Advanced Commercial Litigation: Key Developments
Gain a high-level update on key areas for commercial litigators. Understand how to navigate creditor defeating dispositions and unreasonable director related transactions. Gain a defamation update and examine enforcing contract agreements. Explore Implied duties of care, negligence, negligent misstatement, and Australian Consumer Law Claims in commercial transactions. Finally, be compliant in your core ethics, professional skills and practice management with topics tailored for commercial litigators. 233V11
Description
Attend and earn 7 CPD units including:
4 units in Substantive Law
1 unit in Ethics & Professional Responsibility
1 unit in Practice Management & Business Skills
1 unit in Professional Skills
This program is applicable to practitioners from all States & Territories
Session 1
The Key Developments in Commercial Litigation in 2023
Chair: Murray McInnis, Barrister, Holmes List of Counsel
9.00am to 9.05am Opening Comments by the Chair
9.05am to 9.50am Insolvency: Creditor Defeating Dispositions and Unreasonable Director Related Transactions
- Legislative changes ushered in by the Treasury Laws Amendment (Combatting illegal Phoenixing) Act 2020 (Cth)
- The two limbs of s588FDB of the Corporations Act 2001
- Distinguishing between legal and illegal phoenixing
- A review of Intellicomms Pty Ltd (in liquidation) [2022] VSC 228 and recent cases
Presented by Simone Farrugia, Special Counsel, HWL Ebsworth
9.50am to 10.35am Defamation Update
Gain an analysis and reflection of important recent cases and key issues for practitioners including in relation to the application of the new mandatory concerns notice requirements, the serious harm threshold, the new public interest defence, and the status of the Stage 2 reforms to the Model Defamation Provisions.
Presented by Toby Mullen, Barrister, Greens List
10.35am to 10.50am Morning Tea
10.50am to 11.35am Contract Law: Enforcing Agreements
- Unfair contract terms: determining whether a contract term is unfair and options
- Is a clause a penalty?
- Unsigned contracts: what to consider before enforcing
- Enforcing the agreement or damages: considering all available approaches?
Presented by Brian Rom, Special Counsel, HWL Ebsworth
11.35am to 12.20pm Implied Duties of Care; Negligence; Negligent Misstatement and ACL Claims in Commercial Transactions
Commercial disputes usually centre on disputes regarding a breach of contractual terms, but any experienced litigator will know that frequently, there are remedies available under common law and statute, which are pleaded separately to claims for breach of contract and can be extremely effective. David Leggatt will analyse:
- How implied duties of care arise in commercial transactions
- The key elements of these causes of action and the evidence you will need to pursue and defend them
- How damages are assessed and pleaded, noting the key differences to assessment of damages under contract
- How contractual liability exclusions in professional indemnity policies apply to these disputes.
Presented by David Leggatt, Principal, Coterminous Legal; Accredited Specialist in Commercial Litigation
12.20pm to 1.05pm Update on Litigation Funding
- What types of claims are typically funded?
- What are the emerging or notable trends in legal finance?
- What are the typical types of funding arrangements and how that changed?
- What impact/s have the regulatory changes had on legal funders and legal financing in Australia?
- What is the role of the Association of Litigation Funders of Australia?
Presented by Dr David H Denton, AM RFD KC, Macrossan Chambers and Pip Murphy, CEO, Association of Litigation Funders of Australia, Senior Investment Manager, CASL
1.05pm to 1.15pm Final Q&A and Closing Comments by the Chair
Session 2
Ethics, Professional Skills and Practice Management for Commercial Litigators
Chair: David Brett, Special Counsel, McKean Park, Accredited Specialist in Commercial Litigation; Nationally Accredited Mediator; Banking and Finance Ombudsman, Australian Financial Complaints Authority
Professional Skills
2.00pm to 3.00pm ‘How to’ Make Protective Offers of Settlement
- Offers in accordance with the rules of court
- Operation of protective offers in relation to cases which are apportionable
- Calderbank offers
- Test of reasonableness
- Recent cases
Presented by Ben Hall, Partner, Carter Newell Lawyers; Accredited Specialist in Commercial Litigation
Ethics & Professional Responsibility
3.00pm to 4.00pm Obligation to be Full and Frank in your Disclosure and Evidence
- Solicitors’ duties to the Client and the Court
- When does the duty arise?
- Important factors to consider when advising your clients of their duty
- Exceptions to the duty of disclosure
- Professional and ethical implications and consequences of a failure to properly advise about duty of disclosure
- Breach of client confidentiality
Presented by Murray McInnis, Barrister, Holmes List of Counsel
4.00pmm to 4.15pm Afternoon Tea
Practice Management & Business Skills
4.15pm to 5.15pm Using Technology Tools for Better Legal Project Management of Disputes: Failsafe, Reduce Stress and More Profit
Litigation involves complex processes, co-ordinating internal and external team members and huge consequences if deadlines aren’t met. Legal Project management helps manage all of these better, as technology assists the manual work involved in scoping, planning, tracking delivery against the plan and undertaking post-delivery review. Learn how you can
- Develop scope aligned with your clients desired outcome
- Plan how to deliver the agreed scope profitably
- Forecast resourcing and workload impact on your team
- Identify opportunities to use tech to achieve efficiencies to manage cost effective delivery
- Proactively monitor deadlines and communicate progress over the life of the matter
- Get useful data to identify opportunities for improvement
Presented by Fiona McLay, Principal Lawyer, McLay Legal
Presenters
Simone Farrugia
Simone is an experienced solicitor with a focus on insolvency, corporate advisory and commercial and insolvency litigation. Her clients include listed and private companies, liquidators, administrators, receivers and controllers, banks and non-bank lenders, construction companies and SMEs. Simone regularly acts for insolvency practitioners, companies and directors and advises them generally in respect of liquidations, receiverships and administrations. Simone undertakes enforcement action for banks and non-bank lenders and works with her clients to navigate the various options available to recover payment of outstanding loans in a timely and cost-effective manner. She also undertakes complex commercial litigation and has extensive experience in contractual disputes, lease disputes, employee fraud investigations and subsequent recoveries. Simone regularly advises clients on various aspects of the Personal Property Securities Act including vesting and priority issues and recovers or defends voidable transactions and/or insolvent trading claims. Simone’s experience is vast and varied and has practised in Victoria, New South Wales and Queensland over the course of her career. Simone is a committee member of the Women in Insolvency and Restructuring Victoria and is a professional member of Australian Restructuring Insolvency and Turnaround Association.
Toby Mullen
Toby is a Melbourne based barrister who specialises in commercial and defamation disputes. In his defamation practise, Toby regularly advises individuals (including politicians, celebrities, business leaders and everyday punters), businesses, media entities, sporting clubs and political parties. He regularly appears for both plaintiffs and defendants in defamation and related claims, both led and unled, in the Supreme, County and Federal Courts. Toby has acted as counsel in a number of prominent defamation claims, been part of both of the Victorian Bar’s Working Groups that have recently made submissions on defamation law reform and presented various CPDs regarding defamation law.
Brian Rom
Brian Rom is a construction lawyer with dispute resolution and contract drafting experience in Australia and internationally. He has acted for owners, employers, contractors, consultants and their insurers in cases involving oil & gas installations (rigs and FPSOs), rail and port infrastructure, wind farms, electrification works, power stations and commercial and residential buildings. He has extensive experience representing clients in litigation, arbitration (both domestic and international), expert determination, and adjudication proceedings as well as negotiating commercial outcomes for clients in mediations and other informal procedures. His drafting experience covers a wide variety of international and Australian construction contracts and project documents. Brian also has general commercial disputes experience involving insurance, shareholder, insolvency, commodity and shipping matters. He has published articles on construction and shipping law and regularly speaks on a range of construction law topics. Brian is qualified to practice in Australia, England and Wales, and South Africa.
David Leggatt
After 29 happy years, David left DLA Piper on 1 May 2019. He is now running his own law firm, Coterminous Legal, and also pursuing business opportunities with a range of trusted and valued clients. David is recognised in Best Lawyers as one of the leading insurance and dispute resolution lawyers in Australia. He is an accredited specialist in commercial litigation and has sold about 50,000 hours of legal time over the last 29 years, mainly in dispute resolution, but with a niche "front end" specialty in negotiating insurance and indemnity clauses in all sorts of commercial contracts. He’s not sure how he became that boring.
As to disputes, given David’s curious nature he has run a high file load for many years across every conceivable dispute resolution jurisdiction in Australia, and many overseas. David has many hours experience running cases and handling his own appearances, but regularly briefs counsel. David has particular expertise in: Shareholder disputes; Litigated claims/disciplinary hearings involving health professionals; Class actions; Director's and officer's liability and defamation law; and Defence and prosecution of professional negligence claims. David continues to remain heavily involved in pro bono work, with a focus on all legal matters relating to the management of consumers of mental health services and their Carers.
Dr David H Denton, AM RFD KC
David H Denton, RFD KC is one of Australia's leading Queen's Counsel practising in commercial law. He has been a barrister for over 30 years and was appointed a KC in 2001 by the Chief Justice and the Governor of the State of Victoria. He is a former President of the Commercial Bar Association, the largest organisation of practising commercial barristers in Australia. He was educated at Xavier College, Kew; the Royal Military College, Duntroon; and Monash University where he obtained Bachelor degrees in Arts and Law and a Master of Laws. He is currently completing a PhD in constitutional law at the University of Western Australia. He is a Member of the Advisory Board and Chairman of the Conflicts Committee of JustKapital Litigation Partners Limited. JustKapital is a listed public company engaged in litigation funding in Australia and New Zealand. He is a Fellow of the Australian Institute of Company Directors and the Australian Institute for Commercial Arbitration. He has been an Adjunct Professor of Law at Victoria University, College of Law & Justice since 2005. His past time is following the Hawthorn Football Club where has served as Chairman of the Law Hawks, Legal Coterie, Hawthorn Football Club. In 2002 he was decorated with a Reserve Forces Decoration (RFD) for his services to the Army Reserve.
Pip Murphy
Pip is a former Partner of global law firm Baker McKenzie and Regional Managing Director of a global third-party funder. Pip is the current CEO of the Association of Litigation Funders of Australia, Senior Investment Manager of CASL Management and the Legal Director and founder of Link Legal Advisory. During her time at Baker McKenzie, Pip led the firm’s Asia-Pacific Risk and Crisis Management Practice Group, working within the Dispute Resolution and Corporate Compliance team. During her time at the global third-party funder, Pip jointly managed and led the Chambers and Partners ranked Asia-Pacific business. Pip is an experienced director with a strong background in understanding, contributing to and driving discussions and actions around building brand and reputation, innovation and disruption in the legal market, strengthening client relationships, building on existing business and, improving financial results. Pip demonstrates great skill in understanding and influencing legal, business and financial risk. Beyond this, Pip is a Graduate of the AICD Company Directors Course, a Graduate of the Chief Executive Women Leaders Program and, a Certified Practising Risk Associate of the Risk Management Institute of Australasia.
David Brett
David Brett is the head of litigation at McKean Park. He has over 40 years experience, including over 15 years running his own practice. He is a strong supporter of the Law Institute Specialisation Scheme, having been accredited as a specialist in commercial litigation in 1996. He has served on the Commercial Litigation Specialisation Advisory Committee, is a past Chair of the Specialisation Board. He was awarded the Presidents Award for Specialisation in 2008. David established and, for 17 years, chaired the Commercial Litigation Specialist Study Group. He is a nationally accredited mediator and a Banking and Finance Ombudsman at AFCA. In his time in practice he has been exposed to and had to deal with a wide variety of clients and has developed strong views on the importance and benefits of correct practice management.
Ben Hall
Ben is a Partner leading Carter Newell's Melbourne office and an accredited specialist in commercial litigation. He has over 20 years’ experience as an insurance and litigation lawyer. Ben is instructed by local and international insurers in relation to a wide variety of claims, including professional indemnity, management liability, directors and officers, medical malpractice, and public and product liability. He is a member of the Australian Professional Indemnity Group, the Australian Insurance Law Association, the Building Dispute Practitioners’ Society, and the Law Institute of Victoria’s Commercial Litigation Advisory Committee.
Murray McInnis
Murray McInnis was admitted in 1979 and employed as a solicitor until he commenced at the Bar. He is currently a Barrister and Nationally Accredited Mediator. He practised in a wide area of commercial, civil, criminal and administrative law for a period of 20 years at the Bar from 1980 to 2000. He was appointed as a Chapter III Justice of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) in June 2000. He resigned his Commission on 28 January 2008 and returned to the Bar on 4 February 2008. During his time as a Commonwealth Justice Mr. McInnis delivered almost 800 judgments (with media neutral citations) mainly in general federal law of which approximately 70 have been reported. The judgments covered a wide area of commercial law, administrative law, human rights and family law. The commercial law cases include a substantial number of insolvency, trade practices and some copyright matters. The administrative law decisions covered appeals from the Administrative Appeals Tribunal together with applications under the Administrative Decisions (Judicial Review) Act and a significant volume of cases requiring judicial review under the Migration Act. Mr. McInnis was a director of White Ribbon Australian from 2012 to 2016 and a Lead Ambassador for White Ribbon from about 2007 to 2016. He was President of the United Nations Association of Australia (Victoria) from 2012 to 2013. He was a Judge of the United Nations of Australia Media Awards from 2002 to 2012 and Chairman of the Judging Panel from 2009 to 2012. From 2011 to 2014 he was an Appeal Board Judge for the Victorian Football Federation and a member of Victorian Bar Ethics Committee from 2012 to 2016. He is currently a member of the Victorian Bar Commercial Bar Association -Sports Law Committee. Finally, Mr. McInnis also had 7 readers at the Victorian Bar, acted as a judge for Monash Uni Law Faculty moots from 2013-2016 and is currently a mentor to Melbourne Uni JD students and has been a mentor since 2013.
Fiona McLay
Fiona has spent the past 25 years as a dispute resolution lawyer working across the legal industry in top tier, mid tier, small firm, a NewLaw firm and in-house. She has an insider’s view as to how firms across the industry are actually using (or not using) tech. Long hours, inefficient processes and constant pressure to do more with less drove her to find ways to use tech to work more efficiently. With no budget, no IT support and (possibly because of) no innovation committee, she discovered how powerful a tech-enabled lawyer could be in litigation up against a much better resourced opponent. And with a significantly reduced risk of paper cuts. She regularly presents to lawyers on how to adopt new ways of working. She is the author of Tech Enabled Lawyer: to making the most out of the tools you have and spotting the tech you need.
Venue
RACV City Club
Level 2, 501 Bourke St
Melbourne 3000
VIC
Australia
Parking information
Parking is not included in you registration. Here are some options below.
RACV City Club Car Park. Click here to view rates
Directions
Nearby Public Transport:
Tram Stations - William/Bourke St or Queen/Bourke St
Bus Interchange - Little Collins St or Supreme Court