COVID-19 changes to electronic legal processes now permanent in Victoria - Court Procedure

Recent changes to Victorian COVID-19 legislative concessions around electronic signing, virtual witnessing and remote hearings made under the Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 (Vic) (Act) are a welcomed modernisation of legislation likely to improve efficiency in the litigation process.

The Act came into force on 26 April 2021 and makes permanent a range of temporary measures previously introduced by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) and accompanying regulations.

A suite of legislation is amended by the Act including the Electronic Transactions (Victoria) Act 2000 (Vic) and the Oaths and Affirmations Act 2018 (Vic) which now permanently allow for the:

electronic signing of legal documents, including affidavits and statutory declarations;
remote witnessing of legal documents by audio visual link (AVL); and
creation of deeds and mortgages in electronic form.

Additionally, the Victorian courts and the Victorian Civil and Administrative Tribunal (VCAT) have also been vested with the power to determine any civil matter or proceeding without an oral hearing.

Electronic signing of documents

Significantly, the Act permanently allows for the electronic signing of most legal documents.

Although the term ‘electronic signature' is not defined in the Act, it can include e-signatures and electronically selecting an option box which indicates agreement or affirmation. There is also no requirement for all signatures to appear on one copy of a document, however consent must be obtained by the recipient(s) of the document for an electronic signature to be used. The reluctance to use electronic signatures is not a sufficient reason for denying consent.

Similarly, the Oaths and Affirmations Act has also been amended to allow affidavits (including all documents attached to an affidavit) and statutory declarations to be signed and initialled electronically by the maker and the witness.

Deeds and mortgages

Under the amended Electronic Transactions (Victoria) Act, deeds can be created in electronic form and can be signed, sealed and delivered by electronic communication. A mortgage may also be in electronic form.

Execution of documents by companies

These changes do not apply to the execution of documents by companies under section 127 of the Corporations Act 2001 (Cth).

Temporary relief under the Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 which previously permitted electronic signing and split execution of documents by companies expired on 21 March 2021. The Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 (Cth) (Bill) proposes to extend these temporary concessions until 15 September 2021. However, the Bill is not due to be reconsidered by the Senate until August 2021.

Companies should therefore revert back to the pre-COVID practice of signing a single physical document using ‘wet ink' signatures when executing documents under section 127.

Witnessing by audio visual link

The Electronic Transactions (Victoria) Act has also been amended so that witnessing can occur by AVL. In most cases, this means that a witness no longer needs to be physically present to witness a signature or to verify a person's identity.

However, the following requirements must still be satisfied for remote witnessing to occur:

the witness observes the signatory sign the document (if applicable);
the witness is reasonably satisfied that the document they sign is the same;
all requirements for witnessing occur on the same day;
any other requirements prescribed by law are met; and
the witness includes a statement that these requirements have been met.

For most documents, there is no requirement for participants to be physically located within Victoria unless otherwise required by Victorian law.

Under the amended Oaths and Affirmations Act, separate requirements apply to affidavits and statutory declarations that are created electronically or witnessed remotely. For example, a witness to an affidavit must state in a jurat if they refer to a scanned or electronic copy of the affidavit in lieu of the original copy. A similar statement must be included in a statutory declaration if it is witnessed by AVL or made in electronic form.

Remote hearings

The Act also permits Victorian courts to determine any civil matter or proceeding entirely on the basis of written submissions and without an oral hearing, if it is satisfied that it is in the interests of justice to do so.

In determining this question, the court will have regard to:

the nature of the matter or proceeding;
the right to a fair hearing;
whether the parties have had the opportunity to obtain legal advice; and
whether the parties consent to the court doing so.

Unsurprisingly, a judicial decision can still be made to determine a matter or proceeding on the papers irrespective of whether the parties consent.

VCAT can also conduct proceedings on the papers unless a party objects and the Tribunal is satisfied the objection is reasonable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.