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Pool Members
Industry Consultation September 2016
Attachments A – L, CV for each proposed candidate
DAVID LEVIN Q.C. LIST B
BARRISTER
TEL: NATIONAL (03) 9225 7222 EXT. 7043
INTERNATIONAL +61 3 9225 7222
DX: 98
EMAIL: [email protected]
CLERK GREEN
OWEN DIXON CHAMBERS
205 WILLIAM STREET
MELBOURNE 3000
In England: TEL: +44 (0)1223 368761 FAX: +44 (0)1223 313007
EMAIL: [email protected]
FENNERS CHAMBERS 3 MADINGLEY ROAD, CAMBRIDGE CAMBS CB3 0EE
UNITED KINGDOM
August 2016
David Levin Q.C. Curriculum Vitae
My professional qualifications are that I graduated in Economics and Law at Cambridge in 1971, I have been a barrister since 1972 (in UK) and 1977 (in Victoria) and a Q.C. since November 1997. I was a director of Barristers Chambers Ltd (October 1998 to July 2005) and from October 1994 until June 2003 I was an alternate director of Barfund Pty Ltd, the trustee of the Bar’s superannuation fund. I am a member of the Chartered Institute of Arbitrators and a Grade 1 arbitrator accredited by IAMA. I am an Australian National Mediator accredited under the National Mediator Accreditation System. I am a member of Melbourne TEC Chambers. Although my practice is based in Australia I am also a door tenant at Fenners Chambers in Cambridge in respect of arbitration and mediation matters.
I have been in private practice as a barrister since 1973. I have acted as both arbitrator, mediator, expert determiner and special referee. In my professional career over a number of years I have specialised in construction and computer litigation. Set out below are some of the matters in which I have acted.
Computer Litigation
I have acted as counsel in a number of computer disputes and cases involving the use of computers including Integer Computing v Facom Ltd Madeley Pty Ltd v Touche Ross , Tasmania Bank v Peak Marwick, ACOHS Pty Ltd v Merck Pty Ltd , Redflex Traffic Systems v American Traffic Systems, Kilpatrick Green
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Pty Ltd v Leading Synthetics Pty Ltd and RACV v Unisys. In 2000-2001 I was briefed in the Metrail Ticketing dispute and have acted in relation to the software used in freeway tolling.
Construction Litigation and Arbitration
I have undertaken numerous actions and arbitrations as counsel involving infrastructure construction projects all over Australia. Inter alia, these have involved pipelines, power generation plants, gas plants, oil and gas facilities (onshore and offshore), desalination plants, wind farms, railway lines and stations, roads, tunnels, bridges as well as multilevel office, retail and residential structures.
Arbitrator Between July and October 1998 I acted as arbitrator in an arbitration involving a Queensland dredging company and six Melbourne councils in an extensive dispute in which both sides were represented by senior and junior counsel and in which interim and final awards were ultimately delivered. I have acted as arbitrator in several other disputes, none of which ultimately proceeded to an award. Special Referee Until June 2012 I held an appointment as Special Referee appointed by the Technology, Engineering and Construction List of the Supreme Court of Victoria in a dispute between a head contractor and subcontractor relating to waterproofing of an apartment building. The hearing occupied three weeks; the report to the court exceeded 200 pages.
Appointment as Expert In about 1999 I was appointed as an expert in relation to a dispute arising between various parties in relation to the Western Link of City Link, pursuant to the expert determination provisions of the Melbourne City Link legislation. I have held other expert appointments.
Mediator From time to time I am nominated as a mediator in relation to Supreme Court and Federal Court proceedings. Details are of course confidential but they have generally involved disputes relating to construction projects, mining developments and infrastructure.
Other Appointments:
Advocate member of the Legal Profession Tribunal April 1997 – 10 June 2013. The Tribunal is composed of a chairman (a retired judge) and a lay person and an advocate member drawn from the same side of the legal profession as the party the subject of the hearing.
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In the last ten years I have sat on five tribunal hearings:
Date Plaintiff Defendant
21/7/03 Victorian Bar Inc Alan Walter Sandbach
22/9/03 Les Thomas on behalf of Tenth Vandy Pty Ltd
Taylor Splatt & Partners and Matthew Stirling
1/9/04 Victorian Bar Inc Alan Herskope
16/9/04 Victorian Bar Inc David Perkins
13/5/05 Victorian Bar Inc Shane Kennedy
A nominee of the Victorian Bar to the Supreme Court Technology, Engineering and Construction (TEC) List Users Group
Former President, Victorian Society for Computers and the Law Inc (2003-6)
Former Treasurer, Victorian Society for Computers and the Law Inc (1998-2003)
Former Public Officer, Victorian Society for Computers and the Law Inc (2000-6)
Former Chair of the Victorian Bar Dispute Resolution Committee (2004-5)
Member of the Chartered Institute of Arbitrators
Grade 1 Arbitrator accredited by the Institute of Arbitrators and Mediators Australia
Advanced Mediator accredited by the Victorian Bar Inc.
Australian National Mediator accredited under the National Mediator Accrediation System
Member of the Chartered Institute of Arbitrators (Australian Branch) AuDA Panel Member
Member of the drafting committee for the Victorian Supreme Court practice notes relating to the use of technology in civil litigation (PN 1 of 2002 and PN 1 of 2007)
Member of World Intellectual Property Organisation’s (WIPO) Domain Name Disputes Panel and a WIPO Neutral. Below is a list of Domain Name Disputes to which I have been appointed as sole panellist:
Date of
Determination
Claimant Respondent WIPO ID No
December 16, 2003 Macquarie Bank Ltd Mike Smith D2003-0890
January 29, 2004 Alfred Ritter GmbH & Co ICL Inc D2003-0924
4
KG
July 30, 2004 Dell Inc Asia Ventures Inc D2004-0452
September 5 , 2004 NIS Sparta Ltd VenturaDomains D2004-0544
May 2006 Volkswagen AG Milas Auto DTV2006-
0003
May 2006 HUK-COBURG haftpflicht-
Unterstützungs-Kasse
kraftfahrender Beamter Deutschlands a.G.
DOMIBOT (HUK-COBURG-COM-DOM)
D2006-0439
May 2007 F. Hoffmann-La Roche AG
Holy & Blessed Corp. Holy & Blessed Corp.
D2007-0234
May 2007 Credit Industriel et
Commercial en abrégé CIC v.
Caribbean Online
International Ltd.
D2007-0423
May 2007 Credit Industriel et
Commercial S.A. , CM-CIC Securities v.
Homeshop D2007-0530
December 2007 Asurion Corp v Domain Park Ltd D2007-1633
January 2009 Campagnolo S.r.l. Texas International Property Associates
D2008-1817
June 2010 Avon Products Inc Tebix Creative D2010-0669
February 13, 2011 The Coca-Cola Company George Georgioy D2010-2245
4 Sept 2011 LEGO Juris A/S Chen Wenjie D2011-1286
4 Sept 2011 LEGO Juris A/S Ji xiangpeng D2011-1267
4 Sept 2011 LEGO Juris A/S mohd halimi zulkifli D2011-1038
6 Sept 2011 LEGO Juris A/S Lego Star Wars Minifigs D2011-1231
18 November 2011 Genting Berhad peerapap, peerapap sasomsub/ Protected
Domain Services
D2011-1552
23 December 2011 Jackson National Life Insurance Company
wwwjacksonnationallife.com N4892
D2011-1855
31 January 2012 Groupe Auchan Net Admin D2011-2030
31 January 2012 Acme Electric, LLC Private Registrations Aktien Gesellschaft, Domain Admin
D2011-2215
9 April 2012 Barclays Bank PLC Privacy Protect.org /
Private New
D2012-0294
24 April 2012 Pepper Australia Pty Ltd Massive Networks Pty Ltd
DAU2012-0007
April 2015 Orient Express Travel
Group Pty Ltd
Mookstar Media Pty Ltd DAU2015-
0004
July 2016 Berkshire Hathaway
Specialty Insurance Co
Sonarpia Pty Limited DAU2016-
0005
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Papers presented or published, conferences chaired etc:
Date Title Venue/Publication
February
1995
Damage without Loss: A Legal
Conundrum
(1994) 11 BCL 2
18/11/98 Recent Developments in Arbitration and
Construction Law
Institute of Arbitrators & Mediators
Australia (Victorian Chapter) in
conjunction with Building Disputes Practitioners Society Inc
24/3/99 Sands & McDougall Wholesale – running
accounts, s.122 Bankruptcy Act and the potential liability of the Australian
Taxation Office to repay tax instalments as voidable preferences
Workshop for Solicitors at Seabrook
Chambers
June 2001 Litigation, Computers and the Internet 8th Greek/Australian International
Legal and Medical Conference
Corfu
19/3/2003 Contributing author/speaker at seminar
for the Supreme Court Judiciary entitled Judicial Involvement in Techno-Trials
Session Two – Pre Trial Session
Victorian Supreme Court
11/6/03 Building & Construction Industry Security
of Payments Act 2002 (Vic)
Seminar for the Construction Section
of the Commercial Bar Association
24/6/03 Cybersquatting, Cyberbullying, Typosquatting and Domain Name Dispute
Resolution
Seminar to IP solicitors for Green’s List
August 2003
“The End of Expert Determination?" The Arbitrator & Mediator Journal; August 2003 Volume 22 Number 2
26 August
2003
“On-Line Alternative Dispute Resolution” Convenor of seminar for the
Victorian Bar ADR Committee in conjunction with the Victorian
Society for Computers and the Law Inc,
5-6 July
2004
Chair of session entitled ‘ODR Practice’
with Professor Gregory Kirsten of the
University of Ottawa speaking on e-Negotiation;
Professor Susan Raines of Kennesaw
State University speaking on Online Mediation Practice; and
Philip Argy of Malleson Stephen Jaques speaking on Online Arbitration
3rd UN Forum on Online Dispute
Resolution
21-22
October 2004
Member of panel to speak on ‘Awareness of Technology in Court’
Court Technology Conference at the
Sir Zelman Cowen Centre jointly presented by the Centre and the
Australian Institute of Judicial
Administration
10-12
November 2004
Convenor and chair of session entitled
‘Dispute Resolution in the Digital Age’ with
Melissa Conley Tyler speaking on Online
Dispute Resolution: A Primer for Lawyers
Legal Technology Conference
convened by the Sir Zelman Cowen Centre and the Victorian Society for
Computers and the Law Inc
6
Date Title Venue/Publication Jaime Tan speaking on Negotiating online: An empirical examination of how communication context makes a difference
Elisabeth Wentworth speaking on
'Keeping the keyboard in perspective - multi skilling for dispute resolution lawyers in the digital age
Professor John Zeleznikov speaking on Intelligent decision support for dispute resolution
Feb 2006 Is a building contract specifically enforceable and. if so, under what circumstances?
(2007) 23 BCL 16 article written with Andrew Laird
10 July 2008
e-Trials and e-Tribulations: the myths of electronic trials.
Keynote address at the Legal Technology Conference at
Melbourne University Law School
16 July
2008
Slaying the Lernaean Hydra in Victoria: A
critical comparison of the new Supreme
Court Building Cases Practice Direction No 1 of 2008 and the English Technology and
Construction Court practice with particular reference to the litigation between
Multiplex and Cleveland Bridge arising out
of the construction of the new Wembley Stadium.
Presentation for Building Disputes
Practitioners’ Society and article
published in the BDPS Newsletter Issue 32
December
2008
The Final Result: A discussion paper on
the final decision on the merits and costs in the Multiplex and Cleveland Bridge
litigation in the English Technology and Construction Court arising out of the
construction of the new Wembley Stadium
Article published in the BDPS
Newsletter Issue 33 and in the Quarterly Newsletter of Building
Disputes Tribunal (NZ) Ltd – Issue No 1 - March 2009
30 May
2009
It Takes Two to Tango: Judicial
Encouragement of ADR
Paper presented to the IAMA 2009
Annual conference and published in The Arbitrator & Mediator (2009) 28
(1) 71
Oct 2009 Proportionate Liability in Arbitrations in Australia?
(2009) BCL 298
Sept 2009 Costs, Judicial Discretion and
the encouragement of ADR in Hong Kong
Asian Dispute Review (2009 Asian
DR 104
18 June
2010
The choice of dispute resolution and its
implications for proportionate liability claims
Paper presented at the Society of
Construction Law of Australia Conference in Perth
Oct 2010 The unsuccessful tenderer – legal rights and remedies
(2010) 26 BCL 324
March-May
2011
Proportionate Liability: The Australian
Experience.
A series of three articles for
Buildlaw, the NZ Building Disputes Tribunal journal, Issues 9-11
18 March
2011
Overcoming Uncertainties in Proportionate
Liability
Lecture to Lexis-Nexis conference,
Stamford Hotel, Melbourne
30 March
2011
Refining your mediation skills for resolving
commercial disputes
Legalwise Seminar, RACV Club
Melbourne
7
Date Title Venue/Publication 6 August
2011
Expert Evidence in Complex Construction
Disputes – The Australian Approach
Paper presented at the Society of
Construction Law of Australia Annual Conference in Brisbane
December
2011
Conflicts in construction law – acting for
insurer and insured
Construction Law International: Vol
6 Issue 4 p.7
December
2012
Must a payment claim be made in good
faith? (written with Luke Stanistreet)
(2012) 28 BCL 388
Dec 2012 BIM - Do lawyers need to care? Australian Construction Law Bulletin
June 2013 Proportionate liability in arbitrations in Australia: Resolution of some
uncertainties
(2013) 29 BCL 230
October
2015
The period of limitation in Victorian
building actions
(2015) 31 BCL 268
December
2015
Brirek Industries v McKenzie Group
[2014] VSCA 165 – Limitation
Reconsidered
BDPS News Issue 51
I also regularly undertake seminars for the Bar Readers’ Course to discuss document management for barristers and explain how computers can assist in the handling of complex litigation.
David Levin
1
GREGORY H. THORPE Executive Director
B. Eng (Elec) Monash University, Melbourne, Australia
Grad Dip Management
Deakin University, Victoria, Australia
Professional Certificate in Arbitration and Mediation University of Adelaide (Accredited Resolution Institute -
previously IAMA Arbitrator (Gr3)
SUMMARY
40 years experience in electricity and gas network sectors
Extensive Australian and international strategic and policy advisory experience. Major focus
on industry reform, governance and commrcial relationships. Deep experience in all three
Australian market reform initiatives (National Electricity Market, the Western Australian
market and the nascent Northern Territory market).
Management and engineering roles responsible for technical, regulatory, operational and
design functions for the reliable and economic functioning of electrical power systems
Member:
- Panels in Australia and Singapore for disputes under electricity and gas market rules
- Arbitration and Mediation Panels of Kuala Lumpur Regional Centre for Arbitration
- Australian panel for Electricity Markets and Regulation of CIGRE (Study Group C5)
- NBN Co Special Access Undertaking arbitration pool
- South Australian management committee of the Australian Institute of Energy
- Industry advisory panel within the University of Adelaide related to energy storage
EMPLOYMENT HISTORY
Foundation Executive Director of Oakley Greenwood Pty Ltd (OGW) from 2008
Vice President and Australian head of the energy practice of Charles River Associates
Incorporated, a NASDAC listed multinational economics and business consulting firm (2001 –
2008)
Associate Director for the National Electricity Code Administrator, NECA. (1997-2001)
Manager of Codes and Rules for the Victorian state electricity market (1993-1997)
Pre-Dispatch Engineer and prior engineering roles within power system operations for State
Electricity Commission of Victoria (1985 – 1993)
Engineering project roles within System Operation and Transmission Planning (1976-1995)
Graduate engineering project roles for Australian Department of Defence
GREGORY H. THORPE Page 2
POLICY AND STRATEGY
Mr Thorpe has worked extensively on strategy and policy questions for governments, regulators
and commercial players in the energy sector, his focus has been on electricity and he has applied
his experience there to the gas sector also. He has developed policy options and facilitated board
and executive planning sessions. As an advisor his clients in Australia have included:
in the gas sector he has advised stakeholders and market authorities about alternative
directions for detailed market design mechanisms and for expanding short term commercial
arrangements to longer term. He has assisted a major player in oil and gas assess
opportunities to monetise gas reserves in the electricity sector. He has also developed
organisational structures for government agencies as they disaggregate within and across
electricity and gas interests;
for market authorities in New Zealand, a comparison and associated recommendations for
possible change to electricity market design in New Zealand;
the design of a competitive market framework for wholesale trading in Australia’s Northern
Territory – accepted by cabinet;
for regulators and government agencies such Australian Energy Market
Commission/Standing Council on Energy Resources (previously Ministerial Council on
Energy) and the Australian Energy Regulator as they examined NEM region pricing
boundaries, treatment of transmission losses, market power, demand side participation,
generation reliability standards and tariffs;
established market participants considering corporate transmission policy, market design
sustainability, participation of wind and ancillary services;
government and businesses in Western Australia (including Minister of Energy, IMO, ERA
and market participants). Contributions included review of the conceptual design of initial
market proposal, market advisor in relation to financial standing of the then dominant state
owned generator, generation planning criteria and revisions to balancing market design; and
new entrants examining market entry strategies, detailed market design (including market
start up and major design He has acted as market advisor to investors on mergers and
acquisition prospects, strategic positioning and governance.
Internationally he has acted as industry subject matter expert to Malaysian government authorities
assessing approaches to governance and policy making arrangements and advised government
authorities in South Africa, Alberta (Canada) and New Zealand. Through a network of associates
he has advised businesses on market strategy and valuations. For a major Asian based utility Mr
Thorpe reviewed and recommended change to the form and level of generation reliability
standards.
Earlier as an executive within regulatory/ market administration authorities he managed and
designed governance principles and practices, stakeholder consultation and management
policies.
GREGORY H. THORPE Page 3
COMPETITIVE AND REGULATED MARKET DESIGN
Mr Thorpe has made major contributions to design of electricity markets and also for gas, in
particular for:
dispatch and pricing to balance economic incentives and reliability/security within net and
gross pools based on energy-only principles and day ahead markets with balancing regimes;
third party access conditions for large and small (embedded generation);
managing transmission connection and congestion impacting market access;
interfaces between system operations and market trading;
supply demand balance forecasts from 10 years to the next few hours;
emergency operations; and
governance & rule amendment mechanisms.
He is a member of the Australian panel for markets and regulation of the international industry organisation, CIGRE (www.cirge.org). Within CIGRE he has collaborated with international peers on investigations of drivers for reform, an extensive comparative assessment of capacity remu-neration mechanisms, interactions between generation and transmission and the integration of new technologies and policy drivers for major changes to competitive structures (international convenor).
INDUSTRY REFORM
Mr Thorpe has direct experience of industry reform from within a near monopoly state-owned and
vertically integrated utility as it became part of a fully disaggregated, unbundled and privatised
group of companies operating within a competitive market.
The reform evolved over a number of years and trialled different structures and market designs.
Mr Thorpe was a member of a key internal task force designing and managing the transition and
was an executive within the initial regulatory regimes of both state and national markets.
INDUSTRY GOVERNANCE
Mr Thorpe has managed and advised on governance and stakeholder consultation processes for
formal rule amendments for over 20 years in Australia and internationally.
He has held executive positions in state and national market institutions where he developed the
substance of amendments to market and regulatory rules. He has managed the day to day oper-
ation of stakeholder forums to consider and make rule amendments and subsequent briefings and
submissions to regulators
NETWORK ACCESS
Mr Thorpe has made substantial contributions to the design of access arrangements working
closely with economic and legal advisors. His work has included:
for regulatory bodies, designing and assessing mechanisms to manage and price
transmission network congestion in competitive electricity markets;
assisting a significant Australian business negotiate for a precedent setting connection to a
remote location on a major transmission line where the existing rules around confidentiality
and cost allocation were leading to inefficient outcomes;
GREGORY H. THORPE Page 4
advising network businesses respond to regulatory obligations and policy makers considering
enhancement to rules and codes of practice and related technical standards that may form
barriers to entry or unnecessarily add cost;
developing a Code of Practice for embedded generation and development of technical
standards for connection of a range of generating technologies.
VALUATIONS AND QUANTITATIVE ANALYSIS
Mr Thorpe has led and been part of teams preparing valuations of assets and forecasts of prices.
Analysis is commonly directed to informing decisions and advice about entry/exit and
refurbishment of generation facilities, based on costs for fuel and plant and future market revenue.
External policy including for carbon pricing, renewable and efficiency objectives diversity of supply
are accounted for.
Mr Thorpe oversees OGW’s market modelling capability. Our modelling assignments typically
involve strategically important projects including for the Australian Energy Market Commission
(impact of the RET and market power), Western Australian energy policy and by private investors
evaluating future market outcomes. Modelling has also supported state governments considering
fuel policy and tariff determinations.
Mr Thorpe has provided independent peer review of modelling analysis for the Australian Energy Market Operator, state government and the Australian Energy Regulator and for government policy bodies.
DISPUTE RESOLUTION
Mr Thorpe is trained and accredited in Arbitration and in Mediation. He is a member of standing
pools in Australia and Singapore available to hear disputes under market rules. He is also a
member of the NBN Co arbitration pool available to hear disputes under NBN Co’s Special Access
Undertaking in the Australian telecommunications sector.
He has sat on the panels hearing disputes in both electricity and gas.
He has also provided expert statements to court and international commercial arbitration. He has
assisted businesses in mediation and arbitration.
MONITORING AND SURVEILLANCE
Mr Thorpe has a long history in monitoring and enforcement activities in competitive energy
markets. He led the development and initial operation of monitoring in the Australian NEM – now
a function of the Australian Energy Regulator and previously developed nascent arrangements for
the Victorian market.
He subsequently provided consulting advice to the Australian Energy Regulator, Western
Australian and New Zealand authorities on surveillance and compliance practices and compliance
risk assessments of electricity and gas market rules.
He has led surveillance training the Philippines Energy Regulatory Commission, advised the
Tasmanian state regulator about the design of monitoring and led a major project for the Alberta
(Canada) Market Surveillance Administrator.
GREGORY H. THORPE Page 5
In 2000, together with US counterparts, he led the creation of an international association of
market monitors, the EISG, which now has around 15 international members.
TECHNICAL
Electricity transmission network planning
Mr Thorpe started his career as a power system engineer and was member of the team
responsible for EHV network planning in the state of Victoria.
Power system operations and cross border trading
He later held engineering and management roles within the system operations area of the
Victorian state utility. His work covered economic use of fuel, generation and transmission to
deliver efficient and reliable state power system and coordination with utilities in adjoining states.
Interconnection trading
Mr Thorpe’s roles within system operations included managing engineering and commercial
aspects of scheduling and trading of electricity and reserves with adjoining utilities.
He designed a number of scheduling, pricing and settlement mechanisms, in particular a
transitional trading arrangement used as Australian states moved from separate state markets to
a single market. Arrangements included features to ensure the benefits of interconnections could
be achieved within the confines of different fuel and load legacy contracts and internal pricing
within each utility. Cross border trading now occurs as part of the operation of the NEM.
Security, Reliability and Operations
Building on his experience as a power system engineer and market specialist Mr Thorpe was
executive officer to the Reliability Panel for the Australian NEM for the first four years its existence.
In this role he drafted many of the proposals and managed analysis to establish the formal relia-
bility settings applied by the market and system operator. As an advisor he was project director
assisting the Reliability Panel in its first Comprehensive Reliability Review (now undertaken each
four years) and has recently advised a major Asian utility about its reliability standards. He also
led advice to the Western Australian Independent Market Operator on which the market Planning
Criterion (reserve margin) for the initial 5 years of the market was set.
GREGORY H. THORPE Page 6
PROJECT ENGAGEMENTS AND STAFF ASSIGNMENTS
2008 - Executive Director, Oakley Greenwood
Member panel hearing dispute under the National Electricity Rules in connection with
ancillary services (current August 2016)
Project director for cost benefit analysis of proposed new transmission pricing in New
Zealand
Advisor to Australian Energy Market Commission on compensation regime for frequency
control ancillary service
Joint principal advisor (with Lantau Group) for amendments to the market design and
operation of capacity mechanism in Western Australia
Lead advisor to the (Australian) Northern Territory Department of Treasury and Finance to
implement earlier recommendations to introduce competitive arrangements to the newly
disaggregated local electricity sector - commenced 2014 continuing into 2016, interim
arrangement commenced 2015
For ElectraNet (major transmission network service provider in South Australia) project
director for development of a commercial framework for grid connected energy storage in the
Australian NEM
For the New Zealand Electricity Authority: an assessment and opinion on the merits of
changes to the NZ wholesale market and in particular options to align with the Australian NEM
–see http://www.ea.govt.nz/development/work-programme/wholesale
For the Australian Energy Market Commission, external review of impact on generation sector
of a proposal to amend the rules of the Australian National Electricity Market to significantly
amend the principles for network augmentation and pricing of network congestion (see
http://www.aemc.gov.au/Markets-Reviews-Advice/Optional-Firm-Access,-Design-and-Testing)
For a major market participant, advice on the impact of options for reform of the Wholesale
Electricity Market in Western Australia arising from the government’s Energy Market Review
(see http://www.finance.wa.gov.au/cms/Public_Utilities_Office/Electricity-
Market_Review/Electricity_Market_Review.aspx
Briefing to an international oil and gas business on operation of LNG within the Victorian gas
market
Briefing on vested operation of Australian hedging contracts for South Korean stakeholders
(in conjunction with The Lantau Group of Hong Kong)
For the Energy Supply Association of Australia: analysis of the potential scale and
regulatory implications of self-sufficient distributed generation to supply edge of grid
communities
Project director and lead advisor to the (Australian) Northern Territory Utilities Commission
on the design of a wholesale electricity market
see http://www.utilicom.nt.gov.au/Newsroom/Lists/Posts/Post.aspx?ID=174
For the Energy Supply Association of Australia: analysis of the implications of reduced
demand and high renewable investment on generation assets in the NEM and Western
Australian WEM published)
GREGORY H. THORPE Page 7
Advice on ancillary services within the Philippines electricity market (in conjunction with The
Lantau Group of Hong Kong)
For a major Asian based oil and gas business: leading the economic and commercial
component of a feasibility study for development of a LNG terminal in Asia
For AER: external review of regulatory test for transmission investment between NEM regions
prepared by transmission planning entities
For Western Australian IMO: assessment of compliance risks and impacts of the a major
revision of market rules to introduce competition into market balancing and ancillary services
Quantitative analysis of NEM market forecasts as part of proposals for management of gas
resources and mining proposals
Assessments of likely requirements of gas for power generation as part of Energy Quest Pty
Ltd 2013 forecast (www.energyquest.com.au)
For a major Asian utility a comprehensive review of international practices in management of
generation reliability
For AEMC: advisor to Power of Choice Review of participation of demand side in the NEM
focussing on integration with the spot market and facilitating access of third party service
providers
For a major participant in the Australian NEM: developed a paper on the commercial
sustainability of the NEM market design in the presence of changing demand and external
policy initiatives. The paper highlighted risk allocation as a key driver of design
International subject matter expert for options for future governance in the Malaysian
electricity sector
For a major participant in the Australian NEM: developed a paper on the commercial
sustainability of the NEM market design in the presence of changing demand and external
policy initiatives. The paper highlighted risk allocation as a key driver of design.
Dispute resolution matters:
Testimony and preparation of independent expert reports to:
Federal Court in AER case against a generator in relation bidding behaviour see
http://www.austlii.edu.au/au/cases/cth/FCA/2011/991.html
International commercial arbitrations on issues around power purchase agreements:
2009, 2014, 2015, 2016
Dispute under gas market rules in relation to a force majeure claim
Commercial arbitration in relation to contract interpretation relating to transmission
(report only)
Member of (five) panels hearing disputes under National Electricity Rules see
http://www.aer.gov.au/content/index.phtml/itemId/672130 and one in gas
Member of the arbitration panel for disputes within the electricity market of Singapore
Assistance to a major vertically integrated market participant to review and amend its
corporate position on transmission within the NEM – this participant operates in both
generation and retail segments and was keen to establish a credible long term policy position
GREGORY H. THORPE Page 8
Assistance to a number of investors and potential investors and financial institutions to
forecast future commercial outcomes in the NEM
Advice to the Australian Energy Market Commission in relation to the impact of renewable
and carbon policies – investigation under referral from Ministerial Council on Energy
Assistance to the Australian Energy Market Commission in relation to the high impact “shocks”
to the market
A lead advisor and joint author of the Verve Energy Review – a major review commissioned
by the Minister of Energy in Western Australia to understand and recommend measures to
correct the substantial adverse impact on the state owned generator Verve Energy. See
http://www.energy.wa.gov.au/cproot/1571/14895/Verve%20Energy%20Review%20Final%20Rep
ort%20August%202009.pdf
Assistance to the Independent Market Operator of Western Australia with design of
amendments to the market rules to implement recommendations of the Verve Energy Review
and aspects of the IMO market evolution plan see Background and MEP Team at
http://www.imowa.com.au/mep-overview
For the Australian Energy Market Operator and the Commonwealth Department of Energy
Resources and Tourism appointed to Peer Review development of scenarios, data acquisition
and modelling
For the Australian Energy Market Operator and ElectraNet (Transmission Service Provider in
South Australia) appointed to Peer Review quantitative analysis. See
http://www.aemo.com.au/planning/0179-0177.pdf
For the Philippines Energy Regulatory Commission – developed and led a week long training
program on electricity market monitoring and surveillance
Advice to a government agency on the application of scarcity pricing to water for an urban
water authority
Advice to Energy Commission of New Zealand in respect of market pricing at times of low
reserve. The New Zealand wholesale market price is uncapped but the Commission had
authority to dispatch a peaking station and retailers commonly called for voluntary reductions
at times of stress resulting in suppressed prices which failed to fully reflect scarcity. As a
result investment signals were distorted. This project was part of a larger program and has
now seen a proposal (by the new Electricity Authority) to introduce series of price floors to
ensure scarcity signals are not distorted. See http://www.ea.govt.nz/our-
work/consultations/priority-projects/scarcity-pricing-arrangements-proposed-design/
For Transpower New Zealand, presented to the New Zealand Energy Commission in relation
to assessment of the value of network investment in High Impact Low Probability situations.
Transpower was seeking regulatory approval to reinforce the network supplying NZ’s largest
and most commercially sensitive city. The advice reviewed local and international practices
for the valuing customer reliability and proposed a mechanism to benchmark the avoidance
of regret arising from traditional approaches to setting network standards
GREGORY H. THORPE Page 9
For the Energy Supply Industry Council of South Australia, development of a concept for
managing reactive power entitlements and obligations in the NEM. This was a “think piece”
that proposed separation of commercial accountability and physical responsibility for reactive
obligations across the electricity supply chain to resolve long standing uncertainty and
regulatory contention
Assistance to the AER in interpreting the impact of proposals for climate change on network
providers and generators
Expert testimony in relation to a dispute under the Victorian gas market rules
Assistance to a major business seeking a derogation to technical provisions of access
standards for connection of a new power station
Strategic and industry assistance on transmission regulatory and industry arrangements for a
major greenfield power station investor in Australia seeking to monetise significant gas
reserves. The generator was seeking to establish connection to existing infrastructure but
well away from existing points of connection and was facing significant costs that could be
shared with other proponents
Review of the suitability of the Grid Code for a middle-eastern power system to accommodate
higher levels of wind generation.
2001 – 2008 Vice President, CRA International/Charles River Associates). Head of Australia and New Zealand Energy practice from 2003
Assignments for CRA included business strategy and operational advice to investors,
governments, regulators, retailers, generators and network managers within the NEM and
internationally.
Commercial valuation of Australia generation assets for international investors (confidential);
Managing a benefit-cost analysis of changes to the standards for power system frequency in
the Tasmanian region of the Australian market for the Australian Energy Market Commission
(the Tasmanian region is connected to the remainder of the NEM by HVDC cable)
Leading a review of the “top end” of the design of the gas market in Victoria to consider
investment and scarcity pricing arrangements (published reports)
Advice to a major grouping of participants in the Australian market about future transmission
network planning arrangements
Advice to the Energy Regulatory Commission of Philippines about ancillary service market
design and related Grid Code provisions – appeared before Commission and mentored staff
on-site. In this work the market operator had proposed a major amendment to the design for
ancillary services. Our team recommended amendments to the broader commercial and
regulatory environment surrounding the proposal to protect against market power and
extreme price outcomes given the then dearth of providers. The recommendations also
proposed changes to the Grid Code to ensure consistency between the proposed ancillary
services and grid code categories of services
Advice to a network business about its investment strategy. This business was facing a major
investment backlog due to funding restrictions and an ageing asset base and a very
conservative regulatory planning standard
GREGORY H. THORPE Page 10
Advice to a network business about impacts of changes to the zonal price boundaries within
the Australian energy market. The business needed to understand the impact on revenues
from the combination of customer tariffs and inter-regional hedges
Directing multiple projects advising major energy industry groupings (including National
Generators Forum – published report) within Australia about the effect of climate change
initiatives
For the Australian Energy Market Regulator, preparing an impact and risk assessment of
market rules to assist the regulator’s priorities for compliance monitoring
Leading advice and undertaking quantitative modelling for the Reliability Panel of the
Australian Energy Market Commission in relation to reliability mechanisms in the Australian
electricity market. See http://www.aemc.gov.au/Market-Reviews/Completed/Comprehensive-
Reliability-Review.html)
Directing a project to advise the Commonwealth government’s Energy Reform
Implementation Group (ERIG) in relation to transmission issues (See
http://www.ret.gov.au/energy/Documents/erig/Transmission_study_CRAinternational2007041311
5229.pdf). The ERIG recommended creation of new National Transmission Planner role for
the market operator that was consistent with our recommendations
Advising government authorities about governance and market rules in relation to
participation of renewable and distributed generation and the impact on network businesses
Executive project management support over 6 months to a small listed company specialising
in renewable and remote electricity generation from natural gas, LNG, CNG and diesel
Advising a large industrial customer during mediation of a dispute relating to electricity price
in Australia
Directing a project to implement the start-up prudential requirements for the Western Australia
market
Leading a project to design the (current) planning criterion or reserve margin in the Western
Australian market
Reviewing the business case for partial disaggregation of a state owned generation utility
For Australian generators, a critique of proposals for the translation of previous market Code
into statutory Rules as part of a major revision of governance of the Australian electricity
market
For market participants and market authorities, assessment of investment signalling in the
Australian electricity market
Leading a major review of pricing and management of transmission congestion for the
Australian electricity market for the Australian Ministerial Council on Energy. The report
included an option (developed by Prof G Read – Senior Consultant to CRA) for a novel
congestion management regime that was trialled across one of the regional borders
GREGORY H. THORPE Page 11
For the market surveillance authority of Alberta Canada, leading an investigation of market
design and behaviour in connection with alternatives to transmission. The Alberta market had
introduced a number of overlapping arrangements to manage network investment and
congestion at the edge of the main network. The review recommended introduction of a
network wide contracts designed to manage the market power that had been evident in the
past
Multiple projects relating to barriers to embedded generation for policy makers and industry
associations including preparation of a Code of Practice for industry and proponents
Review and refinement of ancillary service arrangements within the Australian electricity
market
For the then vertically integrated Western Power Corporation in Western Australia, directed a
project to design an innovative flexible form of contract for purchase of new generation that
accommodated possible, but uncertain market evolution
A major review and costing of the then proposed market design within Western Australia (in
2003) – the design concept was implemented in 2006. Following that review he led the design
and development of the interim Top Up and Spill trading arrangement between independent
producers and the existing utility
Subsequently Mr Thorpe was a key member of the Verve Energy Review (2009-10) which
was engaged to review market outcomes for the state owned generator. The
recommended changes to vesting contracts and amendments/enhancement of the
market as – implemented. A number of these changes were consistent with changes
envisaged by the market operator. Mr Thorpe was subsequently engaged by the market
operator to assist with the design of the amendments
Detailed assistance to the parties to the “first of a kind” standby contract involving an electricity
and fuel exchange between a utility and an IPP during market transition
Leading a team examining the potential for enhancement to the competitive market for gas
within Victoria. This review considered the detailed incentives for efficient investment and
operations especially at times of low operating reserves
For a generator association, directing a team assessing the economic impact of regulatory
changes to renewable energy policy
Review of technical requirements for connection for a network operator under a third party
access regime
Critique of proposals for review of prudential guarantees for a market participant
Assessment of participation of networks in the market, in particular issues surrounding risk
allocation between regulated and competitive elements of the industry for an industry
grouping
Review of governance, including for Code change, policy setting and opportunities for industry
self-management for an industry group
For a number of potential investors, advice on commercial and technical modelling
Directing a team advising on wholesale and retail pricing for government authorities in two
states
GREGORY H. THORPE Page 12
Advice to authorities in South Africa on market surveillance and grid code (Aus Aid
engagement)
1997 – 2001 Associate Director, National Electricity Code Administrator (NECA), Australia
For NECA Mr Thorpe continued his earlier work in the design of the Australian National Electricity
Market and operation of a state market when he moved to the National Electricity Code
Administrator (NECA) prior to opening of the Australian market, in 1998. He was part of the
foundation executive team. NECA was established as a key part of the market governance
arrangements and was responsible for: market development and administration of associated
Code amendments; monitoring, surveillance and enforcement; Reliability Panel; dispute
arrangements; and a number of specific reviews. Key achievements and roles covered the
following:
Market Monitoring and Surveillance
Executive responsibility for design, implementation and operation of market surveillance and
Code enforcement. In 2005 this function was transferred to the Australian Energy Regulator
Leading Australian participation as a foundation member of the international Electricity Inter-
Market Surveillance Group (EISG) which now includes surveillance managers of markets in
Australia, US, Canada and Asia
Reliability Panel
Mr Thorpe had executive responsibility for the Panel’s operation for the first four years of its
operation. Responsibility for the Panel was transferred to the Australian Energy Market
Commission in 2005. Matters under the auspices of the Panel include the wholesale market price
cap (VoLL), reliability standard and the power system frequency operating standard
Mr Thorpe also led or played a key part in a number of important changes and developments in
the NEM as it matured over the first years of operation including in respect of
ancillary services – this work was led by the market operator and Mr Thorpe represented the
NECA (the then Rules making body) and project managed the introduction of the extensive
rule amendments to introduce the current spot markets for ancillary services
system operator interventions in the market – the NEM design includes a safety net
intervention mechanism in the event market mechanisms fail or are distorted and reliability of
supply is threatened
capacity mechanisms – in the course of design of the NEM a number of reviews of different
market designs to ensure sufficient capacity is brought to market have been assessed, for
example capacity payments and reliability options – Mr Thorpe played key roles in a number
of these
the NEM Cumulative Price Threshold - this is a mechanism developed by Mr Thorpe to
replace force majeure provisions in the initial NEM design that determine the conditions under
which the relatively high wholesale market price cap should be temporarily lowered, for
example due to extreme natural disasters. The mechanism is similar to one used in ERCOT
(US)
GREGORY H. THORPE Page 13
aspects of transmission pricing; and
demand management
1994 – 1997 Manager Codes and Rules, Victorian Power Exchange
For the Victorian Power Exchange Mr Thorpe established and managed the secretariat function
for the VicPool state market on behalf of the CEO – chairman of the representative participant
committee charged with rule making. VicPool was the first fully functioning competitive market in
Australia (and one of the first in the world) and operated from 1994 to 1998 when it was
superseded by the NEM. The exchange operated under regulatory licence. In that capacity Mr
Thorpe:
Managed the detailed drafting of the initial rules and in many cases developed, approximately
40 amendments for major technical, economic and governance changes – note at this time
there were very few templates on which to base the development
Managed the on-going relationship with the state government regulatory for approval of
amendments on behalf of the Pool Manager
Convened the dispatch group for the National Grid Management Council (NGMC), and co-
designed mechanisms subsequently adopted in the national market
Conceived the design for a common operational interface between state utilities for “NEM 1”.
This was an interim national electricity market that operated between the initial NEM state
regions for approximately 18months. He supervised development of the functional
specification and test program
1992 – 1994 Manager Pool Rules, National Electricity (the corporation responsible for System Control and Transmission in Victoria, Australia)
Mr Thorpe managed the rule making process for internal utility trials of a range of variations on
market designs. He briefed prospective bidders for the privatisation of utility assets on market and
power system operations. He was also a key participant in “paper trial” of a market across a
number of states.
PRIOR TO 1992
Prior to 1992 Mr Thorpe held a number of managerial and engineering positions within the State
Electricity Commission of Victoria. Key achievements and roles included.
For a utility corporate competitive market task force, developing and conducting off-line and
live trials of contract and spot market designs. In particular Mr Thorpe designed key system
control interfaces for trials including the bidding, scheduling, dispatch and interconnection
agreements. He also developed and managed settlement functions for initial trials
Contract administration of hydro entitlements (2,000 GWh p.a.), natural gas purchase and
transport, interstate interchange (increased to 2000MW capacity) and utility transfer pricing.
The function was subject to internal and external audit
For system control, the design and specification of software for production scheduling and
interchange reconciliation (three-state project manager)
GREGORY H. THORPE Page 14
Developing and presenting principal analysis for energy replacement costs for a successful
major insurance claim following a catastrophic power plant failure
Short term technical and economic planning and operating policy setting for state power
system including; production schedules, demand forecasts, maintenance schedules, fuel
purchases and interchange coordination and settlement reconciliation
Technical and capital works planning for 500KV – 66KV high voltage network, including
energy, fault level, reactive management
Immediately after graduating, Mr Thorpe was engaged in engineering project work for the
Australian Department of Defence.
Professor Ian Bailey SC
Construction lawyer, as a barrister since 1983 and as Senior Counsel since 2004.
Member of Chambers:
Ground Floor Wentworth – Sydney
METCC Chambers – Melbourne
Outer Temple Chambers – London, Dubai & Hong Kong.
Practicing Architect 1970 – 1980.
Dispute resolution practitioner as arbitrator, mediator, expert determiner, adjudicator
and DRB member.
Arbitrator as sole appointee and as a panel member in Domestic and International
Commercial Arbitrations.
Arbitration Panel Member ACICA, HKIAC, CIETAC, KLRAC and a member of
Resolution Institute (Aust), LCIA, IBA, DRBF and ABA.
DIFC Court Registered Legal Practitioner.
Court appointed Referee and Mediator in NSW Supreme and District Court
proceedings.
Strategic Dispute Management Advisor.
Past Vice- President of the Institute of Arbitrators & Mediators Australia.
Author of numerous papers on dispute resolution and dispute avoidance &
management.
Chair of Standards Australia Committee MB 010 for drafting:
AS 11000 2016 General Conditions of Contract, and
Dispute Resolution Standard, AS 11004, including a new dispute avoidance,
management and resolution process.
Professorial Fellow – University of Melbourne Law School
Co-Director of Studies - Construction Law Masters Program from 2000 to 2014.
2016 Law Masters Program teaching *Advanced Construction Law, and
*The Practice of Commercial Arbitration.
Author of Construction Law texts.
Founding Chair of the Society of Construction Law Australia (2009)
Board Member (2009- 2016).
Ground Floor, 180 Phillip Street, Sydney NSW 2000
Tel: + 61 2 9230 3290 Fax: +61 2 9232 8435 DX 449 Sydney
www.wentworthchambers.com.au www.ianbailey.com.au
www.outertemple.com
email: [email protected]
CURRICULUM VITAE
MICHAEL WARNER SHAND QC
Summary August 2016
Michael Shand has practised as a barrister at the Victorian Bar since 1980, a Queen’s
Counsel since 1997. His practice has covered a range of civil work including commercial,
corporations, public superannuation, constitutional law, trusts, trade practices, property,
insurance, insolvency and administrative appeals.
Court litigation has included disputes involving joint ventures, building contracts, terms of
international trading, Corporations Law oppression proceedings, wrongful termination of
employment and constitutional issues.
He has practised both as arbitrator and as counsel in arbitrations. Most of his advocacy work
has however been in courts and tribunals. Reported judgments include:
Parliamentary Trustee of Parliamentary Contribution Superannuation Fund v
Commissioner of Taxation (2013) 305 ALR 397; [2013] FCAFC 127 (Full Court)
Parliamentary Trustee of Parliamentary Contributory Superannuation Fund v
Federal Commissioner of Taxation (2012) 203 FCR 146 (Jessup J)
Canwin (Aust) Pty Ltd v Angorita [2011] NSWSC 521
Re Timbercorp Securities Ltd (in liq) and Others (2009) 74 ACSR 626 (VSC)
Talacko v Talacko [2008] VSCA 229
Cadence Asset Management Pty Ltd v Concept Sports Ltd (2006) 58 ACSR 435 FCA
Baneth v Asteron Life Limited [2005] VSC 369
Baneth v Asteron Life Limited No 2 [2005] VSC 394
Golden Sands Pty Ltd v Davegale Pty Ltd [2003] VSC 458
Bell Corp Victoria Pty Ltd and Ors v Stephenson [2003] VSC 255
VCAT cases for State Super and ESS Super
He has provided considered opinions on a range of issues. An arbitration award delivered by
him was upheld in Winter v Equuscorp Pty Ltd [2010] VSC 419. He has acted as arbitrator
in a dispute involving an offshore drilling project. He has also acted for some years as
arbitrator in an international arbitration involving a share sale agreement in the dairy industry.
He has been an accredited mediator since 1993 and is a Fellow of the Chartered Institute of
Arbitrators and a Chartered Arbitrator. He served as Chairman of the Chartered Institute of
Arbitrators, Australian Branch from February 2005. Since the incorporation of that
organization early in 2006 until September 2006, he served as President of the Chartered
Institute of Arbitrators (Australia) Limited.
He served as the Chairman of the Victorian Bar Council from September 2006 for a year. As
a member of the Victorian Bar Council from 2000 to 2007, he led the development of the
Bar’s comprehensive new web site and was a member of its technology and communications
subcommittee. He also had responsibility for the introduction of the Bar’s Professional
Standards Scheme which commenced on 1 July 2008. He served for 5 years as chairman of
the Bar’s professional indemnity insurance committee and in that capacity oversaw the
provision of professional indemnity insurance to members of the Bar, since 2005 pursuant to
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a legislative amendment, on the model of a statutory mutual fund by the Legal Practitioners’
Liability Committee. He served on the Bar Council’s executive committee. He also served
as a director of the Bar’s property company, Barristers Chambers Limited and as a member of
the Bar’s Professional Standards Education Committee. He is currently Chair of its
Professional Standards Scheme Committee.
He has also been active in the area of clerking at the Victorian Bar. In 1988, he was chairman
of Howells’ List and in 1990 oversaw the planning and incorporation of a new clerking
company at the Bar (now called List A Barristers Pty Ltd) and the establishment of a new list
of barristers who own that company.
He has served the community in a number of positions. For 6 years from 1980 as a member
of the Council of Lowther Hall Anglican Grammar School (during which time he oversaw
the incorporation of the school), Church Warden (senior lay person) St John’s Anglican
Church Camberwell 1992-94; St Dunstan’s Anglican Church Camberwell 1997-98.
Between 2002 and 2010, he served as Chancellor of the Anglican Diocese of Ballarat.
He has also served since 2007 as the Chancellor of the Anglican Diocese of Melbourne and is
a member of the Legal Committee of the Anglican Province of Victoria.
Details
CHAMBERS Room 4, 12th
floor, Owen Dixon Chambers West
525 Lonsdale Street Melbourne
PHONE 03 9225 7650
FAX 03 9225 8688
OCCUPATION Barrister
ACADEMIC QUALIFICATIONS B.A. LL M. (Melb) F CIArb
DATE OF BIRTH 17th August 1953
PROFESSIONAL EXPERIENCE
1976 - Oct. '77 Articles of Clerkship and then solicitor with Aitken Walker &
Strachan Solicitors, 114 William Street Melbourne.
1 March 1977 Admission to practice as a barrister and solicitor of the
Supreme Court of Victoria
Oct. '77 - Aug. '80 Solicitor specializing in Commercial Law at Weigall &
Crowther, now Norton Rose 385 Bourke Street Melbourne -
working with Robert Symons and Ken Barry.
1980 - 85 Part-time tutor in litigation and commercial subjects at Leo
Cussen Institute for Continuing Legal Education.
9 October 1980 Signed the roll of counsel at the Victorian Bar
Read with - Mr Kevin Mahony (as he then was)
3
Readers Mrs Susan MacCallum, Monash University
Mr Matthew Stirling of counsel
20 December 1985 Admitted to practice in New South Wales
26 November 1992 Admitted to practice in the Australian Capital Territory
1999 Admitted to practice in Queensland and Tasmania
25 November 1997 Appointed Queen’s Counsel
PUBLICATIONS Article: “The Postponement by the directors of meetings
convened by a member under s249F of the Corporations Law”
(2001) 19 CSLJ 160, various speeches and articles as Chairman
of the Victorian Bar Council
OTHER ACTIVITIES
1980-86 Member School Council and Finance Committee, Lowther Hall
Anglican Grammar School, Leslie Road, Essendon.
1990-92 and 1997-99 Director Barristers’ Clerking Services Pty Ltd
1992-94 Church Warden St John’s Anglican Church Camberwell
1997-98 Church Warden St Dunstan’s Anglican Church Camberwell
1999- Member Diocesan Law Committee
2000-2007 Member Victorian Bar Council
2002 - 2004 Treasurer Victorian Bar
2002 - 2010 Chancellor Anglican Diocese of Ballarat
2003 -2005 Vice-Chairman Chartered Institute of Arbitrators, Australian
Branch
2004-2006 Director, Barristers’ Chambers Limited
2005 Chairman Chartered Institute of Arbitrators, Australian Branch
Senior Vice-Chairman of the Victorian Bar Council
2006 President of the Chartered Institute of Arbitrators (Australia)
Limited
2006- Director Australian Centre for International Commercial
Arbitration
2006-2007 Chairman, Victorian Bar Council
2007- Chancellor, Anglican Diocese of Melbourne and Trustee of the
Melbourne Anglican Trust Corporation
2009 - President of the Episcopal Standards Board of the Anglican
Church of Australia
2010- Presidential member Special Tribunal of the Anglican Church
of Australia
EDUCATION
1966 Ipswich Grammar School, Queensland.
1966-70 Melbourne Grammar School, Victoria.
Commonwealth Secondary Tertiary Scholarship (1968)
Higher School Certificate (1970)
1971-75 University of Melbourne, Law Arts Course, major in History,
sub-majors in Politics and French.
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1974 Trinity College, Parkville.
1976 Graduated B.A. LL B. (Hons).
1979-82 University of Melbourne - Master of Laws Course
1983 Graduated LL M.
FOREIGN LANGUAGE French
OTHER INTERESTS Computers
Tennis, Golf, Walking
Theatre and Music
REFEREES Can be supplied on request
Curriculum Vitae
Michael J F Sweeney LLB, FIAMA, FCIArb, Chartered Arbitrator
Barrister, Arbitrator & Mediator
Owen Dixon Chambers East
Clerk List G
205 William Street
Melbourne, VIC 3000
Australia
Ph: (613) 9225 7005
Mob: (61) 409 819 373
Barrister
Barrister, Victorian Bar, Melbourne, with expertise in commercial and contract law
generally; energy and resources law; competition law, particularly access regimes.
Specialises in alternate dispute resolution both as an arbitrator and as counsel in
energy/resources arbitrations and commercial mediations, including major gas pricing
dispute arbitrations.
Advisory practice especially in the energy, utilities and regulatory areas. General
practice includes migration law.
Arbitrator
Fellow, Australian Centre for International Commercial Arbitration; Fellow,
Chartered Institute of Arbitrators, Chartered Arbitrator (UK); Fellow, The Institute of
Arbitrators & Mediators Australia, Grade 1 Arbitrator; Professional Certificate in
Arbitration, University of Adelaide. Specialist commercial arbitration skills include
commercial contracts generally, international joint ventures, resources and energy
exploration and development, oil and gas, gas transmission pipelines, sales contracts
2
both export and domestic, infrastructure contracts, utilities generally (including
regulatory environments). Appointed arbitrator under International Chamber of
Commerce (ICC) arbitration for international energy dispute, New York seat, subject
to the laws of New York; Counsel in International Convention for Settlement of
Investment Disputes (Washington Convention) arbitration in action against a foreign
government. Sports law arbitration as arbitrator in disciplinary proceedings,
disputation arising out of sporting competitions and international selection disputes.
Arbitrator for domain name disputes, especially under the auDRP regime.
Commercial Mediator
Nationally Accredited Mediator under National Accreditation Scheme, accredited
with the Victorian Bar. Specialist skills in commercial areas are similar for arbitration.
Conduct of commercial mediations, as mediator, of disputes referred out of court;
conduct of pre-litigation mediations on behalf of corporations desirous of avoiding the
litigation process.
Appointments
Victorian Civil and Administrative Tribunal Sessional Member;
Commonwealth Superannuation Complaints Tribunal Legal Member (to 2015);
National Broadband Network Co Limited - NBN Co access dispute pool member
World Intellectual Property Organisation - WIPO Arbitration & Mediation Centre,
Geneva: member, WIPO panel of arbitrators and mediators;
Australian Centre for International Commercial Arbitration: arbitration panel
member;
Australian International Disputes Centre/ACDC: arbitration and commercial
mediation panel member;
Shenzhen Arbitration Commission - Arbitration panel member
Kuala Lumpur Regional Centre for Arbitration – Panel member for Arbitration and
for Mediation
American Arbitration Association – ICDR panel member for Arbitration
Energy Review Board of Western Australia: Legal member from 2005. The Board is
the designated merits review appellate body in Western Australia from decisions of
the regulator under the National Gas Access Regime and the National Gas Law;
3
Non Executive Director – MEO Australia Limited (to 2015): ASX listed oil and gas
exploration and development company with interests in Indonesia, Timor Sea and
Carnarvon Basin, offshore Western Australia.
Additional Experience Detail
Barrister: Returned to the Victorian Bar (2004) following 18 years as both an
executive and advisor in the energy, natural resources and utilities businesses.
Provision of advice in contractual matters generally and in respect of exploration and
development, pipeline and utility disputes including Competition and Consumer Act
(Part IIIA), the National Third Party Access Code and National Gas Law.
Appearances as counsel in national gas re-pricing arbitrations conducted under the
uniform Commercial Arbitration Act in respect of markets in New South Wales,
Victoria, South Australia and Queensland. Conduct of large commercial mediations in
areas of contract, energy, infrastructure and sales generally.
North West Shelf Gas Venture: The senior managing executive (prior to
this, general counsel and company secretary) of the Mitsubishi and Mitsui interests
(MIMI) in the Australian North West Shelf (NWS) Gas Joint Venture from 1986 to
1996. Responsible for setting strategic direction and implementation of world scale
investment in a complex multinational energy joint venture. Member of the NWS
Joint Venture Project Committee (with other parties being BHP Billiton, Chevron,
Shell, Woodside and BP), deputised to the Board of the North West Shelf LNG
Shipping Company. The non Japanese executive member of the Tokyo based
Operating Committee responsible for the overseeing Mitsubishi and Mitsui’s
investments in Australia.
Advisory: Following the North West Shelf Joint Venture, from 1997, an
independent commercial and legal advisor to major corporations and joint ventures in
Australia and Asia in the energy, oil, gas and utilities sectors. Provision of advice for
gas industry privatisations in Victoria (Department of Treasury – Energy Projects
Division) and in South Australia. Together with KPMG, provision of advice to
Council of Australian Governments, Energy Markets Review panel and the
Ministerial Council on Energy on upstream competition; pipeline access; market
reforms generally, including establishment of a short term gas trading market in NSW
and SA. In Western Australia, advised in respect of contractual issues associated with
the Dampier to Bunbury gas transmission pipeline system. Provision of advice to
4
corporations on sovereign and political risk and associated fiscal exposures for
investments made in the Timor Sea region; provision of report on asset quality and
risks associated with oil and gas interests located in East Kalimantan and Sumatra,
Indonesia. Acting in conciliation and arbitration concerning gas transmission pipeline
access.
Education
Bachelor of Laws, University of Melbourne 1976; admitted as a Barrister &
Solicitor of the Supreme Court of Victoria and High Court of Australia 1976
Stanford Executive Program, Graduate School of Business, Stanford
University, California, USA, 1995
Professional Certificate in Arbitration, University of Adelaide, 2003
Chartered Institute of Arbitrators (United Kingdom), Fellow (FCIArb);
Chartered Arbitrator, 2008
Institute of Arbitrators & Mediators Australia, Grade 1 Arbitrator & Fellow
(FIAMA), 2008
Mediator (Certificate, Institute of Arbitrators and Mediators, Australia);
Nationally Accredited Mediator; Victorian Bar Accredited Mediator
Professional memberships
Member of the Victorian Bar (Chair, Arbitration sub committee; Member
International Arbitration Committee).
Chartered Institute of Arbitrators, UK.
Australian Centre for International Commercial Arbitration
Resolution Institute (former Victorian Chapter, deputy chair).
Law Council of Australia - Resources, Energy & Environment Law Committee
member; formerly National Chair.
International Bar Association (to 2016).
Australian Mining & Petroleum Lawyers Association.
Australian Institute of Company Directors, Member.
Recent publications
5
The Arbitrator & Mediator (2012) Vol 31 Pg15: The paramount object in the context
of party autonomy – the new uniform Commercial Arbitration Act.
LexisNexis Australian Concise Legal Dictionary; Australian Encyclopaedic Legal
Dictionary, 4th
edition, 2011, contributing editor.
The Arbitrator & Mediator (Institute of Arbitrators & Mediators Australia) (2010)
Vol 29 Pg83: Contesting appointments of arbitrators/expert determiners/mediators.
The Arbitrator & Mediator (Institute of Arbitrators & Mediators Australia) (2008)
Vol 27 Pg2: Mega litigation – Opportunities for domestic arbitration.
Australian ADR Reporter of the Chartered Institute of Arbitrators No.5, December
2007: An examination of Federal Court judicial criticism in the C7 case of the costs of
large scale litigation and opportunities for commercial arbitration.
The Arbitrator & Mediator (Institute of Arbitrators & Mediators Australia) (2007)
Vol 26 Pg1: Paper analysing the effectiveness of third party discovery procedures in
international arbitration in the United Kingdom, Australia, Canada and other nations.
Australian Resources and Energy Law Journal (2006) 25 ARELJ 132: Critique of the
Australian national gas pipelines access regime and the decision of the Ministerial
Council on Energy for the Council of Australian Governments.
Honorary
Honorary positions include:
Legal member, Royal Melbourne Hospital, Behavioural and Psychiatric
Human Research Ethics Committee
Former President, involved for over 30 years, with an overseas charity
Other community organisations, including past member of school education
board
The Hon Ray Finkelstein QC
Legal Career
1970 Graduated Monash University LLB, BJuris
1971-1975 Practiced as a solicitor
1975 Signed the Roll of Counsel
1986 Appointed Queen’s Counsel
1992 Acting Solicitor General for the State of Victoria
1997 Appointed a judge of the Federal Court of Australia
1998 Appointed Deputy President of the Copyright Tribunal
2005 Appointed Deputy President of the Australian Competition Tribunal
2008 Appointed President of the Australian Competition Tribunal
2011 Retired as judge of the Federal Court of Australia
2011 Appointed Adjunct Professor of Law at Monash University, effective 2012
2011 Appointed by the Australian Government to head the Independent Media Inquiry
2012 Appointed as member of the Governance Advisory Panel, Governance Institute of
Australia Ltd
2016 Appointed an Officer of the Order of Australia for distinguished service to the
judiciary and to the law, to legal education as an academic, to jurisprudence in the
fields of commercial and competition law, and to professional organisations.
Teaching
Since the mid 1970s Mr Finkelstein has lectured undergraduate and postgraduate students in the
law facilities of Monash University and the University of Melbourne and also lectured
practitioners at the Leo Cussen Institute. The particular areas in which he lectures are
corporations and insolvency law, intellectual property, competition law, class actions and civil
procedure. He has presided over moots for law students at most Victorian Universities. He has
held the following teaching positions:
Teaching Fellow (tutor) at Monash University, 1971-1975
Part-time teacher at the Leo Cussen Institute during the mid 1970s
Taught the LLM insolvency law course at the University of Melbourne, 2012 and
2014-2016
2
Taught the comparative competition law course to undergraduate students at
Monash University in 2004
Judge in residence at Flinders University, South Australia in October 2005
Taught LLM - Corporate Governance and Directors’ Duties at Monash University
May 2014-2016.
Overseas
At the request of the Australian Government taught courses on:
the new Contract Code at the National Judicial College in Beijing with
Sir Anthony Mason AC, KBE, QC (1999); and
Judicial Independence at the National Judicial College in Beijing with the then
Chief Justice of the Supreme Court of NSW, the Hon James Spigelman AC
(2003).
At the request of a representative of the Chinese Government provided a
commentary on the then draft Code of Evidence for criminal cases.
At the invitation of Professor Zukerman delivered a lecture to students studying
Civil Procedure at Oxford University on class actions and the Federal Court Fast
Track List.
Law Reform
There are a number of areas in which Mr Finkelstein has recommended or been instrumental in
bringing about reforms to both substantive and procedural aspects of the law:
Advocating reform to the manner in which insolvency practitioners charge fees.
The need for reform was also the subject of judicial comment by him in several
significant judgments, which have been the subject of media and industry
comment. Mr Finkelstein’s work led to legislative changes to the Corporations
Act to provide greater control over insolvency practitioners’ fees.
In civil litigation discovery has long been the source of substantial cost and delay
and there have been many calls for reform of the discovery process. In the period
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2006-2008 Mr Finkelstein wrote several important articles and papers in which he
suggested specific reforms to the discovery process. He was a member of the
Federal Court’s National Practice Committee and prepared draft court rules by
which those reforms could be implemented. Mr Finkelstein was a member of the
Australian Law Reform Commission Advisory Committee on Discovery. Many of
the reforms suggested by him were acknowledged and adopted by the Commission
in its Report No 15 “Managing Discovery: Discovery of Documents in Federal
Courts”.
Publication of a series of papers outlining the reforms to other aspects of court
civil procedures including suggested changes to the law governing expert
witnesses and the pleadings.
Published and presented a series of papers advocating the introduction of criminal
offences for serious cartel conduct. These papers were delivered at various
regulatory or professional body conferences to which Mr Finkelstein had been
invited to be a key speaker. Mr Finkelstein was an early advocate for change in
this area and his views and input were often sought by the then ACCC Chairman,
Professor Alan Fells AO.
Made a submission to, and was invited to address, the Senate Economics
Committee in relation to the Trade Practices Amendment (Infrastructure Access)
Bill 2009, Submission No 3. His submissions led to changes to the Bill.
The development and introduction of the Fast Track List into the Federal Court in
2007 by Mr Finkelstein with the support of the then Chief Justice of the Federal
Court, the Hon Michael Black AC QC. The underlying premise for the List was
that existing practices and rules often produce considerable inefficiencies and
delays in case management and substantial costs to litigants such that access to
justice was either denied to many litigants or only achieved at considerable cost.
The List was initially established in Victoria where it was received with
enthusiasm by the legal profession and their clients. Throughout 2008,
Mr Finkelstein attended many public forum that were organised by law firms, the
Law Institute of Victoria and the Victorian Bar Council at which he explained the
new Fast Track procedures. Prior to its introduction Mr Finkelstein convened
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‘user group’ forums to obtain the views of the profession and to enable a
consultative approach to the new List. As a result the Fast Track List has become
popular. The implementation of the Fast Track List has enabled the Federal Court
to deliver, in appropriate cases, a highly practical and effective way of managing
cases with speedy trials and outcomes. The consequent reduction in the cost and
delay ordinarily associated with litigation has resulted in the Federal Court being
able to successfully deliver to litigants real access to justice in a timely manner.
Various complex interlocutory practises that were required to be developed in
relation to the new class action procedure in the Federal Court were largely
devised by Mr Finkelstein.
Publications/Papers
General Editor, Concise Australian Legal Dictionary 5th
Edition.
In addition, Mr Finkelstein has written numerous articles and papers covering a broad range of
topics from the role of judges to the technical aspects of intellectual property and competition
law.
The following is a list of publications in the last decade (excluding judgments and teaching
material) many of which were delivered as papers or lectures:
Protection of Intellectual Property in Cyberspace: Jurisdictional Issues
Paper delivered at the IP Conference in August 2001
Corporate Criminal Liability
Paper delivered at the Leo Cussen Institute on 4 September 2002
The Annual Costello Lecture – Decision-Making in a Vacuum
Monash University in October 2002 (published in MULR)
Judgment Writing in Practice
Paper delivered at the National Judicial College, Beijing, in November 2003
Criminalising Hard-Core Cartels: Competition Law enters the ‘Moral Universe’
Paper delivered at the ACCC Conference, Sydney on 24 November 2004
Crossing the Intersection: How Courts are navigating the ‘Public’ and ‘Private’ in
Judicial Review
Paper delivered to Victorian Chapter of the Australian Institute of Administrative
Law on 28 September 2005
‘The Role of the Judge: Judicial Activism and the Rule of Law’
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Public Seminar at Flinders University, South Australia on 11 October 2005 (Published)
White Collar Crime and Theories of Penalties
Paper delivered at University of South Australia on 13 October 2005
Patent Lecture
Speech delivered at Flinders University, South Australia in October 2005
The Company List
Paper delivered to County Court Judges on 27 January 2006
Port State Control
Paper delivered to Admiralty Education in August 2007
Fast Track List
Paper delivered to Commercial Bar Association in August 2007 and later at
meetings of litigators in many of the large law firms in Melbourne.
Case Management and the Docket System
Discovery Reform – Options and Implementation
Paper delivered to Federal Court ALRC Conference, Adelaide in March 2008
Insolvency Practitioners’ duties to avoid conflict and act independently
Paper delivered to Accountants’ Practice Group in May 2008
Compilation Copyright – Seat, Spark or both?
Paper delivered at the IP Society, Brisbane on 30 June 2008
Running a Criminal Jury Trial in Cartel Cases: The Special Problem of Economic
Evidence and Some Proposals for its Judicial Management
Speech delivered at the Trade Practices Conference, South Australia, September
2008
Shareholder Class Actions
Paper delivered to ASIC’s Lawyers Network on 24 June 2009
Class Actions
Paper delivered at Oxford University to Civil Procedure Students in May 2009
Class Actions
Paper delivered at Melbourne University JD Students on 12 May 2009
Expert Evidence
Paper delivered at the Tenth ACCC Regulatory Conference 2009 on 31 July 2009
The Short Man is Always Right: Reforming the Adversarial System
Sir Anthony Mason Lecture at the Melbourne University Law Students’ Society
on 15 October 2009 (published)
Trustee Companies, Solvent or Otherwise
Speech delivered at the Conference organised by Scott Partners (a leading
insolvency firm) on 20 March 2010.
The Adversarial System and the Search for Truth
Paper given at Monash University on 7 May 2010 (published)
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Animal Welfare: Standing to bring proceedings
Paper delivered at University of Melbourne on 24 August 2010
Class Actions
Paper delivered at Melbourne Law School Masters program in September 2010
The Authorised Reports
Paper delivered at the Conference of Librarians, Melbourne University on
30 September 2010
Crimes and Punishments of Competition Law
Paper delivered at the Trade Practices Conference, University of South Australia,
15–16 October 2010
Mediation by Judges
Paper delivered to Australian Academy of Law Symposium, Melbourne on
18 November 2010
Expert Evidence
Paper delivered at the New Zealand Legal Research Foundation, Auckland on
18 March 2011
Legal Protection of Business Research and Development: Can it Harm
Competition?
Monash University Conference, Prato Centre, Italy 2–4 May 2011 (published in text)
Animal Welfare
Paper delivered at Melbourne University on 14 September 2011
Crime and Punishment: White Collar Crime vs True Crime
Paper published in Targeting Tax Crime: A whole-of-government approach (6th
ed)
March 2012
Consumer Participation in Price Setting
Paper delivered at the Thirteenth ACCC Regulatory Conference, Brisbane on
27 July 2012
What does a Judge expect from a Team and how does that Benefit the Team: Tips
for Success
Paper delivered at the New Zealand Bar Association Annual Conference 2012,
Melbourne, 25 August 2012
McCabe Ten Years On – What’s Really Changed?
Paper delivered at the Monash Centre for Regulatory Studies at Monash
University Law Chambers, 5 September 2012
Managing Discovery
(with Michael Black AC, QC) Presentation at the Judicial College of Victoria on
16 October 2012
To catch a thief: statutory interpretation in action
Presentation at the AGS Government Law Group in Canberra, 23 October 2013
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The need to reform the Adversarial System
Paper for the 2012 Nathan &Pamela Jacobson Lecture, Melbourne Law School
31 October 2013
Corporate Governance and the Board of Directors
Presentation, University of Sydney, 10 December 2012
Courts, Judges & Judicial Review
Commentator, Comparative Constitutional Law Expert Seminar, US
Constitutional Law for Australian Lawyers with Judge A M Rosenblatt,
8 February 2013
Should Lawyers require their clients to act morally?
Presentation at the Ethics Liaison Group meeting, Law Institute of Victoria,
27 February 2013
Their day in court – The regulator and the Consumer in the future
Paper delivered ASIC Annual Forum 2013, Sydney, 26 March 2013
TONY SAMUEL
Bachelor of Commerce, University of Western Australia
Member of Chartered Accountants in Australia + New Zealand
CA BV Specialist
Diploma in International Commercial Arbitration
Tony is a Managing Director of Sapere Research Group Ltd (formerly LECG Ltd) and leader of its
Forensic Accounting & Valuation group in Australia. Between July 1998 and December 2005, Tony was a
partner at PricewaterhouseCoopers, firstly in its Forensic Services practice in London and then with its
Dispute Analysis & Investigations practice in Sydney. Between January 2006 and March 2008, Tony led
the Forensic Services practice in Asia Pacific for CRA International Limited.
Various representative matters in which Tony has been instructed as expert are listed below, including
over 50 proceedings in which he provided oral testimony.
Tony is currently under instruction as expert accountant and/or valuer in approximately 50 proceedings,
predominantly arising from taxation valuation disputes, intellectual property valuation disputes, class
actions and other general commercial disputes requiring opinions as to damages, accounting issues and
business or intangible asset valuations.
SHARES, BUSINESS AND IP VALUATION EXPERIENCE EXAMPLES
Numerous valuations of shares, businesses and IP for the purposes of Initial Public Offering, tax,
transfer pricing, sale or acquisition, or in the context of disputes, including in the following industries:
communication towers
power stations
horseracing
fast moving consumer goods
medical supplies
motor vehicle engineering
fire detection
software
See also example cases above and below arising from class actions, IP, tax and post-acquisition
disputes
Adviser to the International Cricket Council in connection with its sale of media and sponsorship rights
to the World Cups (a) in 2003 and 2007, and (b) in 2011 and 2015
Page 2 TONY SAMUEL
CLASS ACTIONS
Currently instructed in 12 ongoing matters
Independent expert reports, joint experts’ reports (where applicable) and testimony in:
Sherwood & Ors v Commonwealth Bank of Australia, FCA NSD 811 of 2010, as to damages
Clark & Ors v Great Southern Finance Pty Ltd & Ors, FCA NSD 811 of 2010, Supreme Court of Victoria, SCI 2011/04001, as to financial strength issues
Modtech Engineering & Ors v GPT Management Holdings Limited & Anor, FCA VID 1408/11, as to
“fundamental value” issues
Independent expert reports and joint experts’ reports (where applicable) as to:
the accounting for share purchases and sales
the inputs used in a cash flow model and the sensitivity of the model to certain inputs
cost accounting and inter-company trading issues
“real value” and “distribution per share” issues
“fundamental valuation” issues
COMMERCIAL DISPUTES EXPERIENCE EXAMPLES
Independent expert report, joint experts’ reports (where applicable) and testimony, as to:
damages, based on the valuation of companies managing schools in Asia and the Middle East
(International arbitration, Singapore, 2015)
damages arising from business interruption (International Arbitration, NSW, 2014)
accounting for creditors and accruals issues in the construction industry (CFT Holdings Company Pty Ltd v Sundown Holding BV & Anor, NSWSC 2014/235947, testimony in 2014)
share valuation issues in the mining sector (International Petroleum Investment Company v Independent Public Business Corporation of Papua New Guinea, NSWSC 2014/1289)
the value of shares in two companies and the loss arising from alleged misrepresentations in the
healthcare sector (Brosnan & Ors v Katke & Ors, FCA, QUD 384 of 2012, testimony in 2014)
the loss arising from alleged misleading and deceptive advertising in the pharmaceutical sector
(Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Limited, FCA, NSD 314 of 2013,
testimony in 2014)
the loss arising from the appointment of receivers to the claimant’s properties (International Skin Care Suppliers Pty Ltd & Ors v Bank of Western Australia Ltd, NSWSC 2011/326659)
the loss arising from the compulsory acquisition of land (George D Angus Pty Ltd v Health Administration Corporation, NSWLEC 2013/212)
the source and destination of funding for the acquisition of assets (including shares) (Groves v
Groves & Ors, [2013] QSC 277)
the ability of a company to meet its forecasts (NSWSC 2009/00296546, testimony in 2013)
the value of a freezing order (BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013]
WASC 239)
Page 3 TONY SAMUEL
the damages arising from alleged misrepresentation and unfair contract (Industrial Relations
Commission, 2013)
the damages arising from breach of contract (Arbitration in NSW, 2012)
whether the financial statements of a telecommunications reseller were misleading (National
Telecoms Group Ltd v John Fairfax Publications Pty Ltd, NSWSC 20560 of 2002)
the loss of earning capacity arising from an alleged conspiracy to exclude an individual from the
demolition sector in Sydney (Ballard v Multiplex [2012] NSWSC 426)
the losses arising from early termination of an exclusive distribution agreement (ICC Arbitration,
2011)
the accounting for and valuation of inventory in the mining sector (Bremerton Pty Ltd & Ors v
Barbidco Pty Ltd, SCWA CIV. 2214 of 2008)
the accounting for employee obligations within a complex group structure (Gothard, in the matter of AFG Pty Limited v Davey (No 2) [2011] FCA 59)
a claim for damages arising from the breach of a deed in the restaurant sector (High Court, Kuala
Lumpur, 2009)
the loss of profit for a cafe arising from construction works at a shopping centre (Administrative
Appeals Tribunal, 2009)
a claim for damages from loss of secondary support services in the mining sector (Supreme Court
of NSW, 2008)
a claim for damages arising from the alleged failure of a machine in the agricultural sector (Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (no 4) [2009] FCA 522)
a claim for damages arising from the breach of a deed in the restaurant sector (High Court of
Singapore, 2008)
a claim for loss of profit and loss of opportunity arising from the alleged failure of a machine in the
medical waste disposal sector (Arbitration in Victoria, 2007)
as to the loss of profits and adequacy of accounting records of a café (Lesvos Pty Ltd & Anor v Penrith Whitewater Stadium Ltd [2006] NSWSC 823)
the loss of profits arising from the early termination of a drilling contract (New Zealand arbitration,
2007)
the cost implications of a change in legislation on a commercial contract in the dry waste collection
industry (arbitration in Queensland, 2005)
the value of goodwill in a fitness centre (District Court of Gosford, 2005)
the alleged diversion of US$1.5 billion of vendor financing. This matter combined review of
accounting evidence with the tracing of cash through several offshore entities (RICO action in the
Southern District of New York, 2004)
the amount payable for early termination of a Build Operate Transfer contract in the mobile
telecommunications sector. Claims and counterclaims both exceeded US$1 billion (UNCITRAL
arbitration in Switzerland, 2004)
the reasons concerning a company’s inability to pay debts that had fallen due (ICC arbitration in
Switzerland)
Page 4 TONY SAMUEL
the loss of profits arising from an alleged breach of a beer supply agreement (ICC arbitration in
Switzerland)
INTELLECTUAL PROPERTY DISPUTES EXPERIENCE: EXAMPLES
Independent expert reports, joint reports (where applicable) and testimony in:
PPCA v CRA (2016, Australian Copyright Tribunal) as to the reasonable royalty payable for
simulcasting radio broadcasts
PPCA v CRA (2015, Australian Copyright Tribunal) as to the reasonable royalty payable for
simulcasting radio broadcasts
Blank v Commissioner of Taxation [2014] FCA 87, NSW, as to the value of an employee’s profit
participation units
SPI PowerNet Pty Ltd v Commissioner of Taxation [2014] FCA 261, Vic, as to the value of
intangible assets (predominantly copyright) in an electricity transmission system business
The Subordinate Courts Singapore, as to the damages arising from theft of confidential information
Warner v Ulysius International Trading Pty Ltd [2011] NSWSC 329, as to the value of registered
design rights
Orica Pty Ltd v Commissioner of Taxation [2010] FCA 197, Vic, as to the value of distribution rights
in the pharmaceutical sector
Gambro Pty Ltd & Anor v Fresenius Medical Care Australia Pty Ltd FCA, NSD 474 of 1997, as to
the damages arising from patent infringement, including reasonable royalty rates in the medical
devices sector
The UK Copyright Tribunal, as to the reasonable royalty payable for copyright in sound recordings
by an in-house radio station/narrowcaster
The UK Copyright Tribunal, as to the reasonable royalty payable for copyright in academic texts by
higher education institutions
The Chancery division of the High Court in the UK, as to the lost profit, the reasonable royalty
payable in the alternative, and the financial condition of the claimant, arising from the infringement
of design rights in the retail sector
Independent expert reports and joint experts’ reports (where applicable) as to:
an Enquiry as to Damages concerning both lost profit and reasonable royalty arising from the
infringement of patents relating to the process and equipment for laying pipe along the ocean bed
(Chancery Division of the High Court in the UK)
the damages arising from unauthorised acquisition of .co.uk domain names (Federal Court of
Australia, WA)
the value of an individual’s copyright and brands in the Family Court of NSW (instruction as single
expert)
the amount payable in an Account of Profit arising from patent infringement
the determination of reasonable royalty rates for simulcasting radio broadcasts (Australian
Copyright Tribunal, ongoing)
the compensation arising from an Undertaking as to Damages in the pharmaceutical sector
Page 5 TONY SAMUEL
Independent expert reports as to the methodology for determining damages or compensation in the
event that (a) an injunction was granted to restrain entry to the market of a generic pharmaceutical
company, and the patent was subsequently overturned at trial, and (b) the injunction was not granted
and the patent was found at trial to be good, in numerous matters
TAX DISPUTES EXPERIENCE EXAMPLES
Independent expert report, joint experts’ report (where applicable) and testimony as to:
the accounting for costs by a construction company (District Court, NSW, 2015)
the value of a minority shareholding in a private company (Administrative Appeals Tribunal, NSW,
2015)
the value of interests in a company and in a limited partnership (Administrative Appeals Tribunal,
NSW, 2014)
the value of an employee’s profit participation units (Blank v Commissioner of Taxation [2014] FCA
87, NSW)
the value of intangible assets (predominantly copyright) in an electricity transmission system
business (SPI PowerNet Pty Ltd v Commissioner of Taxation [2014] FCA 261, Vic)
the reliability of financial records provided by a taxpayer (Administrative Appeals Tribunal, WA,
2012)
the value of distribution rights in the pharmaceutical sector (Orica Pty Ltd v Commissioner of
Taxation [2010] FCA 197, Vic)
the accounting for costs by a construction company (R v Song Chang, NSW District Court, 2015)
Various instructions requiring the valuation of shares, businesses and mining rights, as well as opinions
as to the appropriate accounting for various transactions
POST-ACQUISITION DISPUTES AND EXPERT DETERMINATION EXPERIENCE EXAMPLES
Independent expert reports and joint experts’ reports (where applicable) in:
Asahi Holdings (Australia) Pty Ltd & Anor v Pacific Equity Partners Pty Ltd & Ors, FCA VID 87 of 2013
Brosnan & Ors v Katke & Ors, FCA QUD 384 of 2012
Burabs Holdings Pty Ltd v Alexander Dennis (Australia) Pty Ltd [2013] NSWSC 1182
Numerous other confidential matters
Expert determinations as to:
the amount to be paid under development and construction contracts
the fees payable under certain licence agreements in the broadcast transmission sector
matters in dispute in a completion balance sheet in the financial services sector
the amounts which comprised equity, and the relevant costs to be taken into account in determining
the development fees payable in the construction sector
Page 6 TONY SAMUEL
CONTRACT COMPLIANCE
In 1998 I launched Price Waterhouse’s European Licensing Management service, which focussed on the
confirmation of contract compliance, in particular compliance with royalty payment clauses in licence
agreements and compliance with financial terms in supply agreements. I have led contract compliance
assignments in numerous industries including manufacturing, luxury clothing brands, luxury retail, software,
swimwear, entertainment and pharmaceuticals. These assignments have been conducted in approximately
20 countries including the UK, USA, Canada, Australia, China, Hong Kong, Korea, Japan, Singapore, Israel
and Mexico.
MARK DEMPSEY, SC
ADMISSION TO PRACTICE
2004 appointed as Senior Counsel (SC) 1988 admitted to the Bar 1983 admitted as a Solicitor QUALIFICATIONS
2014 NMAS (Accredited Mediator) 2012 FCIArb, FACICA (Arbitrator) 1982 BA/LLB (Hons) ANU
Mark is a highly experienced advocate with a wide-ranging commercial practice. He appears at trial and appellate levels in State and Federal Courts throughout Australia and in Arbitration and Mediation. He has developed a special expertise in construction and engineering disputes, in particular, in complex and challenging cases. He has been recognised as a leader in the field of construction law and litigation in Best Lawyers in Australia (2017 edition), Chambers Asia Pacific (2016) and Doyle's List (2016). Mark provides first class service. He has a deep knowledge of the law and vast experience in the conduct of commercial disputes from over 30 years of legal practice, 12 as Senior Counsel. Mark also practices as an Arbitrator (he is a Fellow of the CIArb) and Mediator in Australia, Singapore and Malaysia.
PREVIOUS EXPERIENCE
1982-1988 solicitor, Allen Allen & Hemsley (corporate, finance and litigation departments). PRACTICE AS A BARRISTER
Mark has a wide ranging commercial & equity and appellate practice with special expertise in construction, engineering and mining & infrastructure disputes.
Mark has practised as counsel extensively in jurisdictions throughout Australia including the ACT, Victoria, Queensland, South Australia and Western Australia, and in Fiji.
Page - 2
AREAS OF PRACTICE
Mark’s principal areas of practice are appellate, arbitration - commercial & international, commercial law, construction mining & resources, competition and consumer law, corporations & insolvency, employment, equity, insurance, mediation – domestic and international, and professional liability.
PRACTICE IN ARBITRATION
Mark has extensive experience in arbitration (commercial and international), mediation and all forms of alternative dispute resolution.
Mark practices as an arbitrator and mediator in Australia, Singapore & Malaysia.
Mark is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a Fellow of ACICA, an arbitrator on the panels of ACICA and the Kuala Lumpur Regional Centre for Arbitration (KLRCA).
Mark has been appointed to the Panels of Arbitrators approved by the ACCC for Disputes involving NBN Co, and by the NSW Government for land access arrangements under the Mining Act (NSW).
He is an accredited arbitrator, mediator and expert determiner with the NSW Bar Association.
PRACTICE IN MEDIATION
Mark is a mediator accredited with the Supreme Court of NSW and under the Australian National Standards (NMAS), and a panel mediator of KLRCA.
PROFESSIONAL ACTIVITIES & ASSOCIATIONS
Bar Associations of NSW and ACT, Fellow of Chartered Institute of Arbitrators (FCIArb), Fellow of Australian Centre for International Commercial Arbitration (FACICA), member of International Council for Commercial Arbitration, Society of Construction Law (Australia & UK) (SoCL), and AMPLA (the Resources and Energy Law Association), and the Dispute Resolution Board Foundation.
CONTACT
Mark Dempsey, SC
Senior Counsel
Arbitrator and Mediator
7th Floor, 180 Phillip Street Sydney NSW 2000 Australia DX 700 SYDNEY T +61 2 8224 3000
Level 57 Republic Plaza 9 Raffles Place Singapore 048619 T: +65 6823 1242
→www.7thfloor.com.au
ANNABELLE CLAIRE BENNETT OCCUPATION:
Consultant Barrister (Senior Counsel) and Mediator/Arbitrator
TERTIARY QUALIFICATIONS:
B.Sc. (Hons.) University of Sydney Ph.D., University of Sydney LL.B., University of New South Wales
Also: D. Univ (hon. causa) Australian National University D. Laws (hon. Causa) University of NSW
CURRENT POSITIONS:
Chancellor, Bond University
Arbitrator of the Court of Arbitration for Sport Member of the Questacon Advisory Council Director, Garvan Institute of Medical Research Member of the Advisory Board of the Faculty of Law
of The Chinese University of Hong Kong
Member (and former President) of Chief Executive Women Member (and former President) of the Australian Academy of Forensic Sciences
FORMER POSITIONS:
Judge of the Federal Court of Australia National Co-ordinating Judge of the Intellectual Property Practice Area President of the Copyright Tribunal of Australia Presidential Member of the Administrative Appeals Tribunal Additional Judge of the Supreme Court of the ACT Senior Counsel (SC) specialising in intellectual property, administrative law, banking law and professional misconduct Chair of the National Health and Medical Research Council Pro-Chancellor of the Australian National University Member of the Advisory Group to the Dean of Medicine The University of Sydney
2
Trustee of the Centennial Park and Moore Park Trust
Member of the Reference Group for the APEC Women Leaders’ Network Meeting 2007
Head of Delegation for the APEC Women Leaders’ Network Meeting in Peru May 2008
Director of the Sydney Children’s Hospital Foundation (formerly the Prince of Wales Children's Hospital Foundation) Member of the Takeovers Panel Member of the Genetic Manipulation Advisory Committee Member of the Biotechnology Consultative Group (BIOCOG) to the Commonwealth Government Member of the Administrative Decisions Tribunal of NSW Panellist - World Intellectual Property Organisation (WIPO)
Advisory Committee Member of the Australian Law Reform Commission
on the Gene Patenting & Human Health Reference Acting Judge of the Supreme Court of New South Wales, Equity Division
Part-time Commissioner of the Human Rights and Equal Opportunities Commission Member Supreme Court of New South Wales Mediators Panel [to which matters are referred by the Court for mediation] Member NSW Bar Association Mediators Panel Member - Vaccine Working Group of Australian National Council on AIDS, Hepatitis C and Related Diseases (ANCHARD) Member of the Medico-Legal Society of New South Wales [1972–2003] Member of the Board of the Eastern Sydney Area Health Service [1988–1990]. The Board was responsible for the administration of hospitals and health care in the Eastern Sydney Area
- Chairman of Ethics Policy Committee
- Chairman of Sub-Committee on Community Health
- Chairman of Medical Practices Committee
Member of the Working Party of the Australian Medical Council to consider the Transfer of National Specialist Qualification Advisory Committee (NSQAC) functions
3
Member of the Pharmacy Board of New South Wales: This involved setting up the procedures of the Board (including disciplinary procedures) after the commencement of a new Pharmacy Act
Director of the Management Committee of Westmead Research Institute Member of the Companies Committee of the Business Law Section of the Law Council of Australia
Member of International Women’s Insolvency and Restructuring Confederation Member of the Pathology Laboratories Accreditation Board: The Board set in place the system of accreditation of pathology laboratories in New South Wales which was subsequently adopted by the Commonwealth
Principal consultant to the New South Wales Law Reform Commission on the artificial conception reference Member of the Board of the United Dental Hospital Sydney
Member Human Ethical Review Committee of the Faculty of Dentistry Sydney University Member of the Legal Profession Advisory Council [1998–1999]
Chair of the EEO Committee of the New South Wales Bar Association
Member of the Executive Council of The International Academy of Estate and Trust Law
AWARDS:
Honorary degree of Doctor of Laws awarded by the University of New South Wales in June 2016 Honorary degree of Doctor of the University by the ANU – July 2011 Officer (AO) in the General Division of the Order of Australia 2005 Centenary Medal 2003 University of New South Wales Alumni Award 1999
OTHER QUALIFICATIONS:
Qualified mediator: Completed LEADR mediation course in 1992 Completed Professor Fisher's negotiation course in August 1988
THESIS TOPICS:
Honours thesis: Mitochondrial Populations in Chick Embryo Liver
Ph.D. thesis: Some aspects of the nature and role of Phospholipids in Spermatozoa (from which nineteen scientific publications resulted)
4
MARITAL STATUS AND CHILDREN:
Married to David Bennett AC QC. Three children: Lyria, Tala and Paul
ADDRESS:
5 Wentworth Chambers 180 Phillip Street Sydney NSW 2000 [business] 10 Bathurst Street Woollahra NSW 2025 [home]
DATE OF BIRTH:
8 January 1950
NATIONALITY:
Australian
Dominique Hogan-Doran SC St James’ Hall Chambers, Levels 6 & 7, 169 Phillip Street, Sydney, Australia, 2000
Dialogue, Ground Floor, 4 National Circuit, Barton, Canberra, ACT, 2600 T: (+61)(02) 9236 8622 - F: (+61)(02) 9221 8995 - E: [email protected] - W: www.dhdsc.com.au
DOMINIQUE HOGAN-DORAN SC FCIArb BARRISTER | ARBITRATOR | MEDIATOR
Areas of Practice
Alternative Dispute Resolution, Contracts, Corporations & Securities, Equity, Financial Markets, Financial Services & Investments, Government Regulation, Insolvency, Intellectual Property & Technology, Professional Negligence, Public Law, Trade Practices, Trusts
Education University of Oxford – Bachelor of Civil Law (Hons I) University of Sydney – Master of Laws, Bachelor of Laws (Hons I), Bachelor of Economics (Social Sciences) Harvard University – Program on Negotiation Chartered Institute of Arbitrators – Diploma in International Commercial Arbitration Institute of Arbitrators & Mediators Australia – Practitioner’s Certificate in Mediation Professional Experience 2016 Registered Foreign Lawyer, Singapore International Commercial Court 2015 Senior Counsel for the State of New South Wales 1995 Barrister, High Court and Federal Court of Australia 1994 Solicitor, Supreme Court of New South Wales 1994 Lawyer, Intellectual Property & Trade Practices, Mallesons Stephen Jacques 1993 Research Director to the Chief Justice of New South Wales A.M. Gleeson AC 1992 Research Assistant to Professor James Crawford, Dean & Challis Professor of
International Law, Faculty of Law, University of Sydney 1992 Research Assistant to Professor John Carter, Faculty of Law, University of Sydney 1989-1991 Paralegal, Construction Project Litigation, Freehill Hollingdale & Page Appointments/Memberships NSW Bar Approved Arbitrator Fellow, Chartered Institute of Arbitrators Supreme Court of New South Wales Mediator Panel District Court of New South Wales Mediator Panel Adjunct Associate Professor, University of New South Wales Non-Executive Director, Club Plus Superannuation Scheme Member, Australian Institute of Company Directors Member, Australian Institute of Superannuation Trustees Awards Barrister of the Year, Australian Law Awards, 2016 Sir Robert Menzies Memorial Scholar in Law to Oxford University, 1994-1995 Fulbright Postgraduate Scholarship to Harvard University, 1993 (not taken up) University of Sydney Convocation Medal, 1993
Mary Walker Barrister Short biographical details Mary Walker was called to the Bar in New South Wales Bar in 1988 and in the ACT in 1991. Mary read on 5 Wentworth Chambers with Peter Johnson SC (now a Justice of the Supreme Court of NSW) and with Jeffrey Hilton SC (now retired) previously of 9 Selborne Chambers. Prior to being called to the Bar, Mary was admitted as a solicitor in 1986 after completing a BA Hons LLB at the University of Sydney and receiving the J.H. McClemens Memorial Award No.1 for Criminology. As a solicitor Mary was employed by Henry Davis York in their general litigation department and later in their commercial department. Mary then became an Associate to (now retired) Justice Peter Moss QC. In her early years at the Bar, Mary had a broad practice that included cases in most jurisdictions in both civil and criminal matters. Mary’s civil practice included general commercial, banking, insurance, personal injuries and equity matters heard in the Supreme, District and Federal Courts with some appearances in the Land & Environment Court, Family Court and Licensing Court. Her criminal practice included defending prosecutions on behalf of defendants and accused persons and appearances for persons potentially adversely affected by proceedings before ICAC. In recent years her practice has been in insurance, general commercial, professional and medical negligence at trial and appellate level and her practice includes advice on policy, legislative interpretation and jurisdictional issues. Mary has also developed an extensive practice in Alternative Dispute Resolution.
Mary has been at the forefront of ADR in Australia for the last 26 years. As a member of the independent Bar, Mary has arbitrated, mediated and provided expert appraisal and ombudsman services with respect to thousands of disputes referred by solicitors, industry and government bodies and corporations. She is a member of the International Mediation Institute Standards Commission and the International Mediation Institute Independent Standards Commission Quality Group, amongst other bodies. Mary is a member of the Australia International Dispute Centre Mediation Panel and the Singapore International Mediation Panel. Mary is Chair of the Law Council of Australia Federal Litigation and Dispute Resolution Section ADR Committee and Chair of the International Law Section ADR Committee. Mary was appointed as a Mortgage and Credit Industry Ombudsman from 2001 to 2005 which involved determining disputes between lenders and borrowers. She was also appointed as an Acting Deputy President of the Workers Compensation Commission of New South Wales 2005-2006 and an Arbitrator sitting on Medical Appeal Panels for the Workers Compensation Commission 2003-2005.
For additional information about Mary’s experience in ADR, see http://www.ninewentworth.com.au/assets/Mary-Walker-CV.pdf. Mary was elected to the NSW Bar Council by her peers (2011–16).
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Mary was awarded an Australian Women & Leadership Scholarship in 2014-15. Mary was awarded the Inaugural Mediator of the Year Award 2016 by the Australian Disputes Centre. During 28 years of practice at the Bar, Mary has appeared in hundreds of matters. Examples of these are noted below to illustrate the range of matters in which Mary has appeared. Examples of Appeal Cases
Appearing in the following High Court cases as junior counsel: Street v Queensland Bar Association, (1989) 168 CLR 461, concerning the interpretation of sections 117 and 92; Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council, No. HCA 29 (2001), concerning the doctrines of non-feasance and misfeasance; and Campbells Cash & Carry Pty Limited v Fostif Pty Limited; Mobile Oil Australia Pty Ltd v Trendlen Pty Ltd, HCA 41 (2006), concerning maintenance, champerty and litigation funding). Appearing in Special Leave applications in the High Court and appeals in the Court of Appeal; an example is appearing in a special leave application on behalf of Law Cover briefed by Mallesons in Evangelinidis ats Tsekouras and also in the Court of Appeal on behalf of Law Cover briefed by Mallesons.
Appointments to Inquiries Appointed by the Federal Government to head an Inquiry into the designation of Aboriginal sites in the Western Australian Nickel and Goldfields for the Federal Minister for the Environment and Heritage pursuant to section 10 (1)(c) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. This appointment required hearing evidence and dealing with the interests of four aboriginal peoples, a large number of mining and exploration companies, the Western Australian Government and other interested parties. The resources and royalties, the subject of the report, were valued in the billions of dollars and were of significant public interest. Tim Chadwick of the ACT (now retired) was counsel assisting Mary in the inquiry.
Appointed by the NSW Minister for National Parks and Wildlife and the NSW Minister for Mineral Resources to inquire into, and prepare a report in respect to, the designation of an Aboriginal heritage site in NSW known as the Pinnacles in the vicinity of Broken Hill, (Re Declaration of the Pinnacles and Surrounding Area as an Aboriginal Place pursuant to the National Parks and Wildlife Act, 1974 (NSW), and Issues Relating to the Future Management and Use of the Pinnacles including a review of and consultation relating to the Findings and Recommendations made by Dr Warrell (The “Warrell Report” 1996), requiring the hearing of evidence, receiving submissions, dealing with the interests of mining companies, exploration companies, groups of aboriginal peoples and community interests.
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Advocacy and Advice Work
Mary was selected as an Advocacy Instructor for the Australian Advocacy Institute in 2000 which involved a selection process with scrutiny of her advocacy skills including cross examination by members of the Australian Advocacy Institute and the NSW Bar. Mary taught in the Advocacy Course for Readers at the NSW Bar from 1989 – 2009 (Jury Empanelment, Practice Management, Establishing Chambers, Negotiation and ADR) and continues to give CPD lectures. As Chair of the Law Council of Australia Federal Litigation & Dispute Resolution Section ADR Committee Mary formulated and guided the development of the Alternative Dispute Resolution Chapter of the Federal Court of Australia Case Management Handbook 2014.
Appearances, drafting and advice work; for example, Trade Practices Commission v Santos Limited and Sagasco Holdings Limited, Federal Court of Australia, Victoria District Registry; Commonwealth of Australia v Dorothy Wood; Commonwealth of Australia v Spray Pave Pty Limited and Carl Jarmain and Commonwealth of Australia v Dragi Cvetkovski v Telecommunications Corporation, briefed by the Australian Government Solicitor (AGS).
Appearances in the Federal Court and Full Federal Court in cases such as Li Pei Ye v Crown Limited, No. N1252/2001, on behalf of Crown Limited involving trade practices, contractual issues and defamation, alone and as junior to Jeffrey Hilton SC, and for example, a representative action on behalf of wharf labourers against Patrick Corporation Limited in the Federal Court, Robert George Batten v CTMS Limited & Ors, Queensland District Registry, No. QG177 of 1998; appeared and advised in Wingecarribee Shire Council, City of Swan Council, Parkes Shire Council v Lehman Brothers Australia Limited (In liquidation), (Federal Court) briefed by Piper Alderman to advise on the formulation of a Claims Resolution Scheme for the class action.
Briefed to advise and appear in many cases relating to financial institutions concerning loan defaults, interpretation of contracts of insurance and the possession of property for example, Permanent Trustee Company Limited v Gulyas, Permanent Trustee Company Limited v Mechtler, Perpetual Trustees Victoria Limited v RS Muthukrishnana Proprietary Limited, Wilh Wilhelmsen Agency Pty Limited v Clute Holdings Pty Limited briefed by Barker Gosling (now DibbsBarker). Matters in the District Court, Supreme Courts and Federal Court in professional negligence on behalf of Law Cover, an example being Law Cover proceedings where Mary acted on behalf of a solicitor, briefed by Mallesons, against Finnane QC (now DCJ) before Sidis J in E.W. Renouf ats Ray Arnold and also Conn & Ormsby ats Williams, briefed by Mallesons. Many interlocutory applications in most jurisdictions, an example, briefed in Ingot Capital Investments & Ors v Macquarie Equity Capital Markets & Ors, Supreme Court, No. 50169/2001.
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Common law matters in the Supreme and District Courts, briefed by Barker Gosling on behalf of Qantas in a Supreme Court civil jury trial against Glissan QC. Examples of briefs as a junior are Ireland v Brown & Ors, District Court No. 5949 of 1999 junior to Toomey QC and as junior to David Kirby QC (now Justice Kirby) in the Supreme Court, Court of Appeal proceedings in Wakim. Mary also appeared in the Federal Court on behalf of the defendant insurer in respect to a disability insurance matter on behalf of a claimant against Zurich Insurance Limited. Mary acted on behalf of FAI, insurer for a financial adviser instructed by Townsend and Edstein in the Federal Court and also against a financial adviser instructed by Purcell Lancione, Cureton. Mary has acted on behalf of plaintiffs, briefed by Maurice Blackburn Lawyers, in medical negligence matters for example, Clapham v Dr Ferry, Latu v Dr Ferrier and Anor, Armstrong v Dr Saunders & Hunter New England Area Health Service and Nathan Elliott and Rebecca Elliott v Sydney Children’s Hospital Network t/as Sydney Children’s Hospital (briefed by Maurice Blackburn Lawyers). Mary was also briefed in product liability matters including Speed Karts Pty Limited v Coral Isles Kart Pty briefed by Barker Gosling and other matters briefed by Spooner and Hall. Mary was briefed in motor vehicle accident, compensation to relatives’ claims and industrial accidents on behalf of plaintiffs and defendants by, amongst others, Henry Davis York, Michel Sillar, Stacks and G.H. Healy & Co. Commercial and equity matters including Family Provisions Act matters. Examples include being briefed by Mallesons and Aubrey F Crawley & Co. in commercial and equity matters. An example of a Family Provisions Act matter is Lindsay Iliffe v Lesley Iliffe (Executrix), Supreme Court No., 3315 of 1991. Appearances in the Supreme and District Courts on behalf of companies (an example, briefed by Barker Gosling now Dibbs Barker) and banks (for example, ANZ and Commonwealth Banks briefed by Norton Smith) in recovering debts, winding–up applications and possession matters. Appearances in courts and tribunals involving companies in dispute with staff and executive staff, employment contracts, executive contracts and discrimination matters (an example, Rocks Catering Pty Ltd ats Hall briefed by Aubrey F Crawley & Co.). Appearances in the Supreme and District Courts in building and construction matters briefed by Blake Dawson Waldron (now Ashurst) (for example, Pivot Limited & Anor ats Griffin Projects Pty Limited, in the Supreme Court before Justice Bergin). Inquiries before ICAC including the investigation into Tweed Shire Council – North Coast Land Development instructed by Breen & Ross on behalf of Kurt Schaefer and Hixson Holdings Cape Byron International Academy junior to David Kirby QC, appeared alone in the ICAC Investigation into Waverley Council and the State Agencies briefed by Townsend Partners on behalf of Shalhoub and in the ICAC Roads and Traffic investigation into Driver Licensing on behalf of Lam, briefed by Townsend and Edstein.
Briefed by the British Government (British Coal Respiratory Disease Litigation Claimants Resident in Australia and New Zealand) to advise on torts and
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jurisdictional issues arising from claimants having worked in Coal Mines in the United Kingdom and later residing in Australia and to design and advise in respect of a Claims Resolution Process.
UK Group Proceedings of the Australian Nuclear Veterans Association Inc.v Ministry of Defence (Government of the United Kingdom of Great Britain and Northern Ireland) briefed by Stacks Goudkamp.
Appointed as a Reviewer for The Office of the Legal Services Commissioner of NSW, 1997 – 2011 reviewing many decisions of the Bar Association and the Law Society of New South Wales involving complaints against practitioners, briefed by The Office of the Legal Services.
In 2010, Mary completed an appointment as an Expert Determiner by the then President of the Law Society (Mr Joseph Catanzariti) to determine matters arising in a professional indemnity insurance policy involving partners of a large law firm involving Law Cover.
Providing advice to legal practitioners including senior counsel and Government Departments governing panels of mediators in respect to claims arising from a practitioner’s liability in performing his/her functions as a mediator or as an expert or other issues arising in the conduct of ADR processes.
Expert Conclaves
Briefed to prepare joint expert reports and facilitate expert conclaves in Supreme Court and District Court matters including medical negligence and building and construction matters. For example: Kate Falzon by her Tutor Ray Falzon v The Sydney Children’s Hospitals Network (Randwick & Westmead) Incorporating The Royal Alexandra Hospital for Children and Dr Brian Kearney, Supreme Court Case No. 2002/69388; Robert Carl Klewer v Royal Alexander Hospital for Children now know as Sydney Children’s Hospital Network, Supreme Court Case No. 2009/20020; Arthur Porter by his tutor Barbara Mottershead v Western Sydney Local Health District, SC Case No. 2011/200099; Maria Morocz v Dr David Marshman Supreme Court Case No. 2010/32578 and Arthur Porter by his Tutor Helen Porter v Dr Phong Le, Supreme Court Case No. 2007/265150.
Tribunal/Ombudsman Experience
Appointed as a Mortgage and Credit Industry Ombudsman from 2001 to 2005 which involved determining disputes between lenders and borrowers.
Appointed as an Acting Deputy President of the Workers Compensation Commission of New South Wales 2005-2006 and an Arbitrator sitting on Medical Appeal Panels for the Workers Compensation Commission 2003-2005.
Briefed to determine, by way of expert determination or expert appraisal, disputes
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between litigants. For example in 2008, Mary completed the first expert appraisal for the Retail Tenancy Unit, Department of Trade and Investment, New South Wales, (a government agency which requires compulsory ADR prior to the commencement of proceedings in Retail Lease Disputes) and other appointments as an expert determiner pursuant to Insurance or re-insurance contracts. Briefed to advise and appear on behalf the Registrar of the Retail Tenancy Unit, NSW Department of Trade and Investment, Regional Infrastructure and Services as Intervener in Spuds Surf Chatswood Pty Ltd v PT Ltd (No.3) and PT Ltd v Spuds Surf Chatswood Pty Ltd (No.2) [2011] NSWADT 86 on appeal in the Administrative Appeals Tribunal. Lecturing Mary was sponsored by Harvard University in 1995 to teach mediation with Professor Frank Sander author of Dispute Resolution, Negotiation, Mediation and Other Processes at the Harvard Law School in the post graduate program. She was appointed as a Distinguished Practitioner in Residence at Bond University Law School. Mary is a member of the Faculty of Law at the University of Technology and has lectured at many universities including a position as a lecturer in Commercial Mediation in the Post-graduate Law Degree program at The University of Sydney in 2009 and was a Guest Lecturer Social Justice Program, University of Sydney Law School 2010. Mary was a guest lecturer at Stanford University in the United States in 2012 lecturing on Mass Torts and Dispute System Design. Mary also presented a lecture at the Humboldt University, Berlin on the Multi-door Court and developments in ADR at the Second Australian-European Lawyers’ Conference, Crossing Borders – Multi-jurisdictional Legal Practices in the EU and Australia, October 2009. By invitation, Mary attended a Symposium at The Hague Institute For Global Justice sponsored by the European Union at The Hague – an Expert Meeting on Case Management and Mass Disputes, The Netherlands, November 2012 to discuss, review and provide advice in respect to the case management of Complex Matters, Mass Disputes and Cross Border Disputes and to develop a judge’s manual on the Case Management of Mass Disputes, November 2012, judges, academics and senior practitioners were invited from around the globe to contribute. During 2012 and 2013 Mary delivered lectures on behalf of Australian Judicial Commissions for Courts and Tribunals such as: South Australian Judicial Commission, Judicial Development Program, Judicial Dispute Resolution to the Court of Appeal, Supreme, District an Local Court Judges, August 2012 and for COAT/Law Society of South Australia Best Practice for Tribunals: A Model for South Australia - The Integration of ADR into Courts and Tribunals, June 2013, (previously presented at the Australasian Courts and Tribunals Annual Conference on The Integration of ADR into Courts and Tribunals) and for the New South Wales Judicial Commission on ADR Craft to the Land & Environment Court of NSW, May 2013 and on ADR to the Industrial Relations Commission, October 2013. In addition, Mary is invited to speak at many CPD conferences for the profession, taught ADR and mediation in the NSW Bar Readers Course for many years and Mary was a lead trainer in mediation at LEADR and IAMA in the early 1990’s with (the late) Professor Jennifer David and trained for ACDC and other organisations.
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Publications Publications include: author of the Chapter Expert Determination in The Laws of Australia, the NSW Bar Association Centenary Essays, No Mere Mouthpiece, on Alternative Dispute Resolution at the Bar, the Chapter Judgments & Orders in Court Forms, Precedents & Pleadings New South Wales published by LexisNexis Butterworths, Public Liability Issues Affecting Local Councils, Local Government Journal, Volume 7, Number 4, May 2002, Jury Empanelment, for the NSW Bar Practice Course and Negotiating Settlements Commenced by on or behalf of or Against Persons of Legal Incapacity for the NSW Bar and published by Lexis Nexis. Mary has published articles on various topics including Expert Witnesses, Expert Evidence and The Civil Procedure Act and Uniform Civil Procedure Rules and on many aspects of Alternative Dispute Resolution. Mary is also a member of the Editorial Panel of the Lexis Nexis publication, Australian Alternative Dispute Resolution Bulletin and has published articles in the Bulletin on a regular basis.
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