Areas of Practice

See also list of select cases under Recent Cases

Commercial Litigation

James has a broad experience ranging from personal injuries to some criminal work as a prosecutor but has chosen to specialise in commercial, media and estate matters. James has particular experience in breach of contract, guarantees, trade practices claims, defamation, employment law, , Family Provision, fraud, mareva injunctions and anton piller orders and interlocutory applications generally. He has done considerable pleadings work and continues to do so.

Current and recent significant matters include:

Amar Produce Pty Ltd v Fairbank’s Selected Seed Co Pty Ltd & Anor [2016] VCC 1908 (14 December 2016) this was a 12 day trial with over 15 witnesses and significant periods of cross examination and conflicting expert evidence. The Defendant’s witnesses were disbelieved in critical matters. James’ client was awarded over $300,000.

Bail v Scott-Mackenzie [2016] VSC 563 (20 September 2016) is a significant discreet question on whether children of a biological parent and step-parent who never married can be step children for the purposes of the Administration & Probate Act 1958. Jame’s client was held to be within the class of eligible applicants for family provision. The Defendant has appealed to a three member bench of the Court of Appeal.

Impact Funds Management Pty Ltd v Roy Morgan Research Ltd [2016] VSC 221 (10 May 2016) a proceeding commencing with a televised (it was silly season) relief against forfeiture application on 21 December, 2015 and following by a $10 million claim against the defendant and counterclaim that was heard for 3 days before Croft J. Neither the claim nor counterclaim were made out.

Brimelow v Alampi [2016] VSC 135 (8 April 2016) James’ cross examination of the defendant and tactical use of subpoenas resulted in the trial judge ruling that: “..these reasons for judgment are to be referred to the Deputy Commissioner of Taxation at the Australian Tax Office as well as the Minister of the Department of Human Services to take such action as they wish in reviewing the affairs of the defendant” at [110].

Linkhill Pty Ltd v The Director of the Fair Work Building Industry Inspectorate [2015] HCATrans 340 (11 December 2015) James failed to get special leave from the High Court to appeal a decision of the Full Court to properly credit an employer for paying its staff well over the award on the basis that the argument had not been raised at trial (by different Counsel !). see article here.

MHM Metals Pty Ltd v Frank Rogers & Anor VID 1272 of 2103, a freezing order for a listed company arising from related party transactions and alleged misappropriation by a past managing director. This ran for three days before Davies J. with James for the Applicant. The Respondent’s two main witnesses were found not to be witnesses of truth. The applicant was awarded $548,581 and $241,262 interest . See judgement here: MHM Metals Ltd v Rogers [2014] FCA 1006 (18 September 2014)

see The Australian article

In the matter of Conalpin Pty Ltd , Dolmear Pty Ltd and Ross McDermott SC2012 2905 a rare setting aside of liquidators fees by reason of conflict of interest by Associate Justice Efthim – currently on appeal see judgement here.

Essendon Apartment Developments Pty Ltd v Shaw & Ors [2014] VSC 74 (6 March 2014) a 4 day trial to establish who controlled the corporate owner of a $40 million apartment development: see article here

Eastern Pearl Corporation v Groundhog Sales and Rentals (Federal Court, Brisbane)

Rahim v Channel 7 – a defamation claim arising from the Channel 7 program, Today Tonite (County Court)

Mahon v Mach 1 see decision (NSW Supreme Court defamation proceeding (acting for the defendant, statement of claim successfully struck out and injunction disolved)

Harding Investments Pty Ltd v PMP Shareholding Pty Ltd (N0.2) [2011] FCA 1370 a shareholder oppression action involving a considerable contest over expert valuation evidence.

Dr Neil Wallman v Mladenis & Anor [2011] NSWSC 1431, fraud NSW Supreme Court click here

Morrison & Ors v Capital Finance Pty Ltd [2011] VCC a rare overturning of a 100% a year interest rate clause not on the ground it being an unconscionable penalty at common law and in equity but pursuant to the Trade Practices Act (1974).

Legacy Resources v Feng Shu Shun Marava and anton pillar orders in the Victorian Supreme Court involving an alleged multi-million dollar fraud originating out of China.

Several appearances in the Federal Court, Brisbane, involving a multi million-dollar debt. The matter has involved an intricate international tracing exercise and a mareva injunction: Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd. (Click here to go to decisions.)
acts in a misleading and deceptive conduct claim that was filed in the Federal Court, New South Wales registry.

Cross vesting from Federal Court (Sydney) to Supreme Court of Victoria of proceedings which involve allegations of defamation (click here for decision) and the question is what is “organic”. James appeared in Sydney opposed to Stuart Littlemore QC. Supreme Court proceedings: Snowy Mountains Organic Dairy Products Pty Ltd v ABC & Ors and Snowy Mountains Organic Dairy Products Pty Ltd v Director of Consumer Affairs Victoria. Federal Court proceeding: Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods & Anor.

James is competent in all jurisdictions, frequently appearing in other States. James spends a great deal of time working with his instructors to develop strategy and always prepares extensively.

James extensive experience in interlocutory matters has led him to appear in wide variety of jurisdictions and locations such as:
Consumer, Trader and Tenancy Tribunal of New South Wales Decisions – subpoena objection
Sutherland (NSW) Local Court – strike out
Industrial Relations Commission of New South Wales – unfair contract claim

James happily appears in country areas taking the opportunity to ride his motorbike.

Whistleblowing – Protected Disclosures – Public Interest Disclosures

James has recently reviewed the Victorian Protected Disclosure Act (Vic) 2012 for the State Parliamentary IBAC Committee making comparisons of its operation with other states and the Commonwealth and the Employment Rights Act UK 1996 and some American equivalents.

Caveat Removal

James has appeared on over 10 occasions in the Victorian Supreme Court to remove caveats.

Liquidation, Insolvency and Bankruptcy

James regularly has appeared before Associate Justices Efthim and Randall in liqudation matters and in the Federal Court Bankruptcy jurisdiction and has conducted trading while insolvent proceedings. He has recently appeared at Liquidators examinations in the Supreme Court and appealed the decision of an administrator in the Federal Court. He appeared in the Full Court appeal on sequestration orders in decision of O’Meara v Hitwise [2007] FCAFC 114) and also in Tarrant v Statewide Secured Investments Pty Ltd [2012] FCA 582 (6 June 2012)

Most recently in Conalpin Pty Ltd and Dolmear Pty Ltd and Ross McDermott SC! 2012 2905 James set aside the liquidators fees in toto on the grounds of conflict of interest. see judgement here

Defamation, Injurious Falsehood vs Misrepresentation

The virtual abolition of defamation relief for companies has forced many companies seeking defamation style relief to make questionable claims in misreprentation (s.52 TPA, Australian Consumer Law) and injurious falsehood. James specialises in striking out spurious claims.

James worked for three years in the Fairfax and Herald & Weekly Times newspapers, as political press secretary on Premier Kennett’s private staff and an executive in Telstra’s Government Relations area giving him a rare insight in the main streams of media creation, interpretation and manipulation.

He completed a Graduate Diploma in Communications Law with Melbourne University’s School of Media Law before reading with regular defamation Counsel, Richard McGarvie SC.

In addition to regular advice work he was Counsel in the Contempt and defamation defences of Stephen Mayne’s Crikey website when allegations were brought against it by Stephen Price then of 3AW. Recently he obtained an award of $103,000.00 for a Bangladeshi Australian falsely accused of murder (Mohamed Awal v Mohamed Rouf [2004] VSC, 21 July 2004, unreported, Stott J; click here for newspaper article).

James regularly advises bloggers on potential defamation liability. James has appeared as junior to Clive Evatt QC in a defamation jury trial in the NSW Supreme Court and in March 2010 conducted a 9 day defamation jury trial in the County Court of Victoria: Vo v Nguyen. He has a good knowledge of the technical interlocutory steps in defamation proceedings. Rahim v Channel 7:

See also: Holbrook v McPhee an internet defamation case involving a US client –
Holbrook and Orphancare International Inc v McPhee [2011] VCC 501 (12 April 2011)

Other matters include Mahon v Carter, a defamation and injurious falsehood proceeding in the NSW Supreme Court, acting for the defendant, and in the Federal Court in South Australia, Astra Resources PLC v Wikifrauds SAD 239 of 2012, both times acting for a public interest website dedicated to exposing commercial fraud. In Astra James also acted for the Defendant.

In Mahon, after systematic attack on the Plaintiff’s pleadings the NSWSC struck out the claim and awarded costs against the Plaintiff: see case
here. In Astra the case was settled on confidential terms after a similar systematic attack on the pleadings.

The terms of the resolution of the Astra Resources proceeding are confidential.

Trade Practices

James has appeared in and guided misrepresentation in the sale of business cases in the Supreme Court and Federal Magistrates’ Court. Misrepresentation claims are a common blocking defence which can be disabled with proper interlocutory scrutiny. Franchises are a particular fertile area for genuine misrepresentation where the profit margins of Franchisors are secured through the sale of blue sky business concepts. James has appeared and advised in franchise matters. There is potential for this area of litigation to expand significantly following the passage of the unfair terms provisions of the Fair trading Act 1999 (Vic). James has given talks including at Deacons, Herbert Geer & Rundle, Tress Cox and Maddox, Wisewoulds, Russell Kennedy and Harwood Andrews on the amendments and potential developments in the area.
Articles:
Law Commission Discussion paper
Scottish Law Commission Report (click here to go directly to the summary).

Mediation

James is a nationally accredited mediator and has experience as a mediator:
http://www.vicbar.com.au/c.7.2.aspx?letter=C

Family Provision – Wills and Probate

James has substantial experience mediating and drawing documents in part IV Administration & Probate matters and general advice work on wills and estates and appearing at associated interlocutory applications. In these matters James has a 100% settlement rate and there are consequently no reported decisions. He settled over 20 Part IV matters in 2014 and over 20 in 2015.

James co-wrote the Commercial Bar Association submission to the 2012 the Victorian Law reform commission review into Victoria succession laws and in particular the subjects of: Wills, Family Provision, Intestacy, Executors, Small Estates, and Estate Debts.
Also case note here. He successfully prosecuted an application for a solicitor to cease acting in a Part IV application: O’Loughlin v Arnott & Anor [2014] VSC 416 (3 September 2014)

See Commbar articles here and here. In this decision his cross examination of the Defendant resulted in the Defendant being referred to the Australian Taxation Office and Centrelink: Brimelow v Alampi [2016] VSC 135 (8 April 2016)

The decision in which his application for the definition of step-child to include children of biological parent and de-facto in Bail v Scott-Mackenzie [2016] VSC 563 (20 September 2016) has been appealed to the Court of Appeal.

Alleged Fraud, Search and Freezing orders

James has now prepared for and appeared in seven significant mareva and anton piller order applications:

MHM Metals Pty Ltd v Frank Rogers & Anor VID 1272 of 2103, a freezing order for a listed company arising from related party transactions and misappropriation by a past managing director. The freezing order was ultimately extended to a $1.5 million yacht in Corfu.

Kia Ora Pty Ltd v Jennifer Fawcett (2012 Vic SC)

Essendon Apartments v Jennifer Shaw (2012 Vic SC)

Austral v Contebardo (Vic SC) (alleged breach of confidence, ex-employees)

Eurovox Pty Ltd v Miller (Vic SC) (alleged fraud)

IWPE Nominees P/L & Anor v Patrick Salera & Anor 2027 of 2004) Vic SC

Legal Resources v Feng Shun Shun (Vic SC) (alleged fraud)

Lifetime Investments Ltd v Commercial (Worldwide) Financial Resources Fed Ct(alleged fraud). See press coverage here. He also appeared in a contempt application for breach of a mareva.

Employment Law – Industrial Law

James has advised and appeared on matters pertaining to employment contacts, unfair dismissal including AIRC proceedings, employee/independent contractor issues, restraints of trade, confidential information, redundancy entitlements, sexual harassment, and discrimination and in particular breach of employee duties in the area. In particular the Supreme Court matters of Eurovox v Miller (alleged theft of company assets) and Austral v Contebardo (alleged theft of clients and company intellectual property).

He now has particular expertise in sham contracting having prosecuted appeals  on that subject in the Full Federal Court and the High Court of Australia (see recent cases Linkhill)

He frequently advises on termination and redundancy and also rights and duties of employees post employment with respect to confidential information, trade secrets competition with the previous employer and poaching or previous employer staff.

Having appeared to the mediation stage of several Unfair Dismissal cases.

James is Chairman of Blueprint for Free Speech a small not for profit research organisation which does research on international whistleblower and freedom of expression legal frameworks and creates best practice benchmark legislation in those fields for deployment by countries when the law reform environment permits: see blueprintforfreespeech.net

Heavy vehicle transport

James has accumulated significant experience in legal issues relating to trucking. These include:

  • successful appearance at trial for Linfox in Sydney District Court of NSW in a truck accident claim;
  • truck collision matter for Linfox in the Federal Court of Tasmania;
  • wide load truck collision suit against the police for failing to provide proper escort services;
  • defence of trucking company in an EPA prosecution for fuel spillages;
  • defence of trucking compnay for non compliance with the National Heavy Vehicle Acceditation Scheme (“NHVAS”) and associated mass requirement regulations in NSW.

His most recent appearances in 2015 were in NSW Nolan v Sims Group Australia Holdings Limited; Nolan v Delta Pty Limited [2015] NSWSC 1424 (6 October 2015)

and in the Magistrates Court of Victoria also for Delta group.

He has appeared for:

  • Scotts Transport (EPA prosecution)
  • Delta Transport (mass breaches);
  • Fred’s Interstate Transport (mass breaches)

All these cases have involved consideration of complex technical evidence and issues particular to the trucking industry. The NHVAS is an important emerging area as the industry becomes highly regulated and chain of responsibility provisions impose liability on operators regardless of their blameworthiness.

James has also successfully brought injunctions against the Victorian Taxi Directorate and appears generally in vehicle collision matters at all Court levels.

Crime, prosecutions

James has appeared to prosecute in enough cases to know the duties of a prosecutor and in his experience as a Judges Associate has an excellent knowledge of what information and style of submissions a tribunal wants to hear. He has appeared in over 50 pleas. Successful bails applications include Slavic Ramchen (see article).
Water Act prosecutions
Office of Public Prosecutions
R v Anthony Hickey
R v Andrew McNeil
R v Jordan Perron
R v Adam Troy Williams

Coronial Inquests

James has appeared in a number of inquests.
Mohamed Zayat (prisoner death)
Phillip Dart (death on construction site)

Anthony Kennedy (prisoner death)

Darren Miller (prisoner death)

Sexual Abuse Torts, Limitations Act Applications

James has conducted independent reviews for the Catholic Church as part of its Toward Healing program. This has given him a unique insight into the psychiatric propensities inherent in paedophilia and the law and policy governing repressed memory. Case example: Bates v Gasperino (County Court, decision of Ostrowski J.) In this matter the Plaintiff needed leave to proceed 20 years after alleged abuse occurred at her primary school.