Michael McHugh SC Barrister | Wardell Chambers Sydney

Mr McHugh is a Sydney silk with a wide ranging trial and appellate practice across civil and criminal jurisdictions.

He is a BarADR Arbitrator; regularly acts as a mediator in commercial (including shipping and aviation) and common law matters; and is Recommended - Leading transport barristers Australia - Senior Counsel, 2014-2017 in Doyle's Guide.

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 Professional roles

  • Bar Councillor 2001-14, 2016-17
  • NSW Bar Association: Secretary 2010; Treasurer 2012-2014;
  • currently Chair Finance, Investment & Audit c'tee
  • Chair Professional Conduct C'tee No4 2012-2015
  • NSW Attorney General Civil Procedure Working Party 2003-2006

Professional education

  • Australian Bar Association Appellate Advocacy Course 2012
  • Australian Bar Association Advanced Trial Advocacy Course 2010
  • CPD requirements 2004-
  • NSW Bar Association Readers Course 1999

Experience prior to admission

  • Sparke Helmore Solicitors
  • Butterworths legal publishers
  • Registered Representatives Sydney Futures Exchange

Publications

NSW Civil Practice & Procedure Thomson Reuters Loose-leaf:

Civil Procedure Act 2005

  • Part 6 - ss 56-65 (Case management and interlocutory matters)

Uniform Civil Procedure Rules

  • Part 2 - Case management generally
  • Part 5 - Preliminary Discovery and Inspection
  • Part 14 - Pleadings
  • Part 15 - Particulars
  • Part 19 - Amendment
  • Part 20.4 - Compromise
  • Part 21 - Discovery, Inspection and Notice to Produce Documents
  • Part 22 - Interrogatories

 Casework examples over time

R v Macdonald; R v Maitland [2017] NSWSC 638 Supreme Court

CRIMINAL LAW – sentence – principal offender – 2 counts of wilful misconduct in public office – Minister of Mineral Resources – use of power conferred on him by the Mining Act to grant exploration licence to confer benefit on third party – damage to public institutions – importance of general deterrence and denunciation – motive not established

CRIMINAL LAW – sentence – wilful misconduct in public office – common law offence – no maximum penalty – consideration of statutory analogies

CRIMINAL LAW – sentence – accessory – 2 counts accessory before the fact to wilful misconduct in public office – accessory causative of principal offence – motivated by financial gain

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989 (NSW) Constitution Act 1902 (NSW), s 13A Corporations Act 2001 (Cth), s 184 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 4, 5, 6, 7, 9, 21A, 24B, s 24C Crimes Act 1900 (NSW), ss 3, 249B, 249E, 319, 346, Sch 2 Crimes Act 1958 (Vic), s 320 Criminal Code (Cth), s 142.2 Criminal Code 1899 (Qld), s 92A Independent Commission Against Corruption Act 1988 (NSW), s 87 Mining Act 1992 (NSW), ss 3, 13(4), 22, 51 Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Act 2017 (NSW)


Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42  Court of Criminal Appeal

CRIMINAL LAW – federal offence – prosecution appeal against sentence – sentence imposed following second trial – whether error in taking “double jeopardy” into consideration – whether general law doctrine of “double jeopardy” applicable to federal sentencing governed by Crimes Act 1914 (Cth) s 16A

CRIMINAL LAW – federal offence – prosecution appeal against sentence – taking hardship to family into consideration – whether Crimes Act 1914 (Cth) s 16A(2)(p) reflects general law principle that hardship can only be relied on to reduce sentence where circumstances “exceptional” – whether hardship established

CRIMINAL LAW – prosecution appeal against sentence – whether error in assuming that respondent’s tax liabilities had been repaid in absence of evidentiary foundation for assumption – whether erroneous assumption resulted in overly lenient sentence

CRIMINAL LAW – prosecution appeal against sentence – whether respondent entitled to leniency as a first-time offender – whether error in finding that respondent had no prior criminal record in circumstances where some offences, but not convictions, pre-dated other offences – where respondent also had separate prior conviction – application of Crimes Act 1914 (Cth) s 16A(2)(m)

STATUTORY INTERPRETATION – Crimes Act 1914 (Cth) s 16A – whether terms of provision reflect general law sentencing principles – whether general law principles able to be accommodated within terms of provision

Legislation Cited: Crimes Act 1914 (Cth), ss 4AA, 4B, 4J, 16A, 19AB-19AK, 19AN; Pt 1B; Crimes Legislation Amendment Act (No 2) 1989 (Cth), s 6; Crimes (Sentencing Procedure) Act 1999 (NSW), s 44; Criminal Code (Cth), ss 11.1, 134.2; Judiciary Act 1903 (Cth), ss 68, 79, 80; Proceeds of Crime Act 2002 (Cth), ss 17, 37


Woods v R [2017] NSWCCA 5 Court of Criminal Appeal

APPEAL – criminal law – whether dextromethorphan was a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW) – Crown concession – indictment quashed

CRIMINAL LAW – costs – application for certificate under s 2(1)(a) of Costs in Criminal Cases Act 1967 (NSW) – whether applicant was “discharged in relation to offence concerned” – certificate granted

Costs in Criminal Cases Act 1967 (NSW), ss 2, 3 Criminal Appeal Act 1912 (NSW), s 5F(3)(b) Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2), sch 1 Poisons and Therapeutic Goods Act 1966 (NSW), s 8




Dickson v R [2016] NSWCCA 105 Court of Criminal Appeal

CRIMINAL LAW – appeal – appeal against conviction complex tax fraud – money laundering – question of whether change in Crown case – whether appellant’s conviction inconsistent with asserted innocence of co-conspirator – whether plea in bar exists for a count on indictment – whether criminality of one count on indictment considerably different to a second count on indictment – whether count duplicitous – whether trial judge failed to adequately put the appellant’s case to the jury – conviction appeal dismissed

CRIMINAL LAW – appeal – Crown appeal against sentence – whether sentence manifestly inadequate - whether misapplication of principle – aggregate sentence unreasonable or unjust – residual discretion - appeal against sentence upheld – appellant re-sentenced

Legislation Cited:Copyright Act 1968 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code 1995 (Cth) Criminal Procedure Act 1986 (NSW) Financial Transaction Reports Act 1988 (Cth)


Enders v Erbas & Associates Pty Limited [2014] NSWCA 70 Court of Appeal

DEFAMATION - defences - common law qualified privilege - whether primary judge erred in not making a finding of malice - knowledge of falsity of imputations where the defendant does not intend the convey the imputations

DEFAMATION - defences - statutory qualified privilege - application of s 30(3)(h) of Defamation Act 2005 - whether reasonable in the circumstances not to have sought a response from the plaintiff - whether it may be reasonable to seek a response after publication of defamatory matter

DEFAMATION - defences - defence of triviality - whether the primary judge applied the wrong test - whether "any harm" includes hurt feelings

Defamation Act 1974 (NSW) Defamation Act 2005 (NSW)


Monis v R; Droudis v R (2013) 249 CLR 92; (2013) 295 ALR 259; (2013) 87 ALJR 340; [2013] HCA 4 High Court of Australia

CONSTITUTIONAL LAW - Implied freedom of communication on government and political matters - Criminal offence under s 471.12 of Criminal Code (Cth) for person to use postal or similar service in way that "reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive" - Appellants allegedly sent communications to relatives of Australian soldiers and officials killed in Afghanistan and Indonesia - Communications criticised deployment of Australian troops in Afghanistan in terms critical of deceased - Appellants charged with using and aiding and abetting use of postal service in way that reasonable persons would regard as offensive - Whether s 471.12 in its application to "offensive" uses of postal service effectively burdens implied freedom of political communication - Whether s 471.12 in its application to "offensive" uses of postal service is reasonably appropriate and adapted to legitimate end in manner compatible with system of representative and responsible government.

STATUTES - Interpretation - Whether purpose of s 471.12 of Criminal Code (Cth) in its application to "offensive" uses of postal service is only to prohibit those offensive uses - Whether purpose of s 471.12 in its application to "offensive" uses of postal service is to prohibit misuse of service for intrusion of seriously offensive material into home or workplace - Whether s 471.12 in its application to "offensive" uses of postal service is limited to seriously offensive uses.

WORDS AND PHRASES - "Effectively burden" - "Legitimate end" - "Offensive" - "Proportionality" - "Reasonable person" - "Reasonably appropriate and adapted".

(CTH) Constitution, ss 7, 24, 128.

(CTH) Criminal Code Div 471, s 471.12.


Dai v Zhu [2013] NSWCA 412 Court of Appeal

SUMMARY DISPOSAL - applicants in default of discovery obligations - orders made striking out their defence and entering judgment against them - whether primary Judge erred in factual findings - re-exercise of discretion - SUMMARY DISPOSAL - Judgment entered in default of filing a defence - whether primary Judge erred in refusing to set aside judgment - re-exercise of discretion - significance of failure to put on evidence of a bona fide defence

Civil Procedure Act 2005, ss 56, 57, 58, 59, 61 Fair Trading Act 1987, s 42

Supreme Court Act 1970, s 101(2)(e) Uniform Civil Procedure Rules 2005, rr 12.7, 14.28, 16.2, 16.3, 16.7, 21.3, 36.16


Khoo v R [2013] NSWCCA 323 Court of Criminal Appeal

CRIMINAL LAW - appeal against sentence - insider trading - tipping - whether sentence manifestly excessive - whether sentencing judge failed to take proper account of individual factors

(CTH) Corporations Amendment (No1) Act 2010. (CTH) Corporations Act 2001.


Macedonian Orthodox Community of Australia Ltd v Subeski [2013] NSWSC 22 Supreme Court

ASSOCIATIONS AND CLUBS - Expulsion, Suspension and Disqualification - Council of plaintiff expelled defendant from membership - Whether procedure for expulsion from membership of council should have been used.

Corporations Act 2001 (Cth)


Karim v R; Magaming v R; Bin Lahaiya v R; Bayu v R; Alomalu v R (2013) 83 NSWLR 268; (2013) 227 A Crim R 1 Court of Criminal Appeal

CONSTITUTIONAL LAW - criminal law - mandatory minimum sentences - two overlapping provisions for sentences - whether valid.

Acts Interpretation Act 1901 (Cth) Anti-People Smuggling and Other Measures Act 2010 (Cth) Black Marketing Act 1942 (Cth) Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) Convention for the Protection of Human Rights and Fundamental Freedoms Crimes Act 1914 (Cth) Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Director of Public Prosecutions Act 1983 (Cth) Immigration Restriction Act 1901 (Cth) International Covenant on Civil and Political Rights Migration Act 1958 - 1973 (Cth) Migration Act 1958 (Cth) Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) National Security Regulations National Security Act 1939 (Cth) National Service Act 1951 (Cth) Universal Declaration of Human Rights


Tsoukaris v Royal Motor Yacht Club of New South Wales Ltd [2012] NSWSC 1190 Supreme Court

ADMINISTRATIVE LAW - Procedural fairness - Requirements of procedural fairness where member of club facing expulsion.

CORPORATIONS LAW - Oppression.

Corporations Act 2001 (Cth)


Branson v Tucker [2012] NSWCA 310  Court of Appeal

COSTS - recovery of costs - by barrister - bill of costs rendered to a firm of solicitors by a barrister pursuant to a costs agreement - dispute over charges after time expired to seek assessment under the Legal Profession Act 2004 - barrister commenced action to recover charges - defence pleaded that charges were not reasonable having regard to skill of barrister and requirements of work undertaken - barrister moved the court to strike out the defence on the basis that the Legal Profession Act provided an exclusive regime for assessing the reasonableness of costs - strike out refused - the jurisdiction of the District Court to determine the reasonableness of disputed items in a bill of costs rendered by a law practice or practitioner in the course of the legal practice or practitioner suing for unpaid fees is not ousted by the statutory costs assessment regime.

PRACTICE AND PROCEDURE - Court of Appeal - leave to challenge Court's own previous decision; application for - circumstances in which leave will be granted - requirement that sitting judges have strong conviction that previous decision was incorrect - requirement not met - leave refused.

Civil Procedure Act 2005 Corporations Act 2001 (Cth) District Court Act 1973 Interpretation Act 1987 Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Regulations 2002 Sale of Goods Act 1923 Solicitors Act 1843 (Eng) Solicitors Act 1974 (Eng) Uniform Civil Procedure Rule 14.28


Foote and Ors v Acceler8 Technologies Pty Ltd and Ors [2012] NSWSC 635 Supreme Court

CONTRACT - Construction - Conditional agreement to lease - Option given to one party to terminate if conditions not satisfied - Conditionality not absolute.

CONTRACT - Void for uncertainty - Agreement apparently incomplete as to essential matter - Mechanism for curing omission - Matter left for determination of one of contracting parties - Not agreement to agree - Not incomplete.

CONTRACT - Void for uncertainty - Unworkability - Applicable principles - Agreement prepared without legal assistance - Necessity to strive for contractual intention - Agreement enforceable.

Health Practitioners Regulation National Law (NSW) National Health Act 1953 (Cth) Retail Leases Act 1994


Monis, Man Haron v R; Droudis, Amirah v R (2011) 256 FLR 28; (2011) 215 A Crim R 64; [2011] NSW Court of Criminal Appeal 231

CONSTITUTIONAL LAW - Constitutional challenge to validity of statute - Whether s 471.12 Criminal Code infringes implied freedom of political communication - Test in Lange v Australian Broadcasting Commission - Whether section burdens freedom of communication about government or political matters - Whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth).

CONSTITUTIONAL LAW - Constitutional challenge to validity of statute - Implied freedom of political communication - Whether necessary to have regard to actual communication.

CRIMINAL LAW - Using a postal service to menace, harass or offend - Constitutional validity of statutory offence - Whether s 471.12 Criminal Code infringes implied freedom of political communication.

STATUTORY INTERPRETATION - Section 471.12 Criminal Code - Meaning of "offensive".

Acts Interpretation Act 1901 (Cth), s 15A Criminal Appeal Act 1912 Criminal Code 1995 (Cth), s 470, s 471 Customs Act 1901 (Cth) Police Offences Act 1928 (Vic), s 25 Police Offences Ordinance 1930-1961 (ACT), s 17(d) Summary Offences Act 1988 Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d)


Gilgandra Marketing Co-Operative Limited v Australian Commodity & Merchandise Pty Ltd (in liquidation) & Ors [No. 3] [2011] NSWSC 69 Supreme Court

LIENS - General possessory lien - Vendor entitled to exercise right of stoppage in transitu - Carriers claim lien for unpaid freight charges, demurrage and legal costs - Vendor seeks redelivery and sale of wheat - Wheat perishable - Urgent sale of wheat required - Carriers seek preservation of their claimed lien over the proceeds of sale, to be paid into court - Risk that sale proceeds may not be paid into court due to circumstances beyond the parties' control.

LEGISLATION CITED:

Civil Procedure Act 2005, s 93 Sale of Goods Act 1923, s 48 Uniform Civil Procedure Rules 2005, s 25.4


ICM Agriculture Pty Ltd v Commonwealth of Australia & Anor (2009) 240 CLR 140; (2009) 261 ALR 653; [2009] HCA 51. High Court of Australia

CONSTITUTIONAL LAW (Cth) – Powers of Commonwealth Parliament – Agreement between Commonwealth and a State – National Water Commission Act 2004 (Cth) authorised Chief Executive Officer ("CEO") of National Water Commission to enter into funding agreement with State – Whether CEO authorised to enter into funding agreement with State for purpose of State acquiring property on other than just terms – Whether legislative power conferred by s 96 of Constitution, or by s 96 with s 51(xxxvi), is subject to limitations contained in s 51(xxxi) – Relevance of distinction between coercive and non-coercive legislative power.

CONSTITUTIONAL LAW (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Plaintiffs held bore licences under Water Act 1912 (NSW) ("Water Act") – Plaintiffs' licences replaced with aquifer access licences under Water Management Act 2000 (NSW) – Whether Water Act divested common law rights with respect to extraction of groundwater – Whether plaintiffs' Water Act licences property within s 51(xxxi) of Constitution – Whether replacement of licences amounted to acquisition of property.

WORDS AND PHRASES – "abstraction", "acquisition", "coercive and non-coercive power", "control", "just terms", "property", "the use and flow".

Constitution, ss 51(xxxi), 51(xxxvi), 61, 96.

Irrigation, Water, Crown Lands and Hunter Valley Flood Mitigation (Amendment) Act 1966 (NSW), s 3.

National Water Commission Act 2004 (Cth), s 24.

Water Act 1912 (NSW).

Water Management Act 2000 (NSW), s 45(1), Sched 10, item 3.

Water Rights Act 1896 (NSW), s 1(I).


Equititrust Ltd & Anor v Franks (2009) 258 ALR 388; [2009] NSW Court of Appeal 128

ESTOPPEL - promissory estoppel - representations by financier that would not charge interest at default rate - extent of detrimental reliance on representations by borrower SET-OFF - set-off at law under s 21 Civil Procedure Act 2005 - no set-off where debt sought to be set-off was owed to joint but not joint and several creditor Civil Procedure Act 2005 Conveyancing Act 1919 Corporations Act 2001 (Cth) Managed Investments Act 1998 (Cth) Property Law Act 1974 (Qld) Real Property Act 1900


New Guinea Line Pty Limited v Board of Trustees of Papua New Guinea National Museum and Art Gallery [2006] Federal Court Australia 171

INTERPLEADER - Order 44 r 2 - ocean carrier of cargo interpleads after threat of suit by someone claiming to be the owner of cargo - no letter of indemnity proffered by consignee and bill of lading holder.


English v Rogers (2005) Aust Torts Reports 81-800; [2005] NSW Court of Appeal 327

NEGLIGENCE - employer's duty of care - non-delegable duty - contractor - late-night cleaner at a hotel - armed robbery - hostage at gun-point - adequacy of security measures - psychiatric injury - consequent physical injury - special vulnerability - absence of instructions - voluntary human intervention - coordinating role of the Hotel - causal relation of motor accidents to psychological injury - interest on non-economic loss - general damages at common law - s151M, s151Z Workers Compensation Act 1987 - apportionment of damages as between employer and Hotel. (D)

Law Reform (Miscellaneous Provisions) Act 1946; Workers Compensation Act 1987


El Greco (Australia) Pty Ltd v Mediterranean Shipping Company SA [2004] 2 Lloyd's Rep 537, 593; (2004) 140 FCR 296. Full Court Federal Court of Australia

ADMIRALTY AND MARITIME LAW – carriage of goods by sea – Hague-Visby Rules – Australian COGSA Art 3 Rules 3, 4 and 8 – method for assessing value of cargo – where no ‘commodity exchange price’ or ‘current market price’ – where ‘normal value’ of goods at destination not determined. ADMIRALTY AND MARITIME LAW – limitation of liability – bill of lading – how to treat posters and prints enumerated as ‘pieces’ – whether an enumeration of packages or units – whether contractual limitation applies. STATUTORY INTERPRETATION – construction of Carriage of Goods by Sea Act 1991 (Cth), Art 4 Rule 5(c) – meaning of ‘enumeration of packages or units’ – meaning of ‘as packed’.

Admiralty Act 1988 (Cth) ss 4, 9, 12 and 13

Carriage of Goods by Sea Act 1936 (USA)

Carriage of Goods by Sea Act 1991 (Cth) ss 7, 8 and 10, Schedule 1A, Art 3 rr 3, 4 and 8, Art 4 r 5

Carriage of Goods by Water Act 1970 (Canada) Harter Act 1893 (USA) Sea Carriage of Goods Act 1924 (Cth) Sea-Carriage Documents Act 1996 (Qld) s 6 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 25 August 1924 (the Hague Rules) International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 25 August 1924, as amended by the Protocol of 23 February 1968 and the Protocol (SDR Protocol) of 21 December 1979 (the Hague-Visby Rules) Vienna Convention on the Law of Treaties, Vienna, 23 May 1969 Arts 31, 32 and 33


Newcastle Port Corporation v Pevitt & Ors [2004] 2 Lloyd's Rep. 47; (2003) 58 NSWLR 548. Supreme Court

ADMIRALTY - LIMITATION OF SHIPOWNERS' LIABILITY - 1976 LONDON CONVENTION - COSTS - Whether on true construction of 1976 London Convention on Limitation of Liability for Maritime Claims a claim on a limitation fund constituted under the Convention is inclusive or exclusive of any award of costs to the claimant in proceedings to establish that claim - history of the Convention discussed.

HELD: A claim against a limitation fund is exclusive of the legal costs of establishing that claim; Noferi v Smithers ([2002] NSWSC 508) not followed.

Convention for the Unification of Certain Rules relating to the Limitation of Liability of Owners of Sea-going Vessels, 1924 Convention relating to the limitation of liability of owners of sea-going ships, 1957 Limitation of Liability for Maritime Claims Act 1989 (Cth) London Convention on Limitation of Liability for Maritime Claims, 1976 Merchant Shipping Act 1894 (UK) - s.503. s.504, s.505 Merchant Shipping (Liability of Shipowners and Others) Act, 1958 (UK) Navigation Act 1912 (Cth) - s.330, s.333, Schedule 6 Responsibility of Shipowners Act (1733) 7 Geo 2, c.15


Rosenboom & Ors v Qantas Airways Ltd & Ors (2002) 56 NSWLR 164. Supreme Court

CROSS VESTING - CONCURRENT JURISDICTION Cross-vesting - Transfer of proceedings - Plaintiff 's application - Procedural advantage likely to contribute to saving in costs - Advantages of pooling cases in one court for joint management - Jurisdiction of Courts (Cross-vesting) Act 1987.

Jurisdiction of Courts (Cross-vesting) Act 1987, s5 Supreme Court Rules 1970, Pt 1 r 12, Pt 74 r 8