Local Government, Contracts and Judicial Review

Abstract

The purpose of this article is to examine briefly the role of judicial review in contracting and tendering decisions of local authorities. While there may be a possibility of seeking private law remedies based on estoppel where there has been detrimental reliance, negligent misrepresentation, or under s.38 of t h e i w Trading Act 1989 (Qld), there are a number of limitations on bringing such actions, particularly when dealing with government bodies. In addition, it is unlikely that Australian courts will find that a pre-award contract exists during the tendering process, so as to found an action in damages for breach of contract. Thus, a consideration of public law remedies as an alternative is appropriate, given that local authorities are government bodies operating under statutory powers and are, therefore, potentially amenable to judicial review. It is necessary to examine the possible difficulties that confront an applicant seeking judicial review of local authorities' contracting and tendering decisions. Recent pronouncements of the Federal Court indicate strongly that most contractual decisions made by federal statutory bodies are not amenable to judicial review and are to be considered by reference to the law of contract. The implications for local authorities, whose constituting enactments also empower them to enter into contracts, will be discussed in light of certain provisions in the Judicial Review Act 1991(Qld).