Chapter 7 - The commercial list and specialisation in the High Court

Options for reform

We consider that there are five options for the commercial list:

(a)no change (retain the commercial list as it is);

(b)abolish the commercial list and rely on case management procedures;

(c)retain and extend the commercial list;

(d)create a separate commercial court in the High Court;

(e)adopt a panel system, including a specialist commercial panel.

No change

The first option is to do nothing and retain the commercial list in its present form. There is one immediately obvious benefit in this - having been around for nearly 25 years, the judiciary and the Bar have become accustomed to the commercial list and know when it is and is not useful.

However, there are a number of problems with the commercial list. First, once pre-trial proceedings are concluded, cases on the list fall back into the general list for allocation of a judge for a substantive hearing. This has been described as its fundamental weakness.161  We agree that, having got the case ready for hearing in a timely manner, to then beat a retreat to the general list along with a myriad of other cases is inappropriate.

Further, there are clear disadvantages in terms of cost and travel for some litigants that arise if the commercial list is only based in Auckland (as it is at present). The normal rules that require plaintiffs to litigate in the defendant’s place of residence do not apply.162 Having to move commercial list cases to Auckland seems unjustified, particularly given that some of the significant commercial litigation is against Crown entities, which are usually based in Wellington.

It is likely that these factors, coupled with the availability of ADR, have contributed to the departure of a respectable amount of commercial litigation from the regular courts of law. This has serious implications for the development of New Zealand law, which requires decisions of the superior courts.163  Ironically this affects ADR systems, as mediators and arbitrators still make reference to the commercial law.


Abolish the commercial list

While the commercial list was a useful and successful trailblazer in the High Court, many of its advantages have been overtaken by developments in civil case management generally.164  It is apparent that the list is slowly falling into disuse.

One option, therefore, is to acknowledge that the commercial list has served a worthwhile purpose, but that advances have been made since it was created in litigation generally and it is no longer necessary. This option would see the commercial list abolished. We note that the Law Commission recommended this in 2004,165 but its recommendation was not implemented.

Extend the commercial list

On the other hand, the fact that some cases are still being entered on the commercial list suggests that some parties see tangible benefits to maintaining it. For instance, as Paterson J stated in Cellier Le Brun Ltd v Le Brun, the commercial list encourages the early definition of issues, it discourages appeals from interlocutory orders and there are more frequent calls compared with the normal steps in case management.166 Therefore, another alternative would be to recognise that these benefits are worth keeping and that, instead of abolishing the list and getting rid of the good with the bad, these could, rather, be built on.

Two ways of doing this are immediately apparent – first, provision could be made that proceedings do not go back onto the general list when they come to be allocated for trial. Rather, they would remain on the commercial list and the substantive hearing would be presided over by a commercial list judge. Second, the commercial list could be extended to Wellington and Christchurch.

This would deal with two of the main criticisms – the delay caused by rejoining the general list once all pre-trial matters are completed and the cost to parties not located in Auckland who are forced to litigate there.

Of course, one would need to consider the advantages and disadvantages of what would inevitably be increased specialisation, as well as cost and judicial resource implications of any such expansion.

A commercial court

Following on from this, some would argue that if we are going to retain and revamp the commercial list we should go further and create a separate commercial court in the High Court. There are now commercial courts, or at least divisions, in many Commonwealth jurisdictions.

We describe, as only one example, the Commercial Court for England and Wales.167  The High Court in that jurisdiction, as in New Zealand, is the senior civil court in England, but is split into three divisions – Family, Chancery and Queen’s Bench. The Queen’s Bench Division, which the Commercial Court is part of, deals with a wide range of contract law and personal injury/general negligence cases, but also has special responsibility as a supervisory court of lower courts and tribunals, and presiding over applications for judicial review.

The business of the Commercial Court is defined by the English Civil Procedure Rules as “any claim arising out of the transactions of trade and commerce” and specifically includes various claims relating to business documents or contracts, the export and import of goods, the carriage of goods, and so on.168

The Commercial Court in London operates in a quite different context than New Zealand. The legal sector is a significant earner in the United Kingdom – in 2009 it generated £23b, the equivalent of 1.8% of that country’s GDP.169  At the level of central government planning, promoting the United Kingdom’s legal services sector enjoys a prominent part.

A high premium is placed on efficiency in the Commercial Court. Anybody can look up on the internet the time it will take to get a hearing.170  To take some examples, in November 2011, a one and a half to two hour application was shown as being available in January 2012, as were half days or one day applications. A one week trial could be heard in April 2012 and a four week trial in October 2012.

This kind of institution does not come cheap. The Rolls Building in London, in which the Commercial Court is now contained, was a heavy drain on Ministry of Justice funds, although that has to be placed in the context of the macro gain to the United Kingdom economy. Further, it is expensive to operate – it presently has16 sitting High Court judges, not to mention clerks, registrars and other staff.

We are aware of the very distinct strain both on capital and personnel resources in relation to the High Court at Auckland, which would be the obvious – indeed the only – place to site such an institution. It seems unrealistic, at least for the foreseeable future, that any New Zealand administration would be prepared to fund even a modest standalone Commercial Court. Further, locating it in Auckland would not deal with the criticism of the present commercial list arrangement that Wellington and Christchurch are ignored.


Panel systems

Up to this point we have been focussing on specific ways to deal with commercial matters in the High Court. It would be outside our remit to delve into all possible areas of specialisation, but we cannot leave this topic without a discussion of one alternative model that could initially focus on commercial matters, but which has the potential to be expanded more broadly. That alternative model is what in Australia is often described as “panel systems” for superior trial courts.

New South Wales

In New South Wales, the Supreme Court is separated into the Common Law Division and the Equity Division.171  The former is similar to the New Zealand High Court, in that all judges do a mix of civil work and criminal work. The Common Law Division operates several lists, including an administrative law list, a defamation list, a possession list and a professional negligence list. The first claim on the time of judges who are on a list is the criminal business of the court, and they are also expected to do some work in the general civil jurisdiction of the court. As such, they are only part-time specialists.

The parties to litigation can identify the appropriate list they wish to be in,172 but allocation is ultimately subject to judicial control.173  The cases within a list are managed by a list judge and, while best endeavours are made to have the case heard by a list judge, that is not guaranteed.


The Trial Division of the Supreme Court of Victoria is further divided into the Commercial and Equity Division, the Common Law Division and the Criminal Division.174  Judges sit in one or other of these divisions.

Since 1 January 2009, there has been a Commercial Court that operates within the Commercial and Equity Division.175  It has seven lists and each list is managed by a “Judge in Charge”. Each proceeding in the Commercial Court is allocated to a docket of one of the lists, and judges are assigned to each list to manage and try the cases within that list.176

It is open to parties to file cases in the Commercial Court, or opt simply to file in the general jurisdiction. However, even if a case is entered in the Commercial Court, it may be directed by a list judge to be removed if it would be more appropriately managed and tried elsewhere.



The Trial Division of the Supreme Court of Queensland has operated a commercial list since 1 May 2002. It is designed to provide a streamlined process for the management and hearing of proceedings involving issues of a general commercial character, or arising out of trade or commerce in general, where the estimated length of trial is 10 days or fewer.177  The list judges have a discretion as to whether or not to enter a case on the list.

Federal Court of Australia

In the Federal Court of Australia there is a full docket system – each case is allocated to a docket of a particular judge at the time of filing with the intention that it will remain with that judge for case management and disposition. Judges opt in to specialist lists and can serve there for three years at a time.

A panel system for New Zealand?

In our view, it would be possible to design a panel system appropriate to New Zealand’s needs that would not disrupt the collegiate structure that underpins the higher courts. All High Court judges would have general jurisdiction, but a Judge could either opt in, or be allocated to, one of several panels. One of those panels could be a commercial list in the sense that those judges would both manage and decide commercial cases, dealing not only with interlocutory applications, but also with the substantive hearing. It is unnecessary at this juncture to discuss what other panels there might be, although we would be interested in hearing suggestions.

The existing court facilities could be used, and there could be commercial panels in Auckland and Wellington (at least), with, for example, four judges in Auckland with commercial list time, and two in Wellington. The judges would not be full time in the commercial list, but have to do some general list and criminal work.

The short point is not to settle now the precise details of a New Zealand panel model, but to ask whether advancement in the direction of a panel model for the High Court is appropriate for the New Zealand legal system.

If so, such development could be done by legislation. There is nothing unusual in this in a New Zealand context – there are, of course, divisions in the District Court which are legislated for, and for much the same reasons as would apply in the case of the High Court. Alternatively, this change could be done administratively, although this would require change to be effected from inside the judiciary and, as noted, views on this issue differ.

Alan Galbraith QC “Facilitating and Regulating Commerce” (2002) 33 VUWLR 841 at 846.

High Court Rules, r 29.14(1).

See, generally, Alan Galbraith QC “Facilitating and Regulating Commerce” (2002) 33 VUWLR 841 at 843.

See, for example, Law Commission Delivering Justice for All (NZLC R85, 2004) at 269; Alan Galbraith QC “Facilitating and Regulating Commerce” (2002) 33 VUWLR 841 at 846; and Commerce Commission v Cards NZ Ltd HC Auckland CIV-2006-485-2535, 30 March 2007. See, also, the changes proposed for case management in the general list in the draft High Court Amendment Rules 2012 (version 1.9).

Law Commission Delivering Justice for All (NZLC R85, 2004).

Cellier Le Brun v Le Brun (2002) 16 PRNZ 376 at [14]. Similar comments have also been made in more recent cases, such as Godfrey Waterhouse v Contractors Bonding Ltd HC Auckland CIV 2010-404-3074, 13 December 2010 at [55]-[56] and Allied Nationwide Finance Ltd (in rec) v Southland Building Society HC Auckland CIV-2010-404-008228, 19 August 2011 at [48]. Again, though, a number of these features are likely to be adopted in the ordinary list when the changes to case management in the draft High Court Amendment Rules 2012 (version 1.9) come into force in mid-2012.

For a comprehensive Admiralty and Commercial Courts Guide, as was approved by the Rt Hon Lord Judge the Lord Chief Justice (and head of the Queen’s Bench Division), see Ministry of Justice (UK) < >.

Civil Procedure Rules, r 58.1(2).

Ministry of Justice “UK cements position as ‘centre of legal excellence’” (press release, 16 May 2011).

Ministry of Justice (UK) “Commercial Court lead times” < >.

Supreme Court of New South Wales “About us” < >.

Uniform Civil Procedure Rules 2005, r 45.1.

Uniform Civil Procedure Rules 2005, r 45.2.

Supreme Court of Victoria “Court Structure"< >.

Supreme Court of Victoria “Commercial Court” < >.

Notice to Practitioners 2008 – Commercial Court, Supreme Court of Victoria, 12 December 2008.

Practice Direction No 3 of 2002, Supreme Court of Queensland, 26 March 2002 (as amended by Practice Direction No 2 of 2008, Supreme Court of Queensland, 14 August 2008).