Mark Yorston

Consultant

Commercial Litigation

Qualifications

• BEc (1977), LLB (1978)
• Accredited Business Law Specialist (1991)
• Accredited Commercial Litigation Specialist (1993)
• Accredited Workplace Relations Specialist (2003)
• Nationally Accredited Mediator

Admissions

Victoria (1979), New South Wales (2002), High Court of Australia

For over 30 years, Mark Yorston has focused his practice on major litigation, dispute resolution and commercial matters in a range of industries.

Mark has significant experience in resolving insurance, employment, property, construction and trade practices disputes through litigation in all jurisdictions or alternative dispute resolution methods. In many major actions, he has provided detailed advice on complex statutory interpretation, liability and quantum. He has also represented individuals in a number of high profile cases and acted in coronial matters involving politically sensitive issues, such as death in police custody.

Mark also regularly advises companies on business law, particularly the acquisition and disposal of businesses, commercial arrangements and shareholder disputes.

Professional experience

Mark is known as a tenacious, yet commercially realistic litigator. He has advised individuals and corporate clients on a broad range of litigation and dispute resolution matters.

His experience in this area ranges from advising on tax issues and oppression of minority shareholder actions to acting in contract disputes. Mark has advised on a range of property disputes, which include leasing, construction, planning and owners corporation issues. He also has extensive experience advising on workplace relations matters, including advising on unfair dismissal, harassment, redundancy and occupational health and safety issues. In addition, he negotiates and drafts Australian Workplace Agreements and Enterprise Agreements.

Significant matters Mark has worked on include:

• In 1992 Mark acted for the City of Richmond against the State of Victoria in a case involving the interpretation of Crown Grants Act and an examination of the permitted uses of crown land. The ultimate decision by the Court of Appeal led to the enactment of the 1992 Amendment to the Crown Land Reserves Act.
• advising FCL Interstate Transport Services (FCL) in its dispute with CityLink over the compulsory acquisition of FCL land - the matter was resolved following extensive mediation, and involved a complex agreement that included CityLink acquiring another site for FCL, absorbing FCL's relocation costs, and paying FCL more than $12 million in compensation for the construction of a new facility
• acting for the plaintiff in No 2 Pitt Street Pty Ltd v City of Wodonga, a Supreme Court case involving planning issues associated with the development of a shopping centre - the matter was initially run in VCAT, which involved establishing the limits of review jurisdiction of the tribunal
• acting in Longmuir v Transport Industries Insurance, a case involving a claim on an insurance policy following a house fire, which Mark won for his insurer client on appeal based on his interpretation of Jones v Dunkel and the inferences that can be drawn from the failure to call certain evidence
• advising C&M Brick Pty Ltd on its dispute with Boral about issues relating to s46 of the Trade Practices Act - this matter led to ASIC's action against Boral, which involved the determination of what constitutes market share, where the High Court found that Boral hadn't breached its obligations under the Trade Practices Act
• defending employees against allegations of breaches of restraint of trade and confidentiality
• defending a security company against a claim of unlawful termination, which involved threatened industrial action, and
• advising the directors of a financial software company in their dispute with the minority shareholders regarding the company's strategic direction, at a time when the industry itself was undergoing significant change.

Mark has also represented individuals in a wide range of cases, many of which are high profile or have significant case law implications. Recent highlights of this area of his practice include:

• advising Geoff Clark on the interpretation of the provisions of the ATSIC Act, which resulted in the finding by the Full Federal Court that a number of the provisions in the Act are racially discriminatory
• representing Geoff Clark in Stingel v Clark - a high profile case that involved a High Court of Australia examination of the meaning of s51A, the limitations of actions act, in the context of post-traumatic stress disorder
• acting for Timothy Langley, the then Superintendent of the Wesley Mission, in Langley v The Age - Langley sued The Age for defamation after it printed 'Working for God, not mammon' and the matter was resolved out of court after the Supreme Court judge discharged a jury, and
• representing Lynette Scully in Scully v Deputy Commissioner of Taxation - a matter that was run as a test case involving a woman who had been severely injured in a car accident. The case, which had significant tax implications, involved the interpretation of whether the money Lynette received from her retirement fund was paid as a result of her having been involved in a motor vehicle accident or as the result of her membership of that fund. The case was won on appeal; however the decision was eventually overturned in the High Court of Australia.

Mark has advised on coronial matters including:

• the Daniel Valerio matter, a case that significantly raised community awareness around child abuse issues, and
• the prosecution of nurses in a death in police custody case, where the nurses were accused of not providing adequate care to a man who died while in custody in a police van.
• He also acted in the Kahn appeal to the Supreme Court, Kahn v West [1999] VSC 530, which involved the death of an aboriginal woman who was shot by police.

Mark's wider experience in advising on indigenous matters has involved interpretation of the Aboriginal and Torres Strait Islander Commission Act, the Aboriginal Land Act, the Racial Discrimination Act, as well as the Acts Interpretation Act, the Judiciary Act and the International Convention on the elimination of all forms of racial discrimination.

While Mark has advised clients in most major sectors, he has particular expertise in advising clients in the rail transport and logistics industry. His experience includes drafting freight forwarding contracts, rail and rolling stock leases, and track access and siding agreements. Recent matters he has advised on include:

• advising on FCL's arrangements to collect products from a client in regional NSW and distribute them nationally, which involved drafting a rolling contract that addressed issues such as differential rebates and a complex buy-back arrangement regarding infrastructure acquisitions, and
• acting for FCL in its $150 million sale to Linfox, which involved consideration of the ACCC's position following Toll's acquisition of Patrick Corporation.

As part of his wider practice, Mark draws on his extensive insolvency experience to provide advice to trustees and liquidators on administrations and corporate restructures. Similarly Mark uses the experience he gained over many years acting for underwriters, brokers and individuals to draft, amend and interpret insurance policies. He also acts in a wide range of claims including professional indemnity, public liability, building and contents, personal accident and disability, motor vehicle, special risk, fire, marine and travel.

Mark also represents doctors, other health practitioners, architects and lawyers in disciplinary tribunals.

Mark has been advising companies on the implementation and exploration of world first new technology platforms highlighting interoperability in the Electricity Industry. This technology underpins the establishment of smart networks incorporating the smart meter rollouts and the development of the Energy Backbone.

Mark's involvement in advising this company and another in the transport industry has also enabled Mark to gain an understanding of the gains which the adoption of these technologies can bring to increasing the efficiency with which each industry can operate in a way which satisfies the Additionality requirements of the climate change legislation and the carbon trading scheme when it commences operation.

Other information

Mark has been a contributor to the current revision of Butterworth's Taxation Service and is a regular contributor to the Law Institute Journal on a variety of Issues.

Articles published to date include:

Search Orders

Red Tape Overload

Workplace Relations Changes

Redundancy When, who and how much

Subpoenas - Strict Rules Apply

Workplace Relations Amendments

Liability of statutory authorities for negligent misstatement

Practitioners' duties - Steady or increasing, clear or conflicting

Admissions

Victoria (1979), New South Wales, (2002) High Court of Australia (1979)

Professional Involvement

Mark represents the Law Institute of Victoria on:

1. The Supreme Court Rules Committee
2. The Supreme Court Civil Litigation Committee
3. The County Court Commercial List Pilot Scheme Committee

Mark is also:

1. An ambassador for the White Ribbon Campaign - http://www.whiteribbonday.org.au
2. Chair of Employment Law Committee of the LIV
3. Deputy Chair Litigation Section of the LIV
4. Deputy Chair of the Workplace Relations Specialisation Advisory Committee
5. Member of Commercial Litigation Specialisation Advisory Committee
6. Member of Executive Committee of Workplace Relations Section.
7. Member of Courts Practice Committee
8. Member of Alternative Dispute Resolution Committee

Outside the Law Institute, Mark is on the panel of the Architects Registration Board of Victoria. He is a fellow of the Australian Institute of Company Directors and a member of the Taxation Institute of Australia.

In his spare time Mark is a member of the school councils of the Ashburton Primary School and Mt Waverley Secondary College. He is an active supporter and volunteer with Bicycle Victoria.