Dr Ward SC represents Palmer Leisure Coolum Pty Ltd in the Supreme Court in Brisbane

Dr Christopher Ward SC represents Palmer Leisure Coolum Pty Ltd in a matter about an alleged abuse of process leading to a stay of proceedings that are brought against the company and Mr Clive Palmer based upon the takeovers provisions under the Corporations Act.

The matter is mentioned in the Brisbane Times.

Chambers and Partners - Rankings for Employment Bar 2019

Ian Neil SC and Michael Seck have been ranked in the Chambers and Partners Employment Bar 2019 throughout Australia and Asia-Pacific.

Ian Neil advises and appears for leading law firms throughout Australia for clients in mining and resources, building and construction, banking and finance, industry, and government. A focus of Ian’s practice is employment and industrial law.

Michael Seck advises and appears for major Australian employers in the public and private sector, workplace regulators, employer/industry associations, senior executives and trade unions.

Second Appearance of Witness K Case before the ACT Magistrates Court

Dr Christopher Ward SC represented lawyer Bernard Collaery for the second appearance of the Witness K case on Wednesday, 7 November before the ACT Magistrates Court. 

Proceedings centred around the possibility of holding the trial in a closed court. 

More details can be found in articles from the Washington PostThe Canberra Times and The Australian.

LegalWise Seminar - Family Law Conference on 22 November 2018

Michelle McMahon and Madeleine Bridgett will be presenting at the Legalwise Seminar - Family Law Conference on 22 Nov 2018.

Michelle McMahon is presenting on emerging family law issues in the LGBTIQ community and Madeleine Bridgett will be presenting on substance abuse in parenting matters.

Please click here for more information on the conference and how to register. 

Inquest of the death of Melissa Standen

The NSW State Coroner delivered findings into the Inquest of the death of Melissa Standen on 25 September 2018. Madeleine Bridgett represented Mr Bruce Standen, Melissa’s father. The Coroner found that the manner of death was a fall from a bed at Allowah Hospital due to failures to implement proper systems for risk assessment, bed selection and the training of staff for a child patient with profound disabilities.

The Coroner found that the following factors contributed to Melissa falling from the bed and her subsequent death: failure by the hospital to develop and implement an appropriate risk assessment and admission procedure; failure to implement a proper risk assessment to manage Melissa’s change from a cot to a bed; the selection and use of a bed totally unsuited to the needs of Melissa; failure to properly adapt the bed selected to reduce risk given Melissa’s special needs and the inappropriate use of bumpers as a fall prevention device; failure to ensure important clinical information was retained regarding the adaption of the bed to ensure staff were fully informed of the specific needs of Melissa whilst a patient at the facility; inadequate training of staff and the lack of a proper process to respond to concerns by staff; the lack of involvement by the hospital of occupational therapists in the selection and use of appropriate beds for children with profound disabilities; and poor management practices relating to the development of internal policies and the training of staff regarding the admission and assessment of patients. 

The Coroner also made recommendations to the Minister of Health to establish a group of appropriately qualified experts, in consultation with organisations that represent or care for children with physical and neurological disabilities, to develop a standard, guideline or other type of publication, which is directed to improving the safety of beds used by children with physical and/or neurological disabilities. 

You can read the findings here and related media article here

The usual costs rules apply in NCAT for applications under the National Health Law –no need for special circumstances 

KJ Young has won a costs application for the Dental Board of Australia (the Board) in respect of an application by a dentist for specialist accreditation in Australia as an orthodontist.  Dr Gustavo Vivaldi practised as an orthodontist in Brazil for over a decade before migrating to Australia in 2013. In 2003, he completed a Master’s degree in Orthodontics at the Associação Maringaense de Odontologia, a tertiary institution in Brazil.  Since July 2015, he has held registration as a dental practitioner in Australia. In July 2016, Dr Vivaldi applied to the Board for specialist registration in the field of Orthodontics. The Board refused to grant that application. In September 2017, Dr Vivaldi exercised his right to appeal that decision to the NSW Civil and Administrative Tribunal (NCAT).

The appeal was listed for hearing before NCAT on 11 and 12 July 2018. On 6 July 2018, Dr Vivaldi informed the Tribunal of his decision to withdraw the appeal and proposed that each party should bear their own costs. The Board refused and asserted that Dr Vivaldi is liable for its costs of the appeal. Being unable to reach agreement, the parties requested that the Tribunal determine the issue of costs. The Tribunal decided to order that Dr Vivaldi pay 60% of the Board’s costs to 28 June 2018 and all of its costs thereafter.

 Litigants or potential applicants need to be mindful that in NSW, when they apply for administrative review of a registration decision made by the regulator or national boards under the Health Practitioner Regulation National Law (NSW) (the National Law), the usual costs rules apply and not the ‘special circumstances’ costs rule under clause 60 of the Civil and Administrative Tribunal Act 2013 (NSW).  In exercising the power conferred by the National Law to award costs, the general rule is that costs follow the event: clause 13 of Schedule 5D of the National Law; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. 

Despite effectively ‘surrendering' the entirety of his case in the lead up to the hearing, Dr Vivaldi refused to agree to pay any costs which had been incurred by the Board in preparing for the hearing of his application. An offer of 60% of its costs was made by the Board in the lead up to the final hearing which was rejected outright by Dr Vivaldi on the basis that his case involved matters of public interest such that the costs discretion should be exercised in his favour. The Tribunal found that Dr Vivaldi should have accepted the offer that had been made by the Board and ordered him to pay the Board’s costs as agreed or assessed. It appears being the model litigant and making early and appropriate offers sometimes pays off for government agencies.

Click here to view reasons of decision.

Ian Neil SC joins 6 St James Hall

The members of 6 St James Hall Chambers are delighted to announce that leading Sydney silk Ian Neil SC has joined the Floor from 1 September 2018.  A silk since 2006, Ian has a wide appellate, commercial, inquiries and equity practice, with a particular specialty in employment and industrial law. 

Ian’s modern and collaborative approach to advocacy and his national practice complement the existing commercial, industrial and international strengths of 6 St James Hall. Ian joins the existing international practice group of Chambers and will continue to conduct mediations and arbitrations in Australia, Hong Kong, and in the London Beth Din.   

Ian will continue to practice from the new 6 St James Hall Annex in the Art Deco Trust Building.

For all inquiries please contact head of chambers, Dr Christopher Ward SC (cward@stjames.net.au), clerk to Ian Neil SC, Sharon Verhagen chambers@ianneil.com or Chambers Practice Manager Nora Faulua

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