Qualifications
Bachelor of Arts, Australian National University
Bachelor of Laws, Australian National University
Graduate Diploma in Legal Practice, Australian National University
Professional experience
Tom Brennan is an experienced litigator practising in commercial, equity, administrative, insurance, regulatory and employment law. He is recognised in Best Lawyers as Australia’s leading barrister in civil aviation law and as Lawyer of the Year in Trade Law.
Tom appears at trial and appellate level in Federal and State jurisdictions including the High Court of Australia, Full Court of the Federal Court of Australia, Federal Court of Australia and State and Territory Supreme Courts and Courts of Appeal. He also appears in tribunals, such as the Fair Work Commission and Administrative Appeals Tribunal.
Tom’s chambers are equipped with high-quality audio-visual conferencing facilities for use in Court appearances, mediations and conferences. He accepts fully electronic briefs and is the author of the Guide to Preparing and Sending an Electronic Brief.
Prior to joining the Bar in 2006, Tom worked for 9 years as a senior executive in the Federal Government, including as Principal Advisor to a Deputy Prime Minister and for a further 7 years as a Partner at national law firm, Corrs Chambers Westgarth. He is the former Chair of 13 Wentworth Chambers and holds a Bachelor of Laws and Bachelor of Arts from the Australian National University in Canberra. Tom has 10 years’ experience as a public company director.
Membership
Law Council of Australia, Trade Practices Committee
Law Council of Australia, Civil Litigation Section
Law Council of Australia, International Law Section
Australian Institute of Administrative Law
Selected Cases
INTERNATIONAL DISPUTES
Nautilus Aviation Pty Ltd ats Future Systems (Aust) Pty Ltd [2023] WASC 204 – Appeared for the operator seeking summary dismissal – the operation of the “exclusivity principle” under the Warsaw and Montreal Conventions on liability of civil aviation operators and the incorporation of that operation into the Australian domestic Civil Aviation (Carriers Liability) acts
DHI22 v Qatar Airways Group QCSC and others [2023] FCA 616 – Appearing for the Qatar Civil Aviation Authority on its claim to Foreign State Immunity from proceedings for personal injury alleged to have occurred at an airport in Qatar
CALC Global Leasing Ltd v Bamboo Airways Ltd – Appeared for the Irish lessor under a lease governed by English law to obtain orders in Australia “arresting” two Boeing 787 Dreamliners on the Vietnamese register, including pursuant to the Cape Town Convention on Interests in Mobile Equipment and its Aircraft Protocol. Issues included construction of the Convention, the content of English law on chattel leases and Vietnamese insolvency and corporate law
Virgin Australia Holdings Ltd ats Wells Fargo Trust (on the remitter from VB Leaseco Pty Ltd (administrators appointed) ats Wells Fargo Trust Company [2022] HCA 8) – Appeared in the Federal Court for the administrators of the Virgin Group to obtain orders in dispute with aircraft lessor that enabled completion of the administration. The underlying legal issues, which were appealed to the High Court of Australia, concern the interaction of domestic insolvency law with the Cape Town Convention on Interests in Mobile Equipment
South West Helicopters Pty Limited ats Parkes Shire Council [2019] HCA 14; 266 CLR 212; South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312; 98 NSWLR 1 – Appeared for the operator on appeals raising the scope and operation of the Warsaw and Montreal Conventions on liability of civil aviation operators and the incorporation of that operation into the Australian domestic Civil Aviation (Carriers Liability) acts.
Mackellar Mining Equipment Pty Ltd v Thornton [2019] HCATrans 188; [2019] QCA 77, 367 ALR 171 – Appeal against refusal of anti-suit injunction – whether continuation of foreign proceeding becomes vexatious upon resolution of claims against foreign parties
Australian Defence Apparel Pty Ltd v Graham & Anor [2019] NSWSC 1162 – Appeared for the former CEO in post-employment restraint dispute. This case was significant in its consideration of the operation of the Australian restraint of trade doctrine in the context of international corporate groups
PT Garuda Indonesia ats ACCC [2017] HCA 21, 262 CLR 207; [2016] FCAFC 42, (2016) 244 FCR 190; [2014] FCA 1157; (2014) ATPR 42-490; [2019] FCA 786, 370 ALR 637; [2020] FCA 685 – Appeared for Garuda in Australia’s largest ever competition law enforcement proceedings concerning the alleged international air cargo cartel on liability questions at trial, on the regulator’s appeal to the Full Court and Garuda’s appeal to the High Court of Australia. Continued to act on the remittal of the proceedings for determination of penalty and Garuda’s appeal against penalty. There are more than 20 published judgments in the proceeding dealing with numerous significant legal issues concerning foreign state immunity, extraterritorial reach of competition law and its intersection with public international civil aviation law (in particular, the laws of Indonesia, Hong Kong and Australia were considered)
Lambert Leasing Inc v QBE Insurance (Australia) Ltd [2016] NSWCA 254, 93 NSWLR 166 – Appeared for QBE in double insurance dispute – conflict of laws on double insurance between the law of one policy, Australia and the law of the other, Sweden
REGULATORY DISPUTES
Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16; [2019] FCAFC 25, 264 FCR 1; [2018] FCA 595, [2018] FCA 991 – Appeared for Helicopter Resources at trial and on appeal – application to restrain a Coroner from examining operator’s Chief Pilot on safety standards of air operations in the Antarctic when the operator has been charged with offences under Work Health and Safety law
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, 93 ALJR 212; [2017] NTCA 7, 326 FLR 1 – Appeared for Outback Ballooning in this High Court matter which established the law with respect to work, health and safety laws in the civil aviation field (in which approximately 15 counsel appeared). This matter concerned constitutional law, whether the Civil Aviation Act, Regulations and Orders covers the field of the prescription and enforcement of safety standards in civil aviation and the exclusion of application of Work Health and Safety laws to safety of civil air operations
PT Garuda Indonesia ats ACCC [2017] HCA 21, 262 CLR 207; [2016] FCAFC 42, (2016) 244 FCR 190; [2014] FCA 1157; (2014) ATPR 42-490; [2019] FCA 786, 370 ALR 637; [2020] FCA 685 – see above
ADMINISTRATIVE LAW
CCU21 v Minister for Home Affairs [2023] FCAFC 87; [2022] FCA 28 – Appeared for the Applicant/Appellant having set aside a decision to refuse to revoke a visa cancellation following the issue of an adverse security assessment by ASIO
Clearview AI Inc v Australian Information Commissioner [2023] AATA 1069 – Appeared for the Applicant – extraterritorial application of the Australian Privacy Act – is the creation of a database of images sourced from the open web on servers located outside of Australia and using crawlers operating from those servers the carrying on of a business in Australia
Warren ats Services Australia [2022] AATA 4191 – Appeared for the Respondent to appeal by Services Australia – Cabinet documents exemptions under FOI Act – business cases for the robodebt scheme
Mosaic Brands Ltd v Australian Communication and Media Authority [2022] FCAFC 79; [2021] FCA 669 – Appeared for the Applicant/Appellant seeking a declaration that a notice issued under s522 of the Telecommunications Act 1997 (Cth) was not authorised by the Act and involved an error of law
FUD18 v Minister for Home Affairs [2021] FCAFC 132; 285 FCR 505; [2020] FCA 48 – Appeared for Applicant/Appellant seeking writ to prohibit cancellation of Visa in reliance on Interpol Red Notice – first judicial consideration of character test provision concerning Interpol notices
Hocking v Director-General, National Archives of Australia [2020] HCA 19; [2019] FCAFC 12; [2018] FCA 340, 255 FCR 1 – Appeared for the eminent Australian historian Professor Hocking at trial and on appeal in the Federal Court of Australia and High Court of Australia in which the High Court decided that correspondence between the Queen and the Australian Governor-General is subject to the public access provisions of the Archive Act 1983. In doing so, the Court set at nought a “convention” of Royal secrecy said to apply across 15 Commonwealth realms
Deigning v Minister for Home Affairs [2019] FCAFC 67 – Appeared for the appellant to set aside deportation order. The matter also concerned the interpretation of legislation, presumption against retrospectivity and the denial of natural justice
BSX15 v Minister for Immigration and Border Protection [2017] FCAFC 104, 249 FCR 1; [2016] FCA 1432 – Appeared for the applicant at trial and on appeal in a matter setting aside ASIO’s adverse security assessment for denial of procedural fairness
EMPLOYMENT AND INDUSTRIAL DISPUTES
Dietitians Association of Australia ats Sager [2021] NTSC 94 – Appeared for national professional association successfully defending the imposition of disciplinary sanctions by domestic tribunal
Dorber ats CFMMEU NSD 1329/2019 – Appeared in this significant industrial case in the Federal Court of Australia for Mr Dorber who was sued by Australia’s largest union, the CFMMEU, for contraventions of the Fair Work Act in his capacity as an employer bargaining representative. Proceeding resolved in 2020 by CFMMEU consenting to judgment against it with an order that it pay Mr Dorber’s costs
Qube Ports Pty Ltd ats CFMMEU C2020/4469 – Appeared in the Fair Work Commission successfully resisting application by CFMMEU concerning calculations of wages for irregular employees for whom employer received Jobkeeper. The application was the first in the Commission in which a union sought to exploit the Jobkeeper rules to achieve a change of terms and conditions
Australian Defence Apparel Pty Ltd v Graham & Anor [2019] NSWSC 1162 – Appeared for the former CEO in post-employment restraint dispute. This case was significant in its consideration of the operation of the Australian restraint of trade doctrine in the context of international corporate group
Pezzimenti v Rotary International (2019) 290 IR 219; [2020] FCCA 95 – Appeared for Mr Pezzimenti obtaining compensation and penalties for his unlawful dismissal as Chief Executive of Rotary in Australia. This case is now the leading authority concerning chief executives of organisations succeeding in recovering substantial damages for breaches of the adverse action provisions of the legislation, with implications for international employers
Tran v Kodari Securities Pty Ltd [2019] FCA 968 – Appeared for employer responding to a claim by a senior employee of unlawful dismissal
Woodsford v Range International Ltd [2018] FCA 1007 – Appeared for Ms Woodsford in this matter concerning the extraterritorial application of Fair Work Act
Bartlett v Australian and New Zealand Banking Ltd [2016] NSWCA 30, 92 NSWLR 639 – An often-cited case in employment and contract law. Appeared for Mr Bartlett on a dispute concerning termination of employment. The matter also concerned qualification of contractual powers and discretions by requirements of good faith and reasonableness and principles for resolving conflicts in expert evidence
Publications Available for Download
Aviation Regulation and Work Health & Safety – a paper presented to the 39th Annual conference of the Aviation Law Association of Australia & New Zealand
04/05/2023
The High Court Of Australia Construes The Cape Town Convention
25/03/2022
The Law and Lore of Workplace Bullying
04/03/2022
Recent Developments in Employment Law
23/02/2022
13/02/2020
The Ups and Downs of Aviation Litigation
24/10/2019
Recent Developments in Employment Disputes: Empasising the Law of Contract
18/03/2016
11/11/2015