Do you have carriage of proceedings in the Supreme Court of Victoria’s Commercial Court?

If yes, this post is for you.

The Commercial Court has released an updated Practice Note SC CC 1 (second revision) which came into effect on 26 February 2024. It replaces the previous version from 21 December 2017.

The new Practice Note is refreshingly minimal, at only main 11 paragraphs. It is dramatically more brief and clear than previous versions. Much thought has gone into its preparation.

Earlier this week, four of the Commercial Court judges presented a CPD seminar to the Victorian Bar.

The main takeaways:

Outlines of evidence

The default preference is for parties to prepare outlines of evidence. Not witness statements.
This is partly due to the long-held criticism that witness statements are over-engineered by lawyers, and partly because most commercial cases turn on evidentiary documents. Outlines of evidence can and should refer to the documents to be relied upon.
The Court’s experience is that the most efficient way to get the best evidence is to refer to documents in the outline of evidence, and supplement this with oral evidence in the witness box. This requires less time spent on objections to irrelevant evidence. Non-contentious evidence can usually be led by consent. This frees up more time to focus on the contentious evidence.
The preference for outlines of evidence is flexible. If the case requires witness statements or affidavits, those options may be used in appropriate circumstances. For example, where there is detailed oral evidence about what was said in a meeting.
Warning: don’t use an outline of evidence to avoid providing information, i.e. “Joe will give evidence of what happened at the meeting”. This doesn’t put the other side on notice of your case. The outline must summarise the evidence with sufficient detail. If you receive a vague outline, it should be brought to the attention of the judge on the grounds of procedural unfairness. If more detail is provided later, a criticism may be made that the details were made up after being prompted.
More detail: see paragraph 6.4 (lay evidence) of the practice note.
Those of us who have been around for a while will note that witness outlines are now a complete change from the default position for witness statements (from the ‘Green Book’ of 2010).

Cross-examination (XXN)

The default position is that Counsel will be permitted to XXN on the primary evidence, not on the outline of evidence. That is consistent with the position in the previous practice note from 2017. The Court says this produces better evidentiary outcomes.
XXN on an outline is allowed in rare circumstances, with good reason. For example, if there is a very specific phrase used, and something turns on that formulation of words.

Key documents

The court wants trial counsel involved early so forensic thinking about key documents happens from the outset. The list of documents in the outline of evidence should force parties to look at forensic value from the start.
In document-heavy cases, parties are encouraged to prepare a list of documents they will rely on, and a list of propositions sought to be established from those documents. This forces counsel to look at what critical documents are relied on early, rather than adding to the documentary burden of the case.
Section 26 of the Civil Procedure Act is the overarching obligation to disclose existence of documents at the earliest reasonable time. It is an ongoing, iterative, mutual obligation. Expect to be asked about this at the first directions hearing.
Critical documents are considered at paragraph 5.4 of the practice note. It re-iterates the primacy of s 26 of the CPA. The phrase “critical documents” is considered in Mullett v Nixon [2022] VSCA 174 at [82] – [87] as:

those which are crucial to each party’s case and which… if produced to the opposite party, are the most likely to lead to resolution of the dispute either by early settlement or at trial.

Discovery

General discovery is not the default option. It will only be ordered with leave after the s 26 obligation is complied with: see paragraph 5.5 of the practice note (other documents). ‘Discovery as an industry’ is frowned upon.
Don’t come to court asking for general discovery without first addressing compliance with s 26 of the CPA, and having thought about proportionality, cost and benefit of any discovery order.
Section 55 of the CPA is a highly relevant and under-utilised provision with lots of creative options for discovery.

Chronologies

Prepare a neutrally expressed chronology. Don’t use it to make submissions or tendentious points. When preparing your chronology it should cause you to also prepare a list of key documents. The list may be used in the outline of evidence.

Trial dates

The default inclination of the Court is to set early trial dates where possible. However the procedures are intended to be flexible. Where a trial date is set, the registry will monitor the proceeding for non-compliance with the orders. Registry will tell a judge if the parties need to be called in so that trial dates are not wasted.
More detail: paragraph 6.2 of the practice note (early hearing).

Interlocutory processes

The Court seeks more streamlined interlocutory processes. Typically they are tiresome and the parties ambush each other with voluminous material at the last minute. The goal here is to assist Judicial Registrars and Associate Justices who manage many files, from information-overload just before an application.
“Two-letter rule”: Paragraph 8 of the practice note (other interlocutory applications) introduces a novel “two-letter rule”. This requires the ‘moving party’ to send a 4-page maximum letter setting out what orders are sought, and the basis for the entitlement. The other party should reply (also 4 pages max) setting out the ambit of the dispute.
The judicial officer will look at the letters and determine how to resolve the dispute: whether on the papers, at a hearing, or whether a summons is required.
This process has been drawn from Queensland and Western Australia where similar rules are in effect.

Expert evidence

The aim here is to brief experts with the same materials and ask them the same questions. Joint reports are preferred.
More detail: paragraphs 5.8 and 6.5 - 6.7 of the practice note (expert evidence).

Other matters

The practice note also deals with other matters like directions orders, pleadings, joinder, court books, trial plans, urgent applications and communications with the court.
Here is the link again: Practice Note SC CC 1 (second revision)