Supreme Court of Victoria – Commercial Court Practice Note (Second Revision)

A new practice note has been issued by the Commercial Court of the Supreme Court of Victoria.

The Commercial Court Practice Note (Second Revision) (Practice Note) supersedes its predecessor, becoming effective as of 26 February 2024, and applies to all current and future proceedings in the Commercial Court.

This note captures key changes arising from the Practice Note and matters that parties and practitioners should be cognisant of when conducting matters in the Commercial Court.

Critical documents

There will be an emphasis of production of critical documents at a much earlier stage of a proceeding than what has been conventionally been required previously.

The Practice Note requires parties to comply with their obligations under section 26 of the Civil Procedure Act 2010 (Vic) (CPA) as soon as practicable and prior to the initial directions hearing.

Section 26 of the CPA requires parties to disclose the existence of all documents that are, or have been, in that party’s possession, custody, or control of which that party is aware and which that party considers, or ought reasonably consider, are critical to the resolution of the dispute.

The Practice Note suggests that parties should not await the making of the standard order at the first directions hearing before exchanging critical documents. Further, parties ought not rely on general discovery to come into possession, or produce, critical documents relevant to a proceeding.

Compliance with section 26 of the CPA will be ordered at the initial directions hearing if all critical documents have not been produced by that time.

The conferral process

The Commercial Court is eager to ‘minimise the burden of interlocutory applications, which can be time consuming, expensive and productive of delays’.

The expectation is that parties will now confer with one another in relation to any issue that may result in a substantive interlocutory application before such an application is made.

The conferral process applies to interlocutory applications which may be expected to take longer than one hour, or otherwise involve matters such as a challenge to a pleading, a claim for privilege, a claim for confidentiality or for specific discovery. The conferral process requires:

1. First, the moving party intending to initiate an interlocutory application must send a letter, of no more than four pages, to the responding party. That letter must identify the orders sought, the basis for seeking those orders and request that the parties confer prior to an interlocutory application being issued.
2. Second, within seven business days of receipt of the letter, the responding party must confer with the moving party by telephone, audio-visual means, or in person to narrow the dispute. If agreement cannot be reached, then the responding party must send a letter, of no more than four pages, to the moving party identifying the basis of the opposition.
3. Third, if a dispute remains, the parties are to send a joint email to the chambers of the judicial officer managing the proceeding, attaching copies of the letters, and advising whether the parties are content for the letters to be used to determine the dispute, or if further material is required to be filed. At that stage, the judicial officer will determine whether to resolve the dispute on the papers, at a hearing or if a summons must be filed.

The conferral process does not apply to applications for injunctive relief or other urgent applications.

Outlines of evidence

The Practice Note confirms that, for lay evidence, it is more common for the Commercial Court to order witness outlines rather than witness statements or affidavits, and notes that oral evidence is a more efficient and cost-effective means of leading evidence, avoiding unnecessary evidence and lengthy objections.

Annexure C of the Practice Note sets out the standard form of orders to be made in respect of witness outlines, which includes:

1. briefly outlining the evidence the witness will give;
2. identifying the topics in respect of which evidence will be given and the substance of that evidence, including the substance of each important conversation; and
3.  identifying the documents which the party filing the witness outline intends to tender into evidence through that witness. The documents should be referred to in chronological order in the body of the witness outline or, if not possible, listed in chronological order in a schedule to the witness statement.

Conclusion

This summary highlights the Practice Note’s key amendments and procedural adjustments that parties and practitioners should be aware for matters issued in the Commercial Court. Notable changes include the accelerated requirement to produce critical documents, the implementation of a structured conferral process aimed at mitigating the burden of interlocutory applications, and the Court’s preference for witness outlines instead of witness statements and affidavits. The Practice Note is less prescriptive than its predecessor and these updates reflect the Court’s commitment to enhancing efficiency and ensuring the fair and expeditious resolution of disputes that are heard in the Commercial Court.

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Authored by:

Simon Theodore, Partner
Michael Harty, Special Counsel
Monique Kotevski, Lawyer