Andrew McClelland KC has extensive experience as an adviser, trial advocate and appellate advocate in a wide range of commercial matters.
Commercial law
Andrew has acted in many large, complex and hard fought commercial disputes. These have spanned large multi-party litigation to intensely personal disputes, in which Andrew has been in close and constant communication with both the client and the firm.
Those matters include:
- misleading and deceptive conduct claims
- corporations law, including shareholder oppression claims
- property law claims
- insurance law claims
- claims about trusts and other equitable obligations.
Infrastructure disputes including arbitrations
Andrew has expertise in complex disputes about the allocation of responsibility for damage to infrastructure, including the intersection of claims of professional negligence by engineers and Australian Consumer Law claims. Those matters include:
- a proceeding in the Supreme Court of Victoria before Stynes J concerning an explosion at the Victorian Desalination Plant
- an arbitration before the Hon Robert French AC concerning an outage to the Basslink Interconnector between Tasmania and Victoria.
Class actions
Andrew has represented many directors and corporate clients in class actions. He is recognised by Doyle's Guide as one of Australia's leading class action barristers.
The class actions in which Andrew has appeared include:
- Cathay Pacific in a class action in respect of an alleged international airline fuel surcharge cartel
- three discrete class actions concerning allegedly defective product disclosure statements in respect of managed investment schemes issued by Timbercorp, Great Southern and Willmott Forests.
Competition law and mergers
Andrew has extensive experience acting for regulators and private clients in proceedings involving alleged antitrust/restrictive trade practices (including cartels) and mergers. Those matters include acting for:
- the ACCC in respect to numerous merger authorisations, including Brookfield’s proposed acquisition of Origin Energy Limited (merger authorisation granted in 2023)
- the ACCC in respect to Pacific National’s proposed acquisition of Aurizon’s Acacia Ridge Terminal in Brisbane (Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77)
- the ACCC in respect of an alleged electrical cable cartel (Australian Competition and Consumer Commission v Olex Australia Pty Limited [2017] FCA 222)
- the ACCC in respect of an application by Tabcorp for authorisation to merge with Tatts (Application by Tabcorp Holdings Limited [2017] ACompT 10 (first instance); [2017] FCAFC 150 (on review); [2017] A CompT 5 (on remittal)
- Cathay Pacific in a proceeding issued by the ACCC in the Federal Court of Australia concerning an alleged international airline fuel surcharge cartel.
Energy and access to major infrastructure
Andrew acts in matters concerning the economic regulation of corporations which provide critical infrastructure services, including ports, telecommunications, gas and electricity.
In the course of acting in those matters, Andrew has developed a thorough knowledge of the practical workings of the whole energy supply chain in gas and electricity, including the assets required for generation, transmission, distribution and retail, and the operation of energy markets prescribed by regulatory frameworks. He also has a deep understanding of the financial and economic models used to determine how access to critical infrastructure generally is to be provided.
Matters in which Andrew has acted include:
- acting for the Australian Energy Regulator against Origin for alleged contraventions of the National Energy Retail Law and the National Energy Retail Rules (ongoing)
- acting for a coal port terminal user in two discrete private arbitrations before The Hon Michael McHugh AC KC (in 2019) and the Hon Wayne Martin AC KC (2023 to 2024) about the terms on which access would be provided to Adani’s North Queensland Export Terminal
- successful claim in the Federal Court of Australia that Pelican Point Power Limited breached the National Electricity Rules by failing to disclose to the Australian Energy Market Operator the full capacity of its Pelican Point Power Station that was available during heat wave conditions in February 2017 (Australian Energy Regulator v Pelican Point Power Ltd [2023] FCA 1110)
- acting for the Australian Energy Regulator against EnergyAustralia for alleged contraventions of the National Energy Retail Law and the National Energy Retail Rules (Australian Energy Regulator v EnergyAustralia Pty Ltd [2022] FCA 644)
- acting for Gas Pipelines Victoria Pty Ltd against EnergyAustralia in an arbitration heard by Justin Gleeson SC in 2020 for an access determination under the National Gas Law
- acting for distributors in respect to the Australian Energy Regulator’s decisions, and reviews by the Australian Competition Tribunal, about electricity and gas pricing determinations pursuant to the National Electricity Law and the National Gas Law (numerous cases, but see for example Australian Energy Regulator v Australian Competition Tribunal (No 2) [2017] FCAFC 79).
Andrew is Chair of the Energy and Infrastructure Section of CommBar.
ASIC investigations and other regulated industries
Andrew has expertise dealing with other regulated industries, including negotiating (and in some cases contesting) penalties imposed by Court for contraventions of regulations. Those matters have included acting for:
- Priceline in a proceeding concerning alleged contraventions of, among other things, the Health Practitioner Regulation National Law 2009 (NSW) and the Pharmacy Regulation Act 2010 (Vic) (Australian Pharmaceutical Industries Ltd v Central Park Pharmacy (Sydney) Pty Ltd [2021] VSC 796)
- executives of Crown Casino and Banksia Financial Group in respect to ASIC investigations
- the ACCC against Thermomix in respect of claims for penalties and non-pecuniary relief for breaches of the Australian Consumer Law (Australian Competition and Consumer Commission v Thermomix in Australia Pty Limited [2018] FCA 556)
- Daiso in respect of claims for penalties and non-pecuniary relief for breaches of product safety and information standards (Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd (No 3) [2017] FCA 1488).
Professional history
Before coming to the Bar, Andrew completed his articles and worked as a solicitor at Mallesons Stephen Jaques (now King & Wood Mallesons).