Expertise

Expertise

TLC

TLC has been providing high quality and effective legal advice and assistance to clients since 2008. During that time, TLC has assisted clients with a range of competition and consumer (or trade practices) problems, including:

  • the provision of legal advice on the operation of the Competition and Consumer Act 2010 (CCA) (formerly known as the Trade Practices Act 1974) and
  • strategic advice on how to deal with the Australian Competition Consumer Commission.

In particular, TLC has assisted the clients in the following matters:

  • Independent Reviewer - retained as the independent Competition and Consumer Law Compliance Reviewer for various companies including InvoCare Australia, LG Electronics, Aldi Stores and Dimmeys Stores.
  • Criminal Cartel Investigation – represented a business in an ACCC criminal cartel investigation. After TLC was able to identify a number of errors made by the ACCC in the execution of a search warrant, the ACCC closed its criminal investigation of TLC’s client and eleven other businesses.
  • Litigation – represented the EuroSolar group of companies in ACCC litigation in relation to country of origin and testimonial representations. TLC was able to settle the litigation by consent on favourable terms.
  • Compliance – retained by Dell Computers to conduct annual reviews of its Competition and Consumer Law Compliance Program.
  • Unconscionable conduct – represented a small shopping centre owner in relation to a dispute with a large grocery anchor tenant. TLC was able to assist the client to obtain a highly favourable outcome without recourse to either the ACCC or to litigation.
  • Expert Author – retained by LexisNexis as the Expert Technical Author in relation to the development of a new Competition and Consumer Law Compliance Solution.
  • Litigation - acted for TMT Partners (the merchant banking firm retained by the Supabarn-led Consortium for its prospective purchase of Franklins) in relation to the ACCC's litigation against Metcash and Pick'N'Pay.
  • Merger Advice - joint competition law adviser, with Clayton Utz, for oOhmedia Pty Ltd and Champ Private Equity in relation to its proposed acquisition of Eye Media, a subsidiary of the Ten Network. The proposed merger was approved by the ACCC without the imposition of any conditions.
  • Authorisation - provided ongoing advice to the Generic Medicines Industry Association in their application to the ACCC for authorisation of its Code of Practice. This Code of Conduct introduced a comprehensive system of best practice self-regulation to the generic medicines industry.
  • Consumer protection - retained by Costco Wholesale to provide on-going advice on various competition and consumer law issues.
  • Cartel advice - provided strategic advice to a large electrical contractor in relation to an ACCC investigation into alleged cover pricing. As a result of TLC's advice, the client was able to achieve a cost-effective and quick outcome and avoid the escalation of the investigation by the ACCC.
  • Consumer protection - provided strategic advice to an online shopping mall in relation to three ACCC and one NSW Office of Fair Trading investigations about its conduct. As a result of TLC's assistance, the company was able to achieve four administrative resolutions and avoid any publicity about these investigations
  • Consumer Protection - represented a global food manufacturing business (Fortune 500 Company) in an ACCC investigation of its conduct under the consumer protection provisions of the CCA. As a result of TLC's assistance, this company was able to achieve an administrative resolution and avoid any publicity in relation to the ACCC investigation.
  • Merger Advice - provided detailed legal advice to a large investment group about the application of section 50 of the Trade Practices Act to a number of proposed acquisitions of, and mergers with, competing businesses.

ACCC

Michael Terceiro's expertise comes from having run more than 600 ACCC investigations, including more than 100 merger clearances, and 30 court cases during his time a the ACCC. Michael’s success rate in litigation was more than 90%.

Michael has extensive experience in resolving competition and consumer (trade practices) problems in a manner which is acceptable to the ACCC and the businesses involved.

Michael has particular expertise in the following areas –

Click on any of these areas for further details of Michael's expertise.

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Restrictive Trade Practices

Michael ran many complex restrictive trade practices investigations and court cases at the ACCC. He has an excellent practical understanding of the legal and economic concepts which underpin competition law.

Michael has a great deal of experience in:

  • drafting notices requiring businesses and individuals to provide oral and documentary evidence.
  • conducting settlement negotiations.
  • briefing Counsel and expert witnesses.
  • running trials.

His major achievements include -

ACCC v Liquorland and Woolworths

  • Ran the investigation and litigation of allegations that Liquorland and Woolworths entered into illegal anti-competitive agreements with competitors in the NSW liquor industry.
  • Successfully ran a seven week trial.
  • Liquorland settled the case prior to trial and agreed to a range of remedies including a pecuniary penalty of $4.75 million.
  • Woolworths was found by Justice Allsop of the Federal Court to have entered into illegal market sharing agreements. Woolworths was penalised $7 million.

ACCC v Toll, Patrick Stevedores, P&O and Ors

  • Ran the investigation and the initial stage of the litigation of allegations that P&O and Patrick entered into illegal market sharing agreements in the supply of automotive stevedoring services in five Australian ports.
  • Michael's role in this matter ended in March 2008 when he left the ACCC.
  • This matter was subsequently settled by the parties after Michael left the ACCC.

ACCC v FILA Oceania and David Carney

  • Supervised the investigation and litigation of allegations that FILA imposed an illegal Selective Distribution Policy for the supply of FILA AFL licensed apparel.
  • Successfully obtained a range of remedies including a total corporate penalty of $3 million and a personal penalty of $20,000 against David Carney, former Managing Director of FILA.
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Merger Investigations

Michael was the Director in charge of the ACCC's Sydney Mergers and Asset Sales Branch for four years and worked in the branch for a total of 6 years. During that time Michael ran more than 100 merger investigations and cases. Michael has an excellent understanding of the legal and economic concepts which underpin merger assessments.

Michael also has specialist insight into:

  • how to obtain appropriate market evidence to prove a market case.
  • how to prepare detailed submissions for clients to get their merger or acquisition approved by the ACCC quickly.

His major achievements include -

Wattyl Limited and Taubmans plc

  • Ran the investigation into the proposed merger between Wattyl Limited and Taubmans national paint manufacturing and retail operations.
  • Commenced legal proceedings to obtain an injunction to prevent the transaction from proceeding.
  • Obtained an interlocutory injunction by consent to prevent the sale pending the final hearing.
  • Worked on the merger authorisation application submitted by Wattyl, which the ACCC rejected.
  • Merger ultimately abandoned.

British American Tobacco PLC and Rothmans International NV

  • Supervised the investigation and settlement of the proposed merger of the cigarette operations of BAT and Rothmans in Australia.
  • Merger initially opposed by the ACCC but ultimately allowed subject to $325 million asset divestiture to Imperial Tobacco.
  • Largest asset divestiture by dollar value ever obtained by the ACCC under section 50 of the Trade Practices Act.

Goodman Fielder Limited and Defiance Milling Limited

  • Ran the investigation into the proposed merger of Goodman Fielder and Defiance Mills Limited's national bread and flour manufacturing, wholesale and retail operations.
  • Merger abandoned after ACCC opposition.

Goodman Fielder acquisition of Bunge Pty Limited

  • Ran the investigation into the proposed merger of Goodman Fielder and Bunge Industrial's national bread and flour manufacturing operations.
  • Merger initially opposed but ultimately allowed subject to $14 million divestiture of flour milling assets.

Australian Pharmaceutical Industries Ltd and Washington Soul Pattinson

  • Ran the investigation into the proposed acquisition by API of Soul Pattinson's pharmaceutical wholesaling and manufacturing business.
  • Proposed acquisition allowed subject to API providing behavioural undertakings.

Service Corporation International Australia Pty Limited and Cremations Newcastle (Australia) Holdings

  • Ran the investigation into the proposed acquisition by SCIA of Cremations Newcastle.
  • Proposed acquisition allowed by the ACCC subject to SCIA providing court enforceable undertakings to ensure no preferential treatment given to SCIA's funeral directors by its crematoria.

Smorgon Steel Pty Ltd and ANI Industries Limited

  • Ran the investigation into the proposed acquisition by Smorgon of ANI's steel manufacturing operations.
  • Matter initially opposed but ultimately allowed subject to Smorgon providing court enforceable undertakings to prevent it from excluding steel imports through the use of patent rights.

Waratah Towage merger

  • Ran the investigation into the proposed acquisition by Waratah Towage of Hunter Towage from BHP Limited in Newcastle Port.
  • Merger initially opposed but ultimately allowed subject to a stringent pricing undertaking

Simsmetal Limited and Wanless Pty Ltd

  • Ran the investigation into the proposed acquisition by Simsmetal of Wanless' metal collection and recycling business in Queensland.
  • Merger opposed by ACCC and abandoned by Simsmetal.

Bunge Cereal Foods Pty Ltd and Defiance Mills Limited

  • Ran the investigation into the proposed acquisition by Bunge of Defiance's flour and bread assets.
  • Acquisition not opposed by ACCC.

George Weston Foods and Bunge Industrial Pty Ltd

  • Ran the investigation into the proposed acquisition by George Weston of the starch business of Bunge Industrial
  • Acquisition not opposed by ACCC.

Bartter Enterprises Pty Ltd and Steggles Limited

  • Ran the investigation into the proposed acquisition by Bartter of Steggles' chicken business
  • Acquisition not opposed by ACCC.

Taubmans and Bristol Paints

  • Ran the investigation into the proposed merger of Taubmans and Bristol architectural and decorative paint businesses.
  • Merger not opposed by ACCC.

Dulux Australia and Maxwell Chemicals

  • Ran the investigation into the proposed acquisition by Dulux Limited of Maxwell Chemicals paint business.
  • Merger not opposed by ACCC.

United Medical Protection and Medical Defence Union Limited

  • Ran the investigation into the proposed merger between UMD and MDU in relation to the provision of medical indemnity cover for medical practitioners.
  • Merger not opposed by ACCC.
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Criminal prosecutions

Michael has successfully managed two criminal prosecutions during his period with the ACCC as well as conducting a number of criminal investigations.

In both litigated cases, Michael coordinated the evidence gathering and worked closely with the Commonwealth Department of Public Prosecutions to obtain the convictions. In both matters the defendants pleaded guilty to the charges -

ACCC v Chubb Australia Pty Limited

  • Ran the investigation and litigation into allegations that Chubb charged customers for mobile patrol services despite not providing or not being able to provide such services.
  • Chubb pleaded guilty to the charges.
  • The ACCC obtained a range of remedies including total criminal penalty of $1.51 million.
  • This was the first case run under section 75AZL of the Trade Practices Act which prohibits the supply of goods or services without the intention or ability to supply.
  • This was the largest criminal penalty ever awarded for a contravention of the Trade Practices Act.

ACCC v Patrick John Neville

  • Supervised the investigation and litigation of allegations that Mr Neville provided false and misleading evidence in two formal ACCC examinations.
  • Mr Neville entered a guilty plea.
  • Mr Neville was convicted and sentenced to a fine and 200 hours community service.
  • This was the first criminal prosecution taken by the ACCC for providing false and misleading evidence in a formal ACCC examination.
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Consumer Protection Investigations and Cases

Michael has extensive experience in assessing whether proposed marketing and advertising campaigns will comply with consumer protection law.

His major achievements include -

Flight Centre Limited

  • Supervised the investigation into an allegation that that Flight Centre's “Lowest Prices Guaranteed” slogan was misleading and deceptive.
  • Flight Centre agreed to provide a court enforceable undertaking (without admissions) not to use the slogan in the future and to publish extensive corrective notices.

ACCC v StoresOnline Inc and Ors

  • Supervised the investigation into allegations that StoresOnline Inc misrepresented the benefits of its e-commerce software in Australia.
  • Successfully obtained a court order freezing StoresOnline's accounts.
  • Was successful in obtaining a range of remedies (without admissions) including total consumer refunds of $673,000.

ACCC v Domaine Homes

  • Supervised the investigation and litigation into allegations that Domaine Homes improperly charging GST to new home buyers.
  • Domaine agreed (without admissions) to settle the matter and provide a range of remedies including to pay total refunds of $1.9 million to first home buyers.

Clarendon Homes

  • Ran the investigation into allegations that Clarendon Homes sought to charge GST to new home buyers despite earlier representations that the sale price was GST inclusive.
  • Matter settled administratively with Clarendon agreeing to a court enforceable undertaking providing a range of remedies including an agreement to waive $1 million of purported GST for 208 consumers.

ACCC v Chubb Security Australia Pty Ltd

  • Supervised the investigation into an allegation that Chubb Security misrepresented the cost of its Vitacall personal response system.
  • Chubb consented to a range of remedies including injunctions, corrective radio broadcasts, letter, and advertisements and to provide consumer refunds.

Downtown Duty Free and City International Duty Free

  • Supervised the investigation into an allegation that Downtown and City International Duty Free misrepresented the savings available on the prices of various duty free goods.
  • Matter settled with Downtown and City International agreeing to a court enforceable undertaking providing a range of remedies including offers to refund affected consumers.

ACCC v StoresOnline Inc and Ors

  • Supervised the investigation and litigation of allegations that StoresOnline had breached a court enforceable undertaking provided to the ACCC in relation to the marketing of e-commerce software in Australia.
  • The Court found that StoresOnline had breached the undertaking provided earlier to the ACCC earlier.
  • The Court subsequently made a number of orders requiring StoresOnline to amend their workshops to fully inform consumers of their rights as well as a number of other remedies.
  • This matter was subsequently resolved after Michael left the ACCC.
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Small Business Matters

Michael successfully ran many small business investigations and cases at the ACCC. Michael has an excellent insight into the various challenges facing many small businesses in trying to run their businesses, particularly the need to always be alert to potential scams.

His major matters include -

ACCC v Original Mamas Pizza and Ribs Pty Ltd and Ors

  • Supervised the investigation and litigation of allegations that Original Mamas misled small business operators about the terms on which they were signing up to trial a pizza oven system.
  • Successfully established corporate and individual liability at trial and obtained a range of remedies against the company and Managing Director, Mr George Hilder.

ACCC v L&L Supply Pty Ltd

  • Supervised the investigation and litigation of allegations that L&L Supply were conducting a “stationery scam” on Australian businesses and charitable organisations from a base in Florida in the United States.
  • Was successful in freezing L&L Supply's bank account pending final determination of the case.
  • Matter not contested by L&L Supply.
  • Successfully obtained a wide range of remedies including injunctions, declarations and compensation for businesses which had suffered loss or damage.

ACCC v Albert and Ors (PhotoSafe case)

  • Supervised the investigation and litigation of allegations that the principals of Photo Safe, Data Vault and ie Networks were involved in a franchise system scam, which targeted prospective small business operators.
  • Was successful in obtaining extensive declarations that the principals of the business had engaged in wide ranging contraventions of the Trade Practices Act
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Environmental Representation Matters

Michael has experience running investigations and cases into representations about the environmental benefits of products. Through this experience Michael has gained an understanding of the dos and don'ts of environmental marketing.

His major matters include -

Daikin Industries Limited

  • Ran the investigation into allegations that Daikin misrepresented the environmental benefits of the gases used in their air-conditioning units.
  • Daikin entered into a court enforceable undertaking (without admissions) providing a range of remedies including injunctions, corrective advertisements and the implementation of a Trade Practice Act compliance program.

ACCC v Sanyo Airconditioners Manufacturing Singapore Pte Ltd

  • Supervised the investigation and litigation of allegations that Sanyo Airconditioners Manufacturing misrepresented the environmental benefits of the gases used in their air-conditioning units.
  • Sanyo Airconditioners Manufacturing consented to a range of remedies including declarations, injunctions, disclosure orders and a Trade Practices compliance program

Dimplex – Hagemeyer Brands Australia

  • Ran the investigation into allegations that Dimplex misrepresented the environmental benefits of the gases used in their air-conditioning units.
  • Dimplex agreed to cease making these environmental claims, publish corrective notices and strengthen their Trade Practices compliance program.

EnergyAustralia

  • Supervised the investigation into allegations that EnergyAustralia was misrepresenting the environmental benefits of its ClearAir and GreenFuture non-accredited electricity products.
  • Matter was settled administratively with EnergyAustralia agreeing (without admissions) to write to affected customers clarifying the representations, to provide financial compensation to customers and to fund an educational campaign explaining the difference between accredited and non-accredited renewable products.
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Health Representation Cases

Michael has run investigations and cases involving companies accused of having made misleading representations about their health benefits of their products. Michael has an excellent understating of the appropriate boundaries for companies seeking to make claims about the health benefits of their products.

His main achievements were -

ACCC v Advanced Medical Institute, Somerset and Turpie

  • Supervised the investigation and litigation of allegations that AMI, Phil Somerset and Ian Turpie misrepresented that AMI's impotency products had cured Ian Turpie of impotence when this was not true.
  • Mr Turpie admitted the contravention at an early stage.
  • After trial and judgment, the Court found the misrepresentation established and ordered declarations and injunctions.

ACCC v Advanced Medical Institute and Dr Jack Vaisman

  • Supervised the investigation and litigation of allegations that AMI misrepresented the efficacy of its impotence treatments.
  • AMI and its Managing Director admitted that they had misled their patients.
  • The matter settled on the first day of the proposed trial with AMI consenting to a range of orders including declarations, injunctions, corrective notices and refunds.

ACCC v Menopause Institute Pty Ltd and Ors

  • Supervised the investigation and litigation of allegations that Menopause Institute had misrepresented the efficacy of its menopause treatments.
  • The matter was settled with the Menopause Institute agreeing to extensive remedies including admissions, injunctions and corrective notices.
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Product Safety

Michael has run a number of investigations into alleged contraventions of mandatory product safety standards. Michael has an excellent understanding of the statutory regime governing product safety and product recalls.

For example –

Basketball Rings

  • Supervised the investigation of allegations that various sporting retailers and manufacturers were selling basketball rings, which did not comply with the mandatory standard.
  • Matters settled administratively with the retailers agreeing to remove non-compliant products from sale and manufacturers agreeing to take steps to relabel non-compliant products appropriately.

Socrates Enterprises Pty Ltd

  • Supervised the investigation into allegations that two products sold by Socrates did not comply with the mandatory consumer product safety standard for toys for children 36 months and under.
  • Matters settled administratively with Socrates agreeing to a range of corrective measures including a national recall, an offer of refunds to consumers and corrective notices.

Early Learning Centre Australia Pty Ltd

  • Supervised the investigation into allegations that a product sold by ELC did not comply with the mandatory consumer product safety standard for toys for children 36 months and under.
  • ELC agreed to a voluntary recall (without admissions), to publish corrective notices and offer full refunds or store credits to consumers.
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Boycott cases

Michael was responsible for running a number of high profile investigations and cases against various organisations accused of having engaged in secondary boycotts.

In particular, Michael ran the ACCC's cases against the Maritime Union of Australia during Waterfront Dispute in 1998.

ACCC v Maritime Union of Australia and Ors

  • Ran the investigation and litigation into allegations that the MUA coordinated an international boycott of Australian ports and organised a domestic boycott of a vessel in Newcastle Port during the Waterfront Dispute.
  • After ACCC court action, the MUA agreed to write to overseas union affiliates to withdraw any call which they had made for a boycott of Australia shipping.
  • The ACCC was successful in obtaining interim injunctions against the MUA.
  • The MUA subsequently agreed to provide undertakings to the Federal Court not to engage in such boycotts in future.
  • The ACCC worked to establish a Trust fund to compensate small businesses damaged by the boycotts during the Waterfront dispute.
  • Patrick Stevedores paid $5 million into a trust fund to provide compensation to businesses which had suffered financial losses during the Waterfront Dispute.

ACCC v Maritime Union of Australia and Ors

  • Ran the investigation and the first stages of the litigation into allegations that the MUA had threatened shipping companies with boycotts unless they retained MUA members to perform hold cleaning on their vessels.
  • The ACCC established that the MUA had engaged in illegal boycotts of international shipping and also engaged in undue harassment and coercion in carrying out these boycotts. The Court made a range of orders including a pecuniary penalty of $150,000.

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Compliance Programs

Michael has extensive experience in drafting and reviewing Trade Practices compliance programs from his time at the ACCC. Michael has a good understanding of the elements of an effective Trade Practices compliance program.

Michael has worked closely with businesses to assist them in the implementation of their Trade Practices compliance programs. For example Michael worked closely with Chubb Security Australia and its parent company, United Technologies Corporation Inc, in developing and implementing their Trade Practices compliance program. This work included quarterly liaison meetings between Michael and Chubb representatives to discuss the implementation of the program and to provide feedback to Chubb on their progress improving compliance..

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GST compliance matters

Michael was the ACCC's National GST Enforcement Coordinator from 2000 to 2002. Michael coordinated the ACCC's national GST enforcement activities to prevent price exploitation and misleading representations about the introduction of the GST. Michael implemented creative and novel remedies to resolve price exploitation problems.

The outcomes achieved by the ACCC's GST Enforcement team during this period were significant.

The main matters Michael was involved in were:

Franklins Limited

  • Ran the investigation into allegations that Franklins charged GST on a number of GST free products.
  • The matter was settled administratively with Franklins agreeing to discount certain products by 11% for three weeks to compensate consumers, run extensive corrective advertisements and implement specific compliance measures.

Wollongong City Council

  • Ran the investigation into an allegation that Wollongong City Council improperly rounded up GST on entry fees to various Council run leisure centres.
  • The Council agreed to provide a free sports day at three leisure centres to compensate consumers for the overcharge.

Michael Hill Jewellers

  • Ran the investigation into an allegation that Michael Hill incorrectly charged Wholesales Sales Tax on watchbands after this tax had been abolished.
  • Matter settled administratively with Michael Hill agreeing to donate $10,000 to the Starlight Foundation in lieu of refunds to consumers.

GIO Australia Limited

  • Ran the investigation into an allegation that GIO incorrectly charged GST on car leases.
  • Matter settled administratively with GIO agreeing to pay refunds to 2,800 consumers.

Commercial television stations

  • Supervised the investigation into allegations that commercial television stations were misleading consumers by quoting GST exclusive pricing on price proposal sheets and confirmation sheets.
  • The commercial television stations agreed to an administrative resolution whereby they would commit to quoting GST inclusive pricing for these services in the future

MFAA Disciplinary Tribunal

In early 2010, Michael Terceiro was appointed deputy chairperson of the Mortgage & Finance Association of Australia (MFAA) Disciplinary Tribunal. In this role, Michael is required to adjudicate on whether there has been a breach of the MFAA Disciplinary Rules by a MFAA Member.

The MFAA is the peak national body providing services and representation to over 12,000 Professional Credit Advisers (mortgage and finance brokers, mortgage managers and aggregators). The MFAA's role is to develop, foster, and promote the mortgage and finance industry in Australia.

The MFAA Disciplinary Rules form part of the MFAA's governance regime which requires members to comply with the MFAA Code of Practice and MFAA Constitution. This governance regime provides for the investigation of complaints against members and for sanctions to be imposed if a member is found to have engaged in misconduct or acted in breach of the governance regime.

The MFAA's Disciplinary rules have been authorised by the ACCC.

In granting authorisation, Mr Graeme Samuel Chairman of the ACCC made the following comments about the MFAA Disciplinary Rules:

The governance regime sets a professional and ethical standard of conduct in the mortgage and broking industry. The ACCC considers that the rules provide a means for enforcing this standard, particularly through the provisions relating to the investigating officer's powers to investigate complaints, and the range of sanctions which the MFAA Tribunal may impose.

Pro-Bono

TLC has also provided pro bono legal services to a number of organisations, including:

  • GenR8 is a partnership between the youth division of the Diocese of Sydney, Anglican Church of Australia, the youth departments of the NSW Baptist and Presbyterian Churches and Scripture Union of NSW Ltd to provide special religious education in NSW schools. TLC has provided pro-bono advice in relation tax issues, including applications for private tax rulings, corporations law, and corporate governance.
  • Presbyterian Youth is the youth organisation of the Presbyterian Church of Australia in NSW. TLC has provided pro-bono advice in relation tax issues, including applications for private tax rulings, corporations law, and corporate governance.
  • Ministry Training Strategy - a major provider of ministry training services to local churches and ministries
  • Arts Law Centre of Australia Volunteer Solicitor and member of Document Review Service Panel

General

TLC also provides pro bono legal representation and advice to clients on an ad hoc basis. For example:

  • Represented a client in a long running compensation claim to the Military Rehabilitation and Compensation Commission.
  • Represented a whistleblower in relation to a major corporate corruption matter.