Joel
A
Silver
Room 0915,
525 Lonsdale Street
Melbourne VIC 3000
AustraliaDate of Admission:
23 Aug 2011
First Signed Bar Roll:
01 May 2014
Qualifications:
LLB (Hons) GDLP
Previous Occupation:
Solicitor, political advisor
Profile:
To see some of the more significant matters (reported and unreported) that Joel has appeared and advised in, please go to 'Extended Biography'.
Overview of Practice
Joel has developed a broad commercial practice since arriving at the Bar, with a particular expertise in building, construction, and property matters (including criminal charges under building and planning laws). In addition to appearing at trials, mediations, and on applications (together with drafting associated documents), he is regularly engaged to give pre-litigation advice, including on contractual disputes and consumer law issues.
He has also appeared and advised in matters concerning corporations, torts (trespass, nuisance, defamation, negligence, misleading conduct), employment/industrial relations, banking and finance, retail tenancies, and motor vehicles collisions.
Joel accepts briefs in all Courts and Tribunals (state and federal), and has obtained significant experience in the Victorian Civil and Administrative Tribunal (VCAT). He read with Jeremy Twigg QC.
To view Joel's full CV, and to find some of his published works, you can visit his LinkedIn profile.
Relevant Skills and Experience
Joel continues to accumulate skills and experience which enhance his practice. These include:
- Joel serves on the Victorian Bar's New Barristers Committee, and the committee of the Building Dispute Practitioners Society (BDPS). He is a former Young Lawyers President (2015) at the Law Institute of Victoria, and subsequently served on the Law Council of Australia's Young Lawyers Committee (beginning as an LIV-representative in 2015-6, then for the Victorian Bar in 2016-7)
- In 2014, Joel received the Daniel Pollack Readers Award for his pro bono work, and continues to accept pro bono briefs in his areas of practice.
- In academia, Joel has taught in the Bachelor of Laws (LLB) and Juris Doctor (JD) courses at La Trobe Law School, delivering lectures for Torts and Employment Law, and leading seminars in Legal Ethics. He has also been a peer reviewer for the Melbourne University Law Review.
- Joel is completing his Master of Laws (LLM) at the University of Melbourne, which has to-date covered the areas of construction law, defamation, statutory interpretation, and corporate governance and directors' duties.
- In 2016, Joel was elected to Council in the City of Glen Eira (for a four-year term), which is similar to a board role. His committee memberships have included Recreation and Leisure (as Chair), Local Laws, CEO Employment Matters, and the Councillor Conduct Reference Group.
- Joel served six seasons on the Football Federation of Victoria's Grievance and Disciplinary Tribunal, from 2011 to 2017.
Joel has also authored a number of practice papers (nuisance and trees, implied subdivision easements, briefing in domestic building matters) and academic articles (see his LinkedIn).
Extended Biography:
Banking and Finance
ANZ Banking Group Ltd v Loftus [2014] VSC 342 (Supreme Court of Victoria, led by Paul J Hayes [now QC]), appeal from decision of an Associate Justice.
Sgargetta v National Australia Bank [2014] VSCA 159 (Victorian Court of Appeal, led by Paul J Hayes [now QC]), appeal from County Court of Victoria concerning construction of a Deed of Settlement.
Building and Construction
Polzella v Govern Constructions, Roh Floor (Building and Property) [2018] No. BP1470/2016 (VCAT), domestic building dispute – owner contracted builder to install timber floor, sander to sand and coat – splits appeared in timber boards after project completed – alleged timber affected by "edge-bonding" adversely affected by by polyurethane coating (awaiting decision)
Raniti-CBMS v Ryan (Building and Property) [2018] VCAT 281, trial concerning a domestic building contract with an insurer-determined scope of works - issues concerning surface and subsurface drainage – need for building permit.
Bitu-Mill v Australian Commercial Builders [2015] D13835669 (Magistrates' Court of Victoria), defence and counterclaim concerning defective asphalt pavement, involving matters of design responsibility, express and implied warranties, exclusion clauses.
Haris v Kemal [2015] No. C1816/2014 and No. C4846/2014 (VCAT), action concerning the construction of an additional dwelling on land by an owner builder for a family friend (settled by parties at trial).
Harmonious Blend Building Corporation (t/a Clark New Homes) v Ibraham (Building and Property) [2014] VCAT 1084 (led by Jeremy A F Twigg [now QC]), defence and counterclaim to action by Builder under the Domestic Building Contracts Act 1995.
Radovanovic & Djekic v Rizkez Constructions [2014] No. D1344/2013 (VCAT), defence to claim against Builder concerning works undertaken and the scope of a domestic building contract (setting aside default order, appearence at compulsory conference, with settlement reached shortly after).
Commercial & Contracts
Asian Restaurants Concepts Franchising & Ors ('Noodle Box') v Mt Gravatt Noodle Box & Ors [2017] SC ECI 2017 00160 (Supreme Court of Victoria), acting for parties associated with former franchisee on application by franchisor for interlocutory injunction to force urgent closure post-termination of franchise agreement - issues concerning Franchising Code of Conduct, restraint of trade clauses - whether franchisee required to cease trade and terminate lease - whether franchisee entitled to renew agreement - injunction refused.
Sharma v Sharma [2017] F13320117 (Magistrates' Court of Victoria), claim between Indian nationals, uncle paid for niece to live and study in Australia (2001-7) - in 2015, alleges oral loan agreement in 2000, no contemporaneous notes - uncle to make subjective determination that niece capable of repayment - repayment term void for uncertainty, recovery barred after 6 years (Limitation of Actions Act 1958, s 5) - words giving rise to agreement not proven to standard in Watson v Foxman.
Raamish & Ayra v City of Melbourne [2015] VSC 277 (Supreme Court of Victoria), action in equity and misleading conduct for injunction and damages concerning alleged arrangement to berth ferry.
Lowther v Wood (t/a Hudson Advisory Group) (Civil Claims) [2014] VCAT 1499, action against mortgage broker and financial adviser under Australian Consumer Law for alleged misleading advice.
Defamation
Goldsmith v Brous [2015] SCI14-05226 (Supreme Court of Victoria, led by Paul J Hayes [now QC]), defence to defamation action (settled at mediation).
Professional Discipline
Espedido v Physiotherapy Board of Australia (Review and Regulation)
- [2017] VCAT 1401, stay application under sub-section 50(3) of the VCAT Act, for immediate action under section 156 of the Health Practitioner Regulation National Law (Victoria) Act 2009 – gender-based restriction imposed on physiotherapist following serious allegation of misconduct - action stayed on undertakings, where practitioner unable to find work and review application would be rendered nugatory
- [2017] VCAT 2032, application to summonses key witnesses, including complainant, to attend for cross-examination in hearing of appeal from immediate action - Board opposed, argued Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656 does not permit cross-examination, evidence should be restricted to that before Immediate Action Committee - application granted, no reason 'in logic or in principle' why additional evidence bearing on original decision cannot be lead.
Property
Owners' Corporation PS507084R v Marley [2018] No. OC1861/2017 (VCAT), claim by Owners' Corporation for an implied easement (right of way) over external terrace of a top-floor apartment providing access to the building roof, under subsection 12(2) of the Subdivision Act 1988 – case involving similiar facts to Body Corporate No 413424R v Sheppard (2008) 20 VR 362 (awaiting decision)
Martin v Dyson (deceased) [2017] SCI 2015-05051 (Supreme Court of Victoria), claim for equitable interest by proprietary estoppel over land occupied by client's parents, then client, upon promise by uncle (owner of land) of a life interest - family home sold to fund establishment of new dwelling on occupied land - whether promise extended to client - whether expectations of client/parents from promise were reasonable, or benefits amoratised over 20 years' occupation (matter settled at trial).
Frigo v Perry (Owners Corporations) [2016] VCAT 730 – instructed by Moonee Valley Legal Centre on referral from Justice Connect – action in nuisance, interference with easements implied by section 12(2) of the Subdivision Act 1988 over driveway to rear lot on on a "battleaxe block" - front owner prevented from accessing side of own home via driveway by locked gate - neighbour required to permit access.
Murthy v KPS Services Pty Ltd [2015] SCI 2015 00728 (Supreme Court of Victoria), application under Transfer of Land Act section 90(3) to remove caveat lodged without a legitimate basis, indemnity costs sought – defendant withdrew caveat before hearing, offered to pay party/party costs - application pursued despite withdrawal – indemnity costs obtained.
Public Law
O'Sullivan v The Hon. Daniel Andrews, Premier of Victoria [2016] VSC 560 (Supreme Court of Victoria, led by Daryl J Williams QC) application for mandamus following nomination to fill vacancy in Legislative Council, but no joint sitting called as specified in section 27A of the Victorian Constitution.
Shurat HaDin – Israel Law Centre v Lynch [2014] NSD2235/2013 (Federal Court of Australia, led by Marcus Solomon SC), action concerning unlawful discrimination under the Racial Discrimination Act 1975 (settled prior to trial).
Residential Tenancies
Director of Housing v Clyde [2017] No. R2017/25483/00 (VCAT) – instructed by King & Wood Mallesons on referral from Justice Connect – tenant served with notice to vacate by Director, without offer of alternative accomodation – issue whether notice issued in the correct form – question of nature of evidence Director must lay before the Tribunal where nuisance alleged – consideration of Burgess v Director of Housing [2014] VSC 648 – following initial adjournment, Director resolved to offer tenant new housing.
Retail Leases
Lazarous v Kypri (Building and Property) [2017] VCAT 2148, urgent interlocutory application brought following lockout of the tenant by the landlord - failure by landlord to particularise breaches in ostensible notices of breach, re-entry before time set under Property Law Act 1958 sub-s 146(2) – shown serious question to be tried, harm to tenant not adequately remedied by damages – interlocutory injunction granted – second injunction obtained after landlord removed water metre – landlord subsequent abandoned insistence on validity of notices of breach.
Glowell International v Biggin & Scott Commercial and 418 St Kilda Road (Building and Property) [2017] VCAT 1342, issues concerning applicability of the Retail Leases Act 2003, construction of the terms of the lease, letter of offer versus signed lease - whether accounting fees incurred solely for litigation are damages or costs.
Grenville Trading v Braszell (Building and Property) [2016] VCAT 877 (led by Thomas G Moloney), question of issue estoppel – failure of supermarket floor, second preliminary question - landlord sought declaration that lease not renewed due to finding on first preliminary question - tenant says breaches by landlord were not the subject of the previous hearing - whether Tribunal finally determined that tenant not entitled to withold rent for alleged breach by landlord - whether tenant entitled to renew lease - held issue not finally determined.
Publications:
"Certified organic", published in the Law Institute of Victoria Journal (LIJ), November 2016
Strict requirements are met for food labelled as certified organic. Fulfilling those leads to an additional profit. Genetic modification (GM) is its antithesis, but will profit those taking it up. The case of Marsh v Baxter (Trial [2014] WASC 187; Appeal [2015] WASCA 169) arose from this conflict, and indicates that tort will not encumber the neighbours of organic farmers.
This article draws on a paper I delivered to the Goulburn Valley Law Association conference in October 2016.
Zgodnie z Obyczajami Religijnymi (According to Religious Rights): A Dissenting Opinion on the Polish Slaughter Case (2014) 3 Oxford Journal of Law and Religion 347
The effective banning of ritual slaughter by the Polish Constitutional Court represents perhaps the greatest challenge to freedom of religion in Poland since the fall of communism. In its ruling of 27 November 2012, the Court held that the instrument under which ritual slaughter—Jewish shechita and Islamic dhabihah—could occur without prior stunning was in excess of ministerial authority.1 The ruling itself should be treated with some concern, both because of its unusual approach to statutory interpretation and for the way in which, without explanation, it treats ‘ritual slaughter and animal welfare as irreconcilable’.
'For the Union makes us... Rich?: Preventing Trade Union Corruption in Law after the Health Services Union Saga (2013) 18 Deakin Law Review 127
While uncommon, corruption amongst Australian trade union officials is nevertheless well documented and notorious. How the law responds to corruption has become the subject of renewed debate, due to allegations against several former officials of the Health Services Union, in particular Craig Thomson and Michael Williamson. This article argues in favour of revising the provisions describing officials’ duties in the federal Fair Work (Registered Organisations) Act 2009 (Cth) — the law which regulates trade unions — to more closely resemble their sister provisions in the Corporations Act 2001 (Cth). It contends that corrupt officials are best dealt with under specific ‘disloyalty’ offences, as opposed to generic property crimes (such as fraud or obtaining by deception). It also addresses a number of other potential weaknesses in the present legislative scheme.
"Understanding Freedom of Religion in a Religious Industry" (2011) 42 Victoria University of Wellington Law Review 671
The legality of ritual slaughter rests upon both law and merits. On the one hand, the international freedom of religion requires that communities can obtain meat of a suitable standard, and on the other, current scientific literature indicates that any distinct risks to animal welfare are manageable. Despite this, ritual slaughter remains controversial, particularly Jewish kosher slaughter (Shechita), for which electrical pre-stunning before throat-cutting – arguably the sine qua non of welfare risk management – is incompatible. Through a mixture of theological, legal, and scientific argument, this paper examines the level of protection Shechita receives as a manifestation of belief, with particular reference to developments in Australia and New Zealand
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have independently verified the accuracy or completeness of the information and neither accepts any responsibility in that regard.