Dear Colleagues;

While contract law is not my main area of interest, I was struck by this recent decision of the NSW Court of Appeal dealing with the validity of contracts entered into by governments: see Searle v Commonwealth of Australia [2019] NSWCA 127 (31 May 2019) https://www.caselaw.nsw.gov.au/decision/5cee35b8e4b02a5a800c11de . A strong bench of the Court (Bathurst CJ, Bell P, and Basten JA) gives a detailed analysis of the extent to which a government body may “fetter itself” by entering a contract. The facts involved a low-level contract- an agreement signed with a trainee sailor to provide training towards a recognised trade qualification, which in the end was not provided. But the implications are of course much wider. The Court held (Bell P writing the main judgment) that governments can enter contracts which are valid in relation to future obligations, and that (while it may not usually be appropriate to order specific performance of a contract if the government later changes its mind) damages may be awarded for breach. No doubt other colleagues more across the intersection between administrative law and contract law issue will find lots of other points of interest.

Regards

Neil

 

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

409 Hunter St

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T: +61 2 49217430

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Blog: https://lawandreligionaustralia.blog

 

 

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