Rule 8 of Order 10A of the National Court Rules 1983 sets the test, and Rule 9 illustrates it.
Rule 8
Any matter already filed and apparently involving a dispute concerning an amount greater than K500,000 arising out of a commercial transaction or in which there is an issue which has importance in trade or commerce, will be, if the Registry identifies the matter, automatically placed on the Commercial List.
Any other matter may be added to the List by application of a party, in accordance with this direction, or on the recommendation of the Registrar.
“Apparently” — the Registry assesses on the face of the papers. It is not a determination.
An amount greater than K500,000 — the automatic-listing threshold.
“Arising out of a commercial transaction or in which there is an issue which has importance in trade or commerce” — two alternative qualities. A case need not involve a transaction at all if it raises an issue of general commercial importance.
Rule 9(a)
Proceedings likely to involve any one or more of the following may be regarded as arising out of a commercial transaction or involving an issue which has importance in trade or commerce —
- Construction of a business contract or a commercial document
- Insurance and re-insurance
- Banking and financial services
- Provision and enforcement of securities
- Business and commercial agents
- Exploitation of or rights to technology
- Entitlement to intellectual property
- Takeovers
- Exporting or importing of goods
- Carriage of goods by land, sea, air or pipeline
- Exploitation of natural resources
- Conduct or operation of markets, exchanges or commodity boards or regulators
- Application of the Independent Consumer and Competition Commission Act 2000
- Proceedings under the Income Tax Act or other revenue legislation, but not matters where the summary judgement procedure is available to the plaintiff
- Corporations’ law
Revenue proceedings qualify — but not matters where the summary judgement procedure is available to the plaintiff. A revenue claim capable of summary judgment under Order 12 Division 4 belongs in the ordinary track, where it can be disposed of quickly without the machinery of the list.
That reflects the purpose of Order 10A: the list exists to move substantial contested commercial disputes, not to add steps to a case that could be over in one application.
Corporations’ law covers disputes under the Companies Act 1997 — shareholder and director disputes, oppression claims, and applications concerning the affairs of a company.
Note that insolvency proceedings under the Insolvency Act (Chapter 253) and liquidation applications under the Companies Act follow their own statutory procedures; whether such a matter is suitable for the list is a question for the Commercial List Judge’s discretion under Rule 9(c).
What the categories have in common
Contracts and documents in trade — categories 1, 5 and 9: construction of a business contract or commercial document, commercial agency, and the export or import of goods. These are the ordinary disputes of trading enterprises.
Finance and security — categories 2, 3 and 4: insurance and re-insurance, banking and financial services, and the provision and enforcement of securities. A mortgagee’s enforcement action against substantial commercial security falls here.
Rights in intangibles — categories 6 and 7: exploitation of or rights to technology, and entitlement to intellectual property. Disputes under the Copyright and Neighbouring Rights Act 2000 or the Trade Marks Act may qualify where the commercial element is serious.
Regulated markets and corporate control — categories 8, 11, 12, 13 and 15: takeovers, exploitation of natural resources, the operation of markets and regulators, competition law, and corporations’ law.
Carriage of goods by land, sea, air or pipeline is the one transport-specific head. In a country where much freight moves by sea and air, and where pipelines carry the output of major resource projects, it is not a marginal category.
A claim for loss of or damage to cargo, or a dispute about a bill of lading or charterparty, is a natural candidate — provided the amount or the issue meets the Rule 8 test.
Rule 9(b)
Proceedings which concern the above topics but exhibit no serious commercial element, or in which there is no real dispute, should not be listed on the Commercial List.
“No serious commercial element” — a claim that touches a listed topic incidentally does not qualify. A personal injury claim against a bank is not a banking case.
“No real dispute” — an undefended debt claim, or one where the defence is plainly untenable, belongs in default judgment or summary judgment, not on the list.
Rule 9(c)
The Commercial List judge has discretion as to whether a matter should be entered or retained on the Commercial List.
The word retained matters: a case may qualify at the outset and cease to be suitable later — if the commercial issues fall away, or the amount in dispute reduces. Rule 22 then allows removal.
Is the list the right place?
- Is there a genuine contest? If the defendant has no arguable defence, summary judgment will be quicker than the list.
- Is the commercial element serious? Identify which of the fifteen categories the case falls in, and be able to say why.
- Can the client meet the timetable? The Schedule B standard order requires expert reports 28 days before trial, statements of evidence 28 days before, and a paginated document bundle by midday on the last working day. See the time limits.
- Is discovery essential? Rule 19 gives it only upon demonstrated need being established in respect to particular matters. A case that turns on documents in the other side’s hands needs that need articulated early.
Under Rule 15, all interlocutory applications and motions and the trial of the proceedings, if practicable, shall be conducted by the Commercial List judge. One judge, familiar with the matter throughout, is a real advantage in a document-heavy commercial case.
Sources
- National Court Rules 1983 — O 9; O 10A rr 8, 9, 15, 19, 22, Sch B; O 12 Div 4
- Companies Act 1997
- Insolvency Act (Chapter 253)
The Independent Consumer and Competition Commission Act 2000 and the Income Tax Act 1959 are not available on PacLII.
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.