More

The Commercial and Corporations National Practice Area (NPA) covers:

• commercial contract disputes
• disputes concerning the conduct of corporations and their officers
• financial and transactional disputes
• insurance disputes
• all insolvency matters, both corporate and personal
• commercial class actions
• consumer claims (including Regulator claims)
• competition matters (including Economic Regulator-related matters)
• commercial arbitration disputes.

NPA Sub-areas

This NPA consists of six Sub-areas and each has a dedicated group of judges with expertise in that Sub-area:

• Commercial Contracts, Banking, Finance and Insurance Sub-area includes commercial contracts and matters relating to insurance, banking, finance and commercial transactional disputes
• Corporations and Corporate Insolvency Sub-area includes Corporations List matters, such as:
  • the appointment or conduct of liquidators
  • corporate insolvency matters, such as voidable transactions, extending of convening periods and cross-border insolvency
  • schemes of arrangement
  • shareholder oppression actions
  • Australian Securities and Investments Commission actions, such as the approval of director appointments, winding up of companies, fundraising matters, corporate management and misconduct by company officers
  • corporations matters referred to a Judge by a Judicial Registrar.
• General and Personal Insolvency Sub-area includes bankruptcy matters referred to a Judge by a Judicial Registrar and personal insolvency matters, including:
  • applications by trustees in the management of bankrupt estates
  • applications by bankrupts contesting decisions of a trustee
  • applications for annulment of bankruptcy.
• Regulator and Consumer Protection Sub-area includes:
  • consumer-related matters such as misleading and deceptive conduct, unconscionable conduct, unfair commercial practices, product liability matters and false advertising
  • Australian Consumer Law actions by the Australian Competition and Consumer Commission.
• Economic Regulator, Competition and Access Sub-area includes:
  • matters concerning anti-competitive conduct, including cartel matters (civil), mergers, misuse of market power and exclusive dealing
  • competition actions by the Australian Competition and Consumer Commission
  • infrastructure access and regulatory pricing.
• Commercial Arbitration Sub-area which covers matters concerning international contractual disputes under the International Arbitration Act 1974 (Cth) including:
  • scope of jurisdiction of an arbitral tribunal
  • stay applications and setting aside arbitral awards
  • enforcement of a foreign award or arbitral award
  • appointment or termination of appointment of an arbitrator
  • enforcement issues pursuant to the UNCITRAL Model Law.

This is a general guide to the types of matters in each Sub-area and is not intended to be exhaustive.

The Court is of the view that case management should reflect a practical business-like method of resolving a problem that eliminates unnecessary process-driven costs. It expects, particularly in commercial matters, that parties and their lawyers approach the litigation in a thoughtful, practical and common-sense way.

To facilitate this, the Court is encouraging:

• new mechanisms, such as the “concise statement method”, to expedite the commencement of commercial disputes
• tailored case management, to ensure the matter is managed in the manner best suited to its character and needs
• targeted document production and evidence procedures, such as “the Redfern Discovery Procedure” and the “Memorial Procedure”

Expediting a commercial dispute – Concise Statement Method

Under the NCF reforms and new practice documents, you may now seek to expedite your hearing process by any of the expedited processes available, including by way of the new “concise statement method”.

The Court anticipates that the majority of Commercial and Corporations matters will be assisted by being commenced with a concise statement. For details about the concise statement method see the National Court Framework webpage and the Central Practice Note (CPN-1) and Commercial and Corporations Practice Note (C&C-1).

Fast Track

The former Fast Track mechanisms permitted parties to seek a quicker or more truncated hearing process than usually available and to use less formal pleadings. The Fast Track procedure was effectively a commercial list procedure and such a procedure, or other effective and commercially sensible methods of commencing or expediting proceedings or introducing informal pleadings processes, remains open to the parties in this NPA. The procedure for the Fast Track mechanisms are set out in the former Practice Note: CM8 - Fast Track.

If a Fast Track or other expedited proceeding process is appropriate, the Court will attempt to provide a judge who has the necessary time available to devote to an expedited process and hearing.

Case management imperatives - first case management hearing

The first case management hearing is integral to the case management of a commercial matter, with the aim of identifying the issues in the matter at the earliest possible stage.

The Court expects that prior to the first case management hearing parties will consider and discuss with the other parties the “case management imperatives”, which are set out in the Court’s Central Practice Note, with some additional specific imperatives set out in the Commercial and Corporations Practice Note.

The case management imperatives that the Court expects parties to have considered include:

• identifying and narrowing the issues in dispute and making appropriate admissions in relation to the facts and matters which are not seriously in dispute
• considering any alternative dispute resolution, including mediation
• considering if any issues can be dealt with separately – such as preliminary issues of fact and law, or liability and quantum or penalty
• considering if expert evidence is required and if so, how best to put forward evidence – ie. by affidavit, statement, oral evidence or a combination
• discussing how to eliminate or reduce the burden of discovery
• agreeing on the time for trial and how it may be divided.

The Court’s national duty system has dedicated Commercial and Corporations NPA Duty Judges who provide timely and proactive responses to urgent Commercial and Corporation duty matters.

Practitioners can liaise directly with the chambers of the Commercial and Corporations Duty Judge to ensure that genuinely urgent matters are heard as soon as practicable. An urgent matter can be heard at any time, including, for cases that must be heard immediately, outside of business hours.

See the list of the current Commercial and Corporations Duty Judges in each registry (updated daily) and more information on How to Apply.

The NPA practice note sets out the arrangements for the management of Commercial and Corporations proceedings:

Other general practice notes and Court developed guides which may be relevant to this NPA include:

Filing fees for commencing a proceeding in this NPA may apply. Information about Court fees, including the fees payable and circumstances where an exemption or deferral can be given is available on the Forms, Fees & Costs section of the Court’s website or from the Registry.

Commencing a proceeding in this NPA

Specific forms and rules for commencing proceedings in this NPA are available for each of the Sub-areas listed above.

In addition to the Federal Court Rules 2011 (Cth) (Rules), in the Corporations and Corporate Insolvency Sub-area and the General and Personal Insolvency Sub-area, the following rules apply respectively:

• Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules)
• Federal Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules)

Subject to any specific legislative requirements relating to proceedings in any of the NPA Sub-areas, a Commercial and Corporations proceeding will generally be commenced by filing:

Parties should consider whether it is necessary to file a Genuine steps statement (Form 16) in certain proceedings in this NPA - see r 8.02 of the Federal Court Rules and the Civil Dispute Resolution Act 2011 (Cth) (including sections 6, 7 and 16).

• Corporations Act 2001 (Cth)
• Australian Securities Investments Commission Act 2001 (Cth)
• Competition and Consumer Act 2010 (Cth)

• 26 Nov 2024: Porter Finance Australia Pty Ltd v Trenel Pty Ltd (in liq), in the matter of Trenel Pty Ltd (Administrators Appointed) [2024] FCA 1359
  COSTS - whether to award costs on the indemnity basis - where defendants capitulated a week before the final hearing - where the unreasonableness in the substantive position taken by the defendants was compounded by the unreasonableness of the defendants in seeking to protract and delay the determination of the proceedings - indemnity costs…
  Judge: Jackman J
• 25 Nov 2024: Amirbeaggi as trustee of the bankrupt estate of Hanna v Hanna (No 4) [2024] FCA 1347
  COSTS - application for indemnity costs based upon an offer of compromise and Calderbank v Calderbank offers - whether non-acceptance of the offers was unreasonable - where the Court unable to assess the reasonableness of the non-acceptance of the offers by reason of the offers requiring the provision of mutual releases over indeterminate claims…
  Judge: Goodman J
• 25 Nov 2024: Queensland Building and Construction Commission v Mead [2024] FCA 1355
  BANKRUPTCY - Sequestration order made by a registrar - Application made by respondent for review of sequestration order - Where defects in documents alleged - Whether the respondent was ordinarily resident or had a dwelling house in Australia - Where criteria for sequestration order are established - Whether the respondent is solvent - Whether the …
  Judge: Meagher J
• 25 Nov 2024: Official Trustee in Bankruptcy, in the matter of Sam Pos Pty Ltd (in liq) [2024] FCA 1350
  BANKRUPTCY AND INSOLVENCY - application by Official Trustee for directions under s 30 of the Bankruptcy Act 1966 (Cth) - where debt agreement administrator misappropriated monies paid by debtors - whether debt agreements have ended under s 185N of Pt IX where debt agreement administrator's obligations have not been discharged - whether the debt…
  Judge: Rangiah J
• 22 Nov 2024: Chua (Liquidator), in the matter of Aoji Enrolment Centre of International Education Limited (in liq) [2024] FCA 1351
  PRACTICE AND PROCEDURE - service overseas - application for leave to serve orders for production on overseas company - whether violation of principle of international comity - nations parties to Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters - leave granted pursuant to r 10.44 of the…
  Judge: Burley J
• 22 Nov 2024: McNickle v Huntsman Chemical Company Australia Pty Ltd (Settlement Approval) [2024] FCA 1353
  REPRESENTATIVE PROCEEDINGS - application for settlement approval pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) - where applicant unsuccessful in initial trial concerning the alleged carcinogenic effects of Roundup produced by the Monsanto Company - where negligible prospects of any successful appeal - settlement approved -…
  Judge: Lee J
• 22 Nov 2024: Karlsson v Griffith University [2024] FCAFC 150
  BANKRUPTCY AND INSOLVENCY - appeal from a decision of the primary judge refusing to set aside a bankruptcy notice upon review of a decision of the Registrar - where the appellant's asserted counter-claim, set-off or cross demand under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) was the very source of the judgments underlying the act of bankruptcy…
  Judge: Perry, Bromwich and Raper JJ
• 21 Nov 2024: Masters v Lombe (liquidator), in the matter of Babcock & Brown Limited (in liq) (Lump Sum Costs) [2024] FCA 1336
  COSTS - applications for lump sum determinations -where existing costs orders made in a suite of related primary and appeal proceedings - where primary judge retired - where application for lump sum determination made after special leave applications dismissed - whether orders should be made for lump sum determinations in respect of existing cost…
  Judge: Cheeseman J
• 21 Nov 2024: Council of the Law Society of the Australian Capital Territory v Ezekiel-Hart, in the matter of Ezekiel-Hart [2024] FCA 1341
  BANKRUPTCY AND INSOLVENCY - creditor's petition for a sequestration order - leave granted to amend defect or irregularity in the creditor's petition where no injustice has been caused by the defect or irregularity - debtor failed to comply with bankruptcy notice - act of bankruptcy committed - respondent debtor's evidence inadequate to establish…
  Judge: Perry J
• 21 Nov 2024: Hera Project Pty Ltd v Woolworths Ltd [2024] FCA 1339
  PRACTICE AND PROCEDURE - security for costs - failure to provide security as ordered - looming trial date - application to dismiss proceeding - competing applications to discharge security or extend time for its provision - no satisfactory evidence about mechanisms to provide security if time is extended - unsatisfactory history of non-compliance…
  Judge: McElwaine J

• 30 Jul 2024: Observations on construing a commercial contract as a whole
  Paper presented to the Western Australian Bar Association and Francis Burt Chambers Civil Litigation Skills Course.
  
• 21 Jun 2024: Is cryptocurrency property?
  Paper delivered to the Commercial Law Association of Australia
  
• 19 Feb 2024: Limits on the duty of utmost good faith
  Paper delivered to the Commercial Bar Association of Victoria, Insurance & Professional Negligence Section
  
• 1 May 2023: The role of courts in relation to commercial arbitration
  Keynote address to ACICA Corporate Members
  
• 9 Jun 2022: Recent developments in Competition Law: Cartel cases
  Speech given by Justice Wigney at the book launch of Michael Gvozdenovic and Stephen Puttick (eds.), ‘Current Issues in Competition Law’ (The Federation Press, 2021).
  

• Australian Competition and Consumer Commission (ACCC)
• Australian Securities and Investments Commission (ASIC)
• Australian Financial Security Authority (AFSA)