The County Court has released a comprehensive new Commercial Division Practice Note ‘Operation and Management of the Commercial Division’ PNCO 1 – 2019 (updated as at 26 March 2019) which supercedes eight previous practice notes. It deals with most issues concerning the running of commercial matters and makes it easier to find the relevant practice notes.

The new practice note puts the County Court Commercial Division on a competitive footing with the Supreme Court’s commercial court, offering faster trial dates (within 6 months for standard matters), an Expedited Matters List (trial dates within 4 months), trial date certainty, unlimited jurisdiction regarding quantum, and efficient disposition of interlocutory steps.

So, what’s new?

Four lists within the Commercial Division

There are now four lists, which reflect the business of the Commercial Division:

Building Cases List: cases concerning building or construction;
Banking & Finance List: cases concerning banking & finance, or to enforce a loan or guarantee;
General List: all other cases unless the proceeding is suitable for entry into the Expedited Cases List; and
Expedited Cases List: cases requiring a faster trial date or more intensive case management

Standard trial dates within 6 months

In all lists except the Expedited Cases List, the standard trial date aims to be within 6 months of the first administrative mention (unless trial is 10 days or more).

This appears to be possible rostering one of the six judges in the Commercial Division as “Duty Judge” for a month to hear applications, while the other five are available to hear trials. The bulk of interlocutory disputes are now heard and determined by Judicial Registrars.

Expedited cases list: trial date within 4 months

The new Expedited Cases List offers a special service by the Commercial Division for intensive case management and earlier trial dates (within 4 months of first directions hearing).

Appropriate cases for the Expedited Cases List include:

Where there are circumstances particular to the dispute requiring a speedy resolution;
Where the parties are commercial parties with the resources and commitment to prepare for a speedy but fair resolution;
Where the proceeding requires ongoing active case management by a single judicial officer.

Entry to the expedited cases list may be by:

Selection when filing a writ;
Transfer from another list by the parties; or
Transfer by the Court.

Interlocutory steps by Judicial Registrar

After the filing of a Notice of Appearance, matters are listed for an Administrative mention. Consent orders are required, and generally no appearance. Standard form orders have been prepared by the Court.

All other interlocutory steps are handled by Judicial Registrars (not trial division judges, as has been the practice for some time) including directions hearings, discovery applications, Judicial Resolution Conferences, and managing all other interlocutory steps to trial.

“Summons generally not required” for applications

The new default position for interlocutory disputes is: “Summons generally not required” except for a prescribed list, which covers the most common applications, including:

applications for judgment (including summary judgment, such as Security of Payment claims)
application for a stay
adding or removing a party
amending a pleading
injunctions
security for costs

(to be clear: all these require a summons)

Parties should first attempt to resolve interlocutory disputes by communications between them. Failing that, if an application is not made by summons, it should be made by email: Commercial.Registry@countycourt.vic.gov.au CommercialJR.Chambers@countycourt.vic.gov.au

Electronic Court Books the default

Electronic Court Books in PDF format are the “new normal”. Two PDF documents are required: one for the index, and one for the body of the Court Book.

The Court Book ‘body’ should be in two further parts:

Part 1: pleadings and particulars
Part 2: documents to be put to a witness or tendered at trial in chronological order and numbered sequentially.

A separate and complete Court Book Guideline has been issued.

Paper copies of Court Books may still be produced for witnesses, or for the judge upon request.

Witness statements: not ordinarily required

The default position is that witness statements for trials are not required. They are only required where it furthers the overarching purpose. They are not required where the proceeding will turn on the credibility of a witness.

Mediation and Judicial resolution conferences

The focus on mediated outcomes continues. The default position is that all matters be mediated by a private mediator before trial.

In exceptional circumstances, a Judicial Resolution Conference may be conducted by a court officer (Judicial Registrar) or Judge, where there:

is a self-represented litigant;
are serious insolvency issues;
is a particularly complex matter where the costs are disproportionate to the amounts in dispute;
is an immediate benefit (ie during trial);
is a proceeding listed for trial on the reserve list; or
are parties who would otherwise benefit from a mediation conducted by a Judicial Officer.

Limited discovery

Discovery is limited at first instance by the standard orders (page 15).

Expert reports encouraged

The court continues to actively encourage jointly appointed experts, expert conclaves, joint expert reports and concurrent expert evidence. As always, expert reports must comply with the Expert Witness Code of Conduct (Form 44A).

Click here for the full Commercial Division Practice Note (26 March 2019).

Click here for all County Court practice notes.