James is admitted to practice in Fiji

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 pillar orders and interlocutory applications generally. He has done considerable pleadings work and continues to do so.

Current and recent significant matters include:

Costerfield Ltd v Denarau International Pty Ltd (Fiji High Court)

Essendon Apartment Developments v Shaw (Vic SC)

4 day trial to establish who controlled the corporate owner of a $40 million apartment development.

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)

(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).(click here)

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.

Caveat Removal

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

Class Actions

James is currently lead Counsel in three class actions.

Liquidation, Insolvency and Bankruptcy

James regularly appears before Master Efthim in liqudation matters and in the 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)

Defamation, Injurious Falsehood

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: (click here) (and here)

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 current matters include Mahon v Carter, a defamation and injurious falsehood proceeding in the NSW Supreme Court.

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).

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. In this matter the Plaintiff needed leave to proceed 20 years after alleged abuse occurred at her primary school.

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 - 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.

Alleged Fraud, Search and Freezing orders

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

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).
He also appeared in a contempt application for breach of a mareva.

Employment 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 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 prior the Howard governments industrial relations reforms

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. 

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.
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)