Skip to main content
article thumbnail

Mark Brothers

Partner

Newcastle

+61 2 4911 5422 +61 410 080 501

Mark is an experienced litigator across a number of jurisdictions in the insurance fields of professional indemnity, Directors and Officers and product liability. In addition, Mark has a complementary practice in local government and planning and environmental law, including the environmental criminal and coronial jurisdictions. He is also a notary. Mark has been with the firm since 2006 and a partner since 2007.

EXPERIENCE & EXPERTISE

Since 2000, Mark has predominantly acted for local government insurers and insurance schemes in relation to public liability claims, and professional indemnity claims, the latter predominantly arising out of environmental and planning functions of local government and what might be termed the ‘back end’ of those functions.

As a consequence of doing that ‘back end’ work, Mark has increasingly been instructed directly by local government authorities in relation to the ‘front end’ work in local government, administrative and environmental and planning law matters, with a view to minimising the ‘back end’ work. He advises councils in relation to local government law and regulation, and regularly acts for councils in classes one, three four and five of the Land and Environment Court. The areas of law in which he has acted are diverse and include planning advice and appeals, drafting environmental planning instruments, enforcing planning appeal outcomes through contempt proceedings, administrative law, valuation appeals, rating advice and appeals, and environmental prosecutions. Some of these areas are neglected in terms of recent judicial consideration (if any) and much of the work is novel in nature.

The front end to back end nature of Mark’s practice is complementary – the knowledge gained and lessons learned in one area has direct application in the other.

Mark has acted in defamation proceedings against Councillors and local government officers, and has also acted in relation to Local Government Code of conduct enquiries. He also appears frequently for local government in coronial inquests. He is also a practicing notary, mainly in relation to trade documents involved in coal and manufacturing exports.

Mark is known as a lawyer with a wide knowledge of the law across a number of fields, coupled with a knowledge of obscure areas of law and principles, and an ability to deal with both complex factual matters and voluminous documentary evidence.

Within the local government field, he has developed a reputation for dealing with what might be described as ‘fringe’ plaintiffs – those with political agendas, novel legal claims and often self-represented. In recent years, Mark has on two occasions been seconded to the position of General-Counsel for one of the largest Councils in NSW.

Following admission in 1994, Mark initially acted in property and commercial matters for large institutions and industries, before branching into environment and planning law, also for large industries. This initial experience has given Mark, in an age of increasing specialisation, a well-rounded knowledge of the law across a number of areas. Since 2000, he has acted for public liability, professional indemnity and product liability insurers in all manner of claims. His experience in this area gives him a detailed knowledge of procedure, legal issues and developments.

Mark has extensive mediation and conciliation experience. He regularly represents insurers without counsel at NCAT, Local Court and District Court mediations and in s34 of the Land and Environment Court Act 1979 (NSW) conciliation conferences in the Land and Environment Court.

ACCOMPLISHMENTS

In recent times Mark has acted in a number of large claims and high profile cases. He acted for the insurers of Rix Creek open cut coal mine in relation to structural damage to the New England Highway and successfully negotiated a settlement to the satisfaction of all parties that avoided litigation entirely. He acted for the insurers of Byron Shire Council and successfully defended the Council in relation to an $18 million damages claim arising over a 15 year period arising from alleged mishandling and deliberate frustration of a rezoning application and subsequent subdivision applications (Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364).

Mark has an extensive advice practice in relation to development, rating and valuations. He recently advised and acted for Muswellbrook Shire Council in relation to the Perilya rating principles and in three novel valuation appeals in the Class 3 jurisdiction of the Land and Environment Court utilising an heretofore never used section of the Valuation of Land Act 1916 (NSW) to challenge the Valuer General’s reduction of land valuations of coal mines on objection by the mine owners. All three settled at s34 conciliations on terms that added about $525,000 annually (and in perpetuity) to the Council’s notional general income for rating purposes, and prevented a forced refund of paid rates in a similar magnitude.

Mark has extensive Land and Environment Court experience. In addition to class 1 merit appeals in respect of development and class 3 matters of the type discussed above, Mark recently acted in Class 4 judicial review proceedings for Muswellbrook Shire Council seeking declarations that certain approvals given to a mine by the secretary of the Department of Panning are unlawful, and injunctions restraining the miner from relying on the approvals. While the principle proceedings were not successful the Court of appeal did find the conduct of the proceedings by the secretary overstepped the limits on a decision maker imposed by the Hardiman principle and costs were awarded against the secretary (Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216).In the same class Mark successfully acted for Lake Macquarie City Council in relation an application to lift Court injunctions (Lake Macquarie City Council v Australian Native Landscapes Pty Limited (No 5) [2016] NSWLEC 134) and in subsequent class 1 proceedings prevented the applicant from circumventing the Court’s orders by way of a fresh development application (Australian Native Landscapes Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1006).

Mark also has extensive experience in the Land and Environment Court’s class 5 jurisdiction and has in recent times defended organisations and Local Government authorities in prosecutions by the Environment Protection Authority under the Protection of the Environment Operations Act 1997 (NSW) and the Pesticides Act 1999 (NSW).

Mark engages in pro bono work. He has acted as Chairman of the Northern NSW Soccer Federation Disciplinary Committee, and is the Chair of the Archery Australia Appeals Committee. In 2016 he was the Chair of the Australian Olympic Committee’s Archery Appeals Committee and conducted a hearing of the appeal on administrative law grounds of a legally represented archer who missed selection for the 2016 Olympic Games. The process resulted in two written interlocutory decisions and a 55 page written judgement that on legal advice was not appealed to the Court of Arbitration for Sport.

RECOGNITION

Mark regularly speaks at in-house training seminars for his clients and at industry conferences and is frequently published. Examples include:

  • Article for the July 2015 edition of the Local Government Reporter on the Court of Appeal decision in Rumble v Liverpool Plains Shire Council
  • Article for the June 2015 edition of the Local Government Reporter on the High Court appeal in Dansar Pty Ltd v Byron Shire Council
  • Interviewed by ABC North Coast Radio on 24 April 2015 in relation to the ramifications of the dismissal of the High Court appeal in Dansar Pty Ltd v Byron Shire Council
  • Article ‘The duty of care of a council in relation to statutory functions: Dansar Pty Ltd v Byron Shire Council’ – Local Government Reporter, 2014, Vol. 13 No. 10.

Expertise

Qualifications

  • Bachelor of Arts, 1979, University of NSW
  • Diploma of Education, 1980, University of NSW
  • Bachelor of Legal Studies,1993, Macquarie University
  • Graduate Diploma of Legal Practice, 1994, University of Technology Sydney

Memberships

  • Australian Professional Indemnity Group
  • Environment and Planning Law Association (NSW)
  • Law Society of New South Wales
  • Society of Notaries of New South Wales