Litigation:

Michael Whitten KC is an experienced commercial law Silk with a practice spanning a broad range of areas within commercial litigation. Michael has specialisation in all aspects of building and construction, infrastructure, energy and resources disputes, with a particular interest in the associated insurance claims. Additionally, Michael accepts briefs in all manner of professional indemnity and negligence disputes.

With his breadth and depth of experience in the provision of advice, pleadings, advocacy, ADR and decision-making, Michael welcomes briefs to advise and appear in commercial matters in all courts and tribunals, including class actions, inquests, inquiries, and significant government and statutory reviews. He is also available to conduct expert determinations, special references and facilitation of expert conclaves.

Michael accepts briefs throughout Australia, as well as internationally, with a strong interest in matters conducted in or originating from Southeast Asia and the Middle East. He closely embraces technology in his practice and is an adaptable leader who works well in teams.

ADR:

Michael is a Fellow of the Chartered Institute of Arbitrators, a Fellow of Resolution Institute and an AMDRAS nationally accredited mediator. He has served on the Australian Bar Association’s International Arbitration Committee, is a former Chair of the Victorian Bar’s Alternative Dispute Resolution Committee and a member of the Bar’s International Advocacy Training Committee.

Michael accepts briefs to appear in mediations and arbitrations. He also welcomes engagements to conduct mediations and arbitrations, both domestic and international.

Michael is a founding member of Melbourne TEC (Technology, Engineering and Construction) Counsel, a group of specialist construction law barristers, arbitrators and mediators who practise throughout Australia, Southeast Asia and the Middle East.

Past International Appointments:

Between 2019 and 2023, Michael served in-country as the Lord Chief Justice of the Kingdom of Tonga. The appointment also carried with it the roles of President of the Tonga Court of Appeal, President of the Land Court, member of the Judicial Appointments and Disciplinary Panel, member of the Privy Council Law Committee on appeals concerning hereditary estates and titles. Michael also served as President of the Tax Tribunal.

During his tenure in the trial division of the Tongan Supreme Court, Michael heard and determined over 1,300 cases across all areas of law with over 300 judgments published and/or cited on PACLII.

In May 2024, Michael was appointed an Acting Judge of the Supreme Court of Samoa, where he heard and determined an unprecedented constitutional challenge to the revocation of the appointment of the former President of the Land and Titles Court through legislative restructuring of that Court and which involved international principles of judicial independence: Ropati v Attorney General [2024] WSSC 43. This is an ongoing periodic appointment.

Awards, Recognition and Authorship:

Michael has appeared in Doyles Guide as a ‘recommended construction & infrastructure senior counsel’, Best Lawyers in Australia in the practice area of Construction/Infrastructure Law and Worldwide Who’s Who of executives and professionals ‘for excellence in commercial law’.

Michael is a co-editor of the 4th, 5th and 6th editions of ‘Brooking on Building Contracts’ and has published many papers on building law-related topics.

Michael is proud to have mentored several readers, as well as many lawyers and aspiring advocates.

Some recent matters Michael has been involved in include:

• Higgins & Ors v Brinkworth & Ors, Supreme Court of South Australia, 2024 – trial of multiple group recovery proceedings for several insurers arising from the Lucindale Bushfire. Judgment pending.
• Final Stop Pty Ltd v QBE Insurance (Australia) Ltd [2024] VSC 101 - application by a nonparty to inspect and obtain copies of documents filed in a proceeding which were the subject of an earlier confidentiality order.
• Independent Tube Mills Pty Ltd (in liq) v Corplex Pty Ltd [2024] VSC 267 – application to strike out proceedings as an abuse of process as a result of side agreements between insurer and insured.
• Select Harvests Ltd v Jose Borrell S.A (S ECI 2022 05349) – opposition to an application by a Spanish company for a permanent stay of proceedings in the Victorian Supreme Court. Judgment pending.
• Daniel Herridge & Ors v Electricity Networks Corporation t/as Western Power & Ors [No 4] [2019] WASC 94 – successful claim for a number of subrogated insurers in multiple group proceedings heard together arising from the Parkerville bushfires in Western Australia. The final appeal by the network operator, Western Power, was dismissed by the High Court: Electricity Networks Corporation v Herridge Parties [2022] HCA 37 (in which Ms Claire Harris KC, as Her Honour then was, appeared with Mr Paul Mendelow for the insured parties).
• Integrated Medical Technology & Anor v Gilbert & Ors, Queensland Supreme Court BS161/2013, March 2018. Breach of intellectual property software claim. Settled during trial.