1. INTRODUCTION CONTACT DETAILS IMPORTANT DATES ASSESSMENT PROGRAM Part 1 Take home assignment... 3

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2 Contents 1. INTRODUCTION CONTACT DETAILS IMPORTANT DATES ASSESSMENT PROGRAM... 3 Part 1 Take home assignment... 3 Part 2 Written examination... 3 Part 3 Peer interview KNOWLEDGE Core areas of knowledge Expected areas of knowledge Corporations Act 2001 (excluding external administration): Insurance Law Building and Construction Property and Securities Law SKILLS Ascertaining and obtaining facts and instructions Developing options to achieve clients stated objectives Implementing the plan Managing interlocutory stages of litigation Finalising the Matter Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 1 of 21

3 1. INTRODUCTION The 2018 Commercial litigation Specialist Accreditation Program Guide is designed to assist practitioners to understand, prepare for and undertake the assessment specific to this area of accreditation. This document is to be read in conjunction with the Specialist Accreditation Scheme Handbook which contains the policies and procedures relevant to all areas of accreditation. 2. CONTACT DETAILS Please all enquiries regarding specialist accreditation in commercial litigation to 3. IMPORTANT DATES 20 February 2018 Applications open 29 March 2018 Applications close at 5pm 12 April 2018 Candidates advised of acceptance into program 19 April 2018 Discretionary applications determined 30 April 2018 Assessment Briefing Evening 25 May 2018 Take home assignment distributed to candidates 15 June July 2018 August 2018 October 2018 Take home assignment due (by 4pm or sent by registered post postmarked no later than 4pm) Written examination held at Law Society House, 179 Ann Street, Brisbane (9am to 12.30pm) Peer interview Candidates advised of results Queensland Law Society reserves the right to change any of these dates. Sufficient notice will be provided to candidates. Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 2 of 21

4 4. ASSESSMENT PROGRAM Candidates must pass the prescribed assessment program set out in this section to be awarded specialist accreditation in this area of accreditation. Candidates wishing to be accredited should: (a) demonstrate a high standard of knowledge of the law and procedure which underpins the performance of tasks in this area of practice; and (b) demonstrate a high standard or oral and written advocacy which is expected of practitioners wishing to hold themselves out as specialists in the area. Details of the knowledge and skills expected are contained in Parts 5 and 6 of this document. The assessment program for specialist accreditation in commercial litigation is in three parts. Part 1 Part 2 Part 3 Take home assignment Written examination Peer interview To gain accreditation, candidates must pass each of the three items of assessment program. Unless the assessment instructions specify otherwise, candidates will be assessed on the law as it stands on the date of the assessment. 4.1 Take home assignment Candidates will be required to complete a take home assignment, which is subject to strict time and length limits and will assess the candidate s ability to handle matters in practice. The assignment will assess a variety of skills which may include preparation of documents, knowledge of procedures, and the identification and application of legal principles. Conditions Candidates may use the resources of their offices in completing this exercise. However, candidates will face automatic disqualification from the accreditation program if any assessment material is referred to counsel or any other person for opinion or assistance. Any assessment received after the due date will not be assessed. For information on the special consideration policy, please see the Specialist Accreditation Scheme Handbook. No references or marks which may identify the candidate or their firm or employer should appear anywhere in the candidate s work. 4.2 Written examination The written examination will cover a wide range of commercial litigation matters that may be encountered in practice. Candidates will be expected to demonstrate a high standard of Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 3 of 21

5 knowledge of commercial litigation issues and associated practices and procedures as outlined in Part 5 of this document. Conditions The duration, including reading time, will be 3 hours and 30 minutes. Candidates may take books, notes or other written material into the exam room Candidates may access written material on an electronic device on a read only basis, so long as it does not disturb other candidates. The electronic device must not be connected to the internet. Mobile telephones are not permitted Answers must be written in the answer booklets provided Answers must be numbered correctly Handwriting must be legible Each candidate will be issued with an examination number Candidate numbers (not names) must be written on all answer booklets Note: Queensland Law Society will take no responsibility for any issues experienced on electronic devices during the written examination. Malfunctioning of electronic devices during the written examination will not constitute grounds for a special consideration application. 4.3 Peer interview Candidates will be interviewed by a panel of up to two practitioners to discuss the handling of matters. Examiners will ask a series of uniform questions over a period of not more than 30 minutes to assess performance standards. 5. KNOWLEDGE 5.1 Core areas of knowledge For the purposes of the commercial litigation specialist accreditation assessment program, the core areas of knowledge have been identified as: Proof of Contract Formation o The parol evidence rule: what it is; when it applies; and the exceptions to it. o Whether evidence of pre- and post - contract conduct is admissible as an aid to the construction of the contract. Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 4 of 21

6 Implied Terms and implied contracts o Terms implied as the inferred actual intention of the parties to particular contracts; the standard rules; their application to contracts which are wholly or partly oral; what terms should be implied; implied terms going to the co-operation of the parties. o Terms imputed in classes of contracts as a matter of law; the matters to be considered when a Court is first asked to impute such a term. o Terms implied from trade or usage; how such a term might be proved. Disputes as to the existence of a concluded contract o Conditional contracts: the categorisation of conditional contracts, including contracts said to be void for uncertainty. o Letters of comfort. o Conditions not satisfied; conditions as to contract, conditions as to performance, conditions precedent and conditions subsequent. o Privity and consideration. o Intention to enter into a binding contract. o Agency. Mistake o The position at law: mistakes as to the existence of the subject matter, its identity, quality, or title; the identity of a party; the document signed; the terms of the contract; and mistakes of law. Misrepresentation o Not incorporated into the contract. o Fraud at Common Law. o Rescission in equity. Duress o Economic duress and the relationship between that concept and the rules relating to consideration. Undue influence Unconscionable contracts Exemption, exclusion, limitation, and similar clauses Illegality and public policy Statutes of general application permitting courts to change contractual provisions: o Industrial Relations Act 1999 (Qld), s 276. o Australian Consumer Law (see below). Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 5 of 21

7 o Fair Trading Act 1989 (Qld) (see below). Waiver, election, estoppel and the Anshun principle Unjust enrichment Australian Consumer Law / Fair Trading Act 1989 (Qld) / ASIC Act 2001 (Cth) / Corporations Act 2001 (Cth) o Misleading and deceptive conduct (including by silence) and other unfair practices. o Unconscionable conduct. o Damages. Negligent misstatement (tort and contract) o Negligent statements in commercial transactions. o Negligent advice from commercial advisers. o Contributory negligence. Intentional interference with contractual relations and conspiracy Breach of fiduciary duty o Fiduciary duties in a commercial context (e.g. joint ventures, advisory relationships). o Remedies (e.g. account of profits, equitable compensation). Damages o Contract. o Tort. o Australian Consumer Law and the Fair Trading Act 1989 (Qld). o Equitable compensation. o Interest. Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 6 of 21

8 Limitations o Contract. o Tort. o Australian Consumer Law and Fair Trading Act 1989 o Equitable limitations. Legal professional privilege. Without prejudice communications. GST and implications for litigation and settlements. Legal Profession Act 2007 (Qld).and Australian Solicitors Conduct Rules (ASCR) Proportionate Liability Regime o Div 2 of Part 7.10 of the Corporations Act. o S. 87CD of Competition and Consumer Act 2010 (Cth). o S. 31 of the Civil Liability Act (Qld). Availability of relief by way of judicial review Alternative dispute resolution o Arbitration. o Mediation. o Expert determination. Practice and procedure relating particularly to conduct of commercial litigation in Supreme Court (including case management) 5.2 Expected areas of knowledge The list below is not exhaustive but is set as a guide to candidates as to the type of matters that may be raised in the commercial litigation specialist accreditation assessment program. Topics are grouped under headings as a matter of convenience only. Not all the topics listed will be tested and any matter relevant to practice in commercial litigation may be examined Corporations Act 2001 (excluding external administration): Each chapter or part referred below relates to the Corporations Act 2001 Basic features of a company (e.g. legal capacity, company powers and how they are exercised, contracts before registration, replaceable rules and constitution, company names and changing company type) - Chapter 2B. Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 7 of 21

9 Officers and employees - Chapter 2D (including directors duties, deemed directors etc.) Oppressive conduct of affairs - Part 2F.1 including proceedings on behalf of a company by members and others (the statutory derivative action under sections 236 & 237) - Part 2F.1A. Meetings - Chapter 2G. Offences - Part 9.4. Powers of courts - Part 9.5. Proceedings - Part 9.6. Jurisdiction and procedure of courts (including vesting and cross vesting of civil jurisdiction) - Part 9.6A Insurance Law Formation of the contract contractual principles application of the Insurance Contracts Act 1984: o interaction with the common law o Ss 9 and 52 o Insurable Interest. non-disclosure and misrepresentation: o Common Law o Insurance Contracts Act 1984 (s13 (duty of good faith) and Part IV) o ambiguous questions and incomplete answers o insurers remedies o Ss 31 and 33 Insurance Contracts Act 1984 Insurance intermediaries classification as agent or broker agent of insurer or insured duty of care to insured and insurer insurers liability for agent s acts principles of construction of insurance contracts including contra proferentum rule Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 8 of 21

10 interpretation of common clauses, conditions and warranties effect of Insurance Contracts Act Claims notification of claims: o s 54 Insurance Contracts Act o review of the Insurance Contracts Act Reporton s54. effect of fraud: o s 56 and 60 Insurance Contracts Act 1984 o co-insureds. Illegality direct right of action against insurer policy condition third party rights: o s 48 Insurance Contracts Act Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 9 of 21

11 Expiry, renewal and cancellation of insurance contracts: under insurance excess or "other insurance clauses double insurance and contribution insurers rights of subrogation: o contractual o at law o S67 Insurance Contracts Act 1984 reduction for prejudice Particular classes of insurance Corporate Insolvency and Bankruptcy Statutory demands: Application pursuant to s 459G(1) Corporations Act 2001 to set aside a Statutory Demand including knowledge of all relevant current case law dealing with genuine dispute. Bankruptcy and Liquidations conducting a winding up application and a Creditor s Petition disputes about errors or defects in Bankruptcy Notices or statutory demands proofs of debt and ranking of creditor s claims termination and annulment applications interaction between Family Law Act 1975 issues and the Bankruptcy Act Part 5.3A Corporations Act 2001 Voluntary Administration convening period and how it is extended. position of chargee, owner or lessor under Division 7 Corporations Act 2001 liabilities and rights of Administrators deeds of Company Arrangement termination of administration and/or deed and its ramifications Receivership the difference between a private and a Court Appointed Receiver appointment issues, including challenging the appointment of a receiver by a secured creditor, and providing security for appointments. Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 10 of 21

12 duties of the receiver to: o the appointor o the mortgagor / debtor o unsecured creditors Winding up applications for directions where appropriate public examinations Part 5.9 Division 1 Corporations Act 2001 appeals under s of the Corporations Act. Actions against Directors chapter 2D (Part 2D.1) Corporations Act 2001 Duties of Officers and Employees section 588G and 588M Corporations Act 2001 insolvent trading Voidable transaction litigation voidable transactions Claim by Bankruptcy Trustees section 228 of the Property Law Act (Qld). Voidable transactions Corporations Act claims pursuant to Part 5.7B of the Corporations Act 2001 section 228 of the Property Law Act (Qld). Personal Properties and Securities Act (Cth) Building and Construction Building and Construction contracts contracts and sub-contracts: o o o o instrument of agreement conditions of contract specifications/drawings bills of quantities/schedule of rates/schedule of prices. implied terms collateral agreements waiver & estoppel Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 11 of 21

13 tenders letters of intent types of construction contracts. The Site possession of site latent conditions basis of claims for breach of obligation Contract Administration administration under the contract the representative and independent roles of the Superintendent legal developments in Superintendent s responsibilities; Peninsular Balmain. Time commencement of work performance of the work consequences of failure of performance delays and extensions of time compensable/non-compensable delay liquidated damages the Prevention Principle. Variations extra work a variation power to order variations procedural requirements of variations valuation of variations. Payment progress/payment claims progress/payment certificates final certificates security and retention. Default Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 12 of 21

14 formal requirements remedies breach/taking work out of hands/termination methods of dispute resolution alternative dispute resolution, litigation, arbitration, expert determination. Defective work non-compliance with contract formal requirements remedies. Basis of Claims breach of contract money had and received; quantum merit negligence statutory basis Australian Consumer Law and below. Payment Legislation: Building and Construction Industry Payments Act 2004 (Qld) Subcontractors Charges Act 1974 (Qld). Related Legislation Queensland Building Services Authority Act 1991, Domestic Building Contracts Act 2000, Engineers Act 2002, Queensland Building and Construction (Portable Long Service Leave) Act Property and Securities Law Real Property Contracts misdescriptions, encroachments and errors extensions and variations remedies for default Caveats Leases agreements for lease and letters of intent assignment and subletting options Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 13 of 21

15 default and determination guarantees relief from forfeiture. Equitable Property Rights orders for specific performance injunctions. Miscellaneous priorities non possessory property rights including easements and restrictive covenants relevant legislation including Property Law Act 1974 and Land Title Act The Current Account overdraft accounts trust accounts set off/ combining accounts. Forgery Monies paid by the bank under mistake Securities and Enforcement generally mortgages priorities banker s lien guarantees subrogation loan agreements. Miscellaneous Australian Consumer Law Amadio, Yerkey v Jones, Garcia's Case Personal Property Securities Act Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 14 of 21

16 6. SKILLS The skills required to be demonstrated during the commercial litigation specialist accreditation assessment program include the following: 6.1 Ascertaining and obtaining facts and instructions listening effectively to the client s description of the problem asking appropriate probing questions in order to identify each of the issues, whether factual or legal obtaining the client s confirmation of the solicitor s comprehension of the problem ascertaining the client s stated objectives and assisting the client to formulate actual and achievable objectives, and considering the resources the client is able and willing to allocate and discusses the method of costing any proposed action. knowing what public information is available selectively instituting searches having regard to relevance and cost effectiveness, including searches of the records of the ASIC, the Australian Stock Exchange, Department of Natural Resources and court records. promptly obtaining all relevant documents and critically reading and analysing them o o pursuing other identified sources for documents, and investigating taxation implications. objectively interviewing thoroughly all potential witnesses by listening critically and effectively and asking probing questions including by reference to relevant documents assisting each witness to produce a structured and coherent statement, and preparing statements which seek to include all relevant information in admissible form. 6.2 Developing options to achieve clients stated objectives Considering and assessing the viability of litigation including: o whether there is a prima facie cause of action or a defence o the prospects of success whether there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success o the appropriate forum o the time that will be taken prior to a determination o the commitment of the client o the capacity to pay costs o whether any limitation periods have expired, and Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 15 of 21

17 o considering and assessing the viability of non-litigious action including all methods of dispute resolution such as early mediation or direct negotiation. o explaining clearly all possible options to the client o ensuing the client understands the rights, obligations and risks for each option and the reasons why some options may not be viable o explaining the process required by each option, and o when making recommendations, taking into account the client s objectives, priorities, resources and tax implications o obtaining instructions as to whether the client accepts the recommendations, and o confirming the instructions in writing to the client. conducting a mediation having regard to the clients objectives o managing the client before the mediation as to process and expectations, and o documenting any settlement reached at the mediation. 6.3 Implementing the plan Drafting pleadings, including: o analysing the facts and their relevance o preparing pleadings in accordance with the rules of court o ensuring the pleadings reflect the client s instructions o ensuring the pleadings identify all relevant parties o ensuring that the pleadings disclose proper causes of action including heads of damage, proper particulars of damage, defences or cross claims, and claims for interest and costs o considering whether the pleadings should be settled by counsel, and o when receiving the opponent s pleadings, considering the need to seek further particulars of any issues or requesting copies of documents referred to therein. Drafting affidavits and statements, including: o considering the evidence of the witnesses, in light of its relevance to the case and its appropriateness o ensuring affidavits and statements are drafted in accordance with the rules of the court, and o ensuring affidavits and statements are drafted in admissible form. 6.4 Managing interlocutory stages of litigation Considering tactics, including: o considering what process will best advance the case (such as direction applications, injunctions, Anton Pillar orders, offers of compromise, stays of proceedings, security for costs, Calderbank letters, commercial list applications) Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 16 of 21

18 o litigation funding is it required? o is there an insurer involved? o security for costs applications o pre-pleading disclosure in the Federal Court, and o is able to respond quickly when required. Considering an appropriate case management approach, including o identifying whether it is appropriate to seek to have the matter managed on the Commercial List or the Supervised Case List, and the necessary steps to be taken to achieve listing o identifying the orders and directions to be sought when a matter is listed; o identifying the timing and conduct of reviews and the orders or directions to be sought on reviews; o identifying the consequences of the caseflow management practice direction Managing disclosure of documents, including: o advising the client on obligations imposed by the discovery process o considering all the documents provided by the client in terms of their relevance to the cause of action o considering questions of privilege o submitting the documents of the other parties to the client for instructions; considers the relevance of all discovered documents to the likely outcome of the dispute o identifying when to use electronic disclosure, and o identifying when to limit the scope of disclosure by Order. Using subpoenas and notices to produce, including: o considering the information obtained by appropriate subpoenas and notices produce, and o drafting precisely the appropriate documents. Using notices to admit, including; o considering the need for notices to admit o drafting the appropriate documents o upon receipt, taking instructions, considering and preparing appropriate and timely responses, and o when answering, considering the relevance of any admissions to the likely outcome of the dispute. Obtaining expert reports, including: o considering rules of Court and relevant practice directions o considering what issues need to be proved by expert evidence o choosing and fully briefing an appropriately qualified expert; o considering whether a joint expert should be used and how to do so; Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 17 of 21

19 o considering the experts report, submit it to the client and advise on its effect; o on receipt of the opponent s expert report, submitting the report to the client and the client s expert for comments; o considering its impact on the outcome and deciding whether to serve a report in reply, and o considering whether a conference between experts is desirable to resolve issues in contention. Acting as an advocate, including: o being well prepared and organised when appearing as an advocate, and o employing a knowledge of procedural, evidentiary and substantive law to present the application or the case. Preparing for an Appeal, including: conducting an appeal cognizant of time limits and procedures briefing appropriate Counsel identifying the appealable issues preparing appeals books security for Costs, and Appeals Costs Fund Act (Qld). Acting as instructing solicitor, inclduing: selecting appropriate counsel for the matter having regard to the nature and complexity of the matter preparing a brief to counsel including incisive observations on procedural, evidentiary and substantive issues actively participating in the preparation of the case, including attending conferences and making decisions concerning the presentation or conduct of the case providing good administration support, including managing witnesses, documents and the client acting as an effective liaison between counsel, the client and witnesses critically examining counsel's opinion in light of solicitor's own qualifications, experience and expertise, and considering the appropriateness of taking evidence from witnesses by video or telephone link. 6.5 Finalising the Matter ensuring all court documents, terms of settlement and forms of judgment or orders are properly prepared and filed with the Court Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 18 of 21

20 seeking court approval where necessary. notifying the client in writing of all obligations arising from the conclusion of the matters including money to be paid or acts to be performed or refrained from. considering an appeal, a stay or a cost application, where appropriate, and seeking to agree quantum of monies payable under outstanding costs orders with opposing solicitor based on knowledge of taxation and assessment costing principles or failing that, attend to having costs statements assessed having regard to the rules as to costs. Queensland Law Society 2018 Commercial Litigation Specialist Accreditation Program Page 19 of 21