Clayton Utz's Litigation and Alternative Dispute Resolution practice is one of the largest in Australia with over 60 partners and 300 fee earners across the country, giving our clients, wherever they are, access to the full spectrum of litigation services, and our breadth of expertise.
We are pioneers in the development of Alternative Dispute Resolution (ADR) techniques and our lawyers have a strong focus on the use of ADR to avoid litigation. When litigation is unavoidable, however, we are the lawyers that clients turn to, particularly when faced with "bet the company" litigation. Our lawyers are recognised as having the greatest market experience in critical, complex, high-profile disputes, having acted in some of Australia's (and the world's) best-known cases.
We give swift, accurate, cost-effective advice to clients from a range of sectors such as retail, energy and resources (including mining), financial services, media, pharmaceuticals, leisure and gaming, superannuation funds, aged care, manufacturing and property on:
Merck & Co Inc and Merck Sharp & Dohme (Australia): In one of the largest product liability class actions in the Asia-Pacific, Clayton Utz represents Merck & Co Inc and Merck Sharp & Dohme (Australia) Limited in the defence of representative proceedings involving claimants who are alleging they have suffered cardiovascular injuries due to their consumption of VIOXX, a COX-2 inhibitor. There was a hearing of the lead applicant's claim during the first half of 2009. The court has reserved its judgment.
This is a particularly large and significant product liability dispute. The defence of the Australian proceedings has required a co-ordinated international approach and involved analysing complex scientific and medical issues.
SingTel Optus Pty Ltd: Clayton Utz successfully represented Optus (a leading Australian telecommunications company) as one of a number of defendants in a high-profile matter brought by Telstra (the market leader) in the High Court.
The litigation concerned the operation of the access regime in Part XIC of the Trade Practices Act and whether it gave rise to an acquisition of Telstra's property otherwise than on just terms in breach of section 51(xxxi) of the Constitution. Among the defendants were the ACCC (Australia's competition regulator) and a number of other telecommunications services providers.
In an unanimous judgment handed down on 6 March 2008 the High Court rejected Telstra's arguments that Part XIC effected an acquisition of property as "synthetic and unreal" and saying that Telstra's ownership of the public switched telephone network had always been subject to access regimes.
Australian Securities and Investments Commission (ASIC): Clayton Utz represented the corporate regulator, ASIC, in high-profile and landmark litigation.
The case brought by ASIC involved claims against 10 former officers and directors of companies in the James Hardie group, ABN 60 Pty Limited (formerly James Hardie Industries Limited) and James Hardie Industries NV. The proceedings arise out of the establishment of the Medical Research and Compensation Foundation, a special purpose trust established to deal with claims for compensation as a result of asbestos exposure, and the subsequent restructure of the James Hardie Group of companies. These transactions have already been the subject of a Special Commission of Inquiry convened by the Government of the State of New South Wales and have attracted significant attention.
The case will have significant ramifications for publicly listed companies and their executive and non-executive directors, and represents a rare occasion where the federal regulator has instructed a private firm in litigation of this nature.
The decision was handed down in favour of ASIC on the majority of its claims with findings of breach of section 180 of the Corporations Act (the obligation to act with care and diligence) against the whole board and the CEO of the former holding company in relation to one ASX announcement, and findings against the executive officers and the two corporate defendants on various other issues including statements made at overseas investor roadshows.
The Court has now imposed pecuniary penalties and made orders disqualifying the former directors and officers from managing a corporation.
Tatts Group Limited: Clayton Utz represents Tatts Group Limited (Tatts) in its $600 million dispute with the State of Victoria in relation to the State's decision to introduce new gaming machine legislation in 2012. Tatts is a listed public company operating gaming, lottery and wagering businesses in Australia and overseas. It currently holds one of two licences for the operation of gaming machines in Victoria, expiring in 2012. Following a Gambling Licences Review, in April 2008 the State announced that it would introduce new legislation which would result in the current licences not being renewed.
Fortescue Metals Group Limited (FMG): Clayton Utz successfully defended FMG (one of Australia's most prominent mining companies) against the corporate regulator ASIC in civil penalty proceedings against FMG and Director and CEO, Andrew Forrest. This case was significant not only in terms of the high-profile and ongoing media coverage surrounding it, but because the decision gave much-needed guidance on the often ambiguous nature of Australia's continuous disclosure requirements.
ASIC had alleged that FMG repeatedly breached both the Corporations Act and the Trade Practices Act, with 16 separate counts of misleading or deceptive conduct and six counts of breaching the continuous disclosure regime.
Toll Holdings Limited: Clayton Utz represented the Toll parties in its disputes with Patrick Corporation arising out of Toll's hostile takeover bid for Patrick announced in August 2005. This included six separate proceedings commenced since September 2005 in the Supreme Court of Victoria and the Federal Court of Australia and a commercial arbitration before the Hon. John Clarke QC.
We also defended the Toll Parties in respect of further Federal Court proceedings commenced by Patrick against the ACCC and Toll in respect of the undertakings proferred by Toll to the ACCC under section 87B of the Trade Practices Act.
The disputes involved complex jurisdictional and substantive issues requiring urgent action and preparation with the outcome of the litigation being critical to the progress of the takeover bid.
Woolworths Limited: Clayton Utz represented Woolworths in complex litigation which has spanned four jurisdictions (Federal Court of Australia, New South Wales Court of Appeal, Supreme Court of New South Wales and Industrial Relations Commission of New South Wales) involving issues of fraud, breach of contract, restraint of trade, breach of fiduciary duty and breach of copyright.
Luna Park: We successfully defended Luna Park in the noise nuisance and related proceedings commenced against them by the residents of Sydney's Milsons Point. Luna Park is an important Sydney landmark, and this long-running dispute involved some of the most valuable harbour real estate in the city.
Leading Australian Bank: We represent a leading Australian bank, which is suing IASbet.com in the Federal Court for knowing receipt of approximately $16 million which was stolen by a former branch manager of the bank and subsequently gambled through an online betting account maintained with the respondent.
AMP Capital Investors Limited: Clayton Utz represented AMP in an action by Australian Agricultural Company Limited ("AACo") over the sale of Stanbroke Pastoral Company Limited (the largest group of cattle stations in the world). AACo claimed that AMP awarded the tender to another party when it should have been awarded to them. The sale price was $417.5 million. In September 2003, AMP successfully opposed an application for an interlocutory injunction which would have restrained AMP from completing the sale of Stanbroke to the successful tenderer. This case was recently settled by AMP at the request of its insurers. It was settled for A$10 million - less than 9 percent of the amount of damages claimed by AACo of A$115.3 million.
Confidential energy and resources sector clients: Clayton Utz represents a leading independent power generator and Australia's largest integrated energy company in arbitration proceedings which will set the price of gas under long term, wholesale gas supply contracts in Australia. These matters involve a detailed analysis of the wholesale gas market across eastern Australia in a rapidly changing economic climate.
Commonwealth Government: Our litigation clients include a number of the Commonwealth Government's principal departments and agencies such as the Department of Immigration and Citizenship (DIAC), Department of Health and Ageing (DoHA),Department of Education, Employment and Workplace Relations(DEWR), Department of Defence and Centrelink.
Confidential engineering client: Clayton Utz represents one of Australia's largest civil engineering services companies in a complex action that involves novel and newly-developed legal causes of action and claims for damages exceeding $15 million. The proceedings will also have a significant impact on the construction industry and the role of construction unions in Western Australia.
Roche Products: Acted for the taxpayer in Roche Products Pty Ltd v Commissioner of Taxation, which is the only transfer pricing dispute to be brought to a final hearing for more than 20 years and achieved a favourable outcome.
Racing Victoria Ltd & Ors v Sportsbet Pty Ltd: Clayton Utz represents Racing Victoria Ltd (RVL) and its former directors in Federal Court proceedings commenced against them by Sportsbet Pty Ltd, a corporate bookmaker based in the Northern Territory. Sportsbet argues that certain provisions of the Gambling Regulation Act 2003 (Vic) requiring wagering service providers to obtain the approval of RVL to publish Victorian thoroughbred race fields, and which impose prohibitions on the advertising of betting services and odds are unconstitutional.
Sportsbet also seeks to recover from RVL and its former directors all moneys paid to RVL by way of an economic contribution for the approval to use the race fields, on administrative law grounds and under the competition provisions of the Trade Practices Act. The potential impact of the proceeding on the Victorian racing industry is significant. If RVL is unsuccessful it may have to refund almost $10M paid to it by interstate bookmakers since the commencement of the Gambling Regulation Act in 2003.
Royal Commissions/Commissions of Inquiry/coronial inquests
Equine Influenza Special Commission: We represented the interests of the Australian Racing Board and related peak industry bodies in the Callinan Special Commission with Royal Commission powers into the outbreak of Equine Influenza in August 2007.
We advised the Medical Research and Compensation Foundation in relation to its $A1.6 billion under funding for asbestos liabilities following its establishment by James Hardie. This included representing the Foundation at the Special Commission of Inquiry established by the NSW Government and efforts to secure further funding for asbestos victims from the James Hardie Group, and issues relating to protection of the foundation directors.
ASIC/HIH Royal Commission: Clayton Utz acted for ASIC before the Royal Commission into the reasons for the collapse of the HIH Group.
Sydney Water Corporation: We represented the Sydney Water Corporation in the proceedings that followed the contamination of the Sydney water supply during the latter half of 1998. This involved representing Sydney Water in the Independent Inquiry/NSW Royal Commission conducted by Peter McClelland QC to investigate the matter.
The Waterfall Inquiry: Clayton Utz represented Pacific National in the Inquiry into the Waterfall Rail Accident. Pacific National was not directly involved in the accident. It was concerned with safety recommendations and recommendations for regulatory changes affecting the rail industry.
Clayton Utz acted in the Inquiry into the Waterfall Rail Accident, representing our client's interests in the formulation of safety and regulatory recommendations that were poised to affect the rail industry across Australia.
Agent Orange Royal Commission: Barry O'Keefe AM QC (Consultant to Clayton Utz) acted as lead counsel for Monsanto in the Royal Commission which related to the effect of chemical agents on Australian military personnel in Vietnam.