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Policy Corporate Governance Legal Services Claims and Litigation Assistance Policy

Legal Services, Claims and Litigation Assistance Policy


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Intent

This Policy outlines the arrangements for the management, oversight, coordination and provision of legal services for and on behalf of James Cook University, as well as the circumstances where legal assistance may be provided to Officers who may be subject to litigation, or wish to pursue litigation, related to their University role and/or duties.

Scope

This Policy applies to all officers, staff, affiliates and members of University Council and any other persons acting for or on behalf of, or in the name of, the University.

Definitions

Except as otherwise specified in this Policy, the meaning of terms used are as per the Policy Glossary.

Indemnity

a contractual obligation of one party (indemnifier) to compensate the loss incurred to the other party (indemnity holder) due to the acts of the indemnitor or any other party. Indemnity clauses are found in commercial contracts and may limit or provide conditions on indemnity obligations (such as negligence by either party).

Insurer

JCU has a combination of insurance policies in place to meet legal obligations and to protect its people, assets and activities.

JCU Legal

JCU’s in-house Legal and Assurance team.

JCU Controlled Entity Nominee Director

an employee of JCU who is a director or member of:

  1. a subsidiary of JCU;
  2. any company or committee existing for the benefit of JCU or subsidiary   of JCU;

and where the Vice-Chancellor of JCU has authorised in writing that the director acts as the nominee of JCU on the governing board of the company.

JCU Affiliated Company Director

an employee of JCU, at the request of the Vice Chancellor, is a director of a company or like entity (where JCU directly or indirectly holds less than 20% share capital or voting rights) where it is considered to be in the best interest of JCU that this should occur.

Legal Provider

means a provider of legal services external to the University and includes a firm of solicitors or a barrister.

Legal Representatives

means a provider of legal services external to the University and includes a firm of solicitors or a barrister.

Litigation

the process of resolving disputes by filing or answering a complaint through the public court system.

Officer

the staff member, member of Council or its Committees, affiliate or other person acting for or on behalf of, or in the name of the University, who is seeking legal services.

Referring Officer

the officer, staff member or other person acting for or on behalf of, or in the name of the University, who is seeking legal services.

University General Counsel

means the Head of the University’s Legal and Assurance unit.

University Lawyer

means a University employed lawyer acting for or on behalf of, or in the name of the University – Legal and Assurance.

Writs

a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way. It may include a formal legal document or an order, summons, subpoena, warrant or similar.

Policy

1.  Application

1.1  The University employs certified practicing Lawyers in the Legal and Assurance unit, Chief of Staff Office within the Chancellery Division. University Lawyers are responsible for the management, oversight, coordination and provision of all legal advice and other legal services for and on behalf of James Cook University.

1.2  The University General Counsel and University Lawyers do not provide advice to students, nor do they provide legal advice to staff regarding personal matters or matters unrelated to the University.

1.3  JCU also employs legally qualified staff in other organisational units at JCU, notably JCU Connect, International Compliance, and Student Services, who may provide administrative advice to delegated decision makers, support contract development and management, and establish and review policy and procedure. However, these legally qualified staff do not provide legal advice for, or on behalf of JCU, who may or may not maintain practising certificates, and if not, are not protected by legal professional privilege.

2.  Requests for Legal Services

2.1  All requests for legal services must be referred to JCU Legal and Assurance via the nominated JCU Legal and Assurance internal email address legal@jcu.edu.au. All requests must be in writing and authorised by the relevant Director, College Dean, Division Executive Officer, Deputy Vice Chancellor, Executive Director, Pro Vice Chancellor, or equivalent.

2.2  The University General Counsel and/or a University lawyer (where appropriate), will determine whether the work is to be undertaken by Legal and Assurance or through the use of a Legal Provider.

2.3  Legal and Assurance has the overall and sole responsibility for the management, oversight and coordination of all Legal Providers and the legal requests referred to those Providers. The University General Counsel and/or a University lawyer will consult with the Referring Officer as to the selection of the Legal Provider, however the University General Counsel retains sole discretion as to the selection of this Provider and the terms on which such referral of legal work will be made.

2.4  Only the roles named in Council’s Financial Delegations Register are approved to authorise and incur legal expenditure for and on behalf of the University. The exercise of any such delegation is limited to the delegate’s area of responsibility and is subject to the consultation and the prior written approval of the University General Counsel, or the Chief of Staff.

2.5  All expenditure for, or on behalf of, the University relating to legal services (regardless of whether the invoice is being paid from the Corporate Legal Overheads account or another funding source) must be recorded against the ‘legal’ use code (8470) and must be authorised for payment by the University General Counsel. Failure to obtain authorisation from the University General Counsel shall result in non-payment of the Legal Providers invoice, or otherwise such legal costs will be borne by the instructing organisation unit.

Writs and other legal enquiries

3.  Register

3.1  A register of writs containing potential University claim and contingent liabilities is maintained by Legal & Assurance. All writs, with the exception of workers' compensation writs are reported bi-annually to the University’s Audit, Risk and Compliance Committee through the contingent liabilities report.

4.  Writ of non-party discovery

4.1  Writs of non-party discovery (where a party to a court proceeding seeks to obtain relevant documents from the University and JCU is not involved in the proceeding) are served on the University General Counsel. In the event that the writ is served by mail or served on another University Officer, it should be forwarded to the University General Counsel for action.

5.  Workers' compensation writs

5.1  Workers' compensation writs should be forwarded to Director Human Resources for action. Further information on procedures to be observed when workers' compensation writs are served is available from the Human Resources Office.

6.  Other writs

All other writs, including claims covered under University insurance liability policies and contractual disputes not covered by insurance, should be forwarded to the University General Counsel for determination of the appropriate action.

7.  Legal or Police Enquiries

7.1  Enquiries in relation to legal matters and the issue and receipt of legal proceedings can be directed to JCU Legal using legal@jcu.edu.au.

7.2  Any inquiry from Police requesting contact details, confirmation of enrolment or employment or any other personal information on staff or students is to be directed to JCU Legal.

Legal Claims and Indemnity

8.  University staff, members of Council and affiliates

8.1  JCU indemnifies its staff, members of Council and its Committees and affiliates in respect of the lawful and proper actions considered to be within the scope of their employment and engagement at the University. In the course of their duties, Officers may be exposed to legal claims.

8.2  Where an Officer has diligently and conscientiously carried out his or her duties and has complied with JCU policies and procedures, the University accepts full and sole responsibility for all claims including the cost of defending or settling them in cases.

8.3  Where JCU makes any payment in settlement of a claim which has arisen as a result of an Officer performing those duties, it will not seek to exercise any claim for contribution from the Officer.

8.4  The University does not accept any liability for any act of an Officer which is not related to or connected with his or her employment or engagement with JCU.

Litigation Assistance

9.  Application

9.1  Litigation assistance is only available for civil proceedings. It has no application to criminal or quasi-criminal proceedings or to proceedings that involve a complaint against a member before a tribunal (e.g. the Anti-Discrimination Tribunal) or proceedings before other bodies (e.g. bodies established within the University to deal with disciplinary matters).

9.2  A reference to an Officer’s duties is a reference to the activities the University employs or engages the member to undertake or which he/she is required by virtue of his/her office or position within the University to perform. It also includes activities the member is permitted by the University to undertake outside the scope of those duties under Codes of Conduct concerning staff external activities and the rights and responsibilities of Academics to make public comment.

10. Action against Officers

10.1 In many cases where an Officer is sued, a policy of insurance held by the University (whether a statutory policy or otherwise) will apply. In such a case the defence of the proceedings will be in the hands of the University's insurer and a panel lawyer allocated by the insurer. The Officer is obliged to provide the University insurer panel lawyer and JCU Legal with all written and oral information which they may require. The Officer is to cooperate in the conduct of the defence of the action by the University’s insurer and to make full and frank disclosure of all matters required by JCU Legal and the University’s insurer.

10.2 In cases where no insurance policy/indemnity applies, the University will provide reasonable financial assistance to a member who is sued in respect of conduct arising out of the performance of his/her duties as an Officer.

10.3 In a case where no insurance policy/indemnity applies and an action is brought against an Officer and against the University and, in the opinion of the University Lawyers there is no impediment to joint representation, the University will offer to conduct at its expense the defence of both the Officer and the University by its legal representatives.

10.4 If in a case to which an Officer is not prepared to accept joint representation with the University, the University reserves the right to seek independent legal advice as to whether there is anything which would make it inappropriate for the University to provide such assistance and it is a condition of the University's preparedness to consider the question of any support that the Officer cooperate with the University in enabling it to obtain such legal advice.

11. Action by Officers

11.1 The University is unlikely to provide assistance to an Officer in an action by him/her to enforce a personal right in which the relief sought is for the personal benefit of that Officer, unless exceptional circumstances can be established.

11.2 Any request for litigation assistance must be lodged with the University General Counsel with supporting documentation for a preliminary assessment as to the validity of action by the Officer, and whether exceptional circumstances exist such as to invoke the University’s assistance to enforce a personal right or where the relief sought is for the personal benefit of the member of staff.  A recommendation is to be made to the Vice Chancellor, who may either approve or reject the request.

11.3 Where JCU requires a property interest of the University to be enforced by the institution of proceedings in the name of an Officer, or where they are a necessary party to such proceedings, the University will provide reasonable assistance to the Officer in such litigation. For example, an Officer may hold in his/her name an intellectual property right which the University is beneficially entitled or holds a beneficial interest.

11.4 In a case in which a University member sues to enforce a cause of action arising out of circumstances which also gives rise to a cause of action on the part of the University and in which the University wishes to initiate proceedings, and, in the opinion of the University's lawyers and legal representatives there is no impediment to joint representation, the University will at its sole discretion offer to conduct the action at its expense of both the Officer and University by its external legal representatives.

11.5 If an Officer in any of the circumstances above wishes to have separate external legal representation rather than be jointly represented, the University at its discretion may be prepared to provide reasonable assistance to the Officer. In such circumstances, it would be a condition that the Officer cooperate with the University in enabling it to obtain legal advice from the University’s lawyers and external Legal Representative’s about such matter.

Indemnity for insurance coverage

12. JCU Controlled Entity Nominee and Affiliated Company Directors

12.1 JCU Controlled Entity Nominee Directors on JCU Controlled Entity Boards have coverage under the University’s Directors and Officer’s Liability Insurance (amended from time to time by JCU’s insurer). The indemnity does not extend to any exclusions in the insurance policy, including (but is not limited to) a liability for which JCU would not be permitted to indemnify the JCU Nominee Director if JCU were a company regulated under the Corporations Act 2001.

12.2 JCU Controlled Entity Nominee Directors are required to complete the JCU Controlled Entity Nominee Directors Deed of Indemnity upon taking office and provide same to insurance@jcu.edu.au and companies@jcu.edu.au.

12.3 Directors of subsidiary companies of JCU who are not JCU Controlled Entity Nominee Directors or JCU Affiliated Company Directors, may apply to the company of which they are a Director of for the appropriate indemnity.

12.4 JCU Affiliated Company Directors on Outside Entities’ Boards may apply for an indemnity by JCU in relation to any claims or liabilities arising out of their role only after exhaustion of any indemnification provided by the Outside Entity; and after exhaustion of any other applicable, valid and collectible Directors and Officers Liability policy or Management Liability policy.

12.5 JCU Affiliated Company Directors on Outside Entities Boards must ensure that a copy of their Consent to Act as a Nominee Director form is provided to the Insurance Office and to the Manager Commercial Operations. JCU Affiliated Company Directors on Outside Entities Boards may apply for an indemnity by JCU in relation to any claims or liabilities arising out of their role by completing the JCU Controlled Entity Nominee Directors Deed of Indemnity upon taking office and provide same to insurance@jcu.edu.au and companies@jcu.edu.au.

12.6 Any claims for indemnity must be lodged with the Insurance Officer. Any approved indemnity does not extend to any exclusions (amended from time to time by JCU’s insurer) which includes, but is not limited to, a liability for which JCU would not be permitted to indemnify the JCU Affiliated Company Directors if JCU were a company regulated under the Corporations Act 2001.

13. External Parties

13.1 In some circumstances, staff with appropriate delegated authority to enter contracts may consider an indemnity clause in favour of another party. This would only be considered where legal risk is determined to be low such as:

13.1.1 indemnities where the relevant subject matter is covered by JCU's existing insurance policies or can be covered through an extension to such policies, at minimal cost; and

13.1.2 indemnities where the relevant subject matter is not covered by JCU's insurance policies, or cover is only available at a prohibitive cost, but where a risk assessment of the activity has been carried out by the area assessing the impact of the indemnity and the relevant delegated officer concludes the risk to the University in giving an indemnity would be low.

13.2 The cost of additional cover is an issue for the area involved in the contract negotiation to consider and fund. Any decision to indemnify an outside party is to be done in consultation with the Insurance Office, including the provision of the written risk assessment. A Legal opinion may also be considered necessary and it is the relevant delegated officer’s responsibility to provide appropriate notice to JCU Legal to consider. The contacts are insurance@jcu.edu.au and legal@jcu.edu.au.

13.3 Advice from JCU insurers, as well as legal advice, should be sought on the wording of appropriate amendments to the relevant clauses in order to ensure JCU's interests are not prejudiced (including rights under JCU insurance policies) and risks are minimised. Indemnities should be worded to ensure that any potential liability being accepted by JCU falls within the scope of coverage provided by JCU's insurance policies. Terms of insurance policy operate independently of relevant contractual indemnities.

13.4 High risk indemnities are those where insurance cover is not available or is only available at a prohibitive cost, and where a risk assessment of the activity involved concludes the risk to JCU in giving an indemnity would be high. JCU would not consider indemnity clauses in favour of another party in these circumstances.

Related documents and legislation

Controlled and Non-controlled Entities Policy

Guidelines for Indemnity of JCU Controlled Entity Nominee Directors

JCU Controlled Entity Nominee Directors Deed of Indemnity Template

JCU Delegations Policy

Risk Management Policy

Administration

Approval Details

Policy Sponsor:

Vice Chancellor

Approval Authority:

Council

Date for next review:

07/05/2024

Revision History

Version no.

Approval date

Implementation date

Details

Author

21-1

07/05/2021

10/06/2021

Clarification of responsibilities and position title changes, removal of procedural and other non-policy content, merger with the Litigation Assistance Policy and the Indemnity, Insurance and Legal Claims Policy.  Title changed from  Legal Services Policy.

Chief of Staff

17-1

18/01/2017

19/01/2017

Position titles amended to reflect current organization structure

Quality, Standards and Policy Officer

15-1

24/06/2015

 

Policy sponsor and approval authority amended to reflect approved policy framework

Quality, Standards and Policy

12-1

18/05/2012

8 June 2012

Approved by Council

 

Keywords

Legal services, claims, indemnity, litigation, subpoena, warrant, writ, director

Contact person

Chief of Staff