65Criteria for settling monetary claims commenced by the Commonwealth or an entity

65  Criteria for settling monetary claims commenced by the Commonwealth or an entity

 (1) If an entity settles a monetary claim brought by the Commonwealth or the entity:

 (a) it must do so in accordance with legal principle and practice; and

 (b) it must consider that the settlement is in the interests of the Commonwealth.

 (2) For the purposes of subsection (1), 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 pursue the claim; and

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

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

Concessions not exceeding $100,000

 (3) If the settlement amount for the claim together with any related claims would involve a concession by the Commonwealth or the entity that does not exceed $100,000, the accountable authority of the entity, 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.

Concessions exceeding $100,000

 (4) If the settlement amount for the claim together with any related claims would involve a concession by the Commonwealth or the entity that exceeds $100,000, the accountable authority of the entity, 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.

Note: In subsections (3) and (4), the value of a concession by the Commonwealth or an entity refers to the difference between the total settlement sum and the lesser of the following:

(a) the amount claimed by the Commonwealth or entity;

(b) the amount that the Commonwealth or entity’s legal representatives assess would be payable to the Commonwealth or entity if its claim were successful.