Back in Business: The High Court Commercial List

7 Oct 2025

“The law’s delay” has been a constant in litigation for centuries; but, in recent years, particularly since COVID, many countries’ courts have faced acute challenges in getting cases to hearing. There are changes coming to the New Zealand High Court’s procedure to seek to address those issues.

The re-establishment of the Commercial List is one of those changes. The Chief High Court Judge, Justice Fitzgerald, has issued a practice note re-establishing the Commercial List of the High Court (Practice Note) with effect from 6 October 2025.

This is not the first High Court Commercial List in New Zealand. A Commercial List was created as one of the changes to High Court procedure in the 1980s. That list dealt with cases which were described as having the requisite “commercial flavour”.The list did not continue following the enactment of the Senior Courts Act 2016. However, the Commercial List is now to be re-established, drawing on the practice and experience of the New South Wales Supreme Court’s Commercial List.

The Practice Note sets out the purpose of the Commercial List:

The aim of the Commercial List is to achieve better efficiencies and quicker hearing times, based on the parties, counsel and commercially experienced Commercial List Judges working together to ensure matters are agreed wherever possible, and disputed interlocutory and substantive issues are dealt with in a focused and expeditious manner.

The list will operate from the High Court at Auckland. Two dedicated judges, Justices Fitzgerald and Gault, will manage the cases on the Commercial List. In the normal course, those judges will manage the cases to trial and will hear the cases when they do come to trial.

If a plaintiff wishes to have a case entered on to the Commercial List, the plaintiff does so by filing a memorandum with the statement of claim asking for the case to be entered on the list. If the case is “commercial”, the criteria for entry onto the list are broad. Most cases for entry on the Commercial List will be:

“commercial dispute[s] between parties engaged in trade or commerce where the value of the claim, counterclaim, or transaction in dispute or at issue is not less than $1 million.”

If a defendant considers that a case should not have been entered on the Commercial List, a defendant may challenge that by memorandum. A Commercial List Judge will decide, based on the parties’ memoranda.

The Practice Note is explicit about the approach that parties and counsel are to adopt in conducting Commercial List proceedings. In particular, the Court will expect parties and counsel to have co-operated to the extent possible. The Court will also expect parties to have considered and engaged with the prospect of mediation. Applications are discouraged in Commercial List proceedings, unless necessary; but parties can seek urgent orders in Commercial List cases.

The key procedural aspect of Commercial List cases will be the dedicated directions hearings. The Court will hear any procedural applications every Friday morning in the High Court at Auckland. Counsel should expect to appear in person (or remotely with the Court’s permission). The Court will hear applications, either that day or as soon as possible thereafter. Hearings will be short, and the Court’s reasons for its decision will be brief.

The procedures of the Commercial List will seek to have commercial disputes brought to resolution more quickly than they are now. If you want further information about how the Commercial List could work for your business, contact Martelli McKegg’s Dispute Resolution Team.