Resume

General commercial litigation services to law firms, in-house counsel, businesses and individuals including legal advice on prospects and strategy; preparing and settling pleadings, submissions, correspondence, proofs of evidence and witness statements; discovery; settlement negotiations; appearances re injunctions, interlocutory disputes, mediations, trials and appeals.

Matters to date include:

• building & construction disputes;
• commercial lease and sale of property disputes;
• contractual disputes;
• corporations disputes;
• employment disputes;
• freezing orders;
• injunctions;
• international enforcement proceeding;
• loan disputes;
• misleading & deceptive conduct;
• partnership disputes;
• professional negligence;
• restraints of trade;
• sale of business disputes;
• service and supply contract disputes;
• shareholder oppression;
• share purchase contract disputes;
• statutory demands.

In addition to private retainer work I have acted and/ or continue to act as a consultant to various law firms, including:

• consultant for international law firm re international arbitration matter;
• consultant for national law firm re WA construction litigation;
• consultant for Perth law firms on various general litigation matters.

Briefed on a wide range of commercial matters mainly in the superior courts, including:

• legal opinions
• advice on evidence & prospects
• preparing & settling pleadings, submissions, correspondence, proofs of evidence and witness statements
• appearances on injunctions, interlocutory hearings and applications
• appearances as trial and appellate counsel.

Examples of matters:

• Counsel for largely successful cross-respondent in a complex dispute concerning an alienation of property under s89 of the Property Law Act 1969 (WA), with intent to defraud the cross-respondent judgment creditor (WA Court of Appeal)
• Counsel for company defending action by liquidator of another company seeking to set aside alleged uncommercial transactions (WA Supreme Court)
• Counsel for customer of a major Australian bank re validity of bank guarantee (WA Supreme Court)
• Counsel on appeal for insurance policy holder re application of insurance policy to strata title property (WA Court of Appeal)
• Counsel for Australian Stock Exchange listed company re capital raising prospectus compliance matter (Federal Court)
• Counsel for company alleging breach of contract, statutory and fiduciary duties and tort of conspiracy by former employees who set up new company in competition with former employer, including recipient and accessory liability of new company (WA Supreme Court)
• Counsel (including trial counsel) on a number of disputed residential and commercial property transactions (WA Supreme Court)
• Counsel for former executive re disputed employment settlement agreement with Woodside Energy Ltd (Federal Magistrates’ Court)
• Counsel on a number of other executive employment & shareholding disputes (WA Supreme Court)
• Counsel for the Public Trustee, obtained urgent interim injunction to restrain the sale of residential land (WA Supreme Court)
• Counsel on a number of Supreme Court building and construction disputes, including a multi-million dollar action between tank subcontractors on a WA mining project
• Appointed as an examiner by the Federal Court to conduct a bedside de ben esse examination of an ill claimant in the Vioxx class action
• Counsel for major unions defending a WA Supreme Court application by Chevron for injunctive relief, sought to restrain public protests in Perth
• Counsel in WA Industrial Relations Commission re employment dispute
• Counsel for an employee re appeal to Public Service Appeal Board
• Junior counsel in WA Court of Appeal re dispute over proposed change of control of a wind farm joint venture between a Queensland government entity and a WA energy supplier
• Counsel in WA District Court on appeal from Registrar re pleading dispute
• Junior counsel for Fortescue Metals Group Ltd (a major iron ore miner) re Federal Court appeal concerning land access by native title group
• Junior counsel for Minara Resources Ltd (a major nickel producer) in WA Supreme Court re contractual dispute over land access agreement
• Advised Nexus Energy Ltd re force majeure dispute regarding the laying of a subsea pipeline
• Counsel for a major Perth quarry re Aboriginal heritage dispute
• Counsel for Aboriginal parties defending a number of native title claim strike-out applications by the State in the Federal Court
• Counsel in Full Federal Court for Aboriginal party defending appeal by State against decision to dismiss State’s application to strike-out native title claim
• Provision of native title advice regarding proposed land use by oil & gas/ mining industry
• Retained as independent counsel to conduct a native title meeting concerning land including James Price Point, proposed as a future onshore oil & gas processing hub
• Pro bono counsel for asylum seekers on judicial review applications in the Federal Magistrates’ Court
• Pro bono counsel for solicitor on a legal disciplinary matter in the State Administrative Tribunal

Conducted a range of proceedings for plaintiffs and defendants in the Western Australian Supreme, District and Warden’s Courts, and provided related advice including:

• conducted a defence by a Japanese corporation to a claim for termination of a joint venture agreement, the conduct of proposed proceedings for injunctive relief and the appointment of receivers and managers, and the defence to a related application for the appointment of receivers and managers in the Supreme Court of South Australia
• conducted a fraud investigation for a government entity in relation to the letting of multi-million dollar construction contracts
• provided risk management advice to mining  companies regarding anti-bribery laws and international conventions, and drafted compliance documentation
• legal and risk management advice to a listed mining company regarding allegations of bribery and corruption in respect of the company’s African mining activities, and aiding and abetting certain war crimes in respect of a massacre of civilians by the military
• defending the company in an African military court and in related preliminary legal proceedings commenced in the WA Supreme Court (WASC)
• settled a multi-million dollar claim by a mining company for damages in the WASC arising from equipment damage and business interruption loss caused by a fire on a mining excavator
• conducted a defence to a claim that mining tenements purchased by the defendant were purchased subject to the rights of a third party to the mineral rights in those tenements
• conducted a defence to a claim to enforce an “in principle” agreement for the purchase of mining tenements, and related advice
• conduct of proposed proceedings for a mining company seeking urgent injunctive relief in the WASC to enforce a contract for a motel to provide accommodation to the company’s workforce
• assisted the conduct of a strategically significant defence to a personal injuries negligence claim by a contractor allegedly exposed to certain gases at a smelter
• conduct of a defence by a mining company to third party proceedings in the District Court against a claim for indemnity arising from a claim for personal injuries
• defended a Port Authority against threatened proceedings for injunctive relief relating to the construction of a pipeline on a new extension to the Authority’s wharf
• advised an electricity generation company on the termination of an electricity retail distribution agreement and the engagement of a former consultant to the distributor

Native title and Aboriginal heritage due diligence advice including:

• advising the Cameco / Mitsubishi consortium on the A$520m acquisition of Rio Tinto’s Kintyre uranium mine in Western Australia
• advising Norilsk Nickel on the A$5.8bn acquisition of LionOre Mining
• the acquisition of various other mining projects
• capital raisings for various mining projects
• exploration and mining negotiations
• advising the State Solicitor’s Office (WA) on a range of native title matters

Conducted a wide range of commercial litigation matters in the Supreme, District and Magistrates’ Courts of Queensland, including:

• a defence and plea negotiation regarding a substantial Customs Act prosecution;
• a two week Supreme Court jury trial and related appeals concerning claims of misleading and deceptive conduct under the TPA and breach of contract;
• an aircraft leasing dispute concerning a Hong Kong-based freight forwarder;
• contractual and leasing disputes, TPA claims, alleged breaches of fiduciary duties by company office holders and shareholders disputes;
• a defence involving a substantial alleged Commonwealth fraud regarding the Pharmaceutical Benefits Scheme, and related proceedings under Proceeds of Crime legislation.
• as a consultant to the Department of Premier & Cabinet, Western Australia, conducted detailed consultations with native title holders and claimants in the Pilbara region to establish an approved body corporate to assume obligations under an agreement which has facilitated $10 billion in infrastructure projects on the Burrup peninsula;
• consultations with native title claimants in the Gulf of Carpentaria region as to appropriate changes to the distribution of financial benefits under the Century Zinc Mine Agreement;
• provision of due diligence advice in relation to the native title aspects of commercial property transactions;
• provision of corporate and native title legal advice to a number of native title representative bodies (Aboriginal corporations) in Queensland and interstate, including legal advice regarding the proposed PNG to Queensland Gas Pipeline;
• provision of legal advice to ATSIS (Aboriginal & Torres Strait Islander Services, a former Federal Government agency) regarding the strategic and operational plans of native title representative bodies throughout Australia;
• negotiation of native title exploration agreements with a range of mining companies, and the State of Queensland;Appearances in the Federal Court, Land & Resources Tribunal (Qld) and National Native Title Tribunal (Cth).

Queensland South Representative Body was an Aboriginal organisation funded by the Commonwealth Government under the Native Title Act to perform statutory functions for and on behalf of Aboriginal people claiming native title in the area covered by the southern third of Queensland, including Brisbane and offshore islands.

As the Legal Manager I reported to the Chief Executive Officer; my duties included:

• formulating and implementing a strategy to manage all native title claims across the region
• managing multi-disciplinary teams, including in-house & consultant lawyers, anthropologists, archaeologists, historians, environmental and mining advisers
• preparing & conducting native title claims and related legal proceedings, including appearances in the Federal Court and Land & Resources Tribunal
• providing legal advice to Aboriginal groups and QSRB
• mediation of intra-indigenous conflict
• negotiation of native title agreements with State and local governments, mining companies, pastoralists and others
• litigation where necessary to protect native title and Aboriginal heritage

The Victorian Government Solicitor’s Office’s Native Title Unit is responsible for providing native title services to the Attorney-General’s Department, and other departments of Government.

Duties included:

• briefing and assisting the Solicitor-General for the State of Victoria on native title matters
• advising the State and its instrumentalities on the effect of native title law on mainland and offshore exploration, mining, petroleum and pipeline development including legislative amendment
• negotiating & drafting of native title agreements, including exploration, mining and petroleum deeds, and ‘model’ rules for Aboriginal corporations
• preparing & conducting native title and other legal proceedings on behalf of the State of Victoria

The Northern Land Council performs statutory functions under the Aboriginal Land Rights (Northern Territory) Act for and on behalf of Aboriginal landowners in the “Top End” of the Northern Territory.

Duties included:

• providing a wide range of land rights, native title, corporate and other legal advice to Aboriginal landowners
• holding “on-country” consultations with Aboriginal landowners regarding proposed and existing exploration, mining, pastoral, tourism, fishing, military and other land uses
• appearing in the National Native Title Tribunal and Federal Court to defend and advance Aboriginal interests
• developing & implementing a strategy to respond to the Government’s release of a ‘backlog’ of exploration tenements throughout the Top End
• negotiating a major native title agreement with the Commonwealth & Northern Territory Governments regarding the establishment of a new military training area
• negotiating exploration & mining agreements with mining companies
• leading the project management and negotiation of a mining agreement in respect of a new uranium mining project

As a financial analyst I undertook a wide range of corporate finance work, including:

• business performance and commercial reviews
• due diligence investigations and reporting re business sales & acquisitions
• share and business valuations, including financial modelling

JM Smith & Emmerton was a medium size commercial firm in Melbourne that subsequently merged with Gadens.

General experience in commercial law including legal advice, trade practices, industrial relations, litigation, insolvency, banking and finance, property, copyright, family and wills.