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Expertise

David is a partner in our Workplace Relations for Employees Group. His areas of practice include:

  • representing employees in complex employment disputes involving the termination of employment, discrimination claims, bullying claims and restraint of trade claims
  • representing employees, councillors and statutory office holders involved in investigations by the Ombudsman, IBAC, Royal Commissions and professional disciplinary bodies
  • acting for unions in relation to workplace issues, regulatory matters and internal disputes, and
  • dealing with internal disputes within organisations representing members, directors, organisations or senior employees in regard to disputes within organisations (these disputes typically relate to compliance with rules, regulatory compliance, and employment).

David has had many successes in the Courts, however, he acknowledges that the best interest of the parties are often served by facilitating discussions between the parties, particularly in sexual harassment and discrimination cases.

Experience

David’s recent experience includes:

  • Acting for Victorian members of the Australian Education Union in a Federal Court case, which ruled that deducting money from salaries to make lease payments on computers used by teachers in their professional duties was unlawful. The Court ordered the Government to discontinue making the deductions, and for the Government to pay back approximately $37 million to teachers.
  • Acting for a client who was alleged to have misused confidential information and commenced work with a competitor whilst on gardening leave. The Supreme Court dismissed the claim on the basis that the employer continued to pursue the claims, even though it could not establish that damages flowed from the breach, and turned down offers of settlement. After a lengthy trial, the Court found that the employer had acted unreasonably in pursuing a claim for nominal damages and rejecting offers of settlement. An order for indemnity costs was made in favour of David’s client.
  • Representing parties involved in the Heydon Royal Commission, an employee of the Department of Education in an IBAC public hearing, and a number of public sector employees involved in investigations by the Victorian Ombudsman.

In addition, David has been involved in other high profile litigation for employees, including:

  • Acting for a senior executive in Federal Court proceedings alleging misleading and deceptive conduct and breaches of contract by his former employer. The verdict is one of the leading decisions in this area (Walker v Citigroup Global Markets Australia Pty Limited [2006] FCAFC 101). Mr Walker was awarded $6,409,050.36 by the Full Court of the Federal Court.
  • Acting for a client in the Supreme Court in a wrongful dismissal case (Carter v Dennis Family Corporation). Shortly before the trial, the employer abandoned a multimillion dollar cross claim. The client was awarded approximately $1 million in damages for wrongful dismissal.

David has been involved in several leading discrimination claims. These include a race discrimination claim (Feres v Box Hill College of TAFE), a dispute over the closure of a school with special programs for indigenous students (Sinnappan & Foley v State of Victoria [1995] 1 VR 421 (the Northland Secondary College case)), and sexual harassment claims (such as State of Victoria v McKenna [1999] 140 IR 256). More recently David was involved in proceedings in the Federal Court and the High Court against the Commonwealth in relation to the remuneration of intellectually disabled workers. 

With respect to disputes within organisations, David was involved in hard fought Federal Court litigation over the control of the not-for-profit organisation Ananda Marga in Australia (Ananda Marga Pracaraka Samgha Ltd v Tomar (No 6) [2013] FCA 284). This case resulted in a successful outcome for David’s clients and an order for indemnity costs. More recently he has been involved in litigation on behalf of the Celtic Club in relation to the sale of its building. In addition to litigation, David provides advice on rules, disputes and regulatory matters.

David has, over many years, been involved in pro bono work. His experience includes several high profile cases where he has acted on behalf of refugees and Aboriginal people, including:

  • Representing asylum seekers in the Tampa case (Victorian Council for Civil Liberties Inc. and Anor v Minister for Immigration and Multicultural Affairs and Ors (2001) 110 FCR 452 (Tampa Case))
  • Working with Refugee Legal on a number of high profile court applications on behalf of refugees, and
  • Representing Aboriginal people challenging the Commonwealth’s intervention in the Northern Territory.

Recently, David settled a claim against the Commonwealth on behalf of nine Save the Children employees who were expelled from Nauru. The settlement involved compensation and a statement from the Commonwealth acknowledging that the clients had be wronged.

Publications

19 March 2019 - Knowledge

Inside track: Work Health & Safety

#Workplace Relations & Safety

Section 195 prohibition notices have been served on Wongawilli Mine near Appin, preventing the operation of underground conveyors at the site. In response to a series of recent reported roof falls, NSW Resources Regulator inspectors attended the mine to review the risk controls in place to protect workers from roof failure.

13 March 2019 - Knowledge

Recent case a reminder that managers can be personally liable for workplace breaches

#Workplace Relations & Safety

Managers who are aware of breaches of workplace laws in their business may be personally liable for those contraventions, even if they did all they reasonably could to try to fix the breach, according to a recent decision of the Federal Circuit Court of Australia.

12 March 2019 - Knowledge

National review of Work Health & Safety laws - where to next?

#Workplace Relations & Safety

The operation of Australia’s Work Health & Safety laws have received an overall tick of approval in an independently conducted Review. However, big changes are in the pipeline to address the ‘confusion and complexity’ faced by Australian businesses in the areas such as incident notification, consultation, indemnities for fines and union right of entry. Businesses will also face increased penalties and the introduction of an industrial manslaughter offence as part of the recommendations proposed in the extensive review, which the government is due to respond to in late 2019.