsible and uncaring behaviour. Right up themselves these people. I wonder if I can get out of there and move to a Fund not under crown control.

adelcomp said...

PUBLIC SERVANT: You might want to share this story with your workmates. If I knew about this crap when I was in the Public Service, I would never have put my money in SuperSA.

stuck in agd said...

Supersa has been a law unto its self for a very long time. take a look at the members of the board. What you are up against with any appeal. It is bloody ludicrous that any appeal process involves the same clowns revisiting their own decisions. Appalling.

adelcomp said...
This comment has been removed by the author.
adelcomp said...

STUCK IN AGD: I was extremely distressed during the internal appeal process. I kept trying to say that I gave all the information back in 2002. SuperSA kept telling me that that had NOTHING to do with the Appeal. Appeals can ONLY be based upon NEW MEDICAL EVIDENCE! That is so wrong in so many ways! When I asked if I could address the Board during its deliberations, I was stunned when I was told NO. That place needs a real good looking-at. And their Forms are a bloody disgrace. Other Funds have multi-page Medical Questionnaires. But no, not SuperSA. Sheer incompetence. Absolute complacence.

SuperSA member said...

Rob. I am not surprised by any of this. I had a long drawn out dramatic discussion with the fund concerning that terrible form. How that board can say it carries no blame for problems like yours is beyond me. SuperSA has been stuck in a time warp for decades. You only have to look at its rubbish paperwork to know that. Good luck mate. Hope you rip them to shreds.

annoyed supersa member said...

Marvellous. Well done Supersa. Now I have to take time out to check my paperwork. When I go to your office can you guarantee you will get all the information from me that you need? That you will not go looking for something I forgot and maybe told it was nothing to worry about by your staff? Seems that you got every single member over a barrel. Thanks for airing this Rob. What a scandal.

An old mate said...

I worked at supersa for a while. I was there when they screwed you over. You should have been permitted to address the Board considering the unique circumstances. But I can tell you. You were doomed right from the start. The moment the Board got involved. Considering the difficult industrial relationship between you and the head of the PSA Ms McMahon, she should have declared a conflict of interest. She didn't. Keep fighting Rob. About time someone took these people to task. And you are so right in relation to the forms members have to fill in. An absolute minefield that leaves the member so unfairly wide open. I remember you went to Supersa one day to discuss the standard of the form. They didn't care. Cheers mate. Miss seeing you around the PSA workplace reps circles.

Superworker said...

Just another government department that lives in its own little world. You are quite correct. If this happened in the private sector, the Complaints Tribunal would have ruled in your favour in the blink of an eye. I work in the financial sector and I can tell you SuperSA is considered an amateur. What happened to you is a disgrace. Keep fighting. They cannot get away with it. G.

Anonymous said...

Taken your advice. Booked in to see my doctor next week. How on earth was I meant to have answered that question with any certainty. Thanks Rob.

Anonymous said...

Thanks mate for the obviously great advice. They need to get their act together. I was none the wiser. I wonder how many members have been screwed as you were. Disgraceful.

disgusted member said...

Dear Rob. This is indeed terrible. You mean to tell me that they expect the member to delve into past medical history and determine what they need to know? Judging from your story they do not consider themselves to ahve any responsibility especially when it is so obvious the paperwork is crap! Keep fighting them Rob. They cant get away scot free.

soone to be ex-supersa member said...

I really did think the new GM who came from the private sector would have made a difference. Not so. My wife works in the private sector and she had a huge tick-box questionnaire to complete. It ran for 8 pages. It covered things we never heard of before. At least her chance of getting caught like you have is minimal if not non-existant. I'm going to see if I can get out of supersa and take my money elsewhere. Thank you Rob.

Anonymous said...

Robert you are courageous to be fighting the sytem that is so wrong in the case. Like some of the others who have placed comments I am also going to my doctor for a chat. Supersa needs to get information on this situation out to all members. Doubt they will though. Be a bit like declaring the inadequacies of the supersa system. Good luck Robert. I hope and pray you get over this hurdle.

Anonymous said...

Like you I went to their offices and was told that based upon what I said there were no issues. Thank heavens I followed up an accident I had. My doctor told me to go back to them and change the paperwork. Had I made a claim I could have been you. SuperSA paperwork is dangerous.

Anonymous said...

This great thread spurred me to leave SuperSA and so glad I did. Everything is much better now. Well not completely but that is because I still work for a pack of *&^%$#@. The quality of managers appointed in the Public Service seems to be going down down and further down. And the flunkies they then promote below them are all yes men. No wonder this state is in the state it is in. For keeping this site up you are an inspiration. Everything you say on this site rings TRUE. I withdrew my Will from the Public Trustee too. I was disgusted with the victimization they inflicted on you. Insecure petty people should never be appointed as heads of departments nor as leaders of anything. Except in South Australia it seems to be the norm to appoint inadequate vindictive petty people to head up departments and agencies in governmentSA