Sydney barrister

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.

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.

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.

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 .