CROWN LAW LITIGATION – FILING OF PROCEEDINGS -
POLICY
Policy
Proceedings must not be issued on behalf of any Crown Law client without the approval
of the Solicitor-General or a Deputy Solicitor-General.
Unless by reasons of urgency it is impossible to do so, a request to a Deputy
Solicitor-General for permission to issue proceedings must be set out in a memorandum,
endorsed by a Team Manager, and accompanied by:
• written authorisation from the Crown Law client from whom the instructions have
been received; and
• a draft statement of claim.
The memorandum should include analysis of the legal and broader issues involved
together with counsel’s recommendation in relation to the proposed proceedings, and any
relevant Crown Law advice should be attached.
Where prior authority has not been obtained, the proceedings issued must be immediately
copied to the Solicitor-General or a Deputy Solicitor-General together with an
explanation why prior approval was not sought.
The Solicitor General is ultimately responsible for the appointment of counsel, whether
internal or external, to conduct any proceeding on behalf of a Crown Law client but
authority to appoint counsel to any case in the Court of Appeal, High Court or District
Court is delegated to Team Managers.
The solicitor on the record of any proceedings filed in any court must be a Deputy
Solicitor-General, Senior Crown Counsel, or a Crown Counsel, and that person must
have personal y approved the statement of claim before it is filed.
The issue of civil proceedings should also be guided by the Cabinet Direction for the
Conduct of Crown Legal Business 2016.
Applies to
This policy applies to all Crown Law counsel including:
• full time staff;
• part time staff;
• casual staff; and
• contractors.
Filing of proceedings- policy
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CROWN LAW LITIGATION – FILING OF PROCEEDINGS -
POLICY
Rationale
Authority to approve the filing of proceedings is restricted to Deputy Solicitors-General
because the commencement of proceedings is a significant step. Where proceedings are
issued:
• The plaintiff immediately assumes a financial responsibility for any costs award the
court or tribunal may make and, if injunctive relief is sought, there may also be an
obligation to pay damages.
• The lawyer who files the claim assumes responsibility to the court for the proper
conduct of the proceedings; warrants to the court that he or she is authorised to
bring them; and assumes an ethical duty to, among other things, avoid conflicts of
interest.
• A process is commenced by which findings may be made that may affect the legal
environment in which the Crown operates.
• The High Court and District Court Rules allow any lawyer with a current practising
certificate to be the solicitor on the record. For internal management reasons that
function is restricted to Crown Counsel and above. As the Solicitor-General is
usual y a Queen’s Counsel, it is not general y appropriate for him or her to be the
solicitor on the record, even where he or she has personal conduct of the
proceedings.
Forms
Use the following form to complete a draft statement of claim:
• Precedent
– Statement of Claim – High Court.
Other References Refer also to:
•
Cabinet Direction for the Conduct of Crown Legal Business 2016;
• Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008
generally and in particular
rule 6.1 (relating to conflicting duties) and
rule 13.6
(relating to independence in litigation);
High Court Rules: rule 5.37 (solicitor’s warranty as to authorisation to file documents).
Key Personnel
The following key personnel have responsibilities under this policy.
Position
Role
Solicitor-General and
Approving filing of proceedings.
Deputy Solicitors-General
Policy
Policy Owner – Convenor, Professional Standards Committee
Information
Approved – Management Board – 30 April 2008.
Updated 17 November 2014, 13 December 2016.
Next review date 13 December 2019.
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Document Outline
