Abuse of power and the issue of prerogative writs : implications for breach of the Commonwealth Model Litigant Policy

The grant of the prerogative writs and relief under s 39B of the Judiciary Act 1903 (Cth) in Australia is a matter of discretion. The discretion to refuse relief is not to be exercised lightly. One of the established grounds for refusing the grant of the prerogative writs is “bad faith” on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. In a little-discussed topic, this article considers the question of whether it is appropriate to withhold the grant of prerogative relief in circumstances where the Commonwealth, as a party to judicial review proceedings, has engaged in conduct considered an infringement of the Model Litigant Policy (MLP) made under the Legal Services Directions 2017 (Cth). The article argues that contravention of the MLP by a Commonwealth party in judicial review proceedings should be considered a ground for a court, exercising judicial power, to refuse the grant of prerogative relief as an extension of the common law model litigant obligations imposed on Commonwealth entities.