The new County Court commercial law division practice note PNCO 1-2025 (Practice Note) takes effect next Monday 1 September 2025.

Because it covers a large range of topics, here is my list of frequently addressed matters that commercial litigators should know.

Overview

The Practice Note is a long and thoughtful document (116 pages) with sections addressing each type of application or process. It contains detailed procedure on a wide variety of common applications. It gives a lot of guidance and certainty.

I recommend scrolling through it, then bookmark the Practice Note and the Standard Orders Booklet on your web browser.

Five lists

The Commercial Division has five lists:

(1) Arbitration List (section T): proceedings suitable for commercial disputes conducted under the Commercial Arbitration Act 2011 and for referral of existing County Court proceedings to arbitration by agreement under s 66 of the Civil Procedure Act;

(2) Banking and Finance List (section U): concerning banking and finance, or to enforce a loan or guarantee;

(3) Building Cases List (section V): concerning building or construction;

(4) Complex Cases List (section W): requiring more intensive case management;

(5) General List: all other commercial proceedings.

Click here for more information on the five commercial division lists.

Trial dates

The Court aims to fix trial dates within 11-12 months of the first administrative mention (para 7(1)).

E-hearings

The court will allow these, especially for interlocutory applications, when it is in the interests of justice and to facilitate cost-effective and flexible appearances (para 7(6)). Otherwise, in-person trials are the default.

Standard orders booklet

Use of the standard orders is mandatory for all orders filed from 1 September 2025. It is available at para 18, or this link to the orders booklet. It is intended to be used explicitly in reference to the Practice Note’s replaceable orders, with modifications where necessary to suit the case.

Replaceable orders: these appear throughout the Practice Note in the section relevant to each issue. Practitioners are expected to quote paragraph numbers of replaceable orders in correspondence and orders.

Interlocutory applications

Section I (para 260) contains procedures to streamline interlocutory applications.

2-letter rule: The new practice adopts the Supreme Court’s “two letter” practice of a ‘moving party’ writing a 4-page letter to the ‘responding party’, who must reply within 7 days. If the matter is unresolved, the ‘moving party’ may then make an interlocutory application. The Court may rely on the letters in lieu of written submissions (para 263-9).

This new ‘correspondence and conferral’ process doesn’t apply to a many applications: ex parte, urgent, injunction, freezing order, non-party applications, and applications requiring a summons (para 262 onwards).

Applications by summons: These still require an email to the Commercial Registry to obtain a return date. The relevant form is at para 274.

Urgent injunctions: These are addressed at section K (para 334). Freezing orders are at section K.1.

Expert evidence

Thankfully, the court has moved away from a presumption that the parties will engage a joint expert. The court still encourages a joint expert where possible (para 160) however there is flexibility when seeking directions for an expert (whether joint or separate experts) (para 159). Separate experts are addressed at para 164.

One exhibit to affidavits

One paginated exhibit for affidavits remains the sensible rule (which should have been in place decades ago). The PDF should be text-searchable (ie in OCR format) and bookmarked (para 98). The Practice Note asks for multiple email chains to be split into separate emails (para 99).

Witness outlines

Witness outlines (not statements) are the default for evidence in chief, in line with the Supreme Court’s practice for ‘outlines of evidence’, which are the same thing. Detailed witness statements or affidavits are not required, unless specifically ordered (G.12).

The standard requirements for a witness outline are:

A succinct, structured summary of the topics and facts that the witness will give evidence about.
Should not be argumentative, overly detailed, or sworn.
Enough substance to fairly inform the other side of the case to be met, but not so much detail that it becomes affidavit-like.
Should contain references to the documents to be relied upon, ideally linked to the Court Book.
Served in accordance with the replaceable orders timetable (para 156).
Are not to be used for cross-examination without leave (para 153(4)).

Section 26 disclosure of ‘critical documents’

Section G10 of the Practice Note normalises the making of s 26 orders (pursuant to section 26 of the Civil Procedure Act) which requires disclosure of ‘critical documents’. The rationale is to avoid costly general discovery orders.

This practice has become standard in the Supreme and County Courts. It is an ongoing obligation to disclose the existence of documents critical to the resolution of the dispute. The replaceable order for s 26 disclosure is at G.10A of the Practice Note (para 142).

In smaller cases, this makes total sense. However in larger cases, a party (especially a joined or third party) may expend considerable resources finding and producing s 26 documents without a pleaded case put against them, or any compensation until the very end, or at all, for the cost of this exercise.

What are ‘critical documents’? See Mullett v Nixon [2022] VSCA 174 at [86]-[87] (underlining added):

[86] Against that legislative backdrop, appropriate content has to be given to the words ‘critical to the resolution of the dispute’ in s 26(1). That language is in contrast to the language in r 29.01.1(3). The Rule uses different concepts as well as different language – concepts of reliance and whether the document affects or supports a party’s case. The Rule is broader in scope. Not every document which might support or adversely affect a party’s case to a slight degree on any issue, no matter the significance or otherwise of the issue, will necessarily be ‘critical to the resolution of the dispute’. To this extent, in our view the critical documents which are required to be disclosed under s 26 of the Civil Procedure Act are likely to be a subset of those required to be discovered by a party under r 29.01.1(3) of the Rules (those discoverable documents being documents that are relied upon or which affect or support a party’s case). The ‘critical’ documents are those which are crucial to each party’s case and which, on this basis, if produced to the opposite party, are the most likely to lead to resolution of the dispute either by early settlement or at trial.

[87] In applying that test, a person to whom the section applies should consider whether a reasonable opposing party and their legal representatives would want to see the document at an early stage of the proceeding in order to:

(a) make an assessment of whether to compromise the dispute or not; or

(b) avoid surprise at trial.

Naturally, determination of what documents are critical will be a value judgment which needs to be made in the particular circumstances of each case at the time the issue arises. As we have said, this will need to be determined having regard to the language of s 26(1) and the purposes of the Civil Procedure Act.

Separately, remember that s 55 of the Civil Procedure Act is detailed and useful provision for all sorts of specific discovery orders.

A few other topics

Court books: the preparation guide and replaceable orders are at section O (para 440-7). Only the latest version of the pleadings among other documents intended to be relied on at trial should go in. Can documents go into the CB even if one party opposes this? Yes (para 441). Can one party insist on the exclusion of documents from the CB? No.

Judicial registrars: Certain matters can (para 36) and can’t (para 37) be heard by them. The procedure for review of a decision of a judicial registrar is at section N (para 428).

Conclusion

In summary:

Consult the Practice Note before taking any steps in an application or proceeding.
Use the Standard Orders Booklet as your starting point when preparing orders.
Aim for resolution before filing applications.