4A Commonwealth agency should use its best endeavours to assist the tribunal to make its decision.

4 A Commonwealth agency should use its best endeavours to assist the tribunal to make its decision.

Note: The term ‘litigation’ is defined in paragraph 15 of these Directions in terms that encompass merits review before tribunals. There are particular obligations in relation to assisting a tribunal engaged in merits review to arrive at a decision. Commonwealth agencies should pay close attention to the legislation under which a tribunal is established, and any practice directions issued by the tribunal. In the case of the Administrative Appeals Tribunal see in particular subsection 33(1AA) of the Administrative Appeals Tribunal Act 1975.

Alternative dispute resolution Alternative dispute resolution

Alternative dispute resolution

5.1 The Commonwealth or a Commonwealth agency is only to start court proceedings if it has considered other methods of dispute resolution (eg alternative dispute resolution or settlement negotiations). 5.2 When participating in alternative dispute resolution, the Commonwealth and Commonwealth agencies are to ensure that their representatives: (a) participate fully and effectively, and (b) subject to paragraph 2 (e) (iv), have authority to settle the matter so as to facilitate appropriate and timely resolution of a dispute.

Appendix C—Handling monetary claims

1 This policy concerns the handling of monetary claims against the Commonwealth or a non‑corporate Commonwealth entity, and monetary claims by the Commonwealth or a non‑corporate Commonwealth entity, other than claims that need to be determined under a legislative mechanism (for example, a Comcare benefit) or under a mechanism provided by contract (for example, an arbitration of a disputed contractual right).

Note: An action to enforce a penalty imposed under Commonwealth legislation is not considered to be a monetary claim for the purposes of Appendix C.

Criteria for settlement Criteria for settlement

Criteria for settlement

2 Monetary claims covered by this policy are to be settled in accordance with legal principle and practice, whatever the amount of the claim or proposed settlement. A settlement on the basis of legal principle and practice requires the existence of at least a meaningful prospect of liability being established. In particular, settlement is not to be effected merely because of the cost of defending what is clearly a spurious claim. If there is a meaningful prospect of liability, the factors to be taken into account in assessing a fair settlement amount include: (a) the prospects of the claim succeeding in court (b) the costs of continuing to defend or pursue the claim, and (c) any prejudice to Government in continuing to defend or pursue the claim (eg a risk of disclosing confidential government information). 3 Settlements for amounts not exceeding $100,000 may be approved by the accountable authority of the non‑corporate Commonwealth entity, or the accountable authority’s delegate, on the basis of a common sense view that the settlement is in accordance with legal principle and practice. However, if a claim, together with any related claim, cannot be settled for $100,000 or less, it is to be treated as a major claim. 4 Major claims may only be settled if: (a) written advice is received from AGS or a legal adviser external to the entity that the settlement is in accordance with legal principle and practice, and (b) the accountable authority (or delegate) agrees with the settlement. 5 If a non‑corporate Commonwealth entity considers that a claim raises exceptional circumstances which justify a departure from the normal mechanism for settling a claim, it is to refer the matter to OLSC. The Attorney‑General may permit a departure from the normal policy, but may impose different or additional conditions as the basis for doing so.