FEATURE ARTICLE -
Advocacy, Issue 91: Mar 2023
Earlier this year, the Honourable Chief Justice caused to be published Supreme Court Practice Direction 1 of 2023 – Commercial List (the Practice Direction and the List). As its name implies, the Practice Direction concerns the conduct of matters on the Commercial List of the Supreme Court. The Practice Direction commenced operation on 30 January 2023, and applies to proceedings listed on the List as at that date and to proceedings placed on the List thereafter.
The Practice Direction ought to be read in conjunction with the following documents, published by the Court on or around the same date:
The Notes concerning electronic filing and document management and expert evidence in Commercial List proceedings are beyond the scope of this brief article and will not be considered further here.
A matter is eligible to be placed on the List “if 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] With the exception of the addition of the words “including eCommerce”, the quoted words are drawn from the predecessor Practice Direction[2] (PD 3 of 2002, now repealed); thus, there is no substantive change occasioned by the Practice Direction to the type of matters eligible to be placed on the List.
Administration of the List
The Practice Direction designates:
- a single Judge of the Court to administer the List, and to be known as the “Commercial List Principal Judge”; and
- one or more Judges of the Court to conduct and manage matters on the List, and to be known as “Commercial List Judges”.
The Note to Parties and the Profession names his Honour Justice Applegarth as the Commercial List Principal Judge. His Honour is also nominated a Commercial List Judge, together with their Honours Justices Brown, Bradley, Freeburn, Kelly, Cooper and Hindman.[3]
Placing a matter on the List
A party may request that a matter be placed on the List by, preferably, completing the online “Commercial List request form”,[4] accessible here. Alternatively, a party may make that request by sending an email to the Associate to Justice Applegarth, in his Honour’s capacity as the Commercial List Principal Judge.[5]
A request to place a matter on the List may be made at any time after (or, in an “exceptional case” requiring urgent resolution, before) the filing and service of the relevant originating process.[6]
Matters placed on the List will fall into one of three categories: urgent, “Fast Track” matters; proceedings expected to involve a trial of 5 days duration or less (including submissions); and proceedings expected to involve a trial of more than 5 days’ duration.[7]
Where a matter is particularly urgent, the party seeking to have the matter placed on the List ought to make such urgency known to the Associate to Justice Applegarth.[8] Such matters will be subject to the “Fast Track Directions” and the processes applicable to such matters, set out in paragraphs 42-44 of the Practice Direction.
Communications with the Court in relation to a matter on the List
Once a matter is placed upon the list and allocated to a Commercial List Judge, the parties’ principal point of contact with the Court in relation to the matter is to be the relevant Judge’s Associate.[9]
Significantly – and in a departure from ordinary practice – the Practice Direction permits the legal representatives of a party to a matter on the list to communicate with the Associate of the relevant Judge without first obtaining the consent of the other party or parties to the litigation,[10] provided that the communication is “factual, civil and uncontroversial”.
Reviews and directions
A proceeding will usually be listed for review within 5 business days of the matter being assigned to a Commercial List Judge.[11] It is anticipated that urgent, Fast Track matters will be listed sooner.
The associated Note About Draft Directions provides an extensive set of template directions dealing with issues often arising in the context of matters of the kind likely to be placed upon the List. The template directions concern orders to confer, reports as to status, alternative dispute resolution processes, document plans, document management and disclosure (including draft orders limiting the scope of disclosure), expert evidence, statements of issues to be tried, trial plans and directions, reviews and case conferences.
Parties to matters on the List are specifically encouraged to “adapt common forms of draft directions” to the individual circumstances of the matter at hand[12] and to agree (or at least propose) suitable draft directions in a timely fashion.[13]
The template orders set out in the relevant Note are extensive. It is anticipated that those template orders will be a useful resource for practitioners; they provide a common starting point from which orders suitable to the circumstances of a given matter might be crafted and agreed.
Interlocutory applications
The Practice Direction expressly provides that contested interlocutory issues may be decided at a review. Parties are directed to “approach reviews” on that basis. Where substantive issues are to be determined at a review, the parties are required to provide “any necessary material, concise written outlines and proposed orders to the Associate to the Judge” by 4pm the day prior to the review.[14] In those circumstances, practitioners would be well-advised to comply in all other respects with Practice Direction 12 of 2022 – Applications, mutatis mutandis.
Where a party seeks to make an interlocutory application in relation to a matter on the List (other than an urgent or Fast Track matter), correspondence exchanged between the parties pursuant to rules 444 and 445 of the Uniform Civil Procedure Rules 1999 (Qld) pertaining to the contested issue must be sent to the Associate of the relevant Commercial List Judge by the party intending to apply, before the interlocutory application will be listed for hearing.[15]
Practitioners familiar with the Commercial List jurisdiction will recognise many similarities between the former list and the “new” Commercial List.
However, in numerous, and quite material respects, the new List differs in its operation to the former List. Those changes (indeed, the entire Practice Direction) are clearly directed toward further enhancing the Court’s capacity – through the Commercial List – to facilitate the “just, expeditious and efficient resolution of commercial matters at a minimum of expense”.
The Practice Direction and its numerous supporting Notes are too substantive to be comprehensively summarised in a brief article such as this. Those documents are essential reading for all who practise in commercial matters before the Supreme Court.
[1] Practice Direction, paragraph 11; see also a non-exhaustive list of the types of matters which might be appropriate for placement on the Commercial List, at paragraph 13 of the Practice Direction.
[2] Practice Direction 3 of 2002, paragraph 7(a)(i).
[3] Commercial List Note to Parties and the Profession.
[4] Practice Direction, paragraph 18.
[5] Practice Direction, paragraph 16.
[6] Practice Direction, paragraph 17.
[7] Practice Direction, paragraph 14.
[8] Practice Direction, paragraph 43.
[9] Practice Direction, paragraph 10.
[10] Practice Direction, paragraph 36.
[11] Practice Direction, paragraph 30.
[12] Practice Direction, paragraph 15.
[13] Practice Direction, paragraph 23; Commercial List Note to Parties and the Profession, paragraph 9.
[14] Practice Direction, paragraph 26.
[15] Practice Direction, paragraph 29.
