Once a proceeding is on the list, Order 10A of the National Court Rules 1983 changes how it is run.
Rule 15
Upon entry of proceedings to the Commercial List all interlocutory applications and motions and the trial of the proceedings, if practicable, shall be conducted by the Commercial List judge, subject to any direction from the Judge Administrator of the civil list.
The rules relating to motions in the National Court Rules shall apply to interlocutory applications.
Continuity. The Judge who gave the directions hears the applications and, where practicable, the trial. In a document-heavy commercial case that is a substantial saving.
The Motions Rules still apply. A notice of motion must still comply with Order 4 Division 5 — including the requirement of a concise reference to the Court’s jurisdiction to grant the relief. Informality in pleading does not extend to motions.
Rule 17
At the first directions hearing orders will be made and directions given with a view to the just, quick and cheap disposal of the proceedings.
Rule 16 adds the general power: the Commercial List judge may make such orders or give such directions as are appropriate.
- the filing of points of claim, points of defence or other documents;
- the filing of cross-claims;
- the filing of a statement of agreed issues and the result in the proceedings according to the determination of those issues;
- the provision of any essential particulars;
- the making of admissions, pursuant to a notice to admit facts or otherwise;
- the delivery or exchange of experts’ reports;
- the holding of conferences of experts;
- the filing of lists of documents either generally or with respect to specific matters;
- the preparation of a Schedule of contentious issues;
- the provision of copies of documents;
- the administration and answering of interrogatories either generally or with respect to specific matters;
- the service and filing of affidavits or statements of evidence by a specified date or dates.
A statement of agreed issues and the result in the proceedings according to the determination of those issues means the parties agree in advance what follows from each answer. It converts a trial into the determination of a defined set of questions.
Head 7 — conferences of experts — is the other distinctive one. Experts meet, narrow their differences, and the trial deals only with what remains. See expert evidence.
Rule 18
(a) avoid formality;
(b) admit or deny the facts on which the plaintiff relies;
(c) so far as they do not appear from (b), state the facts on which the defendant relies and contain adequate particulars of those facts; and
(d) identify the legal grounds for opposition to the relief claimed.
Paragraph (a) removes the formal drafting conventions. Paragraphs (b) to (d) are, if anything, more demanding than Order 8: the defence must admit or deny each fact, plead its own facts with adequate particulars, and identify the legal grounds of opposition.
Order 8 requires the facts but not the law. Rule 18(d) requires the legal grounds — which is what allows the Judge to define the issues at an early stage.
Rule 19
Orders or directions relating to the provision of particulars, the filing of lists of documents and the administration of interrogatories will be made only upon demonstrated need being established in respect to particular matters.
Three things are affected: particulars, discovery, and interrogatories. None is available as of course on the Commercial List.
Note “in respect to particular matters”. The need must be shown for identified categories of document or identified questions, not for discovery at large. A party seeking discovery should come to the directions hearing able to say what documents, why they matter, and what issue they go to.
Rule 20 and Schedule B
Where appropriate prior to trial orders for production of experts reports, statements of evidence and delivery of lists and bundles of documents will be made in the form of schedule “B” amended as the parties’ desire.
And where an order is made in those terms, the order may be taken out in short form with any amendments noted substantially in accordance with schedule “C” — which simply records the usual order for hearing in accordance with annexure “B” and any amendments.
Seven headings: Experts Reports; Statements of Evidence; Service & Delivery of Statements and Affidavits; Specifying Documents to be tendered; Tender of Original Documents; Continuing Discovery; and Statements of Agreed Issues and Chronology.
The deadlines are set out in the Commercial List time limits. Two features are worth noting here.
Continuing discovery — a party required to file a list of documents is, until the conclusion of the hearing, under a continuing obligation to disclose any document relevant to any matter in issue, and must file a supplementary list with an affidavit specifying the reason for failure to disclose in the original list.
Evidence in chief on the papers — the Court may, on such terms as it thinks fit, direct that a report served or part of it, stand as the evidence in chief of the witness, and the same for affidavits and statements of evidence. Cross-examination then does the work at trial.
Schedule B, paragraph 3(a): a party who fails to comply with such a direction or order may not adduce evidence to which the order or direction applies without leave of the Court.
Evidence served late is not evidence until leave is given. And under Rule 25, the summary disposal procedure set out in Rule 16 of the Listings Rules 2005 is adopted for the list — so persistent default risks the proceeding itself.
Sources
- National Court Rules 1983 — O 4 Div 5; O 8; O 9; O 10 r 9A; O 10A rr 15–20, 25, Schs B and C
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.