Author Ashley Tsacalos

The obligation for government agencies to act as a model litigant has received some recent attention. Recently, the Attorney-General, the Hon. Robert McClelland stated that ‘any breach of the model litigant obligation would be unacceptable as the Australian Government is committed to achieving the highest professional standards in its handling of claims and litigation’.

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Reproduced with permission of Norton Rose in accordance with their legal notice and disclaimers.

Breast Screen Queensland was last week protected by a Supreme Court ruling from disclosing internal communications pertaining to the negligent diagnosis claim of a Cairns patient who underwent screening in 2007 and 2009.

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Reproduced with the permission of Carter Capner Law.

by Ashley Tsacalos, Adrian D’Amico, Jacinta Studdert, Nick Beresford-Wylie, Danielle See, Catherine Kelso, Susanna Taylor, Adam Hunter, Vince Sharma, Katherine Barraclough, Sarah Ralph, Jane Tiller, Lee Corbett Brooke Newell.

Welcome to the June edition of the Public law report for 2011, which provides essential updates for public sector managers and government lawyers on legislative and policy developments, as well as notes on important decisions by courts and tribunals.

We take a look at the latest developments in civil procedure in the federal courts that are designed to encourage parties to resolve disputes before they get to court. We outline the requirements of the Indigenous Opportunities Policy that most Australian Government agencies will have to comply with from 1 July 2011. Our employment law team provides a detailed look at adverse action claims under the Fair Work Act 2009 (Cth), and how they may play out in the public sector.
We also note important recent decisions on: the award of exemplary damages for misuse of public power; the power to award costs in FOI appeals; the nature of maladministration in making taxation assessments; and, relevant and irrelevant considerations in administrative decision making. Finally, two interesting decisions relating to appeals by defence personnel are noted, and we briefly discuss the recent amendment to the NSW Constitution to limit the power to prorogue Parliament.

View Public law report June 2011.

Reproduced with permission of Norton Rose in accordance with their legal notice and disclaimers.

Ceresola TLS AG v Thiess Pty Ltd & John Holland Pty Ltd [2011] QSC 115

The Supreme Court of Queensland has refused to grant an injunction restraining a party from calling on a bank guarantee despite there being serious questions to be tried. The Court affirmed the general rule that, in the absence of fraud and unconscionability, courts will not grant an injunction. Bank guarantees have two purposes: one is to provide security, and the other is to allocate risk as to which party should be out of pocket while a dispute is resolved. The Court took the view that the terms of the contract when taken together with the unconditional nature of the bank guarantee showed an intention that the contractor should be out of pocket pending resolution of the dispute; that intention was independent of the seriousness of the questions to be tried.

Reproduced with permission of Allens Arthur Robinson and in accordance with their terms of use.