Recent Cases

Searle v Commonwealth of Australia [2019] NSWCA 127 (31 May 2019) (Bathurst CJ at [1]; Bell P at [8]; Basten JA at [246])


ADMINISTRATIVE LAW – fettering of executive discretion – whether a contract which had the potential to fetter future exercise of executive discretion was ultra vires – ambit of doctrine against fettering of executive discretion – consideration of Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; [1977] HCA 71

APPEALS – further evidence sought to be led on appeal – whether special grounds established – consideration of Akins v National Australia Bank (1994) 34 NSWLR 155

CONTRACT – government contracts – power to enter into contracts – contracts which fetter future exercise of executive discretion – whether ultra vires – whether void as contrary to public policy – whether enforceable by decree of specific performance – whether possibility of award of contractual damages itself a fetter on discretion – importance of upholding contractual bargains

CONTRACT – consideration – whether enlisted serviceman subject to naval command supplies consideration when entering into a training contract

CONTRACT – remedies – whether contract should be specifically enforced if it would fetter future exercise of executive discretion – whether award of damages would itself fetter executive discretion

CONTRACT – damages – loss of a chance of securing better paid employment with particular qualification – approach to assessment of loss –sufficiency of reasoning process – sufficiency of evidence

DEFENCE – power of naval command – power to enter into contracts – whether training contract entered into with enlisted serviceman was ultra vires because it fettered future exercise of discretion of naval command

PRACTICE AND PROCEDURE – representative proceedings – effect of discontinuance of claims by representative party – whether judge has discretion not to answer common questions