Resume

Resume

Mr White

Mr White’s Reported Arbitral Decisions

Our Mr White has more reported arbitrations than any other arbitrator in Australia. In every case his arbitral decisions have been upheld by the Court and become enforceable judgments of the Court as if they were made by a Court in the first instance. His reported decisions, set out below, have included jurisdiction, specific performance, injunctions, damages, declarations, proceedings against third parties and substantial costs orders in relation to technically complicated subject matter. Third parties commentators have said in relation to Mr White's work that the brevity of the process and the positive outcome, in that the award was enforced, bodes well for the efficacy of enforcement actions pursuant to the new Act. His decisions have been cited with approval and followed by various Courts in subsequent cases.
Larkden Pty Limited -v- Lloyd Energy Systems Pty Limited¹⁾
- Our Mr White was the arbitrator in this matter.
- Commercial Arbitration Act s33B(1)
- Mr White's costs award of approximately $1m was upheld by the Supreme Court of New South Wales.
- Followed in:
  - Bluechip Development Corporation (Gladstone) Pty Ltd v Sunstruct Pty Ltd & Ors (No.2) ²⁾
  - Australian Gypsum Industries Pty Ltd -v- Dalesun Holdings Pty Ltd ³⁾
- Followed by the Full Federal Court in:
  - Central Queensland Development Corporation Pty Ltd v Sunstruct Pty Ltd ⁴⁾
- Cited with approval in:
  - Australian Gypsum Industries Pty Ltd -v- Dalesun Holdings Pty Ltd ⁵⁾
Larkden Pty Limited -v- Lloyd Energy Systems Pty Limited ⁶⁾
- Our Mr White was the arbitrator in this matter.
- Commercial Arbitration Act 2010 (NSW), ss 35 and 36
- Award by arbitrator declaring a constructive trust, ordering specific performance of a Licencing Agreement and requiring the defendant to take steps
- Recognition and enforcement opposed on the basis that part of the Award dealt with the dispute not contemplated by or falling within the terms of arbitration and that recognition and enforcement of parts of the Award would be contrary to the public policy of this State
- Orders for recognition and enforcement made
- For third party commentary about this leading decision please visit the following links:
  - Mr Warrick Rothnie, Leading IP/IT Counsel (formerly partner Mallesons Stephens Jaques)
  - Allens Arthur Robinson Focus: Arbitral award enforced against a company in administration
Larkden Pty Limited -v- Lloyd Energy Systems Pty Limited ⁷⁾
- Our Mr White was the arbitrator in this matter.
- Corporations Act 2001 (Cth), s440D
  - An application for leave to bring and continue proceedings against a company in voluntary administration for recognition and enforcement of an arbitral award pursuant to Commercial Arbitration Act 2010 (NSW) s 35
  - Nature of discretion to be exercised
  - Relevant circumstances
  - Leave granted
  - For third party commentary about this leading decision please visit the following links:
  - Followed in
    - Arogen v Leighton ⁸⁾
    - Australian Competition and Consumer Commission v ACN 135 183 372 (Administrators Appointed) (formerly known as Energy Watch Pty Ltd) ⁹⁾
    - Hopkins v AECOM Australia Pty Ltd ¹⁰⁾
    - Kruger v Kruger ¹¹⁾
  - Cited with approval in
    - In the matter of THO Services Limited ¹²⁾
  - Cited in
    - Modcol v National Buildplan Group¹³⁾
Larkden Pty Limited -v- Lloyd Energy Systems Pty Limited¹⁴⁾
- Our Mr White was the arbitrator in this matter which included two substantial arbitrations involving renewable energy technology.
- This was one of the first reported cases under the leading arbitration legislative instrument in Australia namely the Commercial Arbitration Act 2010 (NSW) which follows the UNCITRAL model and is being adopted in slightly different forms in each state and territory of Australia.
- This case was also cited with approval in:
  - Welker & Ors v Rinehart & Anor (No 2)¹⁵⁾
  - Rinehart v Welker ¹⁶⁾
- For third party commentary about this leading decision please visit the following links:
  - Clayton Utz - LEADR legal update
  - Mr Warrick Rothnie, Leading IP/IT Counsel (formerly partner Mallesons Stephens Jaques)
  - Mallesons Stephens Jaques, Mr Jason Clapham, Senior Associate
  - Piper Alderman, Mr Andrew Robertson, Partner
  - AR Conolly & Company Lawyers
  - Australian Centre for International Commercial Arbitration - June 2011 Update
  - Mallesons Stephens Jaques, Adjunct Professor Max Bonnell, Partner
  - TollFree800Legal.com
  - Lexology
  - i-law
  - Supreme Court of Victoria Commercial Court
  - Bazpat IP Clauses in Licensing Agreements
  - ACICA December 2012 Newsletter, Mark Robertson, Domestic Arbitration Legislation Update
    - This was the first decision under the new Act for recognition and enforcement of an arbitral award. The brevity of the process and the positive outcome, in that the award was enforced, bodes well for the efficacy of enforcement actions pursuant to the new Act.
April 30, 2010 - Oakton Services Pty Ltd v Tenix Solutions IMES Pty Ltd ¹⁷⁾
- Our Mr White did all the preparatory arbitration work for Tenix Solutions IMES Pty Ltd for over 12 months including running the dispute process which was the subject of this reported decision.
Domain Name Decisions
- thinktelecom.com.au - Sole Arbitrator.
- 13taxi.com.au - Sole Arbitrator.
- aussiepigs.com.au - Sole Arbitrator.
- schoolinterviews.net.au, schoolinterview.com.au - Sole Arbitrator
- costumesdirect.com.au - Arbitrator in three member arbitrator panel in relation to a domain monetisation dispute. This is the leading decision on domain monetisation in Australia.
- transportworkersunion.com.au, tonysheldon.com.au, twunsw.com.au, twunsw.net.au, wayneforno.com.au - Sole Arbitrator
- jjdavies.com.au - Sole Arbitrator
- unforgettable.com.au - No Further Action pursuant to Para 4(k) of the auDRP - Sole Arbitrator
Redrock Holdings Pty Ltd & Hotline Communications Ltd v Hinkley ¹⁸⁾, Hotline Communications Ltd v Hinkley ¹⁹⁾, A2B Telecommunications Pty Ltd v Hinkley ²⁰⁾
- Our Mr White acted as solicitor for Redrock Holdings Pty Ltd in relation to successful copyright infringement claims against a former employee of Redrock.
- This is the leading case in Australia in relation to, amongst other things, the ownership of software created by employees including, without limitation, class libraries.
- As part of the litigation a successful application was made to the Court to inspect software obtain using an anton piller order by a third party in its own litigation against the former employee.
Australian Competition & Consumer Commission v Internic Technology Pty Ltd & Anor ²¹⁾
- Our Mr White successfully acted for Internic Technologies Pty Ltd against the ACCC, the US Government and various other parties in Australia and US litigation (including class litigation).
- This is not an arbitration decision but it was a very early leading domain name decision at a very important time for the development of the internet and class litigation.

Unreported Decisions

Typically most arbitration decisions are unreported. That is a key advantage of arbitration.
Our Mr White has heard and made many arbitral decisions of substantial disputes including, without limitation:
- intellectual property licences and distribution agreements
- constructive trusts and equitable relief in relation to intellectual property
- breach of contract (including orders for specific performance)
- breaches of fiduciary duty
- unconscionable conduct in relation to lost opportunities and application of equitable relief in accordance with the principles set out in Pallant v Morgan ²²⁾
- research and development agreements
- intellectual property ownership
- telecommunication systems and billing
- telecommunication access
- hardware and software implementations
- applications for interlocutory relief (including injunctions)
- the scope of discovery including resolution of the categories of documents to be discovered
- the application of Legal Professional Privilege to both discovered and subpoenaed documents
- the application of Common Interest Legal Professional Privilege to both discovered and subpoenaed documents
- the application of Without Prejudice Privilege to both discovered and subpoenaed documents
- disclosure of confidential information to a non-arbitral party pursuant to Section 27G of the Commercial Arbitration Act 2010 (NSW)
- whether or not particular discovery should be permitted pursuant to Section 19(2) of the Commercial Arbitration Act 2010 (NSW)
- awards of legal costs in excess of $2m
- whether or not indemnity, solicitor client or party/party costs should apply
- whether or not costs should be immediately determined and payable or determined and paid at the end of the arbitration
- whether interest should be payable on costs awards
- whether a Tribunal should proceed with the arbitration whilst it is subject to appeal pursuant to s16(9) of the Commercial Arbitration Act 2010 (NSW)

Expert Determinations

Our Mr White has made many expert determinations including the determination of:
- breach of contract claims and damages in relation to hardware and software disputes.
- breach of contract claims and damages in relation to telecommunications billing disputes.

Intellectual Property, Information Technology and Telecommunications Audits

Our Mr White conducted many audits including
- the auditing of whether or not information technology infrastructure has be properly decommissioned and if so when
- the auditing of the removal of intellectual property and other electronic data.

Court Order Supervision

Our Mr White has supervised the execution of Anton Piller Orders on behalf of the Federal Court.

Defence Force Proceedings

Our Mr White also has experience in proceedings under the Defence Force Discipline Act 1982.

More Information

What are Mr White's fees?

¹⁾ [2011] NSWSC 1567

²⁾ [2013] FCCA 1898

³⁾ , ⁵⁾ [2014] WASC 89

⁴⁾ [2015] FCAFC 63

⁶⁾ [2011] NSWSC 1331

⁷⁾ [2011] NSWSC 1305

⁸⁾ [2013] NSWSC 1099

⁹⁾ [2012] FCA 586

¹⁰⁾ [2012] FCA 1204

¹¹⁾ [2012] FamCA 760

¹²⁾ [2016] NSWSC 509

¹³⁾ [2013] NSWSC 380

¹⁴⁾ [2011] NSWSC 268

¹⁵⁾ [2011] NSWSC 1238

¹⁶⁾ [2012] NSWCA 95

¹⁷⁾ [2010] VSC 176

¹⁸⁾ [2001] VSC 91

¹⁹⁾ [1999] VSC 74

²⁰⁾ [1999] VSC 76

²¹⁾ [1998] FCA 818

²²⁾ [1952] Ch 43

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