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

The commercial list


The accurate and efficient disposition of commercial litigation is important for the business community in New Zealand, and for those who deal with commercial interests in New Zealand from abroad.

The commercial list in the High Court was established as a pilot scheme in Auckland in 1987 by a working party, and became permanent four years later. It was intended to reduce the time for decisions in commercial matters, and in particular to reduce the interlocutory processes in cases on the list to expedite final decisions.132 It only deals with pre-trial matters; once the case is ready for hearing it is transferred back into the general list and will be heard by any High Court judge.

Legislative provisions


Section 24A of the Judicature Act 1908 provides for a commercial list to be established in any office of the High Court by the Governor-General by notice in the Gazette,133 and that the first commercial list shall be established at Auckland.134  The commercial list at Auckland is the only gazetted commercial list, although we understand an extension of the list to Wellington is imminent. To this end, we note that, with effect from 23 November 2011, two judges based in Wellington (Miller and Clifford JJ) have been appointed as commercial list judges.135

Eligibility of cases

Section 24B of the Judicature Act 1908 provides for the classes of proceedings eligible for entry on the commercial list. Broadly, these relate to various matters concerning commerce, shipping, insurance, banking and finance, intellectual property, applications under the Arbitration Act 1996, appeals and proceedings under specific provisions of the Commerce Act 1986, companies and securities law, and proceedings of a commercial nature required or permitted to be entered on a commercial list by or under any Act, the High Court Rules or rules made under s 51C of the Judicature Act 1908.136

In addition, parties can refer a dispute over the construction, status or application of a contract or document in a “proceeding eligible for entry on a commercial list” to a commercial list judge for determination.137

Where a statement of claim or statement of defence in any proceeding referred to in section 24B(1)(a) – (f) is filed in a registry of the court at which a commercial list is established, either a plaintiff or a defendant may require the proceeding to be entered on the commercial list by endorsing the statement of claim or the statement of defence (as the case may be) with the words “Commercial List”.138  The proceeding must then be entered on the commercial list.

The High Court Rules also allow for an application to the Court for an order entering the proceeding on the commercial list where an endorsement at the time of filing did not occur.139  Further, despite rule 5.1 of the High Court Rules (which provides for the “proper registry” for filing proceedings), a plaintiff may file “eligible proceedings” at a registry where there is a commercial list.140  If the plaintiff does not do so, the defendant may still apply to a commercial list judge under rule 29.14(2) of the High Court Rules for an order transferring the proceeding to a registry of the Court where a commercial list is established.

Conversely, a commercial list judge may, on the application of any party or on the judge’s own initiative, at any time remove any proceeding from the commercial list.141


The commercial list is supervised by a judge nominated from time to time by the Chief Justice (after consultation with the Chief High Court Judge).142  The Chief Justice (again after consultation with the Chief High Court Judge) may also nominate one or more judges to help the supervising judge.143  There are presently nine commercial list judges: seven in Auckland and two in Wellington.144


As noted, the commercial list is intended to speed up the pre-trial stages of proceedings relating to eligible matters. To do this, the court is empowered to give “such directions as it thinks fit for the speedy and inexpensive determination of the real questions between the parties”;145 parties to any proceedings on the commercial list can agree not to appeal decisions given;146 proceedings on the list may not be tried by a jury;147 and there are restrictions on the right of appeal from interlocutory decisions.148

Case load

The case load for the commercial list varies from year to year, but it is clear that it has declined significantly and steadily since 1987 when the list was created. In its first year, 143 cases were filed on the list, but by 2002 the number filed on it in that year had dropped to 34.149

When it was first established, the commercial list was credited with having a positive impact in speeding up the disposition of commercial cases.150  However, over a decade ago, the Annual Report of the commercial list for the year ending 31 December 2000 reported signs that the list was losing its purpose, as many of the techniques used in it were integrated into general case management.151

This is reflected in the case law. For example, in Commerce Commission v Cards NZ Ltd, the first defendant applied to transfer proceedings from the High Court at Wellington to the commercial list at Auckland.152  The proceedings were quintessentially of a character for which the commercial list is intended to cater and Rodney Hansen J noted that in the past, and before the advent and refinement of case management systems in all registries, an application to transfer the proceedings to the commercial list could not have been resisted, and would probably not have been required. His Honour commented:153

The discipline offered by the Commercial List made efficiencies possible that would have outweighed the disadvantages in cost and convenience of which the Commission complains.

However, while the Court considered that the commercial list will continue to offer advantages in some cases, there was no reason to think it would offer any tangible advantages when a proceeding was assigned to a judge for management through the interlocutory stages to trial.154 The question in the particular case then fell to be determined on questions of cost, convenience and fairness.

Similarly, in the recent case of Houghton v Saunders, the High Court declined an application to transfer the proceeding to the commercial list in Auckland on the basis that the case was “not as well suited to the commercial list processes as to close management by a Judge, as has been the procedure to date.”155

Recent figures provided by the Ministry of Justice of the number of cases filed on the commercial list confirm its limited use:156

Year (ending June) Number of cases filed
2006 15
2007 25
2008 17
2009 31
2010 16

Overall, therefore, while there are still some cases that are filed on, or transferred to, the commercial list (and indeed Commerce Commission v Cards NZ Ltd is an example of the latter), it would seem that the increase in intensive case management by assigned judges has reduced, and likely will further reduce, its scope.157

The limited number of cases that the commercial list now serves suggests that it cannot continue in its present state. However, before moving on to discuss what could be done with it, it is necessary to consider a broader issue that sits in the background, namely, the appropriateness or otherwise of specialisation of judges in the High Court.

Andrew Beck “Do we need the Commercial List?” [2002] NZLJ 441 at 441.

Section 24A(1).

Section 24A(2).

Courts of New Zealand “Commercial List” < >.

Section 24B(1).

Section 24C(4).

High Court Rules, r 29.3.

Rule 29.4.

Rule 29.14(1).

Rule 29.13(1).

Judicature Act 1908, s 24C(1).

Section 24C(2).

Courts of New Zealand “Commercial List” < >.

Judicature Act 1908, s 24D.

Section 24E.

Section 24F.

Section 24G.

Andrew Beck “Do we need the Commercial List?” [2002] NZLJ 441 at 441.

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

Annual Report of the Commercial List for the year ending 31 December 2000.

Commerce Commission v Cards NZ Ltd HC Auckland CIV-2006-485-2535, 30 March 2007.

At [12].

At [13].

Houghton v Saunders HC Christchurch CIV-2008-409-348, 7 October 2011 at [55].

Email from Ministry of Justice to the Law Commission dated 13 September 2010.

To this end, we note that changes to case management in the general list proposed in the draft High Court Amendment Rules 2012 (version 1.9) may also have an adverse impact on the commercial list’s workload, as the commercial list’s advantages over the general list will be further eroded. These rules are scheduled to come into force on 1 May 2012.