Restitution, &Statutory Liability Recent cases in commercial law An ANU and CLA conference. CLA members $595, non-members $795. Four MCLE points. 9.00am to 4.00pm, Friday, 8 November, 2013. Dixson Room, Mitchell Wing, NSW State Library Register now at www.cla.org.au

9.00am Registration 9.30am Welcome and introduction Professor Stephen Bottomley, Dean, ANU College of Law 10.00am Recent developments in the law of restitution Speaker: Justice James Stevenson, Supreme Court of NSW Chair: Professor Peta Spender, ANU The presentation will cover recent developments in the area of money paid under mistake of fact and the availability of the change of position defence to this restitutionary claim. The focus of the talk will be the recent Court of Appeal decision of Citigroup Pty Ltd v National Bank Ltd [2012] NSWCA 381. 11.00am Morning tea 11.15am Current issues concerning equitable third party liability Speaker: Associate Professor Pauline Ridge, ANU Chair: Daren Armstrong, Banki Haddock Fiora The presentation will discuss the scope and function of equitable recipient liability and its rela- tionship to the broader notion of equitable participatory liability as envisioned by the Fu ll Fed- eral Court in Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296. In this context, questions currently under consideration by the High Court in Westpac Banking Corpo ration v Bell Group Ltd are considered. 12.15am Lunch 1.15pm Recent developments in the law of proportionate liability Speaker: James Hutton, 11 Wentworth Chambers Chair: Justice Robert Beech-Jones, Supreme Court of NSW The presentation will include a discussion of the decisions of the NSW Court of Appeal in Mitch ell Morgan Nominees Pty Ltd v Vella(2011) 16 BPR 30,189 and the High Court (on ap- peal from the NSW Court of Appeal) in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10. Those decisions concern the ve xed question of when a third party will be a ‘c oncurrent wrongdoer’ and thus enable a defendant to limit its liability to something less than 100% of the plaintiff ’s loss. The paper will also consider the principles governing the extent to which a defendant’s liability is to be limited once the existence of a concurrent wrongdoer has been established — that question has been subject to far less judicial and aca- demic scrutiny, but would seem to be an important one for litigants and their advisors. 2.15pm Afternoon tea 2.30pm The liability of publishers and broadcasters for misleading conduct under the Aus- tralian Consumer Law Speakers: Bob Alexander, consultant, ACCC and Sean King, ACCC Chair: Russell Miller AM, Minter Ellison The presentation will focus on two sets of Federal Court proceedings instituted by the ACCC alleging misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 (now section 18 of the Australian Consumer Law). The presentation will also con- sider the information provider defence in section 65A of the TPA (now section 19 of the ACL) and the publisher’s defence for misleading adve rtisements in section 85(3) of the TPA (now section 251 of the ACL). The first set of proceedings arose from alleged misleading statements made by the compere of Channel Seve n’s Today Tonightcurrent affairs television program and culminated in the High Court decision: ACCC v Channel Seven Brisbane Pty Ltd & Others [2009] HCA 19. The second set of proceedings arose from alleged misleading repre- sentations relating to adve rtisements which appeared on Google search results pages in re - sponse to internet searches using Google’s search engine. The proceedings culminated in the High Court decision dismissing the ACCC’s application: Google Inc v ACCC [2013] HCA 1. 3.30pm Questions 4.00pm Close 5 Professor Stephen Bottomley 5 James Hutton Stephen Bottomley is Dean of the ANU College of Law and Profes- James Hutton is a barrister at Eleven Wentworth Chambers. His prac- sor of Commercial Law at the Australian National University. His tice at the bar is predominantly in commercial law and administrative main areas of research interest are corporate law, with a particular law. James has degrees from the ANU (BA (2003), LLB (Honours, focus on corporate goverance and accountability in the private and University Medal in Law, 2005)) and Oxford University (BCL, Dis- public sectors, and the regulatory and legislative process. Stephen is tinction, 2006). Before joining the bar he worked as an associate to the author of The Constitutional Corporation: Rethinking Corporate Chief Justice Gleeson of the (2006-2007) Governance (2007), and co-author of Law in Context (2012, 4th ed), and practised in the litigation and dispute resolution team at Blake Corporations Law in Australia (2002, 2nd ed), and Directing the Top Dawson (now Ashurst), (2007-2010). He has also taught con- 500 - Corporate Governance and Accountability in Australian Companies tracts, torts and administrative law at the ANU and the University of (1993). He is also co-editor of Commercial Law and Human Rights Sydney (2005 and 2009-2010 (part time)). (2002), and Interpreting Statutes (2005). 5 Justice Robert Beech-Jones 5 Justice James Stevenson Justice Beech-Jones studied at ANU from 1983 to 1987. He gradu- Justice Stevenson attended the Australian National University and ob- ated with a Bachelor of Science and Bachelor of Laws (with Hon- tained a Bachelor of Arts (1971) and a Bachelor of Laws (Hons) ours). After completing the practical legal training course at ANU in (1972). He completed the Practical Legal Training Course at the 1988, he commenced work as a solicitor with Freehill Hollingdale and ANU in 1973 and thereafter was admitted as a solicitor in the Aus- Page in October 1988. Two years later he moved to a small firm spe- tralian Capital Territory and in New South Wales. In July 1973 he be- cialising in crime. In 1992 he was admitted as a barrister. In 2006 he came the Associate to the Rt Hon Sir Cyril Walsh, a Justice of the was appointed Senior Counsel. He was appointed to the Supreme High Court of Australia. He held that position until Sir Cyril’s death Court in March 2012. As a barrister he practised in the areas of Ad- in November 1973. Justice Stevenson was then employed as the litiga- ministrative Law, Commercial Law and regulatory enforcement. He tion solicitor by Sly & Russell (now Deacons) until 1976, Smithers was engaged as one of the counsel assisting the Royal Commission Warren & Tobias (now DLA Piper) between 1976 and 1979 and into the collapse of HIH. He also appeared for the Australian Securi- Henry Davis York in 1979, becoming the litigation partner there in ties and Investments Commission in the proceedings it brought 1980. He was called to the Bar in 1989 and took Silk in 2003. In 2012 against the Directors and Officers of the James Hardie group of com- Justice Stevenson was appointed to the Supreme Court of New South panies arising out of its corporate restructures between 2001 and 2003. Wales. He sits in the Commercial and Technology & Construction List in the Equity Division. 5 Bob Alexander Bob graduated from the ANU with Honours in Law in 1966. He 5 Professor Peta Spender joined the former Commonwealth Crown Solicitor’s Trade Practices Peta Spender is a Professor of Law at the ANU College of Law, Aus- Office in 1972. Bob was working in the Crown Solicitor’s Trade Prac- tralian National University and a Presidential Member of the ACT tices Office when the Trade Practices Commission was established in Civil and Administrative Tribunal (ACAT). At ANU, she teaches and 1974 with its first Chairman, Ron Bannerman. Bob worked with all researches corporate law, financial market regulation and litigation. successive TPC/ACCC Chairmen, Bob McComas, Bob Baxt, Allan Her current research areas include class actions, the effect of funding Fels, Graeme Samuel and Rod Sims. He left AGS to join the ACCC decisions on access to justice, theories of procedural justice and legal as its General Counsel in 2001. Bob relinquished his ACCC General personality. At ACAT she manages the Administrative Review Divi- Counsel position in 2011 and continued work with the ACCC as a sion, as well as presiding over hearings and appeals. Professor Spender part-time consultant until August 2013. During his time with AGS has contributed to many Australian and international books and jour- and subsequently with the ACCC, Bob worked on many significant nals as well as co-authoring the leading Australian casebook on civil competition law and consumer law matters for the ACCC. procedure, which is currently its fifth edition. Her appointments in- clude membership of the National Legal Profession Reform Consulta- 5 Sean King tive Group, the ACT Joint Rules Advisory Committee and the Sean graduated from the ANU with Honours in law in 1990. In 1992, editorial board of the Journal of Civil Litigation and Practice. She is he started working as lawyer with Bob Alexander’s AGS team co-lo- also currently President of the Corporate Law Teachers Association. cated with the Trade Practices Commission (as it was then) in Can- berra and has spent his entire legal career doing competition and 5 Associate Professor Pauline Ridge consumer law with or on behalf of the TPC and ACCC. Sean acted in Pauline Ridge is Acting Director of the Centre for Commercial Law the position of Executive General Manager of the ACCC’s Legal at the ANU College of Law. She is a graduate of the ANU (BA/LLB Group in 2010 and 2011. He is currently Deputy General Counsel, (Hons) and a University Medal in Law) and the University of Oxford leading the Competition and Consumer Unit in the Legal Group, (BCL). She researches and teaches in equity, restitution and contract specialising in enforcement and compliance. He heads up a team of law, and law and religion. She has published a number of book chap- about a dozen or so lawyers who are located in Melbourne, Sydney, ters and journal articles in these areas and is the co-editor of Fault Canberra, Brisbane, Adelaide and Perth. The team also provides legal Lines in Equity (Hart Publishing, 2012). services to the Darwin, Hobart and Townsville offices of the ACCC.

5 Daren Armstrong 5 Russell Miller Daren Armstrong is highly regarded for his sensitive handling of com- Russell Miller AM is the author of Miller's Australian Competition & plex corporate advisory, financing and restructuring matters. He is a Consumer Law Annotated, 35th Edition (Thomson Reuters 2013), the specialist in legal issues concerning emerging technologies, statutory leading reference text, and Miller's Australian Competition Law and authorities, the tertiary education sector, agribusiness, renewable en- Policy, 2nd Edition (Thomson Reuters 2012).He has an active practice ergy, major acquisitions and the financing of large scale professional advising boards on strategic governance issues. He is a partner of services. He has served as a Director of the Commercial Law Associa- Minter Ellison and an Adjunct Professor at ANU. Russell has been tion of Australia and as Secretary to its Legislative Review Task Force. awarded a Member of the Order of Australia for his contribution to Daren currently serves on the conference planning committee of the the legal profession in the fields of international and business law. Banking & Financial Services Law Association. He is a Fellow of the Australian Institute of Company Directors and holds degrees in Sci- ence and Law from the Australian National University and a Masters of Law from the . SEMINAR REGISTRATION/TAX INVOICE Commercial Law Association of Australia Ltd • (02) 9979 1364 • [email protected] • ABN 91 914 874 903 Please return your registration form to: GPO Box 5186, Sydney NSW 2001 • DX 1285 Sydney • fax: (02) 9979 1599 Friday, 8 November, 2013 from 9.00am to 4.00pm. Dixson Room, Mitchell Wing, NSW State Library. CLA members $595; non-members $795 (GST & lunch inc). Conference = four units of MCLE points

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