Australia: Practice makes perfect - Supreme Court of Victoria revamps practice notes

IN BRIEF - SUPREME COURT STREAMLINES PROCESSES AND SIGNALS PAPERLESS SHIFT

With the dust barely settled on 2016, the Supreme Court of Victoria has ushered in 2017 by replacing more than 150 Practice Notes with 48 Practice Notes. These new Practice Notes will formally take effect from the first sitting day of the legal term of 2017 on 30 January 2017.

This reflects a move by the Court to modernise and streamline the approach to litigation. In particular, Practice Note SC GEN 5, which signals a shift towards electronic discovery and electronic trials, marks a milestone for the conduct of litigation in Victoria.

NEW PRACTICE NOTES CATEGORISED BY COMMON LAW, GENERAL, COURT OF APPEAL, COMMERCIAL COURT AND CRIMINAL LAW

The 48 new Practice Notes fall within five separate categories:

  1. Common Law Practice Notes (SC CL Common Law)
  2. General Practice Notes (SC Gen General)
  3. Court of Appeal Practice Notes (SC CA Court of Appeal)
  4. Commercial Court Practice Notes (SC CC Commercial Court)
  5. Criminal Law Practice Notes (SC CR Crime)

Given the volume of the new Practice Notes, this update is only focused on the general Practice Notes, as well as those falling within the Common Law Division. In particular, we will explore the Note on Technology in Civil Litigation, which heralds a major step towards a paperless future by the Court.

TECHNOLOGY IN CIVIL LITIGATION, JUDICIAL MEDIATION GUIDELINES, GROUP PROCEEDINGS AND COSTS COURT ARE KEY GENERAL PRACTICE NOTES

There are 18 general Practice Notes covering a wide range of areas affecting all areas of the Court.

Key Practice Notes to take note of include:

  • Practice Note SC GEN 5: Technology in Civil Litigation
  • Practice Note SC GEN 6: Judicial Mediation Guidelines. This Practice Note stipulates in what circumstances a matter will be referred to judicial mediation, as well as outlining the procedures that are to be followed.
  • Practice Note SC GEN 10: Group Proceedings. This Practice Note establishes guidelines in relation to the management and conduct of group proceedings (i.e. class actions) within both the Common Law Division and the Commercial Court.
  • Practice Note SC GEN 11: Costs Court. This Practice Note outlines the procedures and processes involved in the various matters that come before the Costs Court, such as taxation of costs and the review of costs under legislation including the Legal Professional Uniform Law Application Act 2014 and the Legal Profession Act 2004 (Vic).

PRACTICE NOTE SC GEN 5 PROMOTES EFFECTIVE USE OF TECHNOLOGY IN CIVIL LITIGATION

In this Practice Note, the Court has published a number of guidelines aimed at promoting the effective use of technology in the conduct of civil litigation. The Court's aim appears to be to take active measures to increase efficiency and reduce the time and cost of litigation.

The core principles that are to apply include:

  • Dealings in hard copy are to be the exception rather than the rule in respect of all aspects of civil litigation, including discovery which can be voluminous and very expensive.
  • Common technologies that reduce costs are actively promoted as a basic component of legal practice. The inability or reluctance of a party to use such technologies is not justified in circumstances where it will occasion additional costs for the other parties in a matter.
  • Electronic documents are to be exchanged between the parties in a format that allows the recipient to search the document. For example, this would involve saving a Word document into PDF format so that the text can be searched, rather than merely scanning it from a hard copy. Failing this, it should at the very least be provided in the same format that the party providing it has.
  • Any failure to cooperate in the use of technology which occasions additional costs and is deemed unreasonable will constitute a breach of the overarching obligations of the parties under the Civil Procedure Act 2010 (Vic). The Court retains wide power to make orders for such a breach, including costs orders against the offending party.
  • Parties are to be prepared to address the Court on the use of technology at an early stage of the proceeding. This will no doubt involve discussion over the use of electronic discovery, as well as whether the provision of court books and authorities are to be provided electronically.
  • The parties retain an obligation to limit the presentation of documentary evidence to that which is necessary and proportionate to the conduct of the case, notwithstanding the increased capability to store, search and access large volumes of documents electronically. This principle reflects the growing scale of discovery in litigation, with the Court taking measures to ensure the parties refine the documents to be relied upon.

SHIFT TO ELECTRONIC DISCOVERY AND ELECTRONIC TRIALS SIGNALLED IN PRACTICE NOTE SC GEN 5

Perhaps the most significant implication of this Practice Note is the shift to e-Discovery. Where discovery is anticipated to exceed more than 500 documents, parties are now required to cooperate in the preparation of a discovery plan that incorporates electronic discovery. Failure to reach a consensus may lead to the Court ordering a discovery conference which may, in appropriate cases, be held before the Court.

Where the parties hold documents electronically, the Court will require that they be provided in the same format (their "native format"). Any attempt to provide it in hard copy requires "exceptional justification". Although examples of what would constitute sufficient justification are not provided, it appears likely that the Court will set a high bar. Indeed, the Court has gone one step further by flagging that there may be circumstances where the conversion of hard copy documents into an electronic form may be appropriate, particularly where the costs of conversion will be outweighed by the subsequent cost savings in the review and exchange process.

In addition to e-Discovery, this Practice Note also signals a shift towards e-Trials, with trials using hard copy documents no longer considered the default position. The preferred position of the Court is for all documentary evidence at trial to be presented in a text-searchable format, except where this is beyond the capacity of the parties or is not cost-effective.

For instances of large-scale litigation and trials extending to ten sitting days or more, a third party provider is to be engaged by the parties to operate a coordinated system in respect of the documentary evidence. In such cases, the parties are expected to make the necessary planning at an early stage of the litigation to minimise delays.

The importance attributed to this area is underlined by the Court's warning that a failure to cooperate in respect of the use of technology may constitute a breach of a party's overarching obligation. It will be interesting to see how long it takes before a party falls foul of this requirement.

COMMON LAW PRACTICE NOTES: THE PERSONAL INJURIES LIST AND MAJOR TORTS LIST

New Practice Notes have been issued for all the individual lists within the Common Law Division. Although these largely incorporate the content from the pre-existing Practice Notes, there are a few updates worth noting.

The new Practice Note governing the Personal Injuries List (Practice Note SC CL 3) has expanded upon the practice and procedure to be adopted in respect of interlocutory applications (for example, applications to join third parties or applications to strike out pleadings). As per recent practice, the Practice Note stipulates that these are to be generally heard at 11:30 am on Fridays before an Associate Judge or Judicial Registrar. This certainty in respect of timing will assist parties in planning such applications. Meanwhile, any application to adjourn a trial date, even where the parties consent, must be made on summons and supported by affidavit material.

In respect of the Major Torts List, there have been changes to the types of claims it hears. New types of claims that are now expressly included within the ambit of the Major Torts List are nuisance claims (including land contamination claims) and applications for punishment for contempt (other than contempt referred to in rule 75.06(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), being a contempt allegedly committed by a party in relation to a proceeding already underway in the Court).

Further, previous claims heard within the Major Torts List are now to be heard in other lists. For example, complex personal injury claims involving three or more defendants/third parties, as well as personal injury proceedings involving catastrophic personal injuries now should be commenced within the Personal Injuries List and tortious claims for economic loss against a professional should be listed in the Professional Liability List. Notwithstanding this, the Major Torts List retains the discretion to hear "large, complex or otherwise significant tortious claims", so there remains the possibility that in practice the claims just listed may be transferred to the Major Torts List.

NON-COMPLIANCE WITH PRACTICE NOTES MAY IMPACT MATTER MANAGEMENT AND CARRY COSTS CONSEQUENCES

The Court has inherent power to issue Practice Notes to control its own practice and procedure. While Practice Notes are routinely updated and new ones issued, it is anticipated that the new structure in place will ensure it remains user-friendly and clear.

By the letter of the law, these Practice Notes do not have the full force of law. However, non-compliance can have serious implications in respect of the case management of a matter, as well as potential costs consequences.

For example, a failure to comply with the requirements laid down in respect of consent orders can lead to the Court requiring an appearance at a directions hearing, despite the parties being in agreement on the nature of the orders. This will incur unnecessary costs for the client, as well as resulting in lost time that could be better spent elsewhere.

Another example is the requirement in many of the lists that all persons appearing at a directions hearing must be fully briefed on all relevant aspects of the matter. A failure to have someone fully briefed, such as by sending a trainee lawyer down at the last minute, can result in the Court adjourning the directions hearing and ordering the costs thrown away against the offending party.

Additionally, as noted before, a failure to comply with Practice Notes could see a party fall foul of its overarching obligations under the Civil Procedure Act.

HOW DOES THIS IMPACT PRACTITIONERS?

By creating a streamlined, clearer process for each list within the Court, and clarifying principles to be applied across the Court, litigation is more accessible than ever. Practitioners will therefore be able to spend less time navigating a labyrinth of Practice Notes and Notices to the Profession that sometimes conflicted with each other or were outdated.

With the development of new technology in relation to the electronic management of documents, and the increasing shift towards a paperless workplace, the Practice Note on Technology in Civil Litigation marks a milestone for the conduct of litigation in Victoria. Law firms and third party providers have begun embracing technology in this sphere, and it is expected that as this practice becomes the norm, we will see an accompanying reduction in the cost and length of litigation.

Thanh Bui
Insurance and reinsurance
Colin Biggers & Paisley

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.

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