Current Issues in Civil Litigation

Transcription

1 INTENSIVE Current Issues in Civil Litigation JUNE 2011

2 FROM THE CHAIR In 2010 the NZLS ran a very popular Current Issues in Remedies intensive covering a range of topics that were relevant for updating civil litigators. This intensive follows on from this successful formula. The expert panel of presenters that has been brought together by the NZLS will update those attending on key issues in a number of important areas. Topics to be covered include: Decisions relevant to civil litigators on the Evidence Act Recent decisions on the important topics of contractual interpretation and the implication of terms. Recent decisions on entire agreements and exclusion clauses and the impact on them of the Fair Trading Act 1986 (FTA): on what is required for the FTA s 9: on when time begins to run under the FTA: and when an offer lapses by reason of a change of circumstances. The emerging importance of litigation funding and class actions, including the proposed Class Action Rules, and recent decisions on these topics. A seminar booklet containing the reference materials will be provided. While the intensive is aimed at mid-level civil litigators it will also provide more senior practitioners with a valuable opportunity to refresh and update their knowledge of these topics which are very relevant to all litigators on a day-to-day basis. I look forward to seeing you there. Sincerely, Austin Forbes QC

3 Programme REGISTRATION Tea and coffee will be available INTRODUCTION TO THE DAY Chair: Austin Forbes QC SESSION 1: THE EVIDENCE ACT 2006 Presenter The Evidence Act 2006 is a comprehensive reworking of the law of evidence in New Zealand civil and criminal cases. While much of the case law has been developed in the context of criminal proceedings, decided judgments present various topics and areas of interest to civil practitioners. This presentation examines cases under selected provisions of the Evidence Act that will be of interest to civil litigators. Topics to be covered include: Relevance and general exclusion Eligibility and compellability Opinion evidence Witness examinations Privilege. Scott Optican MORNING TEA SESSION 2: SIGNIFICANT RECENT DEVELOPMENTS IN CONTRACT LAW FOR CIVIL LITIGATORS A: CONTRACT INTERPRETATION Presenter This session considers the perennial problem of finding the meaning of a contract. It will examine recent decisions on the principles of contractual interpretation and the implication of terms in New Zealand and overseas from a practical perspective. Paul David LUNCH B: EXCLUSION CLAUSES FAIR TRADING ACT 1986 OPPRESSION LAPSING OF OFFERS How effective are entire agreement clauses and other exclusion clauses? Is it possible for commercial parties to achieve certainty? What is the impact of the Fair Trading Act? - David v TFAC Ltd - PAE (New Zealand) Ltd v Brosnahan - Leigh & Anor v MacEnnovy Trust Ltd - WaikatoLink Ltd v Comvita New Zealand Ltd

4 Presenters The Supreme Court s decision on oppression in Bartle v GE Custodians has been hailed as a victory for contractual certainty. A harsh result but good law? What is required for a breach of s 9 of the Fair Trading Act? To what extent has the Supreme Court moved the goalposts in Red Eagle Corporation v Ellis? What level of knowledge is needed by a party for time to run under the Fair Trading Act? Whose knowledge is relevant? The Supreme Court has clarified the law in Commerce Commission v Carter Holt Harvey. When will changes in circumstances cause an offer to lapse? There are lessons for the unwary in Nielsen v Dysart Timbers Ltd. Paul Dale and James MacGillivray LEG STRETCH SESSION 3: LITIGATION FUNDING AND CLASS ACTIONS Presenter Access to justice How does litigation funding work? Costs and security for costs - the $ - terms The proposed Class Action Rules - policy issues to consider - where they are at Recent decisions of the New Zealand Court of Appeal and High Court of Australia including Saunders v Houghton. Philip Skelton PANEL DISCUSSION SUMMARY OF THE DAY Chair: Austin Forbes QC

5 CHAIR PRESENTERS AUSTIN FORBES QC, CHRISTCHURCH Austin practises in the areas of commercial and general civil litigation. He is a former president of the NZLS. Austin went to the Bar in 1990, prior to this he was a litigation partner in Duncan Cotterill, Christchurch. He has served on many committees including the Property Law and Equity Reform Committee and the NZLS s Civil Litigation and Tribunals Committee. He co-presented the NZLS seminars on Property and Real Estate Litigation in 1990 and Obtaining Pre-trial Information mining at the coalface in In his spare time he enjoys reading the High Court Rules. PAUL DALE, BARRISTER, AUCKLAND Paul is a barrister with an extensive civil and commercial litigation practice. He has been at the independent Bar since April Prior to that he practised as a barrister and solicitor in Auckland in both the criminal and common law jurisdictions, followed by an appointment as a senior crown prosecutor in Hong Kong, and then 19 years as senior litigation partner at Grove Darlow & Partners. PAUL DAVID, BARRISTER, AUCKLAND Paul is a barrister working primarily in commercial litigation. He has specialist interest in maritime and trade law where the interpretation of contracts and the application of the principles of contract law are central to the work. JAMES MACGILLIVRAY, TOMPKINS WAKE, HAMILTON James is a litigation partner at Tompkins Wake in Hamilton. Before starting at Tompkins Wake he was a senior associate in the London office of Freshfields Bruckhaus Deringer. He has over 15 years experience in civil and commercial litigation specialising in the resolution of commercial contract disputes. SCOTT OPTICAN, ASSOCIATE PROFESSOR AND ASSOCIATE DEAN FOR ALUMNI AND ADVANCEMENT, FACULTY OF LAW, THE UNIVERSITY OF AUCKLAND Scott holds a BA degree in Rhetoric (University of California), a Masters Degree in Criminology (Cambridge), and a JD degree (Harvard). He interned at the Crime Prevention and Criminal Justice Branch of the United Nations in Vienna, clerked for the US Federal District Court

6 PRESENTERS Southern District of New York and served as a prosecutor in the New York County District Attorney s Office. Scott specialises in evidence, criminal procedure, and comparative criminal procedure. He is the author of numerous articles and a co-author of Rishworth, Huscroft, Optican & Mahoney, The New Zealand Bill of Rights (2003) and the recently published Mahoney, McDonald, Optican and Tinsley, The Evidence Act 2006: Act and Analysis (Thomsen Reuters: 2nd Ed: 2010). PHILIP SKELTON, BARRISTER, AUCKLAND Philip is a barrister at Bankside Chambers with over 20 years experience in civil litigation. He was a co-author of the NZ Bar Association s submission to the Rules Committee on its proposal to introduce Class Action Procedures into the High Court Rules and he has experience and knowledge of how litigation funders operate within the New Zealand and Australian markets. Information about the day CENTRE DATE VENUE TIME Wellington 23 June Wellington Convention Centre 8.30am 4.30pm Auckland 24 June The Langham Hotel 8.30am 4.30pm WHO SHOULD ATTEND Mid-level civil litigators but the intensive will also be of interest to more senior practitioners. MATERIALS A booklet of papers will be given to participants when they register on the morning of the intensive. FEE (INCL GST) The registration fee includes all materials, morning tea and lunch. Earlybird rate By 23 May OR After 23 May NZLS member $495 $545 Non-member $555 $605

7 REGISTRATION FORM Online registration and payment can be made at PLEASE REGISTER ME FOR: Current Issues in Civil Litigation CENTRE DATE VENUE Wellington 23 June Wellington Convention Centre Auckland 24 June The Langham Hotel LAST NAME (PLEASE PRINT) FIRST NAME TITLE NAME FOR NAME TAG FIRM / ORGANISATION PO BOX DX TOWN / CITY POSTCODE PHONE FAX CANCELLATION AND REFUND POLICY Please note: Minimum and maximum numbers apply. Registrations will be accepted on a first-come/first-served basis. Registrations close 10 working days before the presentation date (the closing date). NZLS CLE Ltd reserves the right to cancel any session that does not reach the budgeted minimum number of registrations. This decision will be made on the closing date and a full refund will be made to each registrant of the cancelled session. If you cancel your registration before the closing date, a refund will be made, less a $75 administration fee. After the closing date, there will be no refund. You may transfer your registration to another person until five working days before the presentation. Please advise NZLS CLE Ltd in writing of the change. PRIVACY ACT 1993 The information requested on this registration form is for NZLS CLE Ltd and the sponsors only. I do not wish the sponsors to receive my contact details.

8 FEE (INCL GST) Registrations will not be actioned until payment is received. The registration fee includes all materials, morning tea and lunch. Please note: NZLS members includes NZLS Associate members. Earlybird rate By 23 May OR After 23 May NZLS member $495 $545 Non-member $555 $605 Total amount due: $ PAYMENT I attach a cheque made payable to NZLS CLE Ltd Please debit my credit card account Mastercard Visa Amex CARD NUMBER EXPIRY DATE NAME ON CARD SIGNATURE OF CARDHOLDER SEND TO:NZLS CLE Ltd PO Box 5041, Wellington 6145 or DX SP20202 Fax: REGISTRATION INQUIRIES:Freephone TO REGISTER AND PAY ONLINE OR VIEW THE CLE PROGRAMME AND PURCHASE BOOKLETS SEE