Order 10A Rules 10 to 14 of the National Court Rules 1983 set out a sequence that is easy to get wrong.
Rule 10
A proceeding may be listed on the commercial list upon application to the Commercial List judge or the Judge Administrator of the Civil List.
Rule 11
(a) after the writ or summons has been served on the defendants or respondents;
(b) after the views of the defendants or respondents as to its listing have been sought by the applicant;
(c) on service of a motion to list together with a supporting statement, of the parties to the proceedings.
Rule 11(c)(i): prior to filing a listing motion the lawyer for the applicant must contact the Commercial List Clerk or the Associate to the Commercial List Judge and obtain a date and time for the hearing.
Rule 11(c)(ii): a listing application is to be made by motion supported by a statement made in accordance with these rules (“a listing statement”); and Rule 11(c)(iii): the form of a listing statement should substantially comply with schedule A.
The applicant must seek the defendant’s views on listing before applying. That is a substantive requirement, not a courtesy, and the listing statement must record the result — paragraph 4 of Schedule A asks for the attitude of the other parties as to the proposal to include these proceedings in the Commercial List.
Write to the other side, allow a reasonable time to respond, and exhibit the correspondence. An application that cannot answer paragraph 4 is incomplete.
Schedule A
- The nature of the dispute — set out in a summary way.
- The issues which are likely to arise in the proceedings — set out in a summary bullet point manner.
- The proceedings ought to be included on the Commercial List for the following reasons.
- The attitude of the other parties as to the proposal to include these proceedings in the Commercial List.
- The applicant’s contentions in relation to the proceedings — (a) a brief and informal statement of the relevant general facts giving rise to the proceeding; (b) a brief statement of the grounds on which the applicant claims relief, including any statutory rights.
- The special directions required in this proceeding and the reasons why the directions are sought.
- The circumstances of urgency in relation to the proceedings.
Schedule A repeatedly calls for a summary, bullet point, brief and informal account. That is consistent with Rule 18, which requires a defence filed under a direction to avoid formality.
A listing statement drafted like a statement of claim misses the point. Paragraph 3 is where the case for the list is made — identify which of the fifteen categories in Rule 9 applies, and why the commercial element is serious.
Paragraphs 6 and 7 are the ones that shape what the Judge does at the first directions hearing, so give them real content rather than treating them as formal.
Rule 12
An applicant for listing shall prepare a draft order setting out the directions sought on the return of the motion. The draft is to be delivered by the applicant to the associate to the Commercial List judge and to the other parties, not less than 24 hours prior to the time set for the hearing.
Any consent to the orders should be endorsed on the draft.
If the parties agree to the proposed orders the endorsed draft order should be delivered to the Commercial List judge and the judge may, without the need for a hearing, include the proceedings on the Commercial List.
That is a strong reason to approach the other side properly under Rule 11(b). Agreement converts a contested motion into a paper exercise.
Rule 13: an order to include a proceeding in the Commercial List is an interlocutory order.
That characterisation matters on appeal — see appealing interlocutory orders — and it means the order can be varied or discharged in the ordinary way.
Rule 14
The respondent shall be in a position on the hearing of the application to advise the Court of its position to each of the matters in the Listing Statement, including —
(a) which of the contentions is contested;
(b) what the Respondent’s contentions are in relation to the dispute;
(c) what the Respondent believes to be the nature of the dispute and the issues likely to arise;
(d) whether the Respondent intends to cross-claim and the factual and legal basis of that cross-claim.
A respondent must state its contentions and flag any cross-claim at the listing hearing — potentially well before a defence would otherwise be due under Order 8 Rule 4.
That is deliberate. It allows the Judge to give directions at the first hearing that reflect the real shape of the dispute rather than the pleadings as they stand.
A respondent served with a listing motion should therefore prepare on the merits, not merely on whether the list is appropriate.
Rule 21
Where a matter is listed by the Registry or on the recommendation of the Registrar, the Commercial List Clerk will notify the parties.
Within 14 days of that notice, any party may apply by motion to have the matter removed from the lists.
If no such application is filed within 14 days, the plaintiff shall, within 28 days of the notice, file a motion for directions, together with a Commercial List Statement completed as to paragraphs 1, 2, 5, 6 and 7 if applicable.
Only paragraphs 1, 2, 5, 6 and 7 are required — paragraphs 3 and 4 are omitted, because the case for listing and the other parties’ attitude are not in issue where the Registry has listed the matter.
The two deadlines run from the Clerk’s notice, so diarise that date. See the time limits.
Sources
- National Court Rules 1983 — O 4 Div 5; O 8 r 4; O 10A rr 9–14, 18, 21, Sch A
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.