Stephen Howells

Profile

BA (Hons) University of Melbourne

LL B University of Melbourne

 

1986 Melbourne Bar

2006 England and Wales

2006 Middle Temple

 

Rights of Audience

1986 Supreme Court of Victoria

1986 Supreme Court of New South Wales

1986 Australian States and Territories

1999 Solomon Islands

2000 Papua New Guinea

2006 England and Wales

2009 Accredited Mediator

 

Particular Areas of Expertise

Stephen Howells has particular expertise in commercial disputes involving civil fraud and breach of equitable duties.  Stephen has appeared in major litigation involving real property restitution in Germany, Czech Republic, Poland and other eastern European countries.  Stephen conducts practice in London and Australia.  Stephen served as a statutory regulator of Gaming in Australia and continues to practice in that field.  Stephen has appeared regularly in applications for judicial review and in industrial and employment cases.  Stephen has extensive experience in civil protest law and false imprisonment.  Stephen is an accredited mediator and is approved for receipt of instructions by public access.

 

Employment and Industrial Law

Stephen Howells has practised in all aspects of employment and industrial law in Britain, Australia, New Zealand, Hong Kong and the South Pacific Islands PNG, Vanuatu and the Solomon Islands.  In each of these jurisdictions the English common law underpins the conduct of all disputation, negotiation, mediation and litigation.  It also underpins the statutory regimes for the settlement and arbitration of individual and collective employment disputes and the jurisprudence of the statutory tribunals.  Stephen has advised on these matters and appeared before all of the relevant Courts and Tribunals since 1986.  He has advised on and appeared in cases involving wrongful dismissal or termination, breach of terms of employment, breach of restrictive covenants, harassment, underpayment, recovery of overpayment, breach of industrial awards and collective agreements, pension and superannuation entitlements, redundancy and retrenchment decisions and compensation.  Stephen has advised on the drafting of employment proposals and agreements including complex remuneration arrangements with share and option benefits, partnerships, and proprietary interests.  Stephen has also advised on and appeared in cases concerning the main jurisdictional questions of status, service contract arrangements, the foreign worker issues and Serco applications, public employment and office holding. In these matters Stephen has acted for governments, corporate employers, churches and charities, trade unions, professional organisations and individuals. 

Cases of Importance

2011

Re Western Australian mining interests (2011)

Partnership, breach of fiduciary duty, laches, value of prospectus of nickel deposits, breach of directors’ duties, breach of employment, termination of employment, redundancy payments.

South Australia v New South Wales, Victoria and the Commonwealth of Australia (2011)

Constitutional law, implied limitations on Commonwealth and State legislative power, Riparian law of the sovereign States, control of water resources, rivers and groundwater, the doctrine of implied inter-governmental immunities, River Murray environmental flows.

Norton Engineering (2011)

Employment law, restrictive trade covenant, whether valid and enforceable, engineering firm and control of future consultancy work.

Re Korda (2011)

Mediation preparatory to claim in Chancery Division, Czech law, claim for forced heirship entitlement, inheritance, private international law, application of Czech Code, English law and Swiss law, substantial assets held in Swiss financial institution, citizenship.

Talacko v Talacko [2011] VSCA 71

Court of Appeal, whether terms of settlement contained an unlawful penalty, equitable compensation for breach of fiduciary duty.

Manton v Manton (2011)

Estate and succession planning, substantial farming lands, Letter of Intent, breach of fiduciary duty.

Gilmore v Leshem (2011)

Breach of Contract for substantial development of land in Israel, remuneration including a share in the proceeds of sale, constructive trust in respect of land, quantum merit

Re Migration Act 1958 Employer Sanctions Provisions: Inquiry and Review

Inquiry and Review of operation of legislative scheme required by resolution of the parliament, whether employer sanction provisions which were aimed to punish the employment of illegal entrants or illegal non-citizens were effective as either an educative tool or a deterrent.  Review found that neither purpose was achieved, necessary to draft and settle new provisions, comparison with UK, Canadian and US provisions.

2010

Talacko v Talacko [2010] FCA 326

Restraining defendant within the jurisdiction pending order for bankruptcy, application of Czech law

Re Udovicich v the Secretary of State for Justice and the Independent Assessor

Judicial Review of Administrative decisions, denial of natural justice, failure to secure legal representation, irrelevant considerations, failure to consider relevant matters, non est factum, whether incorrect application of s.133 Criminal Justice Act 1988, unreasonable delay in excess of ten years to make assessment of injury, loss and damage,  renewal of application for leave, Administrative Court.

Re Online Poker and Gaming provider

Employment law, restrictive covenants, whether status of employment in online gaming companies of sufficient specialization to warrant additional protection, nature of proprietary information, whether restrictive covenant should go further than protecting commercially valuable information, invalid where purpose is to stifle competition.

Re Napier and B&Q PLC (2010)

False imprisonment, assault, battery and conspiracy to injure by unlawful means UBG v Allan claims, store security officers.

Re Waheed (2010)

Agreement for Sale of Goods, Islamic law concerning committee for provision of financial agreement in trade and commerce, principles of haram, misrepresentation

2009

Talacko v Talacko [2009] VSC 444

Writ of ne exeat colonia, injunction to further restraint defendant and enforce judgment, freezing injunction, arrest pending enforcement proceeding, contempt

Talacko v Talacko [2009] VSC 349

Freezing injunction pursuant to statutory regime and Mareva relief pursuant to inherent jurisdiction, worldwide assets valued at €30 million in Czech Republic, Slovakia and Germany, status quo and good arguable case

Talacko v Talacko [2009] VSC 385 and 387

Contempt of Court Defendant seeking to divest himself of foreign assets to avoid judgment

Talacko v Talacko [2009] VSC 579

Indemnity costs and penalty interest granted, principles applicable.

Talacko v Talacko [2009] VSC 533

Assessment of equitable compensation for breach of fiduciary duty, principles for assessment and application of robust approach due to misconduct of defendant, refusal of allowance for personal exertion, subject assets valued at €30 million secured by Restitution under the schemes enacted to secure accession to the Union.

Talacko Ors v Talacko [2009] VSC 98 (25 March 2009)

Equitable Compensation, Property in Czech Republic valued at EU30 million, Appointment of Special Referee, Applications for Stay and Anti-Suit Injunction, Application of Czech Civil Code, Czech Commercial Code, Czech Data Protection Act, European Convention on Human Rights, European Privacy Law.

Re Percy Island [2009]

Claims concerning ownership of pastoral lease to substantial Island on North East coast of Australia. Natural Resources Management and Environment legislation.

Re South Australia v Victoria [2009]

Constitutional challenge to legislation regulating Murray-Darling River Basin, Restraint of Trade, Riparian rights applicable to States, Natural Resources and Water law.

2008

Talacko Ors v Talacko [2008] VSCA 229 (21 November 2008)

Equitable Compensation, Costs, Appeal.

Talacko Ors v Talacko [2008] VSC 246 (27 June 2008)

Application for Permanent Stay based on the existence of foreign proceedings, as an abusive process, Conflict of laws anti-suit injunction, undertakings.

Talacko Ors v Talacko [2008] VSC 128 (24 April 2008)

Breach of Court sanctioned terms of settlement, Dispute concerning ownership of real property in Czech Republic, Germany and Slovakia, Reinstatement of proceedings for enforcement of settlement, construction of terms and repudiation, Breach of Fiduciary duty, Equitable compensation.

The Alexandros T [2008]

Shipping, total casualty, insurance claims, Indemnification by P&I club, Conspiracy causing loss by unlawful means.

Re Jupiters Casino [2008]

Gaming Law, breach of regulation, Licensing, Public Interest and harm prevention

2007

The Alexandros T [2007]

Shipping, total casualty, insurance claims, Indemnification by P&I club, Conspiracy causing loss by unlawful means.

2006

Gunns Ltd v Marr (No.2) [2006] VSC 329 (28 August 2006)

Civil Protest, Conspiracy, Causing loss by unlawful means, OBG v Allan claims.

2005

Gunns Ltd v Marr [2005] VSC 251 (18 July 2005)

Civil Protest, Conspiracy, Causing loss by unlawful means, OBG v Allan claims.

Amcor Ltd v CFMEU [2005] HCA 10, (2005) 222 CLR 241

Industrial law, Certified agreement, Corporate demerger, Business transferred to subsidiary and employees immediately re-employed on same terms and conditions, Change in identity of employer though no change in duties of employees, Whether positions in a business had become redundant and employees had been retrenched, Whether employees entitled to redundancy payments under the agreement, Relevance of termination and succession provisions.

2004

McFadzean v Calvert (No.2) [2004] VSC 480 (25 November 2004)

Costs, Claim and Counterclaim, Offers of compromise, Acceptance of offer of compromise on Counterclaim, Costs consequences, Provision for set-off as between damages and costs.

McFadzean v Calvert [2004] VSC 289 (19 August 2004)

Torts, Conspiracy, False imprisonment, availability of means of egress, Intentional infliction of harm, Measure of ordinary compensatory damages, Whether aggravated compensatory damages or exemplary damages should be awarded, Public nuisance, whether obstruction to passage of vehicles or pedestrians, Assault and battery.

Electrolux Home products v AWU [2004] HCA 20, (2204) 221 CLR 309

Industrial and Employment law, Industrial action in support of claims in respect of proposed collective agreement, Judicial Review, Statutes, Presumption against abrogation of common law rights, Presumption against depriving persons of access to courts, Scope of interpretative presumptions.

2003

Burgess Ors v Mount Thorley Operations [2003] NSWIRComm 432 (12 December 2003)

Industrial and Employment law, Redundancy, Damages.

Queensland Department of Health v Mater Misericordiae Health Services Brisbane Limited - PR931289 [2003]

AIRC 518 (16 May 2003)

Industrial and employment, Enterprise bargaining, Collective Agreement, Awards.

Amcor v CFMEU [2003] FCAFC 57 (28 March 2003)

Certified Agreement, Transfer of employees' employment by restructure, whether award applied.

2002

ANF v Tasmania [2002] FCA 1573 (18 December 2002)

Application for a penalty under industrial and employment legislation, Collective Agreement.

AMEU v Electrolux Home Products [2002] FCAFC 199 (21 June 2002)

Industrial action, Whether particular industrial action was "protected action" under industrial legislation

Linett v AEU [2002] FCAFC 30; [2002] FCA 157 (15 March 2002)

Application for registration of organisation, Registration refused by Industrial Tribunal, Application for Prerogative Relief against Industrial Tribunal,  whether tribunal erred in law, whether error was jurisdictional, Error within jurisdiction or error permitting Judicial Review.

2001

Electrolux Home Products v AWU [2001] FCA 1840 (20 December 2001)

Industrial Action, Appropriate declaratory relief, Judicial Review.

Electrolux Home Products v AWU [2001] FCA 1600 (14 November 2001)

Whether industrial action to support or advance claims in respect of a proposed certified agreement was protected action, whether claims against an employer to protect and secure employee entitlements, whether bargaining agent's fee payable by non-union members, are claims pertaining to the relationship of the employer and its employees.

Thomas v Hanson [2001] FCA 539 (9 May 2001)

Confidential nature of membership records, Right to inspect and make copies of records or to remove original records without Secretary's written consent, Unincorporated Associations.

CFMEU v AIRC [2001] HCA 16, (2001) 230 CLR 645 (15 March 2001)

Judicial Review, Review of decision of Industrial Tribunal, Collective Agreement, Validity of Award, Statutory entitlement to costs.

1999

Adlam v Noack [1999] FCA 1230 (8 September 1999)

Civil Contempt, Breach of Court Order, Burden of Proof in Civil Contempt Proceeding.

CPSU v Crown, in Right of Victoria [1999] FCA 744 (7 June 1999)

Industrial and Employment law, interlocutory relief, Judicial Review.

 

Education

University of Melbourne

 

Interests

Skiing, Sailing, Politics, Music