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 foundational subject covers the purpose of, and law and practice relating to, 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 matter in the Federal Court progresses on its way to trial, including seeking interlocutory orders and directions. In addition, it will cover how to obtain instructions, give advice and utilise these procedures in the most efficient and effective manner to advance the clients’ interests.

Topics
  • Advising on commercial disputes
  • Security for costs
  • Preliminary discovery, search orders and freezing orders
  • Commencing proceedings and identification of issues
  • Preparing pre-trial applications and affidavits
  • Gathering 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 students to identify and evaluate the main dispute resolution processes applicable in commercial matters and develop effective pre-trial strategies.

Topics
  • Dispute analysis and management
  • Alternative dispute resolution processes
  • Negotiation and conflict-handling skills
  • Expert determination and commercial arbitration
  • Mediation
  • Collaborative law and conciliation
  • Drafting deeds of release
  • Dispute resolution by court hearing
CLP4 - Managing Complex Litigation

Complex litigation can arise in a number of circumstances. It can include litigation involving multiple parties, voluminous statements of evidence, fast-paced and tightly managed court timetables, extensive discovery and numerous interlocutory procedures. It may also take the form of a representative or group proceeding (ie class action). To ensure that the proceedings run smoothly and both the court and the client are kept informed, careful case management is required. This will usually involve additional human resources and specialised technology to enable compliance with electronic discovery protocols and completion of detailed evidence.

Topics
  • Taking initial instructions and managing the client
  • Understanding litigation costs
  • Managing a project team
  • Electronic discovery
  • Managing issues of privilege
  • Urgent applications and injunctions
  • Class actions
  • Foreign judgments, service and evidence
CLP11 - Building and Construction Disputes

The building and construction industry in Australia is very large and generates a lot of disputes. With every building project that experiences a delay, or worse, comes to a complete standstill, there are delays, potential job losses, lost revenue and in some cases, corporate collapses. Building and construction law covers large-scale commercial developments to small home improvement jobs. There are specific processes set up to deal with these disputes and to avoid or minimise the loss when a project does not proceed according to the building contract and plan. Large matters often proceed through the relevant technology and construction list in the Supreme Court, while smaller matters will often be dealt with expeditiously under the security of payment legislation. Building contracts will also usually compel the parties to use alternative dispute resolution to resolve the dispute.

Topics
  • Understanding building and construction contracts
  • Common disputes issues
  • Resolving disputes: Alternative dispute resolution and legal action
  • Adjudication and judicial review
  • Extra-contractual remedies in construction disputes
  • Actions concerning residential building work
CLP12 - Insurance Disputes

The insurance industry is a source of litigation both within Australia and overseas. Throughout their career, insurance lawyers may see themselves working on minor claims of only a few thousand dollars through to multi-million dollar claims. For any commercial litigator in Australia, knowledge of insurance law will aid practical success in recovering judgment and awareness of an insurers' roles in commercial litigation. With globalisation and thus the cross-boundary nature of corporate insurers, knowledge of international dispute resolution trends and private international law is also becoming increasingly relevant to insurance litigators.  This subject will highlight important and common aspects of insurance disputes, raise awareness of potential issues in insurance law and enable you to practice in insurance litigation.

Topics
  • Regulatory environment for insurance
  • The contract of insurance
  • Specific insurance issues
  • Preparing and conducting insurance litigation
  • Litigation relating to agents and brokers
  • 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. This subject will provide you with the tools to formulate courses of action and to advise clients on strategy, risk, costs and success prospects together with foundations for advanced and integrated understandings of the subject.

Topics
  • Introduction to intellectual property
  • Intellectual property disputes 
  • Pre-emptive strategies for protecting intellectual property
  • Litigation strategy
  • Pleading infringement
  • Defending an action
  • Final relief, and providing and quantifying damages
  • Expert evidence and appeals
CLP14 - Insolvency Litigation

This subject deals with insolvency disputes and proceedings, and the administration and management of insolvency matters following appointment of an insolvency practitioner, including issues and proceedings arising after commencement of a formal insolvency administration.

  • Introduction to insolvency
  • Personal insolvency – bankruptcy proceedings and processes
  • Personal insolvency – administering a bankruptcy
  • Corporate insolvency – voluntary and involuntary liquidation
  • Corporate insolvency: administering a winding up and issues arising in an external administration
  • Corporate insolvency – voluntary administration and deeds of company arrangement
  • Corporate insolvency: receivers, managers and controllers, and the Personal Property Securities Act 2009 (Cth)
  • Examination by liquidators
  • Corporate insolvency: proceedings to recover creditors’ assets and cross-border insolvency
CLP15 - Corporations Litigation

This subject deals with the main aspects of corporations litigation. It covers the various parties that may be involved and the various grounds for disputes. As shown in this subject, the multi-party structure of the corporation may itself provide grounds for disputes. Understanding the way corporations operate and the legal principles applying to corporations may provide the key to success in disputes.

  • Corporate and other business structures
  • Regulatory framework in Australia
  • Obligations of directors and officers; defences, indemnity and directors' and officers' liability insurance
  • Boards and disputes between directors; members' rights and general meetings
  • Securities regulation; responding to an ASIC investigation
  • Shareholder class actions
  • Members’ remedies
  • Managed investment schemes
CLP16 - Competition Litigation

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

  • Introduction to competition and consumer law in Australia
  • Identifying the market and understanding competition
  • Restrictive trade practices
  • Consumer protection
  • The written brief and strategies for dispute resolution
  • ACCC investigations
  • Understanding litigation in the Federal Court
  • Expert evidence
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