Dr Ward SC represents lawyer Bernard Collaery in the Witness K case

Dr Christopher Ward SC is a member of the legal team instructed by Gilbert & Tobin to represent lawyer Bernard Collaery, facing serious charges under national security legislation before the ACT Courts.

The case appeared on Ten Eyewitness News Sydney, and was covered by The Guardian as well as The Canberra Times.

'Will Peter Dutton Be Disqualified From The Parliament?'

On Thursday, 23rd August 2018, Robert Angyal was requested by ten daily news to write an opinion piece on whether Peter Dutton would be disqualified from Parliament. The piece needed to be completed by early Friday, well before the spill vote, and was delivered to ten daily at 5am that day. Ten daily "splashed" the piece, running it as a headline story.

The Solicitor-General of Australia issued his urgent advice on the Dutton disqualification issue at about the same time. Robert's piece (written for lay readers) reached conclusions very similar to this. 

Click here to read the full article.

Dr Christopher Ward SC elected to global Presidency of ILA

6 St James Hall Chambers is delighted to announce that senior counsel Dr Christopher Ward SC was last week, elected to position of global President of the International Law Association.  The ILA, which has almost 5,000 members world-wide, works to develop and publicise rules of private and public international law.  Dr Ward’s extensive work over many decades in both fields of international law and related commercial law will ensure that the Association’s work is strengthened during his 2 year term.  The ILA last week, successfully gathered from around the world in Sydney for the 78th Biennial Conference, hosted by Dr Ward and the Australian Branch of the ILA. The Conference was addressed by dignitaries including the Right Honorable Lord Mance, Chief Justice Kiefel, Chief Justice Allsop, Chief Justice Bathurst, the Hon Mark Speakman and Chief Justice Pascoe as well as other Australian and foreign judges, counsel and arbitrators.  The Conference was greatly assisted by 6 St James Hall Barrister Ms Madeleine Bridgett.

$64 million verdict obtained by 6 St James Hall Counsel in fraud trial.

Senior Counsel at 6 St James’ Hall Dr Christopher Ward SC last week secured for his client Dr Benoy Berry a verdict of $64,800,000 in a long-running commercial fraud case brought against former Reserve Bank company Securency (now known as CCL Secure).  Dr Ward appeared with experienced junior counsel Mr Phillip Santucci and was instructed by leading boutique firm Marque Lawyers.  The verdict follows the earlier judgment on the merits in December 2017 and demonstrates the risks to corporate entities when engaging in fraudulent conduct to achieve commercial goals.  The merits judgment is found here. The case is discussed here

2018 Legal Language Breakthrough: The Quadruple Negative

2018 has seen a Legal Language Breakthrough: The Quadruple Negative (as used against Luna Park by a certifier addressing whether construction of a new ride required development consent):

“The works cannot be demonstrated as not inconsistent with the development consents as it was unclear whether the development consents authorise the installation of new rides.”

Wow! That's ... nearly incomprehensible.

We lawyers used to think that double negatives were not uncommon, especially in legal prose. And it was not unusual for layers not to stop there, but to wheel out the big gun of the triple negative. Whammo! Take that, whether you understand it or not.

Click here to read more. 

6 St James Hall counsel in Cambodian human rights case

Dr Christopher Ward SC welcomes the verdict of the Cambodian Supreme Court quashing the conviction of Queensland resident Yoshe Taylor for drug trafficking.  Dr Ward is a member of the Australian legal team that has provided pro bono assistance to Ms Taylor and recently travelled to Cambodia to assist the appeal.  Yoshe has spent almost five years in prison in Cambodia and the legal processes to secure her freedom now continue in light of her successful appeal.

Illusory consideration and uncertain terms – arguments of last resort?

Kirralee Young has had a success in a shareholder dispute in the Court of Appeal regarding illusory consideration and uncertainty in respect to the interpretation of a shareholders agreement. 

The decision relates to a dispute between the parties relating to the meaning and operation of certain funding provisions in a shareholders agreement. The agreement regulated their rights as equal shareholders in a company. In broad terms, one shareholder provided the intellectual property and expertise for the business and the plaintiff was required to provide funding. Despite the agreement being in place for over 12 months, one shareholder contended that the agreement was void and uncertain because the funding provisions were illusory and uncertain in the sense that they did not impose a definitive obligation on the other party to provide such funding. i.e there was an unfettered discretion.

It cannot be doubted that promises with no substance, or that are ‘illusory’, are not good consideration. For example, A cannot promise to buy B’s goods in return for ‘whatever A feels like paying’. This type of consideration is discretionary and without substance and is therefore not good consideration.  Nor can it be doubted that a promise is not illusory because the promisor has some discretion in how its obligations are to be performed. It is only necessary that there be an obligation that the promise be performed and that the discretion is contained within the defined parameters. 

The question in this case was whether the discretion was completely unfettered. The plaintiff argued that it did not have a completely unfettered discretion as to the provision of funding because it was required to act in good faith under the agreement and pursuant to duties arising at common law and in equity.  The defendant argued these duties were not fetters on the discretion because they could not be specifically enforced.

The Court of Appeal found in favour of the plaintiff that the consideration was not illusory consideration nor were the provisions uncertain and ultimately that the shareholders agreement was valid. They further found that good faith obligations can act as a fetter and that they did not need to be specifically enforceable. It was enough that those obligations could sound in damages only.

Further details of the case can be found here .

78th International Law Association Biennial Conference

6 St James Hall is very pleased to be a supporter of the 78th International Law Association Biennial Conference, to be held in Sydney from 19-24 August 2018.  

Dr Christopher Ward SC, as President of the host branch of the International Law Association, heads the conference organization and will address the Conference, and barrister Sandrine Alexandre-Hughes will also speak on private international law.  

The Conference is a major international event, and will be opened by the Foreign Minister, the Hon Julie Bishop MP, and will also be addressed by the Chief Justices of the High Court, Federal Court, Family Court and New South Wales Supreme Court, as well as the Right Honorable Lord Mance of the United Kingdom Supreme Court.

For any inquiries or registrations, please see the Conference website, www.ila2018.org.au, or contact Dr Ward SC directly at cward@stjames.net.au

HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World

Dr Christopher Ward SC recently spoke in Hong Kong at a major international conference conducted by the Hague Conference on Private International Law. The full conference proceedings is available on the HCCH 125 website. Dr Ward’s session is also available on YouTube

Sessions discussed all major topics of private international law and commercial law, including the recognition of judgments, choice of law, and the current work of the Hague Conference. 

The barristers of 6 St James’ Hall have a depth of experience in major private international law matters.  Recent and current significant cases include multinational employment disputes, cross border pharmaceutical and manufacturing disputes, foreign law disputes in aviation matters including the freight cartel class action and the establishment of foreign subsidiaries for listed Australian airlines.

Jennifer Mee on Best Lawyers list for 2019

Best Lawyers has recognised Jennifer Mee of 6 St James Hall Chambers in their 2019 list for her well-established work in energy law.

"I am honoured to have again been selected for inclusion in Best Lawyers in Australia, Energy Law, for 2019. Thank you to everyone who supported me for this."

Jennifer has been practising as a lawyer for over 20 years, over 15 of which have been as a Partner at national and global law firms. She is now practising as a barrister at 6 St James Hall Chambers in a wide range of practice areas.

Shareholder dispute regarding new Bunnings kitchen bench top roll out

Kirralee Young succeeds in a shareholder dispute regarding new Bunnings kitchen benchtop product roll out

The decision relates to a dispute between the plaintiff and the first defendant relating to the meaning and operation of certain provisions in a shareholders agreement. The agreement regulated their rights as equal shareholders in a company that carries on the business of developing, designing, manufacturing and marketing kitchen bench tops. In broad terms, the first defendant provided the intellectual property and expertise for the business and the plaintiff provided its funding. The shareholders have now fallen out over the company’s trading and financial position and the plaintiff is unwilling to provide further funding.

Among their respective arguments is the first defendant’s contention that the shareholders’ agreement is void and ineffective because the provisions relating to the plaintiff’s funding obligation either impose an illusory obligation or they are uncertain. These questions raised issues of general application in the law of contract.

His Honour found in favour of the plaintiff that the consideration was not illusory consideration despite the fact that certain conditions were required to be satisfied before the shareholder was required to provide funding and ultimately that the shareholders agreement was valid.

Further details of the case can be found here

Dr Stephen Tully speaks at 2018 ADLA Conference

Dr Stephen Tully has made a presentation about recent developments in international criminal law and practice as relevant to Australian legal practitioners. Organised by Nyman Gibson Miralis, the Australian Defence Lawyers Alliance (ADLA) Conference for 2018 was held in Sydney on 23 March and topics included advocacy, Commonwealth sentencing, mental health and the media. Stephen’s presentation is available here. 

Pro Bono Judicial Review Training

On 23 January 2018 Dr Stephen Tully, together with Nicholas Poynder of Frederick Jordan Chambers, Laura Free of Victoria Legal Aid, David Burke of Lander and Rogers Lawyers and Nadine Darling from the Refugee Advice & Casework Service (RACS), conducted a workshop on the judicial review of fast track decision-making by the Immigration Assessment Authority. Attended by some 27 solicitors and barristers, the workshop was the final step in an online programme established in Victoria and now made available in NSW. The training complements a current initiative of RACS - Justice for Refugees, or J4R – which engages barristers to advise on refugee matters and undertake judicial review applications before the Federal Circuit Court of Australia.

Dr Christopher Ward SC wins in landmark fraud and trade practices case

Dr Christopher Ward SC with junior Philip Santucci has successfully represented European businessman Dr Benoy Berry in landmark fraud and Trade Practices litigation against former Reserve Bank of Australia subsidiary Securency (now known as CCL Secure Pty Ltd).  

The Federal Court (Rares J) found that Securency and some of its officers had engaged in a “practiced deception” amounting to a “shabby fraud” as a result of which Dr Berry and his company were deceived into the early termination of an extremely valuable commercial contract involving the sale of polymer banknotes in Nigeria. The judgment, which also describes the conduct of Securency in relation to Nigerian governmental officials, reinforces the serious consequences for Australian companies that engage in deceptive business practices overseas.

The importance of decision notification: Dr Stephen Tully wins in visa cancellation case

Dr Stephen Tully of Chambers and Sally Hunt, Solicitor Director of Supra Legal, successfully overturned a decision of the Administrative Appeals Tribunal which rejected as late a merits review application lodged by their client concerning a decision of a delegate of the Minister for Immigration and Border Protection not to revoke a prior visa cancellation decision.

The Department of Immigration and Border Protection purported to notify the client of this decision in a letter which omitted certain information. The tribunal held that it lacked jurisdiction, and proceedings were commenced before the Federal Court of Australia.

The parties agreed to remit the tribunal’s decision for reconsideration because the client had not been correctly notified of the delegate’s decision as required by the Migration Act 1958 (Cth). 

LFDB v SM [2017] FCAFC 178

The Full Federal Court has strongly supported the mutual recognition of judgment provisions of the Trans-Tasman Proceedings Act. The Full Court upheld the registration of a significant money judgment obtained in New Zealand. The Appellant had been ‘debarred’ by an 'unless order' from participation in the original New Zealand proceedings. The Full Court rejected the argument that the New Zealand proceedings offended Australian public policy and procedural fairness requirements and upheld the underlying principle of reciprocal recognition of judgments from New Zealand.  The Full Court found that New Zealand 'unless orders' were simply a form of peremptory order by which courts were able to control their processes. The Full Court also confirmed the jurisdiction of the Federal Court in relation to the enforcement of New Zealand judgments.

From the Federal Court of Australia:

PRIVATE INTERNATIONAL LAW – appeal from the dismissal by the primary judge of an application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth)to set aside the registration of a judgment of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgment would be contrary to public policy in Australia

Dr Christopher Ward SC and Dr Stephen Tully successfully appeared for the respondent.

Steven Cominos wins one of the first successful appeals from a Football Federation of Australia banning order [2017] FIBAC 5

Mr Cominos acted for the appellant in an application to set aside a decision of the Football Federation of Australia (FFA) to ban the appellant from attending A-League and other FFA-sanctioned matches for a period of five years. The Football Independent Banning Advisory Committee (FIBAC), comprising Soulio J (chair), Ian Lloyd QC and Simon Mitchell, decided to set aside the 5 year ban.