Commercial and Corporations Practice Note (C&C-1)

Date reissued: 9 November 2022

National Practice Area Practice Note

1. Introduction

1.1 This practice note sets out the arrangements for the management of commercial and corporations cases within the National Court Framework ("NCF"). It:

(a) is to be read together with the:

• Central Practice Note (CPN-1), which sets out the fundamental principles concerning the NCF of the Federal Court and key principles of case management procedure. The Central Practice Note is an essential guide to practice in this Court in all proceedings; and
• the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") and the Federal Court Rules 2011 (Cth) ("Federal Court Rules");

(b) takes effect from the date it is issued and to, the extent practicable, applies to proceedings whether filed before, or after, the date of issuing;

(c) sets out the arrangements for the management of commercial and corporations proceedings. It is intended to set out guiding principles for the conduct of these proceedings and is not intended to be inflexibly applied.

2. Overview and Definition

2.1 The Commercial and Corporations NPA covers commercial and corporations disputes within federal jurisdiction, including commercial contract disputes; disputes concerning the conduct of corporations and their officers; commercial class actions; insurance disputes; financial and transactional disputes; insolvency matters, both corporate and personal; consumer claims (including regulator claims); competition matters (including economic regulator-related matters); and commercial arbitration disputes (noting that there is a separate Commercial Arbitration Practice Note (CA-1) dealing with matters specific to commercial arbitration disputes).

2.2 Within the NCF's Commercial and Corporations NPA, there are six "Sub-areas". The Sub-areas broadly correspond with the core subject matter set out in paragraph 2.1 above. The Sub-areas are:

• Commercial Contracts, Banking, Finance and Insurance
• Corporations and Corporate Insolvency
• General and Personal Insolvency
• Regulator and Consumer Protection
• Economic Regulator, Competition and Access
• Commercial Arbitration

2.3 Some of the Sub-areas are more specialised than others. The judges dealing with the work in the Sub-areas are listed on the Court's website.

2.4 When considering any matter raised in this practice note, where relevant, regard should also be had to:

(a) the matters set out in the following schedules (attached to this practice note) with respect to the following Sub-areas:

• Corporations and Corporate Insolvency ("Schedule 1"); and
• Insurance ("Schedule 2").

(b) General and Personal Insolvency Sub-area Practice Note (GPI-1) in relation to matters in the General and Personal Insolvency Sub-area.

3. Operation of Commercial and Corporations NPA

3.1 The operation of the Commercial and Corporations NPA will be consistent across the Court nationally. This includes the following key features:

• A national allocations system, with a dedicated group of judges with expertise in the Commercial and Corporations NPA who will be allocated commercial and corporations matters. 
• The Court will facilitate the use of mechanisms for the commencement of proceedings and case management that are tailored for commercial disputes so that proceedings are commenced and managed in the manner best suited to the character and needs of each case. These mechanisms include a method for applicants to expedite proceedings, state their case concisely and the ability to utilise targeted document production and evidence procedures akin to those commonly adopted in international commercial arbitration.
• A specialised "direct to chambers" duty mechanism for practitioners filing urgent commercial and corporations matters, with self-represented litigants assisted by skilled registry officers.
• The first case management hearing, which may be expedited, is critical in the case management of all commercial and corporations matters to ensure that the matter is case managed efficiently and is ready for trial at the earliest appropriate time.
• A weekly Corporations List to be managed by Corporations List judges for each registry.
• An Insurance List to be managed by an Insurance List Judge and Insurance List Registrars. The contact details of the Chambers of the Insurance List Judge and of the Insurance List Registrars are available on the Court's website.

4. Urgent Applications

4.1 Commercial and corporations duty processes will take place as set out below except in relation to urgent relation to urgent originating applications and interlocutory applications in the General and Personal Insolvency Sub-area for which parties should refer to part 7 of the General and Personal Insolvency Sub-area Practice Note (GPI-1).

Urgent Originating Applications

4.2 Practitioners will liaise with Commercial and Corporations Duty Judges' chambers directly. This will ensure that genuinely urgent matters are heard by dedicated commercial and corporations duty judges as soon as practicable and with a view to addressing the special issues arising in each matter and the needs of the parties.

4.3 Self-represented litigants will be supported by the registry (including the NCF Coordinator), rather than dealing directly with judge's chambers, in order to assist them through the application process efficiently.

4.4 A list of the Commercial and Corporations Duty Judges in each registry is available on the Court's website. Contact information for applications to the Commercial and Corporations Duty Judge is available on the Court's website from the Daily Court List webpage and the Duty Judge Contact webpage. 

Urgent Interlocutory Applications

4.5 Urgent (and non-urgent) interlocutory applications should be brought to the attention of the docket judge (or the provisional docket judge / list judge as the case may be) who has the responsibility for hearing or case managing the proceeding at the time of the filing of the interlocutory application.

4.6 If, after approaching the chambers of the docket judge, it is clear that the docket judge is uncontactable or otherwise clearly unavailable to hear the urgent interlocutory application within the timeframes relevant to that application (eg. the judge is on extended leave and the matter requires immediate attention), then the urgent interlocutory application should be brought to the immediate attention of the relevant Commercial and Corporations Duty Judge in the same manner as set out for urgent originating applications (see paragraphs 4.2 and 4.4 above).

5. Commencing Proceedings

5.1 Subject to the matters clarified below, the Federal Court Rules and forms, Federal Court (Corporations) Rules 2000 (Cth) ("Corporations Rules") and Federal Court (Bankruptcy) Rules 2016 (Cth) ("Bankruptcy Rules") apply to the commencement of proceedings in this NPA. 

5.2 A proceeding within this NPA must be commenced by filing an originating application ¹ (see r 8.01 of the Federal Court Rules, r 2.2 of the Corporations Rules and r 2.01 of the Bankruptcy Rules) ².

5.3 Material supporting the originating application may take one (or more) of the following forms:

(a) a document entitled "concise statement"; or
(b) a statement of claim or affidavit.

Concise Statement Method

5.4 A party commencing a proceeding may file a concise statement in support of an originating application. The purpose of a concise statement is to enable the applicant to bring to the attention of the respondent and the Court the key issues and key facts at the heart of the dispute and the essential relief sought from the Court before what might be the considerable cost of preparation of detailed pleadings is incurred.  While the form of the concise statement is described in more detail below, it must first be emphasised that the concise statement is not intended to substitute the traditional form of pleading with a short form of pleading, but instead should be prepared more in the nature of a pleading summons, and may be drafted in a narrative form.

5.5 If a concise statement is filed with the originating application, no further originating material in support (whether by statement of claim or affidavit) is required to be filed until the Court orders that to be done.

5.6 The concise statement must not exceed 5 pages (including formal parts) and the Court would expect that ordinarily (except in complex cases) less than 5 pages will be necessary. It will be plain, concise and direct in every regard. It will omit unnecessary repetition and will do no more than summarise:

(a) the important facts giving rise to the claim;
(b) the relief sought from the Court (and against whom);
(c) the primary legal grounds (causes of action) for the relief sought; and
(d) the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage.

5.7 Where a concise statement is filed, an expedited case management hearing will take place with the specific aims described in Part 8 of the Central Practice Note and at Part 6 of this practice note below. Included within the range of options for the Court at the first case management hearing may be that the respondent be required to file a concise statement in response, which may also be drafted in a narrative form.

5.8 The Court anticipates that the majority of commercial and corporations matters will be assisted by being commenced with a concise statement. Applicants are encouraged to consider the alternatives carefully and to select the use of a concise statement unless it is clearly not an appropriate mechanism.

5.9 The Concise Statement should contain a section in which the applicant states what issues, if any, may be suitable for report by a referee under s54A of the Federal Court of Australia Act 1976 (Cth).

Pleading or Affidavit Method

5.10 Alternatively, a party may file a statement of claim or affidavit in support of an originating application (see r 8.05 of the Federal Court Rules) or an affidavit in support of an originating process for corporations matters (see r 2.4 of the Corporations Rules).

5.11 Where an affidavit is filed, it will be treated as a statement of the applicant's substantive factual case in the proceeding. 

5.12 The statement of claim or affidavit should have four key components to clearly explain the applicant's case, namely:

(a) the material facts giving rise to the claim;
(b) the relief sought by the applicant (and against whom);
(c) the legal grounds for the relief sought; and
(d) the alleged harm suffered by the applicant, including - wherever possible - a conservative and realistic estimate or range of loss and damage.

5.13 In the supporting material (whether statement of claim or affidavit), the applicant should:

(a) avoid prolixity and a statement of claim should, wherever possible, be kept to no more than 15 pages;
(b) not engage in unnecessary repetition or exhaustively list peripheral alternative claims;
(c) where stating facts, concisely state only the material facts – that is, only the facts important to proving the claim; and
(d) where identifying legal grounds, concisely identify only the legal grounds that are realistically provable and relevant to the applicant proving the claim.

5.14 The Court anticipates that a minority of commercial and corporations matters will be more effectively commenced by a statement of claim or affidavit. Such matters are likely to be simple, have narrow grounds of dispute, may be in the lower range of quantum claims, and will benefit from a "one-step" pleadings process.

Request for Expedition (previously "Fast Track")

5.15 As noted in paragraph 6.5 of the Central Practice Note, where it is appropriate to do so, parties may seek an expedited or truncated hearing process and a tailored or concise pleading processes in any proceeding.

5.16 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.

5.17 If it is appropriate for the proceeding to be expedited, the Court will attempt to provide a judge who has the necessary time available to devote to an expedited process and hearing. The parties should make plain at the time of filing any request for a truly expedited procedure and hearing.

5.18 The parties should otherwise make plain at the first case management hearing (see further below) any request for an informal or abbreviated pleadings process.

6. Case Management

6.1 Parties and their representatives should familiarise themselves with the guiding case management information set out in the Central Practice Note. This practice note should always be read with the Central Practice Note.

Approach to Case Management

6.2 While the Court will manage and, where necessary, determine the issues in dispute, the proceeding is always the parties' proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute.

6.3 The Court will encourage (and expects) the parties to develop collaboratively a case management approach tailored to resolving the issues in their case in a just, quick, inexpensive and effective manner. The Court will have an open mind to innovative case management techniques suggested by the parties and will discourage forensic-style litigation processes that may be unfair, lengthy, expensive or of questionable utility.

6.4 It is expected that trial counsel will be briefed at the earliest possible opportunity so as to facilitate efficient case management and to give it the necessary focus.

6.5 In commercial matters it is particularly important that parties and their lawyers approach the litigation in a thoughtful, practical and common-sense way. The approach to case management should reflect a practical business-like method of resolving a problem that eliminates unnecessary "process-driven" costs.

Case Management Hearings

6.6 Case management hearings are integral to case management. The aim of case management hearings is to identify issues at the earliest possible stage. Depending on the particular method that the applicant has used to commence the proceeding, the parties should prepare for the first case management hearing and subsequent case management hearings as noted in Part 8 of the Central Practice Note and below.

6.7 At the first case management hearing, the parties should address, and the Court will consider, the following:

(a) the Case Management Imperatives as set out in paragraph 8.5 of the Central Practice Note;
(b) whether the proceeding is better suited to a modified and efficient form of pleading, including the use of concise forms of pleading, agreed statements of fact, or a more detailed pleading method;
(c) the timing of the trial (including any need for an expedited or truncated hearing process), the parties' estimates of trial length and their available dates for trial; and
(d) appropriately tailored case management orders, by consent or otherwise.

First Case Management Hearing – Concise Statement Method

6.8 If the applicant has commenced the proceeding by way of a concise statement (or otherwise makes a genuine request, at the time of filing, for an expedited hearing process in accordance with Part 5 of this practice note), the first case management hearing will, wherever possible, take place within 2 to 3 weeks of the filing of the application. In light of the shorter timeframe for the listing of the first case management hearing in concise statement or expedited circumstances, filing-parties should not only comply with the requirements for service within the Federal Court Rules, but should serve the relevant material at the earliest possible time prior to the first case management hearing in order to facilitate meaningful communication between the parties before the hearing takes place  (see paragraph 8.9 of the Central Practice Note).

6.9 The first case management hearing in this method seeks to "triage" the case, ie. to assess accurately the true character of the legal disputes and establish the most appropriate way to prepare the case for trial and any alternative dispute resolution ("ADR") process.

First Case Management Hearing – Pleadings or Affidavit Method

6.10 If the applicant has commenced the proceeding by way of statement of claim or affidavit, the first case management hearing will, wherever possible, take place within 3 – 5 weeks of the filing of the application.

6.11 The first case management hearing will flexibly organise the interlocutory steps in the proceeding so that the proceeding may be conducted as effectively and efficiently as possible and, where appropriate, a final hearing date will be set.

7. Alternative Dispute Resolution

7.1 Parties and their representatives should familiarise themselves with the guiding ADR information set out in Part 9 of the Central Practice Note. The thoughtful and creative use of ADR techniques (including confidential conferences) for both substantive and procedural issues should be recognised by the parties as potentially very important in resolving or streamlining the running of commercial cases.

8. Discovery, Redfern and Memorial Procedures

8.1 Parties and their representatives should familiarise themselves with the guiding discovery information set out in Part 10 of the Central Practice Note.

8.2 Discovery can be a particularly burdensome problem in commercial cases unless it is firmly controlled by the parties, their lawyers and the Court. Parties and their lawyers have a responsibility not to allow discovery to increase costs unnecessarily or disproportionately to the nature, size and complexity of the case.

8.3 The Central Practice Note deals with the approach to discovery generally, but there are techniques that may be of particular utility in commercial cases: for example, the Redfern discovery procedure ("Redfern Discovery Procedure") and the memorial procedure for discovery and evidence.

Redfern Discovery Procedure

8.4 A party may request, or the Court may direct, that a Redfern Discovery Procedure apply in the proceeding. The Redfern Discovery Procedure (so-called in international commercial arbitration) involves the preparation of a schedule, which is prepared collaboratively by the parties and supervised by the Court. It should be an expeditious process which takes account of the financial and operational burden of litigation on commercial parties.

8.5 The key characteristics of the Redfern Discovery Procedure are:

(a) the exchange of requests for specific documents or limited categories of documents;
(b) the requests clarify why the documents are relevant and material in nature by specific reference to any pleading, affidavit, concise statement or evidence;
(c) the other party to the request consents or objects to each request and provides reasons for objections;
(d) the parties prepare a schedule containing the requests and responses; and
(e) the Court determines each disputed request.

8.6 Requests may be rejected by the Court for a number of reasons, including where the request: 

(a) relates to documents that are insufficiently relevant or immaterial;
(b) relates to documents that are specially protected (eg. through legal professional privilege);
(c) places an unreasonable burden on the party requested to provide documents;
(d) is disproportionate to the case or unfair in the circumstances.

8.7 Where the Redfern Discovery Procedure is used it will be flexibly informed by Article 9 of the International Bar Association Rules (as amended). 

Memorial Procedure for Evidence and Early Documentary Disclosure

8.8 In an appropriate case a party may request, or the Court may direct, that a "memorial"-style process be adopted for the provision of key documents and evidence, similar to that used in international commercial arbitrations but managed within the framework of the Federal Court Act and Federal Court Rules.

8.9 Such a memorial procedure involves the parties filing their pleading-related material together with key documents and evidence in one consolidated process at an early stage in the proceeding. 

8.10 A party seeking to enliven this procedure should make that request in its concise statement or other pleading document or at any stage prior to the filing of a substantive pleading document.

8.11 The memorial procedure may assist in identifying the real issues quickly and in promoting early and realistic case evaluations. This in turn may facilitate the early settlement of disputes, particularly for substantial commercial disputes that may otherwise be lengthy and expensive.  However, the procedure also involves bringing forward some of the steps (and therefore the costs) which often occur later in a proceeding and may not be suitable for every commercial dispute. 

9. Interlocutory Steps, Evidence, Pre-trial Case Management Hearings

9.1 Parties and their representatives should familiarise themselves with the information in the Central Practice Note on these matters (see Parts 11 to 13).

10. Further Practice Information and Resources

10.1 This practice note relates to all commercial and corporations matters. Specific information relating to 2 of the Sub-areas in this NPA is included in the following Schedules to this practice note:

• Corporations and Corporate Insolvency Sub-area – Schedule 1;
• Insurance – Schedule 2.

10.2 The General and Personal Insolvency Sub-area has a separate practice note GPI-1. Parties commencing, or responding to, a proceeding under the Bankruptcy Act 1961 (Cth) should refer to the General and Personal Insolvency Sub-area Practice Note (GPI-1).

10.3 However, additional requirements of particular relevance in this NPA exist in other practice notes and practice information. This includes the following documents and information available on the Court's website:

• Practice and procedure information and resources for this NPA on the Court's Commercial and Corporations NPA "homepage";
• Class Actions Practice Note (GPN-CA);
• Expert Evidence Practice Note (GPN-EXPT);
• Survey Evidence Practice Note (GPN-SURV);
• Cross-Border Insolvency Practice Note (GPN-XBDR);
• Freezing Orders Practice Note (GPN-FRZG), Search Orders Practice Note (GPN-SRCH) and Usual Undertaking as to Damages Practice Note (GPN-UNDR);
• Other relevant general practice notes including the: Subpoenas and Notices to Produce Practice Note (GPN-SUPB); Costs Practice Note (GPN-COSTS) and Lists of Authorities and Citations Practice Note (GPN-AUTH).

10.4 Further information to assist litigants, including a range of helpful guides, is also available on the Court's website. This information may be particularly helpful for litigants who are representing themselves.

Enquiries and Contact Information

10. 5 General queries concerning the practice arrangements in the Commercial and Corporations NPA should be raised, at first instance, with your local registry. If a registry officer is unable to answer your query, please ask to speak to the NCF Coordinator in your local registry. Contact details for your local registry are available on the Court's website. 

J L B ALLSOP
Chief Justice
9 November 2022