Dilan Mahendra

Selected Restraints of Trade Cases

• Willis Australia Group Services Pty Limited & Anor v Tony Wang (2021/213259) – led by Moses SC, successful injunctive relief and declaratory relief application against a former director who had taken confidential information from his employer and sought to commence work with a competitor.
• Nidus Group Real Estate v Marvin Dayupay & TSEA Pty Ltd (2021/00051995) – successful interlocutory application in the Supreme Court of New South Wales to restrain a real estate agent from competing within a 3 km radius of the plaintiff’s place of business.
• Steadfast IRS Pty Limited v Latchmi Mesuria [2020] NSWSC 947 (27 July 2020) – successful final injunction restraining the defendant from soliciting customers of the plaintiff for a period of 12 months from the date her employment ended.
• Australian Defence Apparel Pty Limited v Graham & Anor [2019] NSWSC 1162 (6 September 2019) – having successfully negotiated a resolution of the proceedings (except the issue of costs), the plaintiff (represented by M Painter SC) made an application that having accepting an Offer of Compromise under the Uniform Civil Procedure Rules, it was entitled to judgment and costs. The Court ordered the plaintiff to pay the defendants costs including an order that some costs be paid on an indemnity basis.
• Long Jetty Realty v Whiteman [2018] NSWSC 956 (15 June 2018) - successful defence of an urgent interlocutory application to restrain four defendants from performing real estate services. The Court agreed with the submission that even if the restraints applied, damages would be an adequate remedy and accordingly refused to grant any injunction.
• Glasshouse Advisory Pty Ltd v Tracey Murray & Anor (QSC 2998 of 2019) – successful defence of an urgent interlocutory application in the Queensland Supreme Court to restrain two former shareholders and employees of a research & development and tax incentive consultancy business from competing and soliciting clients.
• Silversea Cruises Australia Pty Ltd v Abelanozza (2018/129773) (April / May 2018) - successful urgent application to freeze the defendants' assets up to the value of $2.5m following allegations that she had, whilst employed by the plaintiff, misappropriated funds from her employer.
• UP Australia Pty Ltd v McDonald & Anor [2018] NSWSC 218 (28 February 2018) - successful urgent interlocutory injunction to restrain the second defendant (a personal trainer) from working with a competitor, soliciting customers and from competing with the plaintiff within a 3km radius of the Sydney CBD. The plaintiff was also successful in obtaining an injunction to prevent the first defendant (the potential new employer) from employing or engaging the second defendant in any capacity pursuant to the terms of a Restraint Deed (which was part of deal under which the Plaintiff purchased the business) until further order.
• Capercorp Pty Limited v Brasam Pty Limited as trustee for Brasam Investment Trust [2017] NSWSC 608 (8 May 2017) successful defence of an urgent interlocutory application to restrain third parties to a franchise agreement from conducting a competing pizza business on the basis that the plaintiff’s pizza menu somehow constituted confidential information.
  

Selected Anti-Discrimination, Employment and IR Cases

• Australian Building and Construction Commissioner v CFMMEU (the WGC Cranes Case) [2021] FCA 622 (9 June 2021) – led by Renwick SC obtained penalties against the CFMMEU totalling $364,000 for contraventions of s.54(1) of the Building and Construction Industry (Improving Productivity) Act 2016 and s.346 of the Fair Work Act 2009 based on the CFMMEU’s conduct in applying undue pressure to WGC Cranes to make or approve a building enterprise agreement and for taking adverse action against an employee of WGC Cranes by posting photograph of him on the CFMMEU’s Facebook page and calling him a “scab”.
• Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v New South Wales Rural Fire Service (Camping Allowance) [2021] NSWIRComm 1042 – led by Raper SC successful defence of an industrial dispute concerning whether RFS employee are entitled to a “camping allowance” under the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 when staying at RFS Base Camps.
• Australian Building and Construction Commissioner v CFMMEU (the Botany Cranes Case) (No.4) [2021] FCA 525 (19 May 2021) – led by M White SC obtained penalties against the CFMMEU totalling $850,000 and against senior officials (R Kera, M Greenfied, and R Mallia) of the CFMMEU totalling $167,500 for contraventions of ss.47, 52 and 54 (CFMMEU and M Greenfield only) of the Building and Construction Industry (Improving Productivity) Act 2016 following an unlawful picket and for taking action with intent to coerce Botany Cranes to employ a person who had been dismissed. The decision has been appealed.
• James v NSW Department of Communities and Justice [2021] NSWCATAD 118 (10 May 2021) – successful defence of a disability discrimination and victimisation complaint.
• McNichol v Shape Australia Pty Limited [2021] FWC 928 (19 February 2021) – successful jurisdictional objection to an unfair dismissal application on the basis of a “genuine redundancy” under s.389 of the Fair Work Act 2009.
• Australian Licensed Aircraft Engineers Association v Regional Express Holdings Limited [2020] FWC 3988 (29 July 2020) – successful defence of an industrial dispute concerning whether a safety investigation fell within the scope of clauses of an enterprise agreement dealing with disciplinary processes.
• Martin Bajelis v Reserve Bank of Australia [2020] FWC 3740 (16 July 2020) - successful unfair dismissal proceedings against the Reserve Bank of Australian (represented by Shane Prince SC) where Mr Bajelis had been dismissed for inadvertently sending a text message to his work colleagues that was intended for his wife. The Fair Work Commission found that the RBA did not have a valid reason to dismiss Mr Bajelis and ordered it to reinstate Mr Bajelis with full back-pay and continuity of service.
• Westlake v Illawarra Coal Holdings Pty Ltd [2020] FWC 2504 (16 June 2020) - successful defence of an unfair dismissal application in which Commissioner Riordan found that the deliberate actions of the Applicant to manipulate his overtime payments were a fraudulent action and warranted his termination.
• Xueyang Shan v Beijing Capital Airlines Co Limited T/A Beijing Capital Airlines [2019] FWC 7979 (10 December 2019) - Dilan was briefed to appear in an appeal in which he successfully overturned a previous decision which found that Mr Shan had been unfairly dismissed (Beijing Capital Airlines Co Limited T/A Beijing Capital Airlines v Xueyang Shan [2019] FWCFB 3867). The matter was remitted to Commissioner Cambridge for a second unfair dismissal hearing in which the Commissioner found that there was valid reason for the dismissal of the applicant in respect to his repeated refusal to comply with the employer’s reasonable and lawful directions for him to return to China. In addition, there was valid reason for the dismissal of the applicant as a result of his manifest and repeated dishonesty.
• Mr Bradley Drake v BHP Coal Pty Ltd [2019] FWC 7444 (30 October 2019) – successful defence of an unfair dismissal application concerning a fight at a work-related Christmas party.
• Israel Folau v Rugby Australia – led by Casselden SC acted for Mr Folau in proceedings before the Rugby Australia Code of Conduct Tribunal.
• New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2018] NSWIRComm 1079 (17 December 2018) – successful defence of an industrial dispute lodged by the Union concerning the proper interpretation of a “status quo” provision in an industrial Award.
• Chris Zepidis v Commonwealth Bank of Australia [2018] FWC 7110 (7 December 2018) – successful defence of an unfair dismissal application where the Commission found that the employee (represented by D Campbell SC) had stolen money from the Commonwealth Bank of Australia when performing work at a teller.
• Local Government and Shires Association of New South Wales v New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union [2017] NSWIRComm 1073 (5 December 2017) – industrial dispute resolved in favour of Georges River Council (represented by Dilan) in which the Union sought to prevent the Council from transition some employees to a fortnightly pay cycle from a weekly pay cycle.
• Leahey v CSG Business Solutions (Aus) Pty Ltd [2017] FCA 1098 (18 September 2017) – successful breach of contract claim against CSG in which the applicant obtained $360,000 in damages and interest for the respondent’s failure to pay him a short-term incentive and long-term incentive in accordance with the terms of his employment contract.
• Craig Cross v Harbour City Ferries, Sydney Ferries and Anor [2017] FCCA 514 (24 March 2017) successful defence of a claim that the Respondents had engaged in adverse action, misrepresentation of workplace rights and coercion.
  

Selected Appeals

• Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 (1 October 2020) - Having acted for Mr Tran in the proceedings below and obtained an order requiring the Respondents to pay a total of $150,000 in damages and penalties for adverse action and coercion under ss.340 and 343 of the Fair Work Act 2009, successfully defended the appeal brought by the Respondents in the Full Federal Court.
• Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 (23 October 2019) – led by Y Shariff, successfully overturned his Honour Flick J’s decision in which Western Union had been found to engage in adverse action. The matter concerned the proper interpretation of s.351 of the Fair Work Act 2009 and whether it is contravened in circumstances where the decision-maker did not know whether or not employee was ill.
• Shop, Distributive and Allied Employees Association v Fantastic Furniture Pty Ltd T/A Fantastic Furniture [2020] FWCFB 3570 (8 July 2020) - successful defence of an appeal in concerning the approval of an Enterprise Bargaining Agreement which the Union argued did not meet the “better off overall test”.
• New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 (12 April 2019) – successful appeal in which the Union (represented by M Gibian SC) had sought to appeal Commissioner Constant’s decision concerning clause 48 of the Public Health System Nurses and Midwives (State) Award regarding the “status quo” once a dispute is notified.
• Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577 (29 December 2017) – successful defence of an appeal against a decision of the Federal Circuit Court where the Judge below had dismissed the applicant’s claim of alleged adverse action with costs. The Federal Court dismissed the appeal at an early stage due to it being filed a few days out of time and completely lacking in merit.
• Hunter v Nursing and Midwifery Board of Australia [2017] NTSC 64 (17 August 2017) – in this matter Dilan had acted for Mr Hunter who sought to appeal a decision where conditions had been imposed on his registration to practice following a performance assessment. Mr Hunter argued that the Board did not have jurisdiction to impose any conditions on his registration to practice as the performance assessment had not been conducted in accordance with the Health Practitioner Regulation Act and was, accordingly, invalid. The NTCAT dismissed Mr Hunter’s application and Mr Hunter appealed that decision in the NT Supreme Court. On the appeal, in which Dilan was led by A Moses SC, after submissions had been filed, the Board conceded in having the decision of NTCAT and the decision of the Board set aside. The Supreme Court ordered the Board to pay Mr Hunter’s costs including some costs being paid on an indemnity basis.
• Endeavour Coal Pty Limited v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 (19 July 2012) – led by I Taylor SC acting for APESMA in respect of a matter concerning whether Endeavour Coal had complied with the “good faith bargaining requirements” imposed on it by s.228 of the Fair Work Act 2009.