64Criteria for settling monetary claims against the Commonwealth or an entity

64  Criteria for settling monetary claims against the Commonwealth or an entity

 (1) An entity must not settle a monetary claim brought against the Commonwealth or the entity unless the settlement is in accordance with legal principle and practice and either:

 (a) there is at least a meaningful prospect of liability being established against the Commonwealth or the entity; or

 (b) both of the following apply:

 (i) the entity and the claimant have agreed to the claim being dismissed, discontinued, or otherwise resolved;

 (ii) neither the Commonwealth nor the entity gives any financial commitments to the claimant, or makes any financial concessions (other than agreeing not to seek a costs order against the claimant).

 (2) To avoid doubt, it is not consistent with subsection (1) for an entity to settle a clearly spurious claim merely to avoid the cost of defending it, unless paragraph (1)(b) could be relied on.

 (3) If there is a meaningful prospect of liability, for the settlement to be in accordance with legal principle and practice, the factors that the entity must take into account in assessing a fair settlement amount include:

 (a) the prospects of the claim succeeding in court; and

 (b) the costs of continuing to defend the claim; and

 (c) any prejudice to the Commonwealth in continuing to defend the claim.

Note: For example, prejudice to the Commonwealth may include risks of disclosing confidential Commonwealth information.

Settlements not exceeding $100,000

 (4) If the settlement amount for the claim together with any related claims would not exceed $100,000, the accountable authority, or their delegate, may approve the settlement if the accountable authority (or delegate) is satisfied, on a common-sense basis, that the settlement is in accordance with legal principle and practice.

Settlements exceeding $100,000

 (5) If the settlement amount for the claim together with any related claims would exceed $100,000, the accountable authority, or their delegate, may approve the settlement if:

 (a) the entity obtains written advice from AGS, an external legal services provider or counsel confirming that the settlement is in accordance with legal principle and practice; and

 (b) the accountable authority (or delegate) agrees with the settlement.