Haydn Carmichael

Profile

Haydn Carmichael has a broadly based commercial advice and trial practice encompassing environment law and environmental regulation, corporations law, equity, competition and trade practices law, market regulation and judicial review. Haydn acts in commercial crime and civil penalty proceedings. Haydn has experience in Wickenby and post Wickenby tax and regulatory proceedings.

Haydn acted in one of the first contested civil penalties proceedings which affirmed procedural protections for individual director defendants: (ASIC v Mining Projects Group Ltd and Ors [2007] FCA 1620. More recently, Haydn has acted for individual director/officer and corporate defendants in prosecutions brought by the Environment Protection Authority and conducted the recent test case litigation reported as Dasma Environmental Pty Ltd v EPA [2022] VSCA 248, Nonferral Recycling Pty Ltd v EPA [2023] VSC 292 and Monsbent Pty Ltd v EPA [2024] VCAT 302.

Monsbent successfully maintained an appeal against unilateral change made by EPA to its operating Licence conditions concerning particulate and other indicator emissions. The reported decision of Senior Member Potts is the first reported decision of VCAT in respect of Licence condition amendments concerning emissions to air under the ‘new’ Environment Protection Act 2017.

A recurrent feature in Haydn’s regulatory practice has been cases of scientific evidence and complexity associated with the evaluation of risks of harm, discharge of common law and statutory duties and exercise of statutory regulatory and discretionary powers.

Some examples include: threatened species and modelling science (the Orange Bellied Parrot case under the Cmth EPBC Act); geophysics and geochemistry relevant to alleged misleading public reporting of exploration results and non-compliance with the JORC Code (Mining Projects); indicator emissions arising from particle board manufacturing (Monsbent).

Haydn acted with Robert Richter QC on behalf of Witness K in the prosecution brought by the CDPP against K and Collaery in a national security matter concerning Timor Leste. Haydn is fully familiar with national security information criminal and civil procedure.

Haydn has knowledge and experience in National Electricity Law and National Electricity Market regulation.

Following admission to practice, Haydn worked as a duty lawyer and test case litigator with the Legal Aid Commission of Victoria, thereafter with Phillips Fox where he was a Senior Associate before call to the Victorian Bar.

Haydn is married to a scientist, father of two, would write if he had time, produced a documentary film Seriously Singing when he thought he had more time than he did to tell a story, amongst other things during the national curriculum debate, of the importance of singing and music in a culturally literate public education.

Some reported matters:

• Joyce v Sunland Waterfront (BVI) [2011] FCAFC 95 - Whether witness voluntarily giving evidence by video link from overseas breaches sovereignty; stay of proceedings.
• Sunland Waterfront (BVI) Ltd v Prudentia and Ors (No 2) [2012] VSC 239 - This proceeding was cross vested from the Federal Court to the Victorian Supreme Court fort trial. Prior to transfer there occurred 19 interlocutory applications including as to the taking of evidence from witnesses out of the jurisdiction the appeal decision is noted above); and subsequent to trial, as to indemnity costs; Sunland Waterfront(BVI) v Prudentia (No 3) [2012] VSC 399
• Sunland Waterfront (BVI) Ltd v Prudentia and Ors (No 1) [2012] VSC 1 - Private International Law: Application for Anti- Suit injunction in relation to foreign proceedings.
• Court of Appeal and subsequent stay of judgement and special leave applications; see Sunland Waterfront (BVI) Ltd v Prudential Investments Pty Ltd [2013] VSCA 237; [2013] VSCA 265; [2013] VSCA 266.
• Howard v Commissioner of Taxation (No 3) [2012] FCA 35
• Acting for the taxpayer in taxation appeals concerning the fundamentals of a joint venturer's fiduciary duty, trusts law and the assessment of proceeds flowing from offshore non-resident trust share buy back transactions.
• Howard v Commissioner; Commissioner v Howard [2012] FCAFC 149.
• R v Emini and Blumberg [2011] VSC 236
• Acting on behalf of a director in criminal prosecution for breach of directors duties following the collapse of OPES PRIME.
• ASIC v Soust [2010] FCA 68
• Acting for director in defence of market manipulation, creating a false market and breach of directors duties allegations in a civil penalty proceeding.
• Whittlesea Juventus International Football Club Inc v Football Federation Victoria Inc [2009] VSC 123 - Interlocutory injunction to restrain administration of competition restructure.
• ASIC v Mining Projects Group Ltd and Ors [2007] FCA 1620 - Interlocutory proceeding in civil penalty proceeding alleging breach of directors duties inter alia in making a false and misleading announcement to the market concerning the mineralisation and exploration potential of a mining tenement contrary to s 1041H Corporations Law; insider trading and breach of JORC Code reporting obligations inter alia pursuant to ASX Listing Rules. ASIC subsequently withdrew the proceeding.