Nick Cooper

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Litigation and Dispute Resolution

Energy and resources

• Alcoa of Australia: Nick has advised Alcoa (Australian operations which include bauxite mines, alumina refineries and an aluminium smelter) about a variety of contentious matters including in relation to a power outage at the Portland Smelter, electricity supply and hedging arrangements, supply contracts for on-site services, its CO2 liquid and gas supply contracts, and easement and restrictive covenant issues.
• AkzoNobel: Acts for AkzoNobel (a global paint and performance coatings manufacturer) in Federal Court proceedings where it is alleged AkzoNobel engaged in misleading and deceptive conduct in relation to the properties and performance of coatings used on the USD$37 billion Ichthys LNG Project in Darwin and offshore Western Australia. The Ichthys plant is ranked amongst the most significant oil and gas projects in the world.
• Anglo Pacific Group (APG): Acts for APG, a major natural resources business listed on the LSX, in proceedings in the Supreme Court of Western Australia commenced by APG Aus No 3 Pty Ltd (a 100% subsidiary of APG) against Quasar Resources concerning its obligation to pay APG Aus No 3 a Net Smelter Return royalty from the Four Mile uranium mine. The dispute largely turns on what constitutes Allocable Charges and whether processes used to produce uranium ore concentrate from the Four Mile tenements via in-situ leaching and hydrometallurgical processes constitute refining or smelting. APG were wholly successful at Trial.
• Atlas Drilling: Acted in relation to the 2009 oil and gas leak on the Montara Wellhead Platform. Nick represented Atlas Drilling during the Montara Commission of Inquiry, which resulted in a favourable outcome for the client. He also acted for Atlas Drilling in relation to the investigation conducted by the National Offshore Petroleum Safety Authority, and advised in relation to insurance aspects arising from the total loss of Atlas Drilling's mobile offshore drilling unit.
• Actuant Corporation (now Enerpac Tool Group): Acted for this global industrial corporation which provides, amongst other things, mooring equipment and services to the offshore oil and gas sector. Nick has provided advice regarding rights and obligations in relation to contracts governing the provision of such services to offshore assets.
• Bumi Armada Berhad (BAB): Nick is acting for BAB (a leading global provider of FPSO operations, vessel construction and engineering and maintenance services to offshore oil and gas companies) in relation to a case commenced by its wholly owned subsidiary Armada Balnaves Pte Ltd against Woodside Energy in the Supreme Court of Western Australia. The claim is concerned with the wrongful termination of an FPSO services agreement and involves the consideration of contractual principles such as repudiation, termination, affirmation, mitigation of loss and the assessment of substantial damages (in excess of US$300 million) together with the complex technical matters regarding the performance of the Acceptance Test (in particular the Operational Endurance Trial). This matter is currently before the WA Court of Appeal.
• CITIC Pacific Mining/Sino Iron: Nick acted in a dispute with a former contractor concerning the termination of a Manufacture and Supply Agreement. This matter resulted in a positive outcome for the client.
• Confidential client: Nick acted in a confidential matter concerning the early termination of an electricity hedging agreement due to economic hardship. This matter involved sensitive and confidential negotiations with multiple parties and the preparation of expert evidence directed at historical and projected financial performance of the relevant industrial facility.
• Confidential client: Nick acted for a contractor in a dispute concerning a services agreement in connection with the Gorgon Project. The dispute involved a forensic review of documentation to support various claims for fees under the agreement. Arbitration proceedings were prepared but a mediated settlement on terms favourable to the client was achieved.
• Confidential client: Nick acted for a company in a dispute concerning the provision of engineering consultancy services in connection with a port terminal development. The relevant agreement governing the parties' relationship was terminated and a notice of arbitration issued. The dispute was subsequently resolved by way of mediation that resulted in the client receiving payment for the services it had provided.
• Confidential client: Nick advised an international FPSO client regarding its offshore charter agreements including advice about termination rights, obligations around the payment of termination fees or redundancy costs, entitlement to claim damages for breach of contract and liaising with the bondholders about the termination.
• Diamond Offshore (DO): Nick advises DO in relation to a range of matters concerning its offshore drilling contracts and assets which has included advice about delay, force majeure, termination rights and damages.
• EDL: Acted in an expert determination regarding forecasts and a proposed expansion under the West Kimberley Region Power Purchase Agreement.
• Fortescue Metals Group: Nick acted for FMG in relation to proceedings commenced by the Australian Securities and Investments Commission concerning alleged misleading statements made to the market and associated breach of continuous disclosure obligations.
• Free-Trade Agreements: Nick has provided advice in relation to the interpretation and implications of free trade agreements; as well as best-practice engaging with Government. Most recent advice included the implications of proposed regulatory measures in relation to expropriation and compensation; specifically the Australian-United States FTA (AUSFTA) and the China-Australia FTA (ChAFTA).
• Kipoi Holdings Mauritius Limited: Nick acts for Kipoi Holdings Mauritius Limited, part of the Teichmann Group, in several complex litigation and insolvency proceedings in relation to the ownership and control of approximately USD$110 million of senior debt in relation to the group. The matter is complex, requiring an overlay of English and Democratic Republic of the Congo law with Australian litigation, as well as the interaction of Australian and overseas insolvency processes.
• Noble Resources International: Nick acted for Noble in relation to a dispute concerning a Pre-Payment Facility and Offtake Agreement for the supply of manganese ore mined from tenements in Zambia.
• Wright Prospecting Pty Ltd (WPPL): Nick is acting in relation to high value disputes concerning royalty entitlements arising from the extraction of iron ore and proprietary interests in various mining tenements in the Pilbara Region of Western Australia.  Also advising on WPPL's action against Hamersley Resources Ltd (HRL), a Rio Tinto subsidiary concerning whether certain tenements should have been acquired by HRL in its capacity as joint venture manager and participant for the benefit of the Rhodes Ridge Joint Venture..

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Government

• Advised the State of Western Australia (the State) in relation to the introduction of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Bill 2020 including Parliament's plenary power, potential actions Mineralogy parties may avail themselves of, assisting with drafting the Bill, briefing opposition parties and representing the State in litigations related to legislation.
• Advised the State in relation to potential amendments to the Mineralogy State Agreement which included addressing any Constitutional limitations on the proposed Bill, Australia's foreign investment laws, the ASEAN - Australia - New Zealand Free Trade Agreement protections and the Australia - New Zealand Closer Economic Relations Trade Agreement.
• Acted for the State, the Premier and the Attorney-General in defending a claim commenced by International Minerals Ltd alleging misleading and deceptive conduct, unconscionable conduct, misfeasance in public office – and conspiracy arising from the introduction of the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) (the Amendment Act).  International Minerals sought declarations and damages up to $50 million.  The claim was discontinued and the respondents then applied for an order that the discontinuance be subject to a condition preventing the commencement of further proceedings in the Federal Court of Australia which contain allegations relating to the passing of the Amendment Act.
• Acted for the Commonwealth in relation to the Northern Endeavour, a petroleum production, storage and offloading facility located in the Timor Sea. Liquidators were appointed to the entity that formerly owned the Northern Endeavour, with those liquidators subsequently disclaiming the facility under the Corporations Act 2001 (Cth), leaving it unmanned and floating in Commonwealth waters. The Commonwealth took possession of the vessel and was subsequently served with proceedings by a secured creditor of the former owner seeking orders that the Commonwealth disconnect and deliver the Northern Endeavour to a receiver at the Commonwealth's cost. The proceedings involve a range of Commonwealth legislation including the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), legal issues relating to disclaimers and security interests, as well as expert evidence in relation to the technical requirements for disconnection of the Northern Endeavour and decommissioning of the related oilfields. Clayton Utz's is advising the Commonwealth in relation its defence and cross-claim filed in the proceedings.

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Miscellaneous

• Confidential client: Acted for a confidential high-net-worth family trust client in relation to a fraud committed against the trust by organised white collar criminals. Nick managed the investigation and quick instigation of legal proceedings culminating in a freezing order over assets and an order preventing the respondents from departing Australia. A substantial proportion of the stolen funds were recovered.
• Multiplex: Nick acted for Multiplex in relation to a dispute concerning the design and construction of the Perth Convention and Exhibition Centre.
• Parsons Brinckerhoff: Nick acted for this global consulting firm which assists public and private clients to plan, develop, design, construct, operate and maintain critical infrastructure.
• PAG: Acted for one of Asia's largest alternative investment funds management firms to register and enforce a New Zealand judgment in Australia.
• Royal Commissions and Commissions of Inquiry: Nick has acted for clients compelled to appear before Royal Commissions and Commissions of Inquiry. Most recently Nick has been involved in a large team assisting the Commonwealth Bank of Australia in responding to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Nick's responsibilities included the supervision of teams preparing witness statements and preparing witnesses to give oral evidence at the Commission.
• SGS Australia: Nick acts for SGS in its Australian disputes, the world's leading inspection, verification, testing and certification company.
• Toxfree Solutions: Acted for Toxfree in relation to a fraud committed by a former contractor. Nick advised the company in relation to the forensic investigation and the preparation of the report. Nick the advised and represented the client in commencing a recovery action against the former contractor which included successfully obtaining a freezing order in the Supreme Court of Western Australia and ultimately judgment.

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Regulatory investigations & proceedings

• ASIC Investigations: Nick has acted for clients in a range of ASIC investigations and proceedings including insider trading, false trading and market rigging, continuous disclosure obligations, and capital fundraising and disclosure.  The roles involve responding to notices to produce documents and representing and advising directors and officers during compulsory ASIC interviews.
• Bumi Armada Berhad: Advised BAB in relation to the disconnection of the FPSO Armada Clare from the seabed and its delivery from Australian waters. This included liaising with the regulator NOPSEMA and engaging with the field licensed operator, Woodside Energy Julimar.
• Confidential client: Acted for a high-profile director of a resources company investigated by ASIC about insider trading allegations.  
• Confidential client: Acted for the former CEO and director of an Australian global corporation in relation to a criminal and civil investigation by ASIC and the concurrent investigation being conducted by the US Securities and Exchange Commission and the Department of Justice into the company's US subsidiary.
• Confidential client: Acted for an individual in relation to an investigation and examination by the Australian Crime Commission.
• Confidential clients: Nick provides day to day advice to companies on a range of governance and compliance issues including continuous disclosure and directors' duties.
• Fortescue Metals Group: Nick acted for FMG in relation to proceedings commenced by the Australian Securities and Investments Commission concerning alleged misleading statements made to the market and associated breach of continuous disclosure obligations..

See Litigation and Dispute Resolution

Energy and Resources

Offshore oil and gas sector

• Apache Energy: Nick acted for Apache Energy in relation to a dispute with a contractor concerning the provision of offshore marine geotechnical investigations and surveys. This resulted in a favourable settlement for Apache Energy.
• Atlas Drilling: Acted in relation to the 2009 oil and gas leak on the Montara Wellhead Platform. Nick represented Atlas Drilling during the Montara Commission of Inquiry, which resulted in a favourable outcome for the client. He also acted for Atlas Drilling in relation to the investigation conducted by the National Offshore Petroleum Safety Authority, and advised in relation to insurance aspects arising from the total loss of Atlas Drilling's mobile offshore drilling unit.
• Bumi Armada Berhad (BAB): Nick is acting for BAB (a leading global provider of FPSO operations, vessel construction and engineering and maintenance services to offshore oil and gas companies) in relation to a case commenced by its wholly owned subsidiary Armada Balnaves Pte Ltd against Woodside Energy in the Supreme Court of Western Australia. The claim is concerned with the wrongful termination of an FPSO services agreement and involves the consideration of contractual principles such as repudiation, termination, affirmation, mitigation of loss and the assessment of substantial damages (in excess of US$300 million) together with the complex technical matters regarding the performance of the Acceptance Test (in particular the Operational Endurance Trial). This matter is currently before the WA Court of Appeal.
• Confidential client: Nick advised an international FPSO client regarding its offshore charter agreements including advice about termination rights, obligations around the payment of termination fees or redundancy costs, entitlement to claim damages for breach of contract and liaising with the bondholders about the termination. 
• Kipoi Holdings Mauritius Limited: Nick acts for Kipoi Holdings Mauritius Limited, part of the Teichmann Group, in several complex litigation and insolvency proceedings in relation to the ownership and control of approximately USD$110 million of senior debt in relation to the group. The matter is complex, requiring an overlay of English and Democratic Republic of the Congo law with Australian litigation, as well as the interaction of Australian and overseas insolvency processes.

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Electricity

• Confidential client: Nick acted in a confidential matter concerning the early termination of an electricity hedging agreement due to economic hardship. This matter involved sensitive and confidential negotiations with multiple parties and the preparation of expert evidence directed at historical and projected financial performance of the relevant industrial facility.

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Royalties

• Anglo Pacific Group (APG): Acts for APG, a major natural resources business listed on the LSX, in proceedings in the Supreme Court of Western Australia commenced by APG Aus No 3 Pty Ltd (a 100% subsidiary of APG) against Quasar Resources concerning its obligation to pay APG Aus No 3 a Net Smelter Return royalty from the Four Mile uranium mine. The dispute largely turns on what constitutes Allocable Charges and whether processes used to produce uranium ore concentrate from the Four Mile tenements via in-situ leaching and hydrometallurgical processes constitute refining or smelting. APG were wholly successful at Trial. 
• Wright Prospecting Pty Ltd (WPPL): Acting in relation to high value disputes concerning royalty entitlements arising from the extraction of iron ore in various mining tenements in the Pilbara Region of Western Australia. 

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Supply contracts

• Alcoa of Australia: Nick has advised Alcoa (Australian operations which include bauxite mines, alumina refineries and aluminium smelter) abut a variety of contentious matters including in relation to supply contracts for on-site services, its CO2 liquid and gas supply contracts, and easement and restrictive covenant issues.
• CITIC Pacific Mining/Sino Iron: Nick acted in a dispute with a former contractor concerning the termination of a Manufacture and Supply Agreement. This matter resulted in a positive outcome for the client.
• Noble Resources International: Nick acted for Noble in relation to a dispute concerning a Pre-Payment Facility and Offtake Agreement for the supply of manganese ore mined from tenements in Zambia.

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Services contracts

• Confidential client: Nick acted for a contractor in a dispute concerning a services agreement in connection with the Gorgon Project. The dispute involved a forensic review of documentation to support various claims for fees under the agreement. Arbitration proceedings were prepared but a mediated settlement on terms favourable to the client was achieved.

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See Energy and Resources

Governance and Compliance

• ASIC Investigations: Nick has acted for clients in a range of ASIC investigations and proceedings including insider trading, false trading and market rigging, continuous disclosure obligations, and capital fundraising and disclosure.The roles involve responding to notices to produce documents and representing and advising directors and officers during compulsory ASIC interviews.
• Breach of director's duties: Acting for the administrator of Kaboko Mining in Federal Court proceedings against the former directors of that company alleging breach of their duties of care and diligence, good faith and proper purpose.
• Confidential client: Acted for a high-profile director of a resources company investigated by the Australian Securities and Investments Commission (ASIC) about insider trading allegations.
• Confidential client: Acting for the former CEO and director of an Australian global corporation in relation to a criminal and civil investigation by ASIC and the concurrent investigation being conducted by the US Securities and Exchange Commission and the Department of Justice into the company's US subsidiary.
• Confidential client: Acted for an individual in relation to an investigation and examination by the Australian Crime Commission.
• Confidential clients: Nick provides day-to-day advice to companies on a range of governance and compliance issues including continuous disclosure and directors' duties.
• Fortescue Metals Group: Nick acted for FMG in relation to proceedings commenced by the Australian Securities and Investments Commission concerning alleged misleading statements made to the market and associated breach of continuous disclosure obligations.

See Governance and Compliance

Healthcare and Life Sciences

• Confidential Client: Acted in relation to complaints made by family members concerning resident care in an aged care facility.
• Confidential clients: Nick provides advice to numerous health professionals in relation to investigations by the Australian Health Practitioner Regulation Agency (AHPRA), into their conduct, and representation in defending any subsequent disciplinary proceedings brought against those health professionals. Nick has successfully defended many medical practitioners in proceedings brought against them by the regulator.
• Department of Health and Human Services (Victoria): Nick advised the Victorian DHHS on open disclosure following a cluster of serious adverse events.
• Royal Flying Doctor Service (Western Operations): Nick provides the RFDS with regular advice and representation in relation to a range of day-to-day operational matters.

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Negligence claims

• Confidential client: Nick defended a general practitioner against a negligence claim commenced by the estate of a deceased patient seeking damages arising from alleged delay in diagnosis of cancer.
• Confidential client: Nick defended a specialist surgeon against a claim that he failed to warn a patient about the risk of a foam induced micro-embolism associated with the use foam sclerotherapy. The settlement was on terms extremely favourable to the client.
• Confidential client: Defending a specialist medical practitioner against a claim that he failed to properly interpret certain MRI images with the consequence that the patient allegedly underwent unnecessary surgery which resulted in trauma causing paraplegia.
• Confidential client: Defended an oncologist against a claim that he failed to inform a patient about the risks associated with the treatment of cancer including the risk of suffering from acute radiation necrosis. The settlement was on terms extremely favourable to the client.

See Healthcare and Life Sciences

Insurance and Risk

Nick advises various clients in relation to claims under contract works, D&O, business interruption and property damage policies.

• Confidential client: Nick is acting for an unincorporated joint venture in relation to a high value property damage and business interruption insurance claim arising from an event at an industrial facility.The claim is against a captive insurer and involves negotiations with a panel of US and European reinsurers.
• Iluka Resources: Nick acted for Iluka against QBE Insurance in proceedings commenced in the Supreme Court of Western Australia in relation to QBE's refusal to indemnify Iluka for loss suffered to a chartered helicopter under an Aviation Non-Ownership Liability Insurance Policy. Iluka was successful in recovering 100% of its losses.
• Kaboko Mining: Nick is acting for the administrators of Kaboko Mining in relation to a claim of indemnity under a D&O policy involving the interpretation of an insolvency exclusion clause and its application to the primary claim against the directors for breach of their duties.The claim is before the Federal Court of Australia.
• Underground Mine Damage: Nick acted for a gold miner in a claim under an Industrial Special Risks Policy for property damage and business interruption losses arising from seismic events at an underground mine.This matter involved analysing and interpreting various provisions under the policy, engaging expert mining engineers and developing a settlement strategy.

See Insurance and Risk

Investigations and Crisis Management

• Atlas Drilling: Acted in relation to the 2009 oil and gas leak on the Montara Wellhead Platform. Nick represented Atlas Drilling during the Montara Commission of Inquiry, which resulted in a favourable outcome for the client. He also acted for Atlas Drilling in relation to the investigation conducted by the National Offshore Petroleum Safety Authority, and advised in relation to insurance aspects arising from the total loss of Atlas Drilling's mobile offshore drilling unit.
• Royal Commissions and Commissions of Inquiry: Nick has acted for clients compelled to appear before Royal Commissions and Commissions of Inquiry. Most recently Nick has been involved in a large team assisting the Commonwealth Bank of Australia in responding to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Nick's responsibilities included the supervision of teams preparing witness statements and preparing witnesses to give oral evidence at the Commission.
• Toxfree Solutions: Acted for Toxfree in relation to a fraud committed by a former contractor. Nick advised the company in relation to the forensic investigation and the preparation of the report. Nick the advised and represented the client in commencing a recovery action against the former contractor which included successfully obtaining a freezing order in the Supreme Court of Western Australia and ultimately judgment.

See Investigations and Crisis Management

Defamation

• Premier of Western Australia: Nick is acting for the Premier of Western Australia in relation to defamation proceedings commenced by Clive Palmer against him in the Federal Court of Australia, NSW Registry.

International Trade

• Free-Trade Agreements: Nick has provided advice in relation to the interpretation and implications of free trade agreements; as well as best-practice engaging with Government. Most recent advice included the implications of proposed regulatory measures in relation to expropriation and compensation; specifically the Australian-United States FTA (AUSFTA) and the China-Australia FTA (ChAFTA).

See International Trade