Navigating the new Commercial List

On 30 January 2023, Supreme Court Practice Direction 1 of 2023 Commercial List commenced.

The practice direction, supported by notes that provide guidance about the practical aspects of the list, effected significant changes which enhance the Supreme Court Commercial List initially established in 2002, and include:

1. the allocation of a Commercial List Principal Judge (currently Applegarth J) to administer the Commercial List, together with six other Commercial List judges (currently Brown, Bradley, Freeburn, Kelly, Cooper and Hindman JJ)
2. a simplified procedure for placing a matter on the Commercial List
3. the expansion of matters that may appropriately be include on the Commercial List
4. that Commercial List matters are not any longer restricted to trials expected to take five days or less
5. establishing a fast-track process for urgent matters. Fast track directions have been developed, and are discussed further below.

The practice direction enlarges the scope of the matters that may be listed on the Commercial List so that matters which might be included are those where the issues involved are (or are likely to be) “of a general commercial character, or generally arise out of trade and commerce, including ecommerce”.¹

Another significant feature of the Commercial List in its new iteration is that the practice direction contemplates that trial dates will generally be dealt with at the second review, which will normally take place within two months of the first review.² Paragraph [32] of the practice direction continues:

“The allocation of realistic, early dates for a trial or final hearing is critical to the just, expeditious and efficient resolution of matters at a minimum of expense, either at trial or be pre-trial mediation or compromise.”

In light of the practice direction, there is an increased likelihood a matter may be allocated to the Commercial List. Accordingly, this is an appropriate juncture for practitioners to consider how the Commercial List may be navigated moving forward.

This note addresses the following practical questions:

1. when is the Commercial List procedure appropriate?
2. placing a matter on the Commercial List
3. reviews
4. fast track procedure.

When is the Commercial List appropriate?

A matter is a commercial matter if the issues involved are, or are likely to be, of a general commercial character, or generally arise out of trade and commerce, including e-commerce.³

The practice direction contains a non-exhaustive list of commercial matters that may be of the necessary character for inclusion on the list.⁴ While general contractual disputes and building disputes are not specifically referred to, aspects of those kinds of disputes may bring them within the Commercial List procedure.

To be a commercial matter suitable for the Commercial List, it must be in, or transferred to, the Brisbane Registry.⁵

It is no longer necessary that the estimated trial time is five days or less; the Commercial List now includes the following three categories of proceeding:

1. matters that require urgent resolution may be managed by a ‘Fast Track’ procedure
2. matters with an expected trial time of no more than five days, including submissions
3. matters with an expected trial time of longer than five days.⁶

Placing a commercial matter on the Commercial List

A party requests a matter be placed on the Commercial List by email to the associate to the Commercial List Principal Judge and copied to the other parties.⁷ The practice direction contains a link to a Commercial List request form.⁸ It is no longer necessary that a party bring an application for a matter be placed on the Commercial List.⁹

A request to place a matter on the Commercial List may be made at any time after the originating process has been filed and served.¹⁰ While it is now not required that the views of the other parties have been sought prior to the request, if another party opposes the matter being on the Commercial List, they ought promptly advise the Commercial List Principal Judge of their grounds of opposition.¹¹

Once a matter is placed on the Commercial List, it will generally be subject to ongoing case management by a particular Commercial List judge who is allocated to the matter and who will maintain responsibility for the matter until disposition.¹²

Steps once a matter has been placed on the Commercial List

Practical matters

Communication with the court

As is generally the case, parties are expected to co-operate with each other and the court.¹³ Communications with the court should be factual, civil, not argumentative or tedious, and occur via email to the allocated judge’s associate and copied to the lawyers for the other parties.¹⁴

The court is to be kept informed of relevant matters as they arise, including for example, if there a possibility of non-compliance with orders.¹⁵

Electronic document filing and management

Unless otherwise directed, once a matter has been placed on the Commercial List parties are to use the Objective Connect file-sharing platform to file documents. Parties will receive an Objective Connect invitation generated by the court, following which a workspace can be registered and created.¹⁶

In addition, electronic management of documents is encouraged.¹⁷

Reviews generally

Once a matter has been placed on the commercial list, the Commercial List judge to whom the matter is allocated will list the matter for review and case management directions.¹⁸

Prior to any review:

1. The parties must confer to facilitate the identification and resolution of a many issues as possible and to agree steps and directions for the resolution of the dispute (the Commercial List note about draft directions provides sample directions that may be considered).¹⁹
2. If the parties agree as to directions, they may request the judge make them by consent on the papers.²⁰ Arrangements should be made for telephone or video-link appearance and any necessary documents circulated.²¹
3. If it will be necessary to resolve a substantive issue at the review, provided the judge and the parties have been informed of the proposal and sufficient time has been allocated for the matter to be heard, by 4pm on the day before the review, the parties are to provide any necessary material, concise outlines and draft orders to the judge.²²

Only relevant documents should be placed before the court at a review, unnecessary proliferation of documents is to be avoided.²³

First review

The first review will usually be held within five business days of the matter being placed on the Commercial List.²⁴ At that first review, the Commercial List judge will ordinarily consider:

1. whether the matter should remain on the Commercial List
2. if there are pleadings, or in the event the judge considers pleadings are required, a timetable for the close of pleadings
3. document management, document plan and disclosure²⁵
4. the identification of lay witnesses and the form of their evidence
5. directions in respect of expert evidence (see the ‘Commercial List Note About Expert Evidence’).²⁶

Usefully, the practice direction is accompanied by a ‘Commercial List Note About Draft Directions’ which provides a comprehensive list of directions that may be considered and adapted to the circumstances of the case, including in relation to document management, and expert evidence.

If a directions order has not been agreed between the parties prior to the review, the parties should be prepared to address the judge as to the appropriate directions order at the review. A proposed draft directions order should also be prepared, to be provided to the judge.

Further reviews

If necessary, a second review will ordinarily be convened within two months of the first, which review will deal with identification of any outstanding interlocutory issues and matters directed to trial, including trial dates, plan and directions.²⁷ As indicated above, the practice direction notes that early dates for trial or other resolution are “critical to the just, expeditious and efficient resolution” of matters on the Commercial List.²⁸

Interlocutory applications

Practitioners should be mindful that rules 444 and 445 of the Uniform Civil Procedure Rules 1999 (Qld) apply to any interlocutory application made in a matter on the Commercial List, unless it is an urgent or fast track matter. The rule 444 and 445 letters should be provided to the judge, who will make directions on the papers for the hearing and determination of the application.²⁹

Practitioners should consider whether it is appropriate that an application may be heard on the papers.³⁰

Allocation of trial dates

Based on the trial plan, the judge will look to allocate realistic, early dates for a trial, which allocation will occur at either a review hearing or by administrative process.³¹

Urgent matters/fast track directions

In an exceptional proceeding that, by its nature, requires urgent resolution, a Commercial List judge may make directions for the matter to be conducted by way of fast track directions which may include:

1. Fast track statements, responses, cross-claims and replies in place of pleadings (which the authors expect to be similar in nature to the ‘concise statement’ used in the Federal Court of Australia fast track procedures)³²
2. expedited timetables
3. limited disclosure and document orders
4. early allocation of hearing dates
5. a pre-trial conference
6. trial plans
7. ‘stopwatch hearings’, which is a method of trial where the court makes orders in respect of the amount of time each party is permitted to utilise, often by allocation of blocks of time to each aspect of the hearing.³³

Given the enlarged scope of the matters which are likely to be placed on the Commercial List (although bearing in mind that not all ‘commercial’ matters are necessarily likely to be subject to the new process) practitioners should carefully consider Practice Direction 1 of 2023 and the associated Practice Notes.

Mark Steele KC is a barrister at Northbank Chambers, Brisbane, and Kirsty Gothard is a Brisbane barrister in private practice.

Footnotes
¹ Practice Direction 1 of 2023 Commercial List at [11].
² Ibid [31].
³ Ibid [11].
⁴ Ibid [13].
⁵ Ibid [6].
⁶ Ibid [14].
⁷ Ibid [16].
⁸ Ibid [18].
⁹ See for example Townsville City Council v QNI Metals Pty Ltd & Anor [2020] QSC 61 per Dalton J.
¹⁰ Practice Direction 1 of 2023 Commercial List at [17] in an exceptional case a request may be made before a proceeding is filed.
¹¹ Ibid [16] – [19].
¹² Ibid [4].
¹³ Ibid [21].
¹⁴ Ibid [34] – [37].
¹⁵ Ibid [34] and [38].
¹⁶ Ibid [39] and ‘Commercial List Note About Electronic Document Filing and Management’.
¹⁷ ‘Commercial List Note About Electronic Document Filing and Management’.
¹⁸ Practice Direction 1 of 2023 Commercial List at [20].
¹⁹ Ibid [23].
²⁰ Ibid [24].
²¹ Ibid [27].
²² Ibid [25] and [26].
²³ Ibid [28].
²⁴ Ibid [30].
²⁵ In that regard, practitioners should also note the Commercial List Note about Draft Directions, and the Commercial List Note about Electronic Document Filing and Management.
²⁶ Practice Direction 1 of 2023 Commercial List at [30].
²⁷ Ibid [31].
²⁸ Ibid [32].
²⁹ Ibid [29].
³⁰ Ibid [29(e)].
³¹ Ibid [32] and [33].
³² See O’Keefe & Ors v Zeaiter Holdings Pty Ltd & Ors [2022] QSC 86 at [82] per Jackson J.
³³ Practice Direction 1 of 2023 Commercial List at [42] to [44].