News

02 Apr Misfeasance in Public Office: This is your business not just ICAC’s

ICAC is a statutory organisation that exercises its roles and responsibilities under its founding statue Independent Commission Against Corruption Act 1988 (NSW).

ICAC is thereby enabled to investigate and make binding statutory determinations dealing with ‘corrupt conduct’ for most types of public sector employees, including:

• Government Departments
• Local Councils
• Members of Parliament
• Ministers
• Judicial members; and
• the Governor.

The problem of Misfeasance in Public Office is not unique to NSW or Australia and in fact arises from time to time in many common law countries including the United Kingdom, UK.

For instance the UK Law Lords in Watkins v Home Office & Ors [2006] UKHL 17 gave clear indication special form damages need to be suffered by the aggrieved party to ground an action of Misfeasance in Public Office.

This might be the case perhaps if it is proven in a Superior court that:

• you lost an important and valuable government contract or tender where the determination was ‘not at all merit based’; or
• where a public official grossly unreasonably exercised discretion in a public/private government partnership (PPP) arrangement in a manner and in circumstances that may give rise to a finding of malice against that public official.

The elements of proving an actionable wrong in the tort of Misfeasance in Public Office, briefly involves the aggrieved party proving an act or series of acts and/or omissions were:

• invalid or unauthorised
• done maliciously
• done by a public officer
• done in the purported discharge of his or her public duty; and
• caused loss to the aggrieved party.

If your business plays by the rules and complies with all its legal obligations in certain circumstances a ‘corrupt’ and ‘maliciously acting’ public official could have indeed caused your business special loss and damage.

This of course remains a matter for determination by our Superior courts. Pambris Law looks forward to accepting instructions where your business may have been seriously adversely affected by a maliciously acting Public Official without fear or favour.

02 Apr How to reduce the costs of Commercial Litigation

The Uniform Civil Procedure Rules (UCPR) mandates solicitor directors facilitate the just, quick and cheap resolution of proceedings.

Pambris Law has specifically formed an operational business model with regard to the UCPR ideally positioned to offer efficient and effective legal services to resolve your litigated matter.

Commercial Litigation often involves seemingly immovable party vs. party positions that naturally increase your focus on litigation costs.

Pambris Law suggests when you adopt a number of techniques in the way you move forward with commercial disputes you can often reduce litigation costs.

Those techniques include:

• Analyse your business to isolate and understand types of disputes that may well arise in your day-to-day operations.
• In the case of frequently arising business disputes seek to find non-litigious methods of protecting your rights and resolving disputes including where appropriate instructing Pambris Law to put forward a strictly defined written position before litigation commences.
• Seek assurances from the solicitor director of Pambris Law your matter is one of a few Commercially Litigated matters the law firm handles not one of hundreds.
• Be clear about the true scope and quantum of your claimable loss and damage. Use Senior Counsel and experienced Barristers to give accurate advice on the scope of your damages and quantum.
• Limit discovery to those matters relevant to the real issues in dispute, as agreed between the parties and/or ordered by the Court.
• Mediate and Conciliate at a time when a consensus result may plausibly be reached and not a moment before or after.

At the end of the day reducing litigation costs is not viewed by Pambris Law as a driver of your litigation, clarity in knowing and enforcing your businesses substantive rights and obligations are paramount.