Cubic Transportation Systems Inc v State of New South Wales

Cubic Transportation Systems Inc brought an action against the State of New South Wales in the Federal Court of Australia. The dispute concerns the process by which the State issued a tender for a contract to provide passenger information systems for Sydney's train network. The plaintiff sought a range of remedies including a declaration that the tender process was unlawful, damages for breach of contract and an order for specific performance of the contract. The defendant denied all claims and asserted that the tender process was lawful and that it was not liable for any of the claims made by the plaintiff.

The court was required to decide a number of issues including whether the tender process created a binding contract between the parties, whether the contract contained an implied term of good faith, whether statements regarding ethical codes for tendering were part of the contract, whether public law principles applied, and whether there was a conflict of interest. The court also needed to determine whether the rules of natural justice applied to government advisers and the evaluation committee, and whether there was apprehended or actual bias on the part of the evaluation committee.

The court found that the tender process did not create a binding contract between the parties, as there was no evidence of an intention to create legal relations. The court also found that there was no implied term of good faith in the contract, as this would have required the parties to act in a manner that was fair and reasonable towards each other. The court held that statements regarding ethical codes for tendering were not part of the contract, as they were not incorporated into the tender documents. The court found that public law principles applied to the relationship between the parties, and that there was no conflict of interest on the part of the government's legal advisers. The court held that the rules of natural justice applied to government advisers, but not to the evaluation committee. The court found that there was no apprehended or actual bias on the part of the evaluation committee. Finally, the court held that the probity auditor had a duty to ensure that the tender process was conducted fairly and transparently, and that the clean hands doctrine did not apply in this case.

The court made a number of orders including that the plaintiff take nothing by way of its claims, that the defendant pay the plaintiff's costs of the application, and that the parties bear their own costs of the appeal.