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David McAndrew has a broad national commercial practice with emphasis on complex construction and engineering disputes in the Supreme Courts, and local and international arbitrations. 

 Primary Areas of Practice

• Construction and Engineering Disputes (including disputes under the Security of Payment legislation)
• Contract
• Economic Torts
• International Arbitrations
• Domestic Arbitration
• Mediation

 For more details, including key cases in which Mr. McAndrew has appeared, see linked curriculum vitae.

 Academic

Mr. McAndrew has lectured at the University of Melbourne Law School in the Masters of Construction Law Course (International Arbitration).

 Formal Details

 Admitted: 29 July 1991

 Signed Bar Roll: 28 November 1991

 Appointed Silk: 29 November 2018

 

Toby Shnookal first qualified and gained experience as an engineer. He first worked in the oil industry and then in civil construction before turning to the law. His practice is predominately in arbitrations and expert determinations both as counsel and determiner. Typically he is engaged in arbitrations that involve complex engineering failures of design that translate in an arbitration to major cost growth and critical path delays. He has a great interest in how engineering and project issues manifest themselves as legal causes of action.

Mr Shnookal’s 20 year major dispute TEC law practice has been spread over every state in Australia.

Examples of some representative cases he has been involved in include:

– cost growth of the construction of an FPSO for the NW Shelf due the roll amplification factors and increasing complexity of steel design to combat weight growth;

– delay costs for an oil platform in Bass Strait due to the striking of well fluid contaminants;

– chemical engineering design failure of a Nickel processing plant in a variety of areas including flash vessels, rubber lining and the desalination plant;

– functional growth of software translating to increased design time and claims for variations for Melbourne’s public transport ticketing system;

– failure of 5 major cogeneration electrical generating plants installed across Melbourne’s largest hospitals due to overstressing of the turbine blades;

– failure of windfarm design due to complex wind behavior over land forms;

– express way tunnel design failure arising from the conversion of a drained tunnel design to an undrained design part way through the design process.

Mr Shnookal was a part time member of the Victorian Civil and Administrative Tribunal (VCAT) for 10 years. In this capacity, as arbitrator, expert and as adjudicator he has published over 50 determinations. Mr Shnookal is a co-author of the 4th edition of Brooking on Building Contracts, a text for legal practitioners practicing in the field of TEC disputes. He is the chair of the Arbitration and Adjudication Subcommittee of the Victorian Bar Dispute Resolution Committee.

Victorian Bar Committee memberships

Alternative Dispute Resolution Committee

International Arbitration Committee

 

Experienced commercial and competition law counsel in Asia Pacific; experience in major international negotiations and dispute resolutions, including across language and cultural barriers (including many invited CPD presentations); leading counsel in major litigation throughout Asia Pacific region including many years of overseas practice; experienced in insolvency, accounting and auditing issues and duties; in 2007, with B A M Connell of the NSW Bar, obtained by negotiation/mediation the largest known individual payment for a private individual in commercial litigation in oppression proceedings (more than $200 million); leading counsel in many significant commercial, competition and corporate insolvency cases in Australasia, representing both regulators and commercial clients. Represented more than 80 client victims of OPES PRIME and the largest group of clients in the LIFT CAPITAL collapse in the Supreme Court of NSW and the Federal Court. Appeared as junior counsel to D M Bennett QC for Nordic Bank in the seminal schemes of arrangement decision of Nordic Bank LPC v International Harvester Australia Limited & Ano 1983 2 VR 298, leading counsel in Fowler v Lindholm 2009 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2009/125.html?query=^fowler%20lindholm], the correctness of which was the considered by the High Court in the Lehman proceedings. Publications include “Duties of Liquidators” and “Revenue Law in Australia” both with JH Telfer. Also practices in the area of professional practices and partnerships, medical professional qualifications and the entitlements of qualified practitioners to be registered as specialists. Counsel for a director of National Australia Bank in her public dispute with the National Australia Bank Board in 2004 on issues of banking ethics and audit committee procedure. The leading documents, which constitute an important study of Australian banking practice at Board level, have subsequently been made public by the client, see:

http://www.aph.gov.au/House/committee/efpa/apra04/subs/sub1.pdf

Formerly: Chairman of Fiji Commerce Commission, Visiting Professor, Department of Law and Economics ANU, Visiting Professor, Department of Commercial Law, Auckland University, Visiting Professor, Faculty of Law, USP, Visiting Professor of Law and Economics, University of Fiji, Lecturer in Taxation, University of Melbourne. special representative (tax avoidance) to Second Commissioner of Taxation, P J Lanigan, Canberra, for many years Editor of Federal Court Reports and Editor, Federal Law Reports, Assistant Editor of the Australian Law Journal, Revenue Editor, Australian Law Journal, Australian Correspondent, Lloyds Maritime and Commercial Law Quarterly and Lloyds Law Reports, hundreds of published articles and many invited speeches and papers.

Currently Chairman, External Appeals Committee, The Australasian College of CosmeticSurgery. This committee administers the first medical practitioner organisation code of conduct.

Credits in films produced by Jim McElroy and Fred Schepisi including the 2011 film nominated for Academy Awards: In the Eye of the Storm.

APPEARANCES

ACCC

Recent appearances for the ACCC:

Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd [2007] FCA 2024 (21 December 2007)

http://www.austlii.edu.au/au/cases/cth/federal_ct/2007/2024.html

Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Limited and others (December 2007, September 2008, Tracey J) (air cargo cartel class action)

http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/1458.html

OPES PRIME

Led a team of Sydney and Melbourne barristers including William Hodgekiss, Bruce Connell, Laurence W Maher representing the largest group of victims of the collapse of OPES PRIME.

LIFT CAPITAL

Represented largest client of Lift Capital in proceedings in Supreme Court of NSW and Federal Court

OTHER CASES

Previously leading counsel in Superleague, successfully arguing the appeal, leading counsel for Sir Tony O’Reilly in Fairfax takeover, for Arnotts and many other commercial clients in major matters. Leading counsel in the Westpac letter litigation. Represented Brian Yuill, Geoffrey Edelstein, Serge and Flora de Kantzow, the directors of Royal Motor Yacht Club of NSW, NSW farmers who fell victim to the banks in the Swiss loans affair, Westpac in relation to the Halabi foreign exchange fraud cases, numerous directors and CEOs of listed companies, principals of law firms in professional and partnership matters and many others in complex corporate and commercial disputes, anti dumpling cases, aviation matters, medical registration and RACS qualifications matters. Acted for Packer, Murdoch, Rodney Price, Robert Whyte, and many others. Willing to act for the rich and famous, the anonymous and destitute and those in desperate trouble with or without funds with equal pride.

Some reported cases:

H42 1976 76 ATC 346 [North Queensland property development profits]

Mulkearns v Chandos Developments Pty Ltd (No 3) [2005] NSWSC 504 (30 May 2005) [2%]

(From Supreme Court of New South Wales; 30 May 2005; 27 KB)

Mulkearns v Chandos Developments Pty Ltd (No 4) [2005] NSWSC 511 (1 June 2005) [2%]
(From Supreme Court of New South Wales; 1 June 2005; 76 KB)

Lift Capital Partners Pty Limited (in liquidation) [2008] NSWSC 1369 (12 December 2008) [1%]
(From Supreme Court of New South Wales; 12 December 2008; 19 KB)

Palindrome Holdings Pty Ltd v Wass [2009] NSWSC 797 (1 September 2009) [1%]
(From Supreme Court of New South Wales; 1 September 2009; 78 KB) (From Supreme Court of New South Wales; 1 September 2009; 78 KB)

Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1132 (3 December 2003) [1%]
(From Supreme Court of New South Wales; 3 December 2003; 47 KB)

Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084 (18 November 2003) [1%]
(From Supreme Court of New South Wales; 18 November 2003; 11 KB)

Re Philip Morris Incorporated and Philip Morris Limited v Adam P Brown Male Fashions Pty Ltd [1980] FCA 82; (1980) 44 FLR 88 (15 July 1980) [1%]
(From Federal Court of Australia; 15 July 1980; 83 KB)

Noss v Smith; Smith v Noss [2004] NSWSC 538 (24 June 2004) [1%]
(From Supreme Court of New South Wales; 24 June 2004; 30 KB)

Trade Practices Commission v Cc (New South Wales) Pty Limited Formerly Known As Concrete Constructions (Nsw) Pty Limited, Peter Woollard, Holland Stolte Pty Limited and Ors [1995] FCA 1235 (5 May 1995) [1%]
(From Federal Court of Australia; 5 May 1995; 34 KB)

Re Tasman Timber Limited v Minister of Industry and Commerce Homebush Bay Timbers Pty Ltd v Minister of Industry and Commerce [1983] FCA 20; (1983) 67 FLR 12 (15 February 1983) [1%]
(From Federal Court of Australia; 15 February 1983; 77 KB)

Attorney-General for the State of Victoria v Knight [2004] VSC 407 (19 October 2004) [1%]
(From Supreme Court of Victoria; 19 October 2004; 57 KB)

Attorney-General for the State of Victoria v Knight [2004] VSC 407 (19 October 2004) [1%]
(From Supreme Court of Victoria; 19 October 2004; 57 KB)

Re Amalgamated Wireless (Australasia) Limited v Mcdonnell Douglas Corporation; Mcdonnell Douglas Information Systems Pty Limited and Michael Robert Selwood Dane [1987] FCA 280 (25 August 1987) [1%]
(From Federal Court of Australia; 25 August 1987; 21 KB)

Trade Practices Commission v CC (New South Wales) Pty Limited Formerly Known As Concrete Constructions (Nsw) Pty Limited, Peter Woollard, Holland Stolte Pty Limited, Graham Ronald Duff, Multiplex Constructions Pty Limited, Geoffrey Thomas Palmer, Leighton [1995] FCA 1236 (5 May 1995) [1%]
(From Federal Court of Australia; 5 May 1995; 25 KB)

Hawker Pacific Pty Ltd v Freeland [1983] FCA 139; (1983) 79 FLR 183 (10 July 1983) [1%]
(From Federal Court of Australia; 10 July 1983; 24 KB)

Trade Practices Commission v TNT Management Pty Ltd [1983] FCA 65; (1983) 67 FLR 198 (18 April 1983) [1%]
(From Federal Court of Australia; 18 April 1983; 13 KB)

Re Bennett Honda Pty Limited v Borg Warner Acceptance Corporation and Commissioner of Taxation [1985] FCA 211; 85 Atc 4364 / 7 FCR 31 (17 June 1985) [1%]
(From Federal Court of Australia; 17 June 1985; 54 KB)

Re Alan Maxwell Ross and John Stafford Heap v Francis Xavier Costigan and the Attorney-General of the Commonwealth of Australia [1982] FCA 73; (1982) 64 FLR 55 (18 May 1982)[1%]
(From Federal Court of Australia; 18 May 1982; 52 KB)

Re Ricegrowers Co-Operative Mills Limited v Ronald Moore Bannerman and Trade Practices Commission [1981] FCA 211; (1981) 56 FLR 443 (16 December 1981) [1%]
(From Federal Court of Australia; 16 December 1981; 64 KB)

Re Trade Practices Commission v TNT Management Pty Limited; Brambles Holdings Limited; Mayne Nickless Limited; Youngs Transport Pty Limited; Ansett Transport Industries (Operations) Pty Limited; Express Freight Pty Limited; Associated Steamships [1981] FCA 154 (9 October 1981) [1%]
(From Federal Court of Australia; 9 October 1981; 26 KB)

Re Trade Practices Commission v TNT Management Pty Limited; Brambles Holdings Limited; Mayne Nickless Limited; Youngs Transport Pty Limited; Ansett Transport Industries (Operation Pty Limited; Express Freight Pty Limited; Associated Steamships P [1981] FCA 136 (18 September 1981) [1%]
(From Federal Court of Australia; 18 September 1981; 61 KB)

Re Pioneer Concrete (Vic) Pty Ltd, Apex Quarries Limited, Barry Montgomery, William Roderick Parr, Alan George Rasmussen v Trade Practices Commission and Ronald Solley Gilbert [1980] FCA 137; (1980) 44 FLR 197 (14 November 1980) [1%]
(From Federal Court of Australia; 14 November 1980; 24 KB)

Re Brambles Holdings Limited v Trade Practices Commission and Ronald Moore Bannerman [1980] FCA 120; (1980) 44 FLR 182 (27 October 1980) [1%]
(From Federal Court of Australia; 27 October 1980; 47 KB)

Re Tradestock Pty Ltd; William James Frewen; Noel Edward Stock v Tnt (Management) Pty Ltd; Interstate Parcel Express Company Pty Limited; Ipec Insurance Limited; Ipec (Aust) Limited; Ansett Transport Industries (Operations) Pty Ltd; Brambles Ind [1983] FCA 13 (8 February 1983) [1%]
(From Federal Court of Australia; 8 February 1983; 36 KB)

Re Trade Practices Commission v Dunlop Australia Limited; John Anthony Steele [1980] FCA 76; (1980) 43 FLR 434 Vg (25 June 1980) [1%]
(From Federal Court of Australia; 25 June 1980; 58 KB)

Tinkler v Federal Commissioner of Taxation [1979] FCA 88; (1979) 40 FLR 116 (14 December 1979) [1%]
(From Federal Court of Australia; 14 December 1979; 35 KB)

H 1976 Nominees Pty Ltd v Galli [1979] FCA 74; (1979) 40 FLR 242 (2 November 1979) [1%]
(From Federal Court of Australia; 2 November 1979; 23 KB)

Re Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) [1980] FCA 94; (1980) 47 FLR 163 (21 August 1980) [1%]
(From Federal Court of Australia; 21 August 1980; 44 KB)

Melbourne Home of Ford Pty Ltd v Trade Practices Commission and Bannerman [1979] FCA 15; (1979) 36 FLR 450 (28 March 1979) [1%]
(From Federal Court of Australia; 28 March 1979; 106 KB)

Re Re VFF Chicken Meat Growers* Boycott Authorisation [2006] ACompT 2 (21 April 2006)[1%]
(From Australian Competition Tribunal; 21 April 2006; 347 KB)

In the matter of Opes Prime Stockbroking Limited (No 2) [2009] FCA 864 (4 August 2009) [1%]
(From Federal Court of Australia; 4 August 2009; 55 KB)

In the matter of Opes Prime Stockbroking Limited [2009] FCA 813 (3 August 2009) [1%]
(From Federal Court of Australia; 3 August 2009; 125 KB)

Lindholm, in the matter of Opes Prime Stockbroking Limited (Administrators appointed) (Receivers and Managers appointed) (No 2) [2008] FCA 1578 (22 October 2008) [1%]
(From Federal Court of Australia; 22 October 2008; 23 KB)

Auskay International Manufacturing Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 (29 September 2008) [1%]
(From Federal Court of Australia; 29 September 2008; 104 KB)

Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd [2007] FCA 2024 (21 December 2007) [1%]
(From Federal Court of Australia; 21 December 2007; 71 KB)

Lindholm, in the matter of Opes Prime Stockbroking Limited (Administrators appointed) (Receivers and Managers appointed) [2008] FCA 1425 (17 September 2008) [1%]
(From Federal Court of Australia; 17 September 2008; 96 KB)

Trade Practices Commission v CC (New South Wales) Pty Limited Formerly Known As Concrete Constructions (Nsw) Pty Limited, Peter Woollard, Holland Stolte Pty Limited and Others [1995] FCA 1537 (8 September 1995) [1%]
(From Federal Court of Australia; 8 September 1995; 55 KB)

Trade Practices Commission v Cc (New South Wales) Pty Limited Formerly Known As Concrete Constructions (Nsw) Pty Limited; Peter Woollard; Holland Stolte Pty Limited; Graham Ronald Duff; Multiplex Constructions Pty Limited; Geoffrey Thomas Palmer; Leighton [1995] FCA 1418 (2 August 1995) [1%]
(From Federal Court of Australia; 2 August 1995; 60 KB)

Stationers Supply Pty Ltd v the Victorian Authorised Newsagents Association Limited; Newspower (Victoria) Pty Ltd; Vicstat Pty Ltd (Trading As Victorian Newsagent Supplies); Brian Geoffrey O’Malley; John Russell Reith and Henry Justin Sloane [1993] FCA 380 (13 August 1993) [1%]
(From Federal Court of Australia; 13 August 1993; 116 KB)

Re Trade Practices Commission v Australia Meat Holdings Pty Limited; Thomas Borthwick Sons (Pacific Holdings) Limited; Borthwicks Plc and Thomas Borthwick Sons (Uk) Limited [1988] FCA 244 (15 July 1988) [1%]
(From Federal Court of Australia; 15 July 1988; 251 KB)

Re Trade Practices Commission v TNT Management Pty Limited; Brambles Holdings Limited; Mayne Nickless Limited; Youngs Transport Pty Limited; Ansett Transport Industries (Operations) Pty Limited; Express Freight Pty Limited; Associated Steamships [1985] FCA 23 (12 February 1985) [1%]
(From Federal Court of Australia; 12 February 1985; 352 KB)

Re Hxt International Pty Limited v Semco Pty Limited [1983] FCA 203; (1983) 78 FLR 57 (26 August 1983) [1%]
(From Federal Court of Australia; 26 August 1983; 45 KB)

RECENT PAPERS AND WORKING GROUPS:

2008: Member, Law Council of Australia Working Party on criminal cartel legislation.

2008: Leo Cussen Institute: Ethics for In House Counsel

27 November 2008 (with Anthony Austin, senior legal counsel BHP Billiton and Richard Hobson, Lynchpin Legal Management).

2009-12:

25 March 2009: Advanced Mediation. Leo Cussen Institute

Invited speaker for Lexus/Nexus Annual Litigation Skills feedback forum for September 2 & 3 2009 at the Marriott Hotel in Sydney CBD.

8 October 2009 “Cracking Tough Nuts – Advanced Negotiation” Strategies” Leo Cussen Institute

23 February 2010: Invited Seminar to Norton Gledhill: Advanced Negotiation Strategies.

1 March 2010: Invited Seminar to Kliger Partners: Advanced Strategies for Professional Negotiators.

5 March 2010: Invited Seminar to Price Waterhouse Coopers: Strategies for Tax Negotiators.

18 March 2010: Invited Seminar to Worksafe senior staff: Aspects of Advanced negotiation.

Convenor, Competition Law Twilight Seminars, Commercial Bar Association and Victorian Bar, 2005; Convenor Trade Practices Law Seminar Series, Law Institute of Victoria 2006; Presenter (with Hank Spier) of internal seminar for senior managers, ACCC, Canberra, June 2006; Chairman, Corporations Law Intensive, Law Institute of Victoria 2007. Senior counsel for Government of Fiji intelecommunications litigation preceding deregulation in 2006 (Vodafone Fiji Ltd v Minister for Communications). Lead role in the mediated deregulation of the Fiji telecommunications industryresulting in agreement signed in the early hours of 20 November 2007 by which the monopoly incumbents in landline, international and mobile telephony gave up their long term exclusive licences enabling new entrants to be issued with licences in all sectors. Drafted competition legislation of numerous Asia Pacific nations. Mediator in interconnection dispute between Telecom Fiji Limited and Digicel September 2008

22 March 2012: Invited Seminar for Leo Cussen In House counsel Intensive:

Strategically Speaking – Working as a team and preparing for hard sell in negotiations

Two leading lawyers provide an insight into how they approach negotiations and overcome bluffs, obstructionist behaviour and blocking tactics.

Practical tips and strategies to achieve the best possible outcome from negotiations.

Presenters: Charles Sweeney QC, Barrister, Victorian Bar
Aaron Hockly,  Company Secretary & General Counsel, Growthpoint Properties Australia

http://www.leocussen.vic.edu.au/cb_pages/event_details.php?mevent_id=730&category_id=951

GENERAL EXPERIENCE

Extensive experience in major international litigation and transactions, especially involving multi regime regulatory requirements. Visiting Professor at Australian and overseas universities 1995-1999: (Visiting Professor, Centre for Law and Economics, ANU, Visiting Professor, Department of Commercial Law, University of Auckland, Visiting Professor, University of the South Pacific, Emalus Law School), Visiting Professor of Law and Economics, University of Fiji (current), developed and taught graduate antitrust and international telecommunications regulation and policy courses to legal, industry and government specialists. Keynote speaker, Boston Consulting Group Australasian Utility CEO’s Conference: Competition Law in the Energy Industry. Advised many leading Australian and New Zealand companies and world’s largest media and telecommunications firms in the USA, Europe and Pacific regions, including British Telecom, MCI, new entrants in Hong Kong, Singapore and elsewhere. Proofed and cross-examined the world’s leading antitrust economists and industry specialists. Counsel to Asia Pacific region governments on antitrust, regulatory regimes and trade policy. Extensive European and US law and ADR experience, including major mediations before Australia’s leading mediators. Senior counsel for most of the 1990s for the first competitive entrant (Clear Communications) to the New Zealand telecommunications market. Acted for Packer, Murdoch, Rodney Price, Robert Whyte, Brian Yuill, Geoffrey Edelstein and many others. Worked with leading New York and London law firms. Has acted for the rich and famous and those in desperate trouble and no funds with equal pride.

TELECOMMUNICATIONS DEREGULATION MEDIATION 2007

Represented the Fiji State in a successful five day live in mediation in late November 2007, which deregulated the Fiji telecommunications industry see:

www.islandsbusiness.com/fiji_business/

PRO BONO WORK

Will consider pro bono work (without fee), including criminal matters (and substantial allegations of erroneous convictions), in worthy cases no matter how unpopular the client or how many times he or she might have been rejected by the courts or by other lawyers: willingly counsel of last resort; recognises the legal system often makes grave errors and is sometimes no more free of entrenched bias and predisposition against unpopular parties than the community at large.

PUBLISHED WORKS

For more than fifteen years, one of the editors of the Australian Law Journal (both Assistant Editor and Revenue Editor for the same period), founding editor of Federal Court Reports, Editor of Federal Law Reports, MULR and other journals of record in Australia and the UK; former member of The Incorporated Council of Law Reporting (NSW). Very extensive published writings and conference papers on many areas of law and legal and economic policy. Member of the Trade Practices Committee of the Law Council of Australia for many years and, former member of Executive of the Business Law Section of the Law Council and of its Customs Committee.

FIJI COMMERCE COMMISSION

Fiji Times
Editorial
No more interference

Friday, March 28, 2008

THE independence of organisations like the Commerce Commission is central to its work.

If it is to do its work properly and within the boundaries of its legislation, then there must be no interference or pressure from the government, the corporate sector or any other body to influence the decisions and the outcome.

Sadly, this has not been the case of late.

The commission is responsible for setting ceiling prices or determining pricing formulas for commodities that, if left to traders, might otherwise be out of reach for the majority of the people in this country.

Its role is also to ensure that new prices reflect changes in the marketplace andare fair to both the industry seeking the increase and the general public that will pay for the service.

This week, the chairman of the commission has been forced to issue a press statement condemning the pressure he and his commissioners were put under by a company seeking an increase in the price of one of its commodities.

The secretariat of the commission was placed under pressure. The chairman himself was put under public scrutiny.

And a public relations campaign was launched to gain public sympathy.

It didn’t help matters that the interim Cabinet minister responsible and his permanent secretary were present in meetings with the company and the commission staff members.

Fortunately, the commission and its chairman refused to bow down to pressure but the incident left behind a bad experience.

The commission must be given space and freedom to do its work, and to do it without outside interference or pressure.

It is this independence that makes organisations such as the Prices and Incomes Board and the Commerce Commission credible.

They must be free from influence and pressure from government, from corporate companies and from politicians to make decisions that are fair and just for all parties.

In the past few years we have seen the commission in action to determine rates on electricity and telephones.

They have been thorough, careful and probing in their determination of price formulas to ensure that the company and the industry continue to survive while at the same time making the commodities or services affordable to the public.

The commission has so far done a great job. Let’s keep it that way.