SC CC 1 Commercial Court (Second revision)

1.   INTRODUCTION

1.1   The Chief Justice has authorised the issue of the following Practice Note.

2.   COMMENCEMENT

2.1   This Practice Note was issued on 26 February 2024 and commences on 26 February 2024. It will apply to all proceedings from that date. This Practice Note supersedes Practice Note SC CC 1, issued 21 December 2017.

3.   COMMERCIAL COURT AND ITS OVERARCHING PURPOSE

3.1   The Commercial Court is a Division of the Supreme Court of Victoria and hears commercial proceedings of the kind set out in ‘Practice Note SC Gen 2 – Structure of the Trial Division’, an extract of which is Annexure A to this Practice Note.

3.2   The Commercial Court seeks to give effect to the Overarching Purpose of the Civil Procedure Act 2010 (Vic) (‘CPA’): to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. It does so by the early identification of the substantial questions in controversy and flexibly adopting appropriate and timely procedures for the conduct of each proceeding. The procedures are designed and implemented to ensure that, as far as practicable, the costs and work involved with conducting a commercial proceeding are not disproportionate to the complexity of the issues, the value or importance of the matters in dispute.

3.3   The Commercial Court relies on the cooperation of the parties and their legal advisers — and their compliance with the Overarching Obligations under the CPA. Any party appearing without legal representation must make themselves aware of the CPA, particularly Part 2.3, and comply with this Practice Note. Corporations are required to be represented by a solicitor, except as otherwise provided. See r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2015(Vic).

4.   ENTRY INTO THE COMMERCIAL COURT

4.1    Any party to a commercial proceeding may seek to have that proceeding determined by the Commercial Court: either by issuing the proceeding in the Commercial Court or applying by summons. However, all Corporations Proceedings, Taxation Proceedings, Arbitration Proceedings, Admiralty Proceedings, TEC List Proceedings and Group Proceedings involving commercial disputes must be filed in the Commercial Court. This Practice Note must be read subject to any relevant legislation, any specific Rules and Practice Notes issued in respect of those kinds of proceedings.

4.2   The proceeding will be allocated to a Commercial Court judge, who will manage the proceeding and conduct directions hearings. However, where appropriate, a proceeding or part of a proceeding may be referred to an Associate Judge or Judicial Registrar for management, or for hearing, or for directions. While the Commercial Court will flexibly adopt procedures appropriate for each proceeding, parties can expect a minimum of two directions hearings: an initial directions hearing shortly after the proceeding is issued and one to make pre-trial directions and to set a trial date.

5.   INITIAL DIRECTIONS

5.1   Issues to be addressed at the initial directions hearing include identifying the real issues in dispute, ensuring compliance with s 26 of the CPA and determining the appropriateness of an early mediation and a process for agreeing the issues for determination. Standard orders are set out at Annexure B to this Practice Note.

5.2    Pleadings: The Commercial Court expects parties to identify, in their pleadings, the real or substantial issues in dispute, supported by proper particulars. Irrelevant or evasive pleadings (such as denials not containing substantive allegations), which are likely to cause delay and unnecessary costs, will not be allowed. Parties are expected to file a responsive pleading promptly. If appropriate, the Commercial Court may dispense with the requirement for pleadings. Directions about particulars are not ordinarily made.

5.3   Joinder of additional parties: Consistent with the obligation in s 25 of the CPA, parties should act promptly to join anyadditional party or parties to the proceeding. At the initial directions hearing, the Commercial Court expects to be informed about the joinder of any additional parties, and the details of any counterclaim(s) not yet filed.

5.4   Critical documents: The Commercial Court expects each party to comply with their obligations under s 26 of the CPA to disclose the existence of all documents 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 (the ‘s 26 obligation’). The parties should comply with the s 26 obligation as soon as practicable: compliance will be ordered at the initial directions hearing if all critical documents have not been provided.

5.5    Other documents: The Commercial Court is keen to avoid time consuming and costly discovery disputes. As a result, the Commercial Court is reluctant to make general discovery orders. In appropriate cases, the Commercial Court may make an order for specific discovery but only with leave (i.e. if good cause is shown) and after the s 26 obligation has been complied with.

5.6   Mediation: It is the practice of the Commercial Court to order the parties to mediate during the course of the proceeding. The parties should consider the possibility of early mediation before significant costs associated with trial preparation have been incurred.

5.7   List of issues and trial plan: If the mediation is unsuccessful, the parties are expected to confer and to seek to agree on a draft trial plan and on a list of the real issues in dispute for determination so that the proceeding may be set down for trial at the next directions hearing.

5.8   Expert evidence: Practitioners are expected to comply with the obligation in s 65G(1) of the CPA to inform the Court and other parties of the intention to adduce expert evidence at an early stage. Expert evidence is addressed further below.

6.   SECOND OR PRE-TRIAL DIRECTIONS HEARING

6.1    Issues to be addressed at the pre-trial directions hearing include identifying how the trial can be conducted most efficiently and when the trial can be heard. The Commercial Court will adopt flexible procedures to ensure that the trial runs as justly and efficiently as possible for the benefit of the parties, other litigants, and the Commercial Court. There are no fixed rules for how a trial is to be conducted. The following paragraphs address issues relevant to how the trial is to be conducted and common practices of the Commercial Court. Standard form orders are set out at Annexure C to this Practice Note.

6.2    Early hearing: The Commercial Court is keen to determine proceedings as soon as reasonably practicable. As a result, the parties should consider, at an early stage, (1) how the trial ought to be conducted; and (2) what evidence is to be adduced and how it is to be adduced. If this occurs and an accurate estimate of the trial duration can be given at an early stage, the Court will seek to fix a trial date at the second directions hearing. This date is subject to compliance with other pre-trial orders and the final trial plan.

6.3    Documentary evidence: Documents are of vital importance to most commercial disputes. It is important that consideration be given as soon as possible to the relevant documents to be tendered. Very often, the documentary evidence can form the basis of a factual chronology and/or an agreed statement of facts, either of which may reduce the oral evidence to be adduced.

6.4   Lay evidence: In the experience of the Commercial Court, oral evidence is a more efficient and cost-effective means of leading evidence, avoiding unnecessary evidence in, and lengthy objections to, witness statements. As a result, it is more common for the Commercial Court to order witness outlines that: (1) summarise the evidence (with sufficient detail of the substance of the evidence) on each topic or conversation on which the witness will give evidence; and (2) list all the documents to be tendered through that witness. However, in an appropriate case witness statements or affidavits may be ordered. Regardless, the parties should expect evidence of important contested conversations to be given orally.

6.5   Expert evidence: The Court will be flexible in the procedures adopted in support of expert evidence. When the Court orders the plaintiff file expert evidence and any defendant files expert evidence in reply, it is usual for the Commercial Court to order expert witnesses in the same discipline to confer and prepare a jointreport. Where appropriate, the Commercial Court may order the provision of common materials and require the experts to address common questions.

6.6   The joint report should identify areas of agreement and disagreement, briefly summarising the reasons for disagreement. Areas of disagreement will be the subject of evidence and cross examination at trial. Areas of agreement will not be subject to cross-examination without the leave of the trial judge.

6.7   Expert evidence often deals with complex technical matters that can be difficult to absorb. As a result, any joint expert process may be required to be facilitated by an appropriately qualified legal person.

6.8   Court book: Voluminous Court books are to be avoided. Parties and practitioners should ensure that only documents to be tendered into evidence are included in the Court book. Such documents should be ordered chronologically, using consecutive pagination, with emails and their attachments grouped together. Unnecessary duplication should be avoided, particularly of lengthy email chains.

6.9   Trial plan and timetable: To assist in ensuring the estimated length of the trial is accurate, the parties and their legal advisers will be asked to complete an updated trial plan after lay and expert evidence is filed, identifying the time estimated for opening and closing submissions, examination in chief, cross-examination, and re-examination of each witness. Legal practitioners are expected to adhere to their trial estimate and trial plan. Time limits may be imposed on the examination and cross-examination of witnesses and for oral submissions pursuant to s 49 of the CPA. A template trial plan is set out at Annexure D to this Practice Notice.

7.   URGENT APPLICATIONS

7.1   Judges of the Commercial Court are ordinarily available to hear all genuinely urgent applications. If a proceeding has not yet been commenced or has not been allocated to a judge for management, an application for urgent relief may be initiated by contacting the Commercial Court Registry. Where a proceeding is already managed by a judge, the party seeking urgent relief should contact that judge’s associate: if the associate is unavailable, practitioners should contact the Commercial Court Registry.

7.2    An application for genuinely urgent relief before a Commercial Court judge may be initiated outside business hours by calling the urgent applications telephone number, which is listed on the Commercial Court page of the Supreme Court website.

7.3   If an urgent application is properly to be made without notice to the other party, this should be clearly stated in all communications with the judge’s chambers and the Commercial Court Registry.

8.   OTHER INTERLOCUTORY APPLICATIONS BETWEEN THE PARTIES

8.1   The Commercial Court is keen to minimise the burden of interlocutory applications, which can be time consuming, expensive and productive of delays. As a result, the Commercial Court expects the parties to confer with each other in relation to any issue that may result in a substantive interlocutory application before any such application is made (being one in which the hearing may reasonably be expected to 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). This process ought involve:

      8.1.1   A party who wishes to raise an issue which may result in an interlocutory application (the ‘moving party’) is to send a letter to the party against whom orders may be sought (the ‘responding party’), not exceeding four (4) pages, that identifies the orders sought and the basis for seeking those orders, and requesting that the parties confer prior to the issuing of any interlocutory application (the ‘request’).

      8.1.2   Within seven (7) business days of receipt of the request, counsel retained in the matter or the solicitor responsible for the conduct of the proceeding on behalf of the moving party and the responding party are to confer by telephone, by audio-visual means, or in person to seek to resolve or narrow the dispute as per s 23 of the CPA. If no agreement is reached, the responding party is to send a letter not exceeding four (4) pages identifying the basis of their opposition to the request (the ‘response’).

      8.1.3   If there remains a dispute the parties must send a joint email to the chambers of the judicial officer managing the proceeding:

         8.1.3.1   attaching the request and the response;

         8.1.3.2   advising whether the parties consider it appropriate that any issue in dispute be determined on the basis of the correspondence; and

         8.1.3.3 if no to 8.1.3.2, advising of the nature and extent of any affidavit material sought to be relied upon to resolve the dispute.

8.2   The judge will then determine how the issue is to be resolved; whether it should be determined on the papers or at a hearing; whether a summons is required; and if it is to be determined at a hearing, what materials, including evidence and submissions, may be relied upon.

8.3   The judge may list the proceeding for mention, may list the disputed issue for hearing, or may refer the disputed issue to another judicial officer.

8.4   In the case of interlocutory disputes relating to matters of practice and procedure, for example pleadings disputes, reasons will not generally be provided.

8.5   This procedure does not apply to applications for injunctive relief or other urgent applications.

9.   OTHER MATTERS

9.1   Orders on the papers: Subject to any directions given by the judge, the parties may submit draft consent orders and request the judge to consider making orders on the papers without an appearance. The judge may nevertheless require practitioners’ attendance and decline to make the proposed orders. In addition to applications disposed of by consent, the judge may determine any application on the papers and may give directions for that purpose.

9.2   Transcript: To ensure the efficient management of cases, the plaintiff is required to order, and in the first instance to pay for transcript for all hearings and interlocutory applications (including urgent applications if appropriate and possible), subject to contrary order under s 130 of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).

10.   COMMUNICATIONS WITH THE COURT

10.1   Other than in open court, practitioners and self-represented litigants may only communicate with a judge through the judge’s associate, the Commercial Court Registry or otherwise through the associate to the principal judge of the Commercial Court. All such communications must be confined to uncontroversial matters. Persons communicating with an associate must not engage the associate in a dispute or request legal or procedural advice. Telephone communication should be avoided unless necessary in the circumstances.

10.2    Any person writing to an associate must, except for communications relating to a proposed proceeding or application without notice to any other party, simultaneously send a copy to each other party to the proceeding.

11.   AMENDMENT HISTORY

11.1   26 February 2024: This Practice Note was issued on 26 February 2024 and replaced the earlier version of the Practice Note, which was issued on 21 December 2017.

11.2   21 December 2017: This Practice Note was reissued on 21 December 2017 and replaced the earlier version of this Practice Note which was issued on 30 January 2017.

Vivienne Mahy
Executive Associate to the Chief Justice
26 February 2024

ANNEXURE A

Supreme Court of Victoria
Practice Note SC Gen 2
Structure of the Trial Division

1.   INTRODUCTION

1.1   The Chief Justice has authorised the issue of the following Practice Note.

1.2   The purpose of this Practice Note is to set out the divisional structure of the Trial Division of the Court, the specialist Lists within the Trial Division and the allocation of matters within that structure.

2.   COMMENCEMENT

2.1   This Practice Note was re-issued on 13 October 2020 and commences on 13 October 2020.

3.   DIVISIONAL STRUCTURE

3.1   The Trial Division of the Court consists of the:

• Commercial Court;
• Common Law Division; and
• Criminal Division.

3.2   Each Division has a Principal Judge whose responsibilities include:

• overall supervision of cases in the Division;
• oversight of the allocation of cases for hearing;
• chairing regular meetings of the Division; and
• maintaining links with members of the legal profession practising in the Divisions.

4.   COMMERCIAL COURT

4.1   The Commercial Court comprises Judges, Associate Judges and Judicial Registrars allocated by the Chief Justice from time to time.

4.2   The business of the Commercial Court is managed through such Lists as may be determined by the Chief Justice from time to time. The judge-managed Lists with this Division are:

• The General Commercial Lists, which correspond to the relevant managing Judge;
• The Corporations List;
• The Arbitration List;
• The Taxation List;
• The Admiralty List;
• The Technology, Engineering and Construction (TEC) List;
• The Intellectual Property List;
• The Insurance List; and
• The Group Proceedings List (Cross Divisional List).

4.3   The Commercial Court will hear and determine the following categories of cases:

a) those which arise out of ordinary commercial transactions, including any proceeding relating to–
         i. the construction of commercial, shipping or transport documents;
         ii. the export or import of merchandise;
         iii. the carriage of goods for the purpose of trade or commerce;
         iv. insurance;
         v. banking;
         vi. finance;
         vii. commercial agency;
         viii. commercial usage;
b) those in which there is a question that has importance in trade or commerce;
c) those in which a remedy is sought under the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth);
d) those in which court assistance is required to support an arbitration, enforce an award or review a decision;
e) those in which a substantial issue is raised in respect of technology, engineering and/or construction;
f) those in which proceedings concern loss or damage to a ship or by a ship, or to goods carried by sea and/or is brought pursuant to the Admiralty Act 1988 (Cth);
g) those in which a substantial issue is raised in respect of taxation, including proceedings regarding taxation recovery and Victorian Taxation Appeals save for proceedings for damages against a taxation adviser which are to be initiated in the Professional Liability List in the Common Law Division;
h) those in which a substantial issue is raised in respect of intellectual property; and
         i. those in which a substantial issue of a commercial nature is raised in respect of an insurance policy.

4.4   Mortgage default, debt recovery and related enforcement proceedings initiated in the Commercial Court are ordinarily to be managed by an Associate Judge, or Judicial Registrar unless assigned to a specific judge-managed List after the filing of a defence.

4.5   Court documents in Commercial Court matters not filed electronically should be filed with the Commercial Court Registry which is located on the ground floor of the Old High Court Building at 450 Little Bourke Street Melbourne.

4.6   Contact details for general inquiries are:
Phone: 03 8600 2002
Email: pbzzrepvnypbheg@fhcpbheg.ivp.tbi.nhua.vog.civ.truocpus@truoclaicremmoc

ANNEXURE B: FIRST DIRECTIONS

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
[PROCEEDING HEADING]

ORDER

JUDGE:	The Honourable Justice/Associate Justice
DATE MADE:	#
ORIGINATING PROCESS:	#
HOW OBTAINED:	#
ATTENDANCE:	#
OTHER MATTERS:	#

THE COURT ORDERS [BY CONSENT] THAT:

[Parties and their legal advisers should consider whether there is a more appropriate method than pleadings of identifying the issues in dispute. In particular, consideration should be given to whether pleadings are necessary before a mediation is held.]

Completion of Pleadings (where appropriate)

1. By 4:00pm on [date], the defendant is to file and serve a defence [and counterclaim], containing full particulars.
2. By 4:00pm on [date], the plaintiff is to file and serve any reply [and defence to counterclaim], containing full particulars.

Critical documents

3. By 4:00pm on [date], to the extent there has not already been compliance, the parties are to disclose to each other the existence of all documents that are or have been in that party’s possession, custody or control, of the kind referred to in s 26 of theCivil Procedure Act 2010(Vic).

Mediation

4. The proceeding is referred to a mediator to be agreed between the parties, or in default of agreement to be appointed by the Court, such mediation to be completed by [date].

5. Subject to the terms of this order, the solicitor for the plaintiff must, after consultation with all parties, deliver to the mediator a copy of this order, all pleadings (including requests for further and better particulars) and a copy of any other necessary information, and take all steps necessary to ensure that the mediation commences as soon as practicable.

6. The mediation must be attended by those persons who have the ultimate responsibility for deciding whether to settle the dispute and the terms of any settlement and the lawyers who have ultimate responsibility to advise the parties in relation to the dispute and its settlement.

7. By [date], the mediator report back to the Court whether the mediation is finished.

8. Subject to further order, the costs of the mediation be paid in the first instance by the parties in equal shares.

ANNEXURE C: SECOND DIRECTIONS

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
[PROCEEDING HEADING]

 

JUDGE:	The Honourable Justice/Associate Justice
DATE MADE:	#
ORIGINATING PROCESS:	#
HOW OBTAINED:	#
ATTENDANCE:	#
OTHER MATTERS:	#

ORDER

THE COURT ORDERS [BY CONSENT] THAT:

Witness outlines

1. Subject to any order of the judge, evidence in the trial be given orally with the parties providing a witness outline for each witness they intend to call.
2. By 4:00pm on [date], the plaintiff file and serve its witness outlines.
3. By 4:00pm on [date], the defendant file and serve its witness outlines.
4. Each witness outline must satisfy the following requirements:
      (a) it should be set out in numbered paragraphs;
      (b) it should be a brief outline of the evidence the witness will give;
      (c) it must clearly identify the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation; and
      (d) it should identify the documents which the party filing the witness outline intends to tender into evidence through that witness. The documents should be referred to chronologically in the body of the witness outline or, if not possible, listed in chronological order in a schedule to the witness outline.
5. The content of a witness outline served pursuant to an order of the Court is subject to the same implied undertaking as to confidentiality as applies to a document produced upon discovery.
6. No person may use any part of the contents of a witness outline for the purposes of cross-examination of the person providing the witness outline or any other person without leave of the trial judge.
7. Each party have available for use by the judge a copy of all their witness outlines in hardcopy and electronic form.

Expert reports

Option A

8. By 4:00pm on [date], the plaintiff is to file and serve any expert reports.
9. By 4:00pm on [date], the defendant is to file and serve any expert reports.
10. By 4:00pm on [date], the plaintiff is to file and serve any expert reports in reply.

Option B

11. By 4:00pm on [date], the plaintiff must serve on the defendant a list of the fields of expertise in which it proposes to instruct any expert witnesses, a list of the documents which it proposes to provide to the expert in each field of expertise and the questions to which it proposes those expert witnesses respond.
12. By 4:00pm on [date], the defendant must serve on the plaintiff any proposed amendments or additions to the list of documents and the questions referred to in the paragraph above.
13. By 4:00pm on [date], the parties consult and agree to the list of documents and questions referred to in the paragraph above.
14. Within 7 days of the engagement of any expert witness, the party engaging that expert provide to the other party a copy of the letter of instruction by which that expert witness was engaged and a list of the documents with which the expert was briefed.

Joint expert report

15. By 4:00pmon [date], each expert confer with his or her relevant counterpart and provide to the Court and the parties a joint report containing their joint opinion as to each of the questions raised by their respective reports.
16. (optional) [X], a qualified legal practitioner is appointed as the facilitator of the expert conclave(s) referred to in the previous order.
17. If any group of experts is unable to express a joint opinion on any question, the relevant joint report must describe the difference(s) between the opinions and set out the experts’ respective reasons for disagreeing.
18. The expert conclave is intended to be a consultation of the experts without any influence from a party to the proceeding. To that end, subject to the terms of this order:
      (a) the expert conclave and all further communications between the experts in relation to the preparation of the joint report must be conducted in the absence of the parties, their employees or agents, or any practitioners for or associated with any party;
      (b) none of the experts may in the preparation of the joint report consult with any party, their employees or agents, or any practitioners for or associated with any party; and
      (c) notwithstanding subparagraphs (a) and (b), the experts may jointly request further information or direction by letter signed by them directed to the practitioners for each of the parties and may receive such further information.
19. Save as contained in the joint report, unless the parties agree in writing, no evidence may be admitted of anything said or done by any person at any conference between the experts.

Court Book

20. The plaintiff is to prepare an electronic Court Book containing the following documents:
      (a) the current pleadings including requests for particulars and particulars; and
      (b) all documents, in date order, which any party proposes to tender in evidence in chief or to be referred to in cross-examination.
21. The electronic form of the Court Book must be a single PDF document that is: bookmarked, fully text-searchable and consecutively paginated, with each page numbered to correspond with the display numbers in the PDF.
22. By 4:00pm on [date], the plaintiff is to serve on the defendant a draft index for the proposed Court Book.
23. By 4:00pm on [date], the defendant must send a list of documents to be included or documents to be excluded from the proposed Court Book and the parties must consult as to and agree upon the contents of the Court Book.
24. By 4:00pm on [date], the plaintiff is to serve on the defendant and file for the use of the Judge the index to the Court Book in electronic form, together with an electronic copy of the Court Book.

List of issues

25. By 4:00pm on [date], the plaintiff is to serve a draft list of the real issues in dispute to be determined at trial.
26. By 4:00pm on [date], defendant is to serve their response to the plaintiff’s draft list of issues, identifying areas of agreement and disagreement.
27. By 4:00pm on [date], the parties are to confer so as to limit the issues in dispute.
28. By 4:00pm on [date], the plaintiff is to file an agreed draft list of the real issues in dispute to be determined at trial or, if agreement cannot be reached, a list highlighting the differences between the parties.

Chronology

29. By 4:00pm on [date], the plaintiff is to serve a draft neutrally expressed chronology of the relevant facts and events. The defendant is to send a neutrally expressed list of relevant facts and events to be included in the proposed chronology and both parties must consult and agree (where possible) upon the contents of the chronology by [date].
30. By 4:00pm on [date], the plaintiff is to file and serve the finalised neutrally expressed chronology, which must indicate if any fact included is not agreed and by which party. The plaintiff must also provide the judge with an electronic copy of the chronology in fully searchable portable document format.

Agreed statement of facts

31. By 4:00pm on [date], the plaintiff is to serve a draft statement of facts.
32. By 4:00pm on [date], the defendant is to serve any proposed amendments to the draft statement of facts served by the plaintiff.
33. By 4:00pm on [date], the plaintiff is to file and serve an agreed statement of facts.

Trial date

34. The proceeding is set down for trial on [date]on an estimated duration of [#] days.
35. Costs reserved.
36. Liberty to apply.

1. item 1
2. item 2

ANNEXURE D

Trial Plan Template

Plaintiff's opening
Defendant's opening
Name of plaintiff witness	Time required for XN	Time required for XXN
Lay
[insert witness name]
[insert witness name]
Expert
[insert witness name]
Name of defendant witness	Time required for XN	Time required for XXN
Lay
[insert witness name]
Expert
[insert witness name]
[insert witness name]
Plaintiff's closing
Defendant's closing
Trial total (days)

Documents