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UPDATE, 21 APRIL.
Well, bugger me. Guess what just became available through a Google search: Model Litigant guidelines published by the Crown Solicitor's office. Authored 2011.
http://www.agd.sa.gov.au/pdfs/cso/CSO%20Legal%20Bulletin2.pdf
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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).
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 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 .
Denied!
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:
http://adelcomp.blogspot.com.au/2012/03/where-is-justice-not-in-justice-dept.html
