Policy Corporate Governance Litigation Assistance

Litigation Assistance


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Intent

This policy outlines the assistance in cases where a member of staff may be involved in litigation related to their University role and/or duties.

Policy Provisions

The policy applies to staff, members of the University Council, members of the University Executive and any other person holding an office or other position within the University, including adjunct staff.

The policy applies only to 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).

A reference to a member's duties is a reference to the activities the University employs 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.

Action against members

A. In many cases in which a member is sued a policy of insurance held by the University (whether a statutory policy or otherwise) will apply. In such a case the defense of the proceedings will be in the hands of the University's insurer. The member concerned is obliged to provide the insurer with all information which the insurer requires and to cooperate in the conduct of the defense of the action by the insurer and to make full and frank disclosure of all matters required by the insurer.

B. In cases to which A does not apply, the University as a matter of policy 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 a member.

C. In a case where no policy of insurance applies and an action is brought against a member and against the University and, in the opinion of the University's legal advisers there is no impediment to joint representation, the University will offer to conduct at its expense the defense of both the member and the University by its legal representatives.

D. If in a case to which C applies, a member is not prepared to accept joint representation with the University, the University reserves the right to seek independent 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 member cooperate with the University in enabling it to obtain such advice.

Action by members

A. In the absence of exceptional circumstances it is not the policy of the University to provide assistance to a member in an action by him/her to enforce a personal right in which the relief sought is for the personal benefit of a member.

1. Any request for litigation assistance must be lodged with the University Secretary.

2. A preliminary assessment as to the validity of the member’s request will be obtained from the University’s lawyers.

3. Upon receipt of the preliminary assessment from the University’s lawyers the Vice Chancellor will determine whether an ad hoc Committee should be established.

4. The ad hoc Committee will comprise the Chancellor, Vice Chancellor and an independent third person.

5. In relation to the appointment of the independent third person the University lawyers will be requested to provide a shortlist of three people with legal expertise in the area of the claim.

6. From the shortlist provided, the Chancellor and Vice Chancellor will determine the appointment of the independent person to the ad hoc Committee.

7. The ad hoc Committee will proceed to consider the request in accordance with the policy, as soon as practicable and will notify the University Secretary of its decision.

8. The ad hoc Committee established in A(3) shall have as its sole purpose the role of determining whether exceptional circumstances exist such as to invoke the University’s assistance to a member of staff in an action by him/her to enforce a personal right in which the relief sought is for the personal benefit of the member of staff.

9. The University Secretary will notify the person requesting of the ad hoc Committee’s decision.

B. In any case in which a property interest in the University can be enforced only by the institution of proceedings in the name of a member or in which a member is a necessary party to such proceedings and the University desires that such proceedings be instituted, the University will provide reasonable assistance to the member in such litigation. An example of this type of case might be a case in which a member holds in his/her name an intellectual property right which the University is beneficially entitled or in which it holds a beneficial interest. In a case in which the property rights are shared or in which both the University and the member are necessary parties to enforce the University's rights and, in the opinion of the University's legal representatives there is no impediment to joint representation, the University will offer to conduct at its expense the actions of both the member and the University by its legal representatives.

C. In a case in which a member sues to enforce a cause of action arising out of circumstances which give rise also to a cause of action on the part of the University and in which the University wishes to initiate proceedings in respect of that cause of action, and, in the opinion of the University's legal representatives there is no impediment to joint representation, the University will offer to conduct at its expense the action of both the member and University by its legal representatives. An example of this type of case might be where a publication defames both a member and the University.

D. If a member in any of the circumstances provided for in the last sentence in B wishes to have separate representation, the University would be prepared to provide reasonable assistance to the member only where its legal advisers are of the opinion that it would be undesirable for the member and the University to be jointly represented or that there is some impediment to this course or that the University's interests are fully protected by an action in the member's name alone. It is a condition of the University considering a request by a member for assistance in such circumstances that the member cooperate with the University in enabling it to obtain advice from its legal advisers about such matters.

Approval Details

Policy sponsor:

Vice Chancellor

Approval authority:

Council

Approval date;

24/06/2015

Version no.:

15-01

Date for next review:

22/02/2012

Modification History

Version

Revision date

Description of changes

Author

15-01

23/06/2015

Policy sponsor and approval authority amended to reflect approved policy framework. Published 25/06/2015

Quality, Standards and Policy

Version no.

Approval date

Implementation date

Details

07-1

22/02/2007

23/02/2007