About this NPA
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)
- international commercial arbitration disputes.
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.
- International 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).
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.
All practice notes are to be read with the Central Practice Note. It is the essential guide to practice in the Federal Court in all proceedings.
Central Practice Note (CPN-1)
The NPA practice note sets out the arrangements for the management of Commercial and Corporations proceedings:
NPA Practice Note:
Other general practice notes and Court developed guides which may be relevant to this NPA include:
General Practice Notes:
Forms, Rules & Fees
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).
- 18 Jun 2018:
Kenquist Nominees Pty Limited v Campbell (No 5)  FCA 853
PRACTICE AND PROCEDURE - application for discovery of documents - legal advice privilege - where non-party to proceeding resisted order requiring respondents to produce discovered documents on the basis that discovery would reveal communications subject to legal advice privilege - where confidential bundle of sample documents provided to Court for …
Judge: Thawley J
- 15 Jun 2018:
Perera v GetSwift Limited (No 2)  FCA 909
COSTS - resolution of costs applications following orders made to permanently stay two of three representative proceedings - where orders for costs sought by respondents in respect of the resolution of a multiplicity dispute - where orders are sought by an applicant in one proceeding against a non-party to that proceeding - where orders sought in…
Judge: Lee J
- 15 Jun 2018:
Dalian Huarui Heavy Industry International Co Ltd v Duro Felguera Australia Pty Ltd  FCA 905
COSTS - where leave granted to discontinue proceeding - dispute concerning costs - where respondent contends applicant should pay its costs - where Rule 26.12(7) of the Federal Court Rules 2011 (Cth) creates a presumption that the discontinuing party will pay the other party's costs unless good reason to the contrary shown - where presumptive rule …
Judge: Barker J
- 15 Jun 2018:
Zafra Legal Pty Ltd v Harris  FCA 908
CORPORATIONS - interpleader proceeding under Part 18 of the Federal Court Rules 2011 (Cth) - application for orders for delivery up or possession of hard drives held by applicant - where hard drives contained electronic copies of documents seized under search warrant executed by the Australian Federal Police (AFP) - where AFP subsequently seized…
Judge: Barker J
- 15 Jun 2018:
The Bell Group Limited v Australian Securities and Investments Commission  FCA 884
CORPORATIONS - deregistration under s 574 of the Corporations Law - where reinstatement of companies is sought pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) - whether the plaintiffs were aggrieved by the deregistration of the companies - whether certain plaintiffs were aggrieved by virtue of their inability to join a tax consolidated…
Judge: McKerracher J
- 14 Jun 2018:
Bumbak, in the matter of the Corporations Act 2001 (Cth)  FCA 928
CORPORATIONS - application for appointment of new liquidator upon resignation of existing liquidator - where change in partnership by liquidator - where appointment of new liquidator sought to facilitate ongoing administration of liquidation by staff familiar with relevant affairs - where issues as to supervision of liquidation under a power of…
Judge: Colvin J
- 14 Jun 2018:
Registrar of Aboriginal and Torres Strait Islander Corporations v Taylor  FCA 900
CORPORATIONS - application of the Registrar of Aboriginal and Torres Strait Islander Corporations regarding contraventions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) - where first respondent admits to the contraventions - where question addressed is what penalties should be imposed on the first respondent - where…
Judge: Barker J
- 14 Jun 2018:
Alston v Cormack Foundation Pty Ltd  FCA 895
TRUSTS AND TRUSTEES - Trust over shares in corporation - express trust - objective theory as to ascertaining intention - whether intention to create trust in the future or with immediate effect - whether a trust over directors' powers - validity or enforceability of trust - trust in favour of unincorporated association - whether a trust for…
Judge: Beach J
- 13 Jun 2018:
R & B Directional Drilling Pty Ltd (in liq) v CGU Insurance Limited  FCA 904
Judge: Allsop CJ
- 13 Jun 2018:
QBE Insurance (Australia) Limited v Martin Insurance Agencies Pty Ltd  FCA 903
INSURANCE - claim against former insurance agent and authorised representative - obligation of agent to deliver records and correspondence of principal, upon request, to principal
Judge: Allsop CJ
Latest Speeches & Papers
- 16 Apr 2018:
Commercial and investor-state arbitration: The importance of recognising their differences
Opening Keynote Address at the ICCA Congress 2018, Sydney by Chief Justice Allsop.
- 22 Feb 2018:
The common law and competition law
Presented at the Bannerman Competition Lecture, by Justice Jagot.
- 29 Nov 2017:
The personal property securities legislation - Experiences from Australia and New Zealand
Presented at the Personal Property Securities Act Workshop, Papua New Guinea, by Justice Collier
- 20 Oct 2017:
Certification of class actions: A 'solution' in search of a problem?
Paper presented to the Commercial Law Association Seminar "Class Actions - Different Perspectives", by Justice Lee.
- 1 Jun 2017:
Varying funding agreements and freedom of contract: Some observations
Presented to IMF Bentham Class Actions Research Initiative with UNSW Law: 'Resolving Class Actions Effectively and Fairly' by Justice Lee
- 29 Mar 2017:
Rules and values in law: Greek philosophy; The limits of text; restitution; and neuroscience - Anything in common?
First given as a lecture at a seminar of the Hellenic Australian Lawyers Association - Queensland Chapter at Brisbane on 29 March 2017.
- 16 Feb 2017:
Commercial issues in private international law
Introductory remarks presented at the University of Sydney Law School Conference by Justice Rares
- 10 Oct 2016:
Issues in recognition and enforcement of foreign insolvency judgments - An Australian perspective
Delivered to the Judicial Insolvency Network Conference, Singapore by Justice Perram.
- 16 Sep 2016:
Application of the Australian Consumer Law to Government Commercial Activities
Paper delivered by Justice Griffiths at Commercial Law and Government Conference.
- 7 Sep 2016:
Opening Remarks: “Barwick, bankruptcy and the human dimension"
Delivered to the International Personal Insolvency Conference 2016, by Justice Greenwood.
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Important note: This information is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law.