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).
- 26 Sep 2018:
Dixon (Trustee) v Citiline Developments Pty Limited, in the matter of Nasr (Bankrupt)  FCA 1446
EVIDENCE – whether s 304 of the Duties Act 1997 (NSW) is picked up by s 79 of the Judiciary Act 1903 (Cth) in respect of proceedings in the Federal Court where admissibility is governed by ss 55 and 56 of the Evidence Act 1995 (Cth) – applicability of s 9(3) of the Evidence Act
Judge: Lee J
- 21 Sep 2018:
Wheaton v Krawec  FCA 1466
PRACTICE AND PROCEDURE - application for an extension of time to appeal from a decision of a Federal Court judge - where no evidence given - no basis for granting an extension - application dismissed
Judge: O'Callaghan J
- 21 Sep 2018:
Australian Pipe & Tube Pty Ltd v QBE Insurance (Australia) Limited (No 2)  FCA 1450
INSURANCE - business interruption insurance - damage to steel mill - claim for loss of gross profits over indemnity period - reduction in turnover - adjustments for business operating for less than 12 months - adjusted rate of gross profit - adjusted standard turnover - scope and application of insurance policy - counterfactual production profile…
Judge: Beach J
- 20 Sep 2018:
Bell Group N.V. v Bell Group Finance Pty Ltd, in the matter of Western Interstate Pty Ltd  FCA 1440
CORPORATIONS - cross-vesting application - application to cross-vest Federal Court proceedings to the Supreme Court of Western Australia - application brought pursuant to s 133H of the Corporations Act 2001 (Cth) - whether the cross-vesting is in the 'interest of justice' - considerations relevant to an application for cross-vesting - where,…
Judge: McKerracher J
- 20 Sep 2018:
Cao v Apollo Phoenix Resources Pty Ltd  FCA 1445
CORPORATIONS - where the office of a director of a company was purportedly declared vacant at a directors' meeting which the relevant director did not attend - where the relevant director did not speak English and lived overseas - whether the relevant director was absent from directors' meetings for six consecutive months - whether the relevant…
Judge: Markovic J
- 19 Sep 2018:
White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) (No 4)  FCA 1436
Judge: Perram J
- 19 Sep 2018:
Unique International College Pty Ltd v Australian Competition and Consumer Commission  FCAFC 155
CONSUMER LAW - alleged contraventions of s 21 of the Australian Consumer Law - provision of online vocational educational courses covered by the VET FEE-HELP scheme - whether appellant engaged in unconscionable system of conduct or pattern of behaviour - unconscionability as a characterisation related to human conduct by reference to conscience -…
Judge: Allsop CJ, Middleton and Mortimer JJ
- 19 Sep 2018:
Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4)  FCA 1408
CONSUMER LAW - alleged contraventions of ss 18 and 29 of the Australian Consumer Law - misleading or deceptive conduct in trade or commerce - false or misleading representations about goods or services - where respondent provided online vocational education services, engaging recruiters to market its services direct to consumers - whether…
Judge: Gleeson J
- 18 Sep 2018:
Lenthall v Westpac Life Insurance Services Limited  FCA 1422
REPRESENTATIVE PROCEEDINGS – representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) – open class – application for common fund order – applicable principles – whether appropriate to make common fund order – desirability for amount to be paid to a funder increases as the risk undertaken by the funder increases and …
Judge: Lee J
- 18 Sep 2018:
Turner v MyBudget Pty Limited  FCA 1407
CONTRACT - proper construction of interest provision in consumer contract - whether it authorises respondent to take and use interest earned on client funds for its own purposes - whether breach of trust or breach of fiduciary duty - held contract authorises respondent's actions and no breach CONSUMER LAW - Australian Consumer Law s 24(1) -…
Judge: Lee J
Latest Speeches & Papers
- 30 Aug 2018:
The judicialisation of values
Paper presented at the LCA/FCA Joint Competition Law Conference, Sydney, by Chief Justice Allsop.
- 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.
- 16 Sep 2014: National Commercial Law Seminar: Commercial transactions in an insolvency context
- 07 May 2014: Things every commercial lawyer should know about judicial review - a panel discussion
- 18 Mar 2014: Personal Property Securities Act: beyond the transitional period
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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.