As members of the profession may be aware, the High Court is developing a new Commercial List, which is expected to come into operation in October this year. The List differs from the Commercial List that operated in Auckland many years ago, in that the Commercial List Judges (who will be drawn from the Commercial Panel) will not only case manage proceedings entered onto the List but will also preside over the trials.

The processes to be deployed in the Commercial List are expected to reduce considerably the time spent in interlocutory phases, and lead to earlier substantive hearing dates. The combination of these initiatives will materially change the approach to commercial litigation in Auckland.

The new List will be based on the very successful and longstanding New South Wales Supreme Court’s Commercial List (NSW Commercial List), adapted appropriately to local conditions. This project was initially proposed by the Chief Justice, who asked me to visit Sydney in late 2023 to observe the NSW Commercial List in action, and to consult with the NSW Supreme Court Judges who manage it. This visit was an important first step in adapting the List to the New Zealand context. A session on the NSW Commercial List led by Justice James Stevenson (who presently oversees the List) at the High Court’s 2024 annual conference provided further insights. The New Zealand model has since been developed in consultation with a profession working group, made up of senior members of the profession who specialise in commercial litigation.

The NSW Supreme Court’s Commercial List

The purpose and aim of the NSW Commercial List is to provide specialist expertise for the matters heard by it, and to ensure that cases are heard as expeditiously as possible. This involves a reasonably rigorous case management regime, with a focus on the real issues in dispute. Key case management features include:

• A callover of interlocutory applications (“motions”) held at 9.15am each Friday, and hearings (of usually no more than one hour) held later that day for applications ready to be heard.
• A directions list held at 10am each Friday.
• Encouraging the parties to use mediation (or other alternative dispute resolution mechanisms) to resolve the proceedings or any material issues arising.
• Firmly discouraging applications for summary judgment and strike out, the focus instead on being progressing matters to prompt substantive hearing.
• An expectation that the parties will actively engage on and agree timetabling and other steps required to progress a matter to trial.
• That requests for Court intervention in relation to timetabling will be rare.

A link to the NSW Commercial List Practice Note is here.¹

The High Court’s new Commercial List

The Auckland Commercial List will broadly adopt the same processes and procedures. The overriding approach will be an expectation that parties will actively engage and cooperate on those steps necessary to progress a proceeding to trial (including an early focus on the real issues in dispute), in response to which the Court will offer close case management, prompt determination of interlocutory disputes, and earlier trial fixtures.

As noted, Commercial List Judges will be drawn from the Commercial Panel, and will be assigned to the List by the Chief High Court Judge with the concurrence of the Chief Justice. The List Judges will be taken out of the main High Court roster and manage their own schedule of hearings for cases entered onto the Commercial List.

Justice Gault and I will be the inaugural Commercial List Judges.²

Qualifying criteria for entry onto the Commercial List will be similar to the requirements specified in clause 5(1)(a)–(f) of the Senior Courts (High Court Commercial Panel) Order 2017, subject to the value of the claim or transaction in dispute being not less than $1 million.

Like the NSW Commercial List, the Auckland Commercial List will be administered in Court on the Friday of each week. A callover of interlocutory applications will be held at 9.15am, followed by the directions list at 10am. In-person appearances will generally be expected (much like the current civil Duty Judge lists), though with remote appearance where required.³

When a proceeding is first placed on the List, it will be allocated a first listing for directions on the Friday of the following week. At the first and/or subsequent listing for directions, directions will be made with a view to the just, speedy, and inexpensive disposal of the proceeding, aiming to avoid unnecessary steps.

Applications for strike-out, summary judgment, and for discovery prior to factual evidence being served, will be discouraged unless clearly consistent with the just, speedy, and inexpensive resolution of the issues in dispute.

At the 9.15am callover, any interlocutory applications ready to be heard will be scheduled for hearing later that day, or if not possible (due, for example, to courtroom unavailability), on an afternoon the following week. Interlocutory hearings will generally be no more than one hour, and it is expected that many hearings will result in the issues being resolved by agreement, or at least narrowed significantly. Decisions – and reasons if required – will be issued promptly and will be relatively brief.

The Court’s expectations of counsel appearing in the List include:

• Active engagement and discussion to seek to agree timetabling and similar matters.
• Requests for Court intervention in relation to timetabling only being necessary in the rare instances where, for good reason, reaching agreement has proved to be impossible.
• That counsel will discuss and seek to agree on any categories of documents for discovery before or after fact evidence. Applications concerning disputed categories of documents for discovery are expected to be rare.
• Submissions will be focused and concise, and time allocations will be respected, including at the substantive hearing or trial.
• Parties will have considered referring their disputes to mediation prior to or after entry onto the Commercial List.

A link to the current draft of the Commercial List Practice Note can be found here.⁴

As noted, the judicial working group leading the development of the Commercial List has consulted with a profession working group, to ensure that the processes and procedures for the List will be practical and effective. The judicial working group has greatly benefitted from the profession’s input. The collaboration between the judiciary and the profession has been instrumental in shaping a case management system which it is hoped will be both effective and responsive to the commercial community’s needs.

More detailed profession education roadshows about the Commercial List will be held in July. 

1. https://supremecourt.nsw.gov.au/documents/Practiceand-Procedure/Practice-Notes/equity-practice-notes/current/SCEQ32025_02_26Practice_Note_Commercial
_List_and_Technology__Construction_List.pdf

2. We may also draw on other Commercial Panel Judges from time to time, particularly in relation to substantive fixtures on the Commercial List. The Commercial Panel will remain in operation, dealing with qualifying commercial cases in centres other than Auckland. Some commercial cases in Auckland will remain on the Commercial Panel, for example, those already assigned to Commercial Panel Judges, extremely large cases which would otherwise risk “swamping” the Commercial List’s schedule, and other cases suitable for bespoke case management.

3. Such as counsel being located outside of Auckland.

4. https://www.courtsofnz.govt.nz/assets/6-Going-to-Court/practice-directions/practice-notes/high-court/Draft-CL-Practice-Note.pdf