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.

Brisbane Barrister – David Cormack

by Ashley Tsacalos

Recent events have renewed the focus on issues of privacy, particularly in the face of technological developments. As a result, on 21 July 2011 the Minister for Privacy, The Hon Brendan O’Connor MP, announced that the Commonwealth Government will seek the views of the public on introducing a right to privacy in Australia. A public issues paper will be issued shortly which will canvas the prospect of introducing a statutory cause of action for serious invasions of privacy. A period of public consultation will follow.

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

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.

Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd & Anor [2011] QCA 102

The Queensland Court of Appeal has allowed an appeal and ordered that a party be added as a plaintiff to a case yet to be heard. The court below had dismissed the application on the basis that the pleading did not disclose a cause of action. While following the principle established by the High Court (that a subsequent purchaser of commercial premises could not recover from the builder damages caused by defects in the building resulting from faulty construction unless it demonstrated vulnerability) the Court observed that the principle was framed in circumstances where the purchaser had an arms length relationship with the vendor and could therefore take steps to protect itself. That principle may be of no application where the purchaser and the vendor are part of the same corporate group, since the nature of the transaction is quite different.

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