Commercial Litigation

Commercial Litigation

ABOUT COMMERCIAL LITIGATION

When business disputes extend beyond negotiations, it falls to the commercial litigation lawyers to settle the issue. 

Commercial litigation is one of the most complex and challenging areas of the law due to the many different specialty areas. Subjects in this stream will hone your skills under the guidance of senior practitioners and equip you to act in commercial disputes.

I would highly recommend The College of Law Masters to anybody because not only is it very practical but it’s taught well and it’s immediately applicable to one’s day-to-day practice.

Nathanael Kitingan

Principal Lawyer - Litigation and Dispute Resolution, VIC, Macpherson Kelley, Melbourne Australia

COURSE INFORMATION

CLP1 - Foundations of Commercial Litigation

This subject provides an overview of commercial disputes, with particular focus on causes of action and remedies in commercial disputes. It is designed to expand your knowledge of contract law and to provide insight into the complexities of the typical commercial context in which litigators operate. This subject also examines tortious, equitable and statutory causes of action.

Topics
  • Commercial relationships and contractual disputes
  • Cutting across contracts
  • Termination without breach – frustration and mistake
  • Termination for breach of contract
  • Statutory overlays on contracts
  • Negligence, misrepresentation, and misleading and deceptive conduct
  • Damages and other forms of relief
CLP2 - Pre-trial Procedures

This subject covers the law and practice of pre-trial processes in commercial litigation. It focuses on the skills of analysis, problem solving and strategy in effectively carrying out the procedures required as a Federal Court matter progresses to trial, including seeking interlocutory orders and directions. In addition, it goes through how to obtain instructions, give advice and utilise these procedures in the most efficient and effective manner to advance the clients’ interests.

Topics
  • Security for costs
  • Preliminary discovery, search orders and freezing orders
  • Commencing proceedings
  • Preparing pre-trial applications
  • Gathering, preparing and managing evidence
  • Conducting a hearing
  • Early resolution and practical outcomes of proceedings
CLP3 - Dispute Resolution Processes

This subject sets out the range of strategic choices available when a client is in dispute or anticipates a dispute. It is designed to enable you to identify and evaluate the main dispute resolution processes applicable in commercial matters and develop effective pre-trial strategies.

Topics
  • Security for costs
  • Preliminary discovery, search orders and freezing orders
  • Commencing proceedings
  • Preparing pre-trial applications
  • Gathering, preparing and managing evidence
  • Conducting a hearing
  • Early resolution and practical outcomes of proceedings
CLP4 - Managing Complex Litigation

This subject covers a range of issues arising for commercial litigation practitioners during the conduct of matters involving complex litigation. It will provide you with the knowledge and skills needed to manage complex matters calling for the use of new and emerging technologies in case preparation and presentation.

Topics
  • Taking instructions and managing the client
  • Setting up and managing the project team
  • Advanced privilege issues
  • Class actions
  • Electronic litigation
  • International dispute resolution
CLP11 - Building and Construction Disputes

This subject examines the context of building and construction disputes, and identifies and analyses the issues most commonly giving rise to litigation. You will apply the skills of analysis, problem solving and strategy to formulating courses of action.

Topics
  • Introduction to building and construction contracts
  • Building and Construction Industry Security of Payment Act
  • Supreme Court Technology and Construction List
  • Non-court processes
  • Common building and construction disputes
  • Damages and quantum
  • Termination issues
  • Extra contractual remedies
CLP12 - Insurance Disputes

This subject presents the background to insurance disputes, explains the regulatory environment, and identifies and analyses common issues. After this subject, you will be able to advise clients on strategy, risk, costs and success prospects.

Topics
  • Regulatory environment for insurance
  • The insurance contract and litigation
  • Specific insurance issues and pleading insurance claims
  • Conducting insurance litigation
  • Litigation relating to agents and brokers
  • Compliance and management of insurance by ASIC and APRA
  • Common issues in insurance claims
  • Preparing for and conducting insurance litigation
  • Reinsurance arbitration
CLP13 - Intellectual Property Litigation

This subject focuses on the evaluation and employment of strategies for the enforcement of copyright, design, patents and trademarks. It aims to address the formulation of courses of action and advising clients on strategy, risk, costs and success prospects.

Topics
  • Infringement and litigation steps
  • Letters of demand and accessorial liability
  • Formal pleadings, affidavit requirements and interlocutory relief
  • Discovery in intellectual property matters
  • Expert witnesses in intellectual property matters
  • Damages and account of profits in intellectual property matters
  • Confidential information
  • Copyright protection
  • Trademark issues
  • Patent infringement claims
CLP14 - Insolvency Litigation

This subject covers the nature of insolvency disputes and the types of insolvency proceedings.

  • Bankruptcy proceedings
  • Setting aside statutory demands
  • Winding up proceedings
  • Voluntary administration
  • Recovering assets for creditors in bankruptcy proceedings
  • Retention of title in insolvency
  • Recovery of preferences by liquidator
  • Examination by liquidators
  • Corporate insolvency - examinations about company affairs
  • Corporate insolvency - shareholders as creditors
  • Cross border insolvency
CLP15 - Corporations Litigation

This subject addresses the context of corporate regulation and the issues giving rise to corporate and regulatory disputes. You will improve your skills in drafting court documents and go through the key steps in the litigation process.

  • Pre-litigation steps
  • Forms of corporate litigation and remedies
  • Sources of corporate regulation and common forms of disputes
  • Court practice and procedure
  • Control of corporate management
  • Shareholders’ actions for wrongs by the company
  • Disputes between members
  • Members’ enforcement of Corporations Act
  • Actions by regulators
  • Practical issues in corporate litigation
CLP16 - Competition Litigation

This subject covers the nature of competition law disputes. It looks at the regulatory environment (including the Australian Competition & Consumer Commission), and the strategies and major issues prior to and after commencement of competition litigation.

  • Statutory framework and enforcement regime for competition law disputes
  • Restrictive practices and the underlying economic principles
  • Conduct that constitutes a contravention of s 18 or s 29 of the Australian Consumer Law
  • Conduct that constitutes a contravention of industry-specific competition rules in the telecommunications industry, and
  • Strategies in Australian Competition & Consumer Competition investigations and competition law litigation
CLP00 - Capstone Project (Commercial Litigation)

The Capstone Project is taken as your final subject, as a culmination of the knowledge and skills attained throughout your major. It will allow you to demonstrate your skills in a specialist practice area using real-life scenarios and case studies.

Throughout the intake, you will receive individualised feedback from your lecturer and will also have access to a rich array of skills modules that include guides, samples, and practice exercises for honing your legal skills.

The highlight of the Capstone Project is the final task, where you will prepare a Final Portfolio that demonstrates your legal writing, research, and oral skills.

The subject has four components:
  • Four short answer questions
  • Two legal writing samples
  • Oral communication (e.g. client interview) assessment held through online conferencing
  • Reflective analysis of oral communication


Advisory Board

David Courtenay Principal, Courtenay & Co

Philip Bambagiotti  Barrister

Lachlan Menzies Barrister, 8th Floor Wentworth Chambers

Renee Stevens Lawyer, SRM Lawyers

 

Teaching Staff

Darrell Kake Associate Director, CharterLaw and Accredited Specialist - Commercial Litigation (NSW)

Lachlan Menzies Barrister, 8th Floor Wentworth Chambers

Danny Moujalli Barrister, Ground Floor Wentworth Chambers

Kendall Odgers Solicitor, New South Lawyers

Ted Popper Adjunct Lecturer, The College of Law

Nicholas Smith Barrister, Blackstone Chambers

Philip Wallis Barrister, Wardell Chambers