Success in three landmark abuse cases

O’Connor v Comensoli Successful claims of negligence and vicarious liability against the Melbourne Archdiocese of the Catholic Church concerning abuse of a child by a priest. Record general damages awarded to plaintiff by Victorian Supreme Court

PCB v Geelong College. Successful claims of negligence against Geelong College on behalf of former student abused at school facilities by community visitor, record pecuniary loss damages awarded to survivor of child sex abuse by Victorian Supreme Court

John XXIII College v SMA Claims of negligence for directing University students off campus whilst drunk exposing student to risk of sexual assault and response to assault claims partially upheld on appeal in ACT Supreme Court

ASIC V AMP

Senior counsel for ASIC in Federal Court proceedings compelling AMP and its solicitors Clayton Utz to produce documents subject to claims of legal professional privilege relating to an investigation into fees for no service and false and misleading statements. The application resulted in the production of documents.

Reporting of this matter appears here: Financial Review, ASIC media release, other.

Royal Commission into Aged Care and Quality Safety

Senior counsel for Bupa Aged Care instructed by Herbert Smith Freehills

Senior counsel for Assisi Centre Ltd instructed by Minter Ellison

Australian Defence Force v Challis

Senior counsel for Defence in Inquest into the death of a soldier in the Northern Territory and subsequent Work Health and Safety matters

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry

Senior counsel for insurers Hollard BRC and Greenstone Financial Services

Metropolitan Fire Brigade v City of Yarra (2011-2017)

Landmark environmental case concerning claims for clean up costs concerning remediation of toxic waste abandoned on former industrial land. Lead counsel for plaintiff MFB at trial, on appeal and in the High Court.

The MFB occupied polluted land and was required to clean up toxic waste abandoned on site decades before by the Richmond City Council, later the City of Yarra, a prior occupier of the land. The MFB was successful in obtaining orders requiring the City of Yarra to pay the costs of the clean up with a trial on the quantum of damages to follow.

The judgment at first instance was upheld on appeal and special leave to the High Court has been refused. The quantum trial is progressing. 

The case follows on the decision of Spotless, and considers the provisions of the Environment Protection Act concerning the abandonment of pollution. 

The appeal considered for the first time a number of key provisions of the Environment Protection Act concerning recovery of compensation from a polluter. The case also considered the effect of the amalgamation of municipal councils on liability of the new entity. 

See judgment on appeal and case notes

Royal Commission into Institutional Responses to Child Sex Abuse (2013-2017)

Led the Commonwealth team in the Royal Commission working closely with the Attorney General’s Department to represent the interests of the Commonwealth across the whole of government, instructed by Australian Government Solicitor.

Appeared in case studies involving Commonwealth witnesses with a focus on fact specific claims including children of the 'Stolen Generation' at Retta Dixon Home in NT, Australian Institute of Sports, Australian Defence Force involving AGD, PMC, AIS, ADF and other agencies.

Huber v Chua Min Wee & Ors - High Court of Singapore (2015-16)

Provided expert reports to the High Court of Singapore on behalf of two defendants instructed by TSMP Law Corporation (Singapore).

This case involved contested cross border claims of beneficial ownership of shares in a raft of companies registered in various tax havens and the effect of breaches of the corporations law and impact of bankruptcy under Australian law on Singapore Court processes.

Murrindindi Black Saturday bush fires class action (2013-2015)

Led the legal team representing the plaintiff class, instructed by Maurice Blackburn representing victims of the 2009 Victorian Black Saturday bush fires in Rowe v Ausnet Electricity Services & Ors (formerly Liesfield v SP Ausnet) Supreme Court of Victoria.

The class action in the Supreme Court of Victoria sought damages resulting from the Murrindindi bush fires that killed 40 individuals and destroyed property and businesses. Claims by the class were for personal injuries, dependency claims, property and economic loss and property damage.

The case concerned the cause of the fires including the operation and maintenance of electricity transmission assets by Ausnet and its inspection consultants and the failure of State parties to warn communities of the progress of the fires.

The parties agreed to settle on 6 February 2015 for the sum of $300M. The application for the Court’s approval of the Murrindindi bushfire class action settlement was heard before Justice Emerton on 13 and 14 May 2015, with her Honour approving the settlement application on 27 May 2015.

See media release

Christian Youth Camps Ltd v Cobaw Community Health Services (2013-2014)

Appeared for the intervenor International Commission of Jurists in the Victorian Court of Appeal in this case concerning competing rights of anti-discrimination and freedom of religion under equal opportunity laws and the Victorian Charter of Human Rights and Responsibilities.

The case involved the refusal of the appellant to provide accommodation services to the respondent, a state-wide youth suicide prevention project targeting same-sex attracted people, on grounds of asserted incompatibility with the doctrines of the religious group. 

The case is important in the context of current debate concerning the exemption of religious organisations providing commercial services to the community from commonwealth and state anti-discrimination provisions and is a landmark Australian case in terms of its consideration of competing human rights.

See case note

Wheelahan & Ors. v City of Casey - Casey landfill case

Class action and recovery claim for remediation of methane leaching landfill in Victorian Supreme Court. The leaching led to the evacuation of a Melbourne suburb, Brookland Greens and claims against the landfill operator, the Environment Protection Authority and others.

Led the team for the defendant, Frankston City Council defending claims by the City of Casey for a contribution to the costs, past and future of remediation of an unlined landfill. 

Casey claimed past and future costs exceeding $200M.  

Queensland Floods Commission of Inquiry (2011-2012)

Led the Commonwealth team in the Queensland Floods Commission of Inquiry in 2011-2012 working closely with the Attorney General’s Department to represent the interests of the Commonwealth across the whole of government. 

Commonwealth agencies involved in the Inquiry included AGD, EMA, the Bureau of Meteorology, Defence, AFP, ABCC, Department of Communications and Finance.

The final report of the Queensland Floods Commission of Inquiry was provided to the Premier and Minister for Reconstruction, and publicly released, on 16 March 2012.

Victorian Bushfires Royal Commission (2009-2010)

Led the Commonwealth of Australia's team working closely with the Attorney General’s Department to represent the interests of the Commonwealth across the whole of government

The bushfires of Black Saturday, 7 February 2009, caused the death of 173 people. The 2009 Victorian Bushfires Royal Commission was an important part of ensuring that those lessons are clearly defined and learnt. The Commission conducted an extensive investigation into the causes of, the preparation for, the response to and the impact of the fires that burned throughout Victoria in late January and February 2009. 

Commonwealth agencies involved in the Inquiry included AGD, EMA, PMC, the Bureau of Meteorology, Defence, DIGO, AFP, ABCC, CSIRO, Geoscience Australia, Department of Communications and Finance. 

ASIC v Narain; ASIC v Citrofresh International Ltd (2007-2008)

Acted for the defendant, a director of Citrofresh International Ltd at trial in the Federal Court, on appeal to the full Federal Court and on appeal to the High Court. This was an action by ASIC against the director for his involvement in announcements made by the company on ASX, which materially affected the company’s share price.

ASIC’s claims relate to the provisions under the Corporations Act concerning market misconduct such as market manipulation, false trading, market rigging, dissemination of information to the stock exchange, false and misleading statements, fraudulent inducement to deal, and insider trading. 

Appeared at first instance, on appeal to the full court and on special leave to the High Court.

ASIC v Money for Living (administrators appointed); Haslam v Money For Living

Appeared for ASIC, in winding up the scheme and in subsequent proceedings concerning disputes over the title of properties offered as security for reverse mortgage lending. The case was an early use of ASIC's powers to bring representative proceedings under s50 of the ASIC Act.

The scheme Money For Living Scheme was a scheme promoted to elderly Australians involving reverse mortgage style products. In return for selling the equity in their homes to Money For Living, the owners were provided with a life tenancy in their homes and an income stream. Investors were misled in relation to the value of the income stream, the nature of their remaining interests in their homes, and their rights and entitlements. The scheme was judged to be an unregistered managed investment scheme concerning interests in land. On winding up, a number of secured creditors sought to defeat the interests of property owners. 

The decision granting injunctions restraining the defendant directors is here. 

The decision concerning the nature of the claims of the scheme participants as tenants in possession is here

The decision concerning competing interests of financiers with registered mortgages and the equitable interests of tenants for life in possession is here

VCA & Ors v Australian Prudential Regulation Authority

Lead counsel for APRA in this landmark decision of the AAT concerning prudential regulation and the disqualification of responsible officers. The case concerned the conduct of the Trustee and responsible officers and whether directors had breached covenants and acted in the best interests of members. 

Blue Wedges Inc v Minister For The Environment, Heritage And The Arts

Led the case for the plaintiff concerning the proposal to deepen the shipping channel and dump dredge spoil including toxic metals and other contaminants in Port Philip.

The dredging involved the disturbance of heavy metals and other historical industrial waste in the Yarra River and Port Philip and the impact of dredging and dumping of spoil in the Bay on protected species and Ramsar wetlands in the Bay and recreational use of the Bay.

The case concerned the approval of the Commonwealth Minister for the Environment and the assessment process conducted by the state and Port authority. 

ASIC v GDK Financial Solutions Pty Ltd; Western Retirement Village Management Pty Ltd v ASIC

Senior counsel for ASIC in the Federal Court on application to wind up two unregistered managed investment schemes known as the Mews Retirement Village and Rosedale Retirement Village and in related proceedings. Also acted for ASIC on appeal to the Full Federal Court and before the High Court.

The decision considered closely the powers of a court appointed receiver to wind up the schemes under the provisions of the corporations act and under the inherent powers of the court. 

The decision of the federal court concerning the powers of the receiver is here

The decision winding up the promoter of the scheme is here

In related proceedings, Western Retirement Village Management Pty Ltd v ASIC the appellant promoter of the scheme unsuccessfully appealed the appointment of the receivers, the powers of sale and the scope of the property of the scheme to the full federal court. 

In Rosedale Action Inc. v Hon Justice Finkelstein in the High Court, resisting an application for orders nisi under section 75(v) of the Constitution directed to a judge of the Federal Court. A party asserting rights under scheme management agreements unsuccessfully sought injunctive relief compelling the trial judge to revisit the appointment of the receiver.