Mahvash Ikram
Good news for litigants battling to have commercial disputes resolved in a timely and cost-effective manner through the courts: the fast-track Auckland Commercial List is back.
From October this year, the High Court at Auckland will introduce a special track for some types of commercial disputes. This will be managed by two dedicated judges who will be freed up from the usual roster. It is expected that the list will be expanded over time.
This will be the second time a dedicated fast-track system has been set up through the courts to deal with commercial disputes. In the late 1980s and early 1990s, a similar process was established within the High Court at Auckland and overseen by the late Justice Sir Ian Barker.
Specific details of how the new list will operated are expected to be published in a practice note later this month but a draft practice note released last year indicates that the list will be aimed at disputes involving more than $1 million. The court will discourage interlocutory applications, the draft note says, but if interlocutories are deemed to be necessary, the judges will determine them, along with the substantive hearing.
The list will be modelled on the New South Wales Supreme Court Commercial List and overseen by Justice Sally Fitzgerald, the Chief High Court Judge.
In the High Court’s just-released 2024 Annual Report, Fitzgerald said the judges involved in developing the list have worked with industry representatives to “road-test” the proposal. “The processes to be deployed are expected to considerably reduce the time spent in the interlocutory phases and lead to earlier substantive hearing dates,” she said. Profession education is expected to begin shortly.
Chief Justice Dame Helen Winkelmann also referenced the new Commercial List at a recent breakfast function in Auckland. Describing the move as “judicially-led innovation”, Winkelmann said while it was aimed at commercial disputes, it was an access-to-justice initiative.
“The intention is to enable earlier hearing times and earlier settlements in commercial matters. It will involve a reprioritisation of judicial resource, but I see that as justified. Society needs courts to decide commercial cases. We need this because it is only in this way that the commercial law develops to keep pace with economies as they grow and evolve,” she said.
Entering the track
According to the draft practice note, parties can request to place a dispute valued at more than $1m on the Commercial List when filing but they are expected to have considered mediation before doing so. A Commercial List judge will determine if the dispute is suitable for the track, including an assessment of whether it is of sufficient private or public importance.
If a defendant disagrees with placing the matter on the Commercial List, he or she must file a memorandum, together with their statement of defence. The judge will consider disputed entries on paper only, unless there are orders stating otherwise.
The judge can also remove proceedings from the track for several reasons including unrepresented parties, non-commercial aspects of the proceeding and if the matter is better suited to a different type of management.
Directions applications
Directions will be listed for group hearings in half-hour intervals from 10am on Fridays, the draft practice note says. The judge’s orders will avoid unnecessary steps so the matter can be dealt with in a “just, speedy and inexpensive” way.
The draft note says counsel are expected to discuss and draw up proposed orders for the court as a starting point. The parties must also submit an agreed timetable for preparing matters for trial and hand it over during the directions listing. Otherwise, they can apply for a consent order from the judge. If the parties cannot keep to the timetable they need to seek amended directions.
Counsel must give the court a realistic estimate of the time required for the trial and how much time will be need for their client’s evidence and submissions.
Interlocutory applications
A key purpose of establishing the Commercial List is to reduce delays arising from interlocutory applications. The draft practice note indicates counsel are expected to ensure an application is ready to be heard within three to four weeks of first being listed.
Interlocutory applications will be discouraged unless the aim is to resolve the matter quickly and in a cost-effective way. Hearings will not last longer than one hour and submissions must be brief.
Applications will be listed and called every Friday. They will usually be heard on the same day but if this is not possible, the court will make further directions.
Hearings will generally be done in-person, but remote attendance can also be arranged.
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