Commercial Court of the Supreme Court of Victoria Practice Note (Second Revision)
The Commercial Court of the Supreme Court of Victoria has released a new practice note, known as the Commercial Court Practice Note (Second Revision), more brief and concise than its predecessor. Effective as of February 26, 2024, this practice note replaces the Note, published on 21 December 2017, and applies to all ongoing and forthcoming proceedings in the Commercial Court. Read on to get a comprehensive overview of the new changes.
Forum and organisation of the case
Parties in commercial proceedings can opt to have them adjudicated in the Commercial Court by either initiating the process there or submitting an application through summons. However, certain types of cases must be filed directly in the Commercial Court. Additionally, while the judge will handle the proceeding and hearings, an Associate Judge or Judicial Registrar may be referred parts, where appropriate. There will be a minimum of two directions hearings, one shortly after the proceeding is issued and one to make pre-trial directions and to set a trial date.
In this initial directions hearing, issues in dispute, and mediation times, must be discussed (in accordance with s26 CPA). Pleadings must include only substantive issues, and if appropriate, the Commercial Court may dispense with this requirement. Joinders must be made promptly (in accordance with s25 CPA), which the court must be informed of at this hearing. Additionally, parties must disclose all documents in discovery that are, or have been, in that party’s possession, custody, or control of which that party is aware and which that party considers, or ought reasonably consider, are critical to the resolution of the dispute[1], with compliance to be ordered at the hearing if this is not fulfilled.
The note also considers the court’s reluctance to make general discovery orders, favouring specific discovery orders which may be granted in suitable cases, but only with permission (i.e., upon demonstrating good cause) and after fulfilling the obligations under section 26.
pre-trial directions hearing
During the pre-trial hearing, the focus is on optimizing trial procedures for efficiency. With a flexible approach and no rigid rules, parties are encouraged to strategise early on the trial’s conduct, including the admission and presentation of evidence. In considering lay evidence, oral testimony is preferred over witness statements for efficiency and cost-effectiveness. Additionally, the Note delves into the intricacies of expert evidence requirements, including the court’s authority to order joint reports for expert witnesses, and provides guidance on crafting a comprehensive trial plan and timetable.
Applications
Applications for urgent relief
Applications for urgent relief may be lodged and will be receivable by the court through either the Judge, associate, or the registry.
Interlocutory applications
The court wishes to cut back on interlocutory applications, which have become time-consuming and expensive. Where the hearing may take longer than one hour and otherwise may involve matters such as a challenge to pleadings, a claim for privilege, or a claim for confidentiality or for specific discovery, parties will now have to confer over the issues themselves. The moving party (the party wishing to initiate an interlocutory application) must send a letter to the responding party regarding the issues they wish to be sorted, not exceeding four pages, identifying the orders sought and the basis for seeking the orders. The responding party must respond within seven business days; if no resolution is reached, they must send a letter not exceeding four pages identifying their opposition. If a dispute remains, the parties must send a joint email to the judicial officer managing their case, who will decide how the issue in contention will proceed, in which there are more avenues for resolution the judge will set out. This procedure does not apply to applications for injunctive relief or other urgent applications.
This new Practice Note aims to streamline court processes, and reduce the associated delays and costs that burden the system. Please note that this is not a full synopsis of all the changes. For a comprehensive insight, please visit the Supreme Court of Victoria’s website at https://www.supremecourt.vic.gov.au/areas/legal-resources/practice-notes/sc-cc-1-commercial-court-second-revision .
For more information, please contact Warlows Legal using the contact information below.
[1] 5.4
