Practice Note CM 23 - Electronic Court File and Preparation and Lodgment of Documents

1.1 From July 2014 the Federal Court will progressively implement in each of its District Registries electronic court files as the official record for proceedings in the Court.

1.2 This Practice Note sets out the Court’s requirements in relation to the preparation and lodgment of documents in a proceeding in the Federal Court for the purposes of rules 2.11 and 2.21 of the Federal Court Rules 2011^[1], particularly for documents which will be managed in an electronic court file.

1.3 It applies to all parties to proceedings in the Federal Court and to any person or other entity preparing or lodging any document in any such proceeding regardless of whether that party, person or entity is represented by a lawyer.

2.1 The Federal Court will fix, for each of its District Registries, a date from which any proceeding that, under the Federal Court Rules 2011 or other applicable rules of court^[2], is commenced in that District Registry will have an electronic court file created for it by the Court.

2.2 Subject to any order made by the Court in that proceeding, any proceeding for which an electronic court file has been created will be managed as an electronic court file only.

2.3 Subject to any order made by the Court in that proceeding, any proceeding for which a paper file was created will continue to be managed as a paper file only.

3.1 The official file for any proceeding in the Federal Court, subject to any order made by the Court in that proceeding, is:

(a) for all proceedings for which electronic court files are created by the Federal Court – the electronic court file for that proceeding;

(b) otherwise – the paper file created by the Federal Court for that proceeding.

3.2 The Federal Court manages its official records, including the official files for its proceedings, under the Archives Act 1983 in accordance with specific and general authorities and normal administrative practice approved by the National Archives of Australia.

4.1 The Federal Court provides an electronic lodgment (eLodgment) facility through which a document which commences or is in an existing proceeding may be lodged for filing online^[3]. This facility can be accessed through the Court’s website (www.fedcourt.gov.au). eLodgment also allows court users to lodge other documents regarding a proceeding, for example draft orders, terms of consent and case management correspondence.

4.2 Documents in any of the approved electronic formats^[4] can be uploaded and submitted through eLodgment. An affidavit, however, must be sent as an image^[5]. If a document is lodged for filing and accepted, the document will have the notice required by either rule 2.24(1)(a) or 2.24(1)(b) inserted; be stamped and signed by the Court as required; and converted to a “.pdf” format suitable for long term storage.

4.3 A document with an electronic file size of 30 megabytes or greater cannot be uploaded for submission through eLodgment. Documents sized over 30 megabytes can be uploaded at a District Registry from, for example, a memory card or stick. Any court user seeking to eLodge a document over this file size limit should contact the proper Registry for the proceeding, if the document is in an existing proceeding, or the nearest District Registry to discuss lodgment options.

4.4 Documents in a proceeding for which an electronic court file has been created which are lodged through eLodgment and accepted for filing are automatically stored in the electronic court file for the proceeding. Subject to any order under rule 2.23(4)(b) for production of the hard copy of any eLodged document, the “.pdf” version of any document created by the eLodgment process on acceptance will be treated as the filed document for the purposes of the proceeding.

4.5 Documents in a proceeding for which an electronic court file has not been created which are lodged through eLodgment and accepted for filing are printed by Court staff and placed on the Court’s paper file for the proceeding. Subject to any order under rule 2.23(4)(b) for production of the hard copy of any eLodged document, the version of any document printed following acceptance and placed on the Court’s paper file will be treated as the filed document for the purposes of the proceeding.

4.6 Use of eLodgment provides many benefits to court users. In particular it is available, subject to some limitations^[6], from each user’s computer desktop at any time and provides a complete record of all lodgment transactions with the Court, including information about the status of those transactions which are still being processed.

4.7 The Federal Court encourages all court users to lodge any document, including draft orders, terms of consent and correspondence, in or relating to a proceeding through eLodgment.

5.1 Court users may also lodge documents and things in a proceeding by presenting these to a District Registry when the Registry is open for business^[7], by posting them to a District Registry with a written request for the action required^[8] or by faxing them to a District Registry accompanied by a cover sheet^[9].

5.2 Documents in a proceeding for which an electronic court file has been created which are presented in a District Registry or lodged by post or fax and accepted for filing will be scanned and stored in the electronic court file for the proceeding, subject to any order under rule 2.22(3)(b) for production of the hard copy of any faxed document and transmission report^[10]. If those documents are presented or sent by a lawyer, in most circumstances, they will be returned to the presenter or sender after scanning for safekeeping. In that event, that lawyer must produce the hard copy of the document if ordered by the Court to do so. Subject to any order made by the Court in a proceeding, the hard copies of documents presented or sent other than by a lawyer that have been scanned and stored in the electronic court file will be retained in the District Registry in which those documents were received.

5.3 Documents in a proceeding for which an electronic court file has not been created which are presented in a District Registry or lodged by post or fax and accepted for filing will be placed on the Court’s paper file for the proceeding, subject to any order under rule 2.22(3)(b) for production of the hard copy of any faxed document and transmission report^[11].

6.1 The following particular requirements apply to documents prepared for lodgment for filing in the Federal Court. These are in addition to the requirements specified in the Federal Court Rules^[12], other applicable rules of court^[13] and other Practice Notes^[14].

6.2 A guide to preparing documents for eLodgment, including limiting file size, is available on the Court’s website. That guide includes advice on preparing larger documents for easier management electronically and a suggested pre-lodgment checklist for all documents proposed to be eLodged.

Reduce electronic file size of eLodged documents

6.3 Every effort should be made during the preparation of documents proposed for eLodgment to ensure that the electronic file size of each does not exceed the 30 megabytes limit for upload^[15]. As noted below^[16], this could include, wherever appropriate, annexing to an affidavit an extract from a large document (with an identifying front page) rather than the whole document. Other simple measures include using colour version of documents annexed to a document for eLodgment only if it will be of evidential significance to see the colour in that annexure. Further guidance to limiting file size can be found in the >guide to preparing documents for eLodgment which is available on the Court’s website.

Elimination or protection of personal and sensitive information

6.4 Unless this is restricted by a suppression or non-publication order^[17] or statute^[18], a document which is accepted for filing may be inspected and copied by any person either with or without leave depending on its nature^[19]. To limit possible infringement of individual privacy, the risk of identity theft and frequent applications for suppression and non-publication orders, every effort should be made to eliminate from documents all unnecessary personal or sensitive information about any individual. In particular, unique personal identifiers, such as past or present residential addresses, dates of birth, anniversary dates, telephone numbers, email addresses, vehicle registration, passport numbers, Medicare numbers, bank or financial institution account numbers of all types, other financial dealing numbers of all types, Tax File Numbers, vehicle licence numbers, Centrelink reference numbers and employee or enrolment identification numbers of all types, should either be omitted or a substitution used. For example it may be sufficient to use the year rather than the date of birth. It may be sufficient to obscure all but the final few digits of unique personal numbers^[20].

6.5 If it is essential that personal or sensitive information about an individual be included in a document, consideration should be given before lodgment to whether a suppression or non-publication order should be sought. Such an order might exclude public access entirely to the document or permit access only to a redacted version^[21]. If a suppression or non-publication order is being sought, on lodgment of any document which that order might protect it should be requested that until that application is considered the document be treated as confidential^[22].

6.6 In preparing a document which contains substitutions, consideration should be given to the utility of preparing a register of substitutions for verification purposes. The register of substitutions should not be lodged for filing but retained in safekeeping. It might be produced, confidentially if appropriate, should it be necessary to identify the personal or sensitive information omitted or substituted.

6.7 A guide to anonymisation of personal and sensitive information, including possible substitution practices, is available on the Court’s website.

Redaction

6.8 The Court may order that a redacted copy of a document be lodged in replacement for a document which it has ordered be removed from the Court’s file^[23] or because it has decided that a copy of a document redacted to remove privileged, confidential, sensitive or otherwise protected information is to be available on the Court’s file. Redaction can be carried out in a number of ways using electronic or paper means or a combination of both. Regardless of the method used, it is essential that the part or parts redacted from the redacted copy must be unable to be read in any way. In particular, if the redaction is done electronically and the redacted copy subsequently eLodged, all metadata relating to the part or parts removed and the removal must have been purged. In addition, the redacted copy must be marked with date of order for redaction and the date on which the redaction was performed^[24].

6.9 In preparing a redacted copy of a document, consideration should be given to the utility of preparing a register of redactions for verification purposes. The register of redactions should not be lodged for filing unless ordered but retained in safekeeping. It might be produced, confidentially if appropriate, should it be necessary to identify the omissions made.

6.10 A guide to the redaction of documents is available on the Court’s website.

Affidavits

6.11 All affidavits must be created as paper documents and sworn or affirmed^[25]. As noted above^[26], an affidavit can be eLodged only if sent as an image. The image of any such affidavit must be created by scanning all pages, including annexures and their certificates, after it has been sworn or affirmed. It is desirable that all such images be text searchable. This is best achieved by using the Optical Character Recognition (OCR) process. Further information is available in the guide to preparing documents for eLodgment on the Court’s website.

6.12 With the exception of originals and documents which are so large that they cannot be annexed, all documents that accompany an affidavit must be annexed^[27]. Originals, large documents and things which are not suitable for annexing must be exhibited^[28].

6.13 Unless there is some particular reason why an original document needs to be placed in evidence – for example, in a proceeding involving an allegation of forgery – originals should not generally be used.

6.14 Where an object or thing is exhibited to an affidavit a photograph of that object or thing should be annexed to the affidavit.

6.15 Where large documents are involved, consideration should be given to annexing an extract of the relevant portion (with an identifying front page) rather than the whole document.

6.16 If it is necessary or convenient to have any document or thing referred to in any affidavit which has been exhibited available to the judge or registrar in advance of any hearing, the concerned party or his, her or its lawyer should contact the proper Registry for the proceeding to discuss lodgment options.

Appeal Books

6.17 Subject to any order made by the Court in a proceeding, appeal books must be prepared as required by the Federal Court Rules, particularly Divisions 36.5 and 33.2 (as appropriate), and Practice Note APP 2 and lodged for filing by presenting them in a District Registry or by post. Appeal books, however, cannot be eLodged or lodged by fax.

Court Books

6.18 Court books in a proceeding must be prepared and lodged for filing in accordance with any order made by the Court.

7.1 The following particular requirements apply when lodging documents for filing in the Federal Court. Should more than one apply, each must be addressed but this may be in a single consolidated letter or explanation. In eLodgment as many boxes as relevant can be checked so that the Registry may be alerted to each appropriate requirement.

7.2 Any court user seeking to lodge a document (by eLodgment or otherwise) which is subject to any of these requirements should contact the proper Registry for the proceeding, if the document is in an existing proceeding, or the nearest District Registry if he or she is unsure about the process required or if it is felt that that process is not appropriate due to the particular nature of the document or circumstances.

Suppressed documents

7.3 A suppression or non-publication order may be made in a proceeding which prohibits or restricts the disclosure or publication of information (including documents) in that proceeding. If a document affected by such an order is lodged for filing, the lodger must draw the Court’s attention in writing to the order and the impact it has on the lodged document. eLodgment allows a lodger to do so by checking the “suppressed” box. A letter, which sets out the details of the order (including its date and the relevant paragraph), must be uploaded in eLodgment with the relevant document. The checking of the “suppressed” box will bring the lodgment to the attention of the Registry for appropriate action.

Confidential documents

7.4 Confidentiality may arise in a variety of circumstances. It may be imposed by statute^[29], be a requirement of a court rule^[30] or arise under the law generally^[31]. If a document is lodged for filing and the lodger wishes to claim confidentiality, this claim and the reasons for it must be drawn to the Court’s attention in writing. eLodgment allows a lodger to do so by checking the “confidential” box. A letter, which sets out the details of the claim and reasons must be uploaded in eLodgment with the relevant document. The checking of the “confidential” box will bring the lodgment to the attention of the Registry for appropriate action.

7.5 Any request for confidentiality will be promptly referred to the docket judge (or duty judge if the proceeding has not been docketed or if the docket judge is unavailable) or a registrar for consideration.

7.6 As noted in paragraph 7.4 of this Practice Note, some court rules impose particular requirements which must be complied with on the lodgment of the specified document for filing either generally or if confidentiality in these is claimed. These can vary depending on whether these documents are eLodged or lodged in any other way. These are:

(a) Preliminary act filed by a party in a maritime claim – must be lodged^[32]:

(i) if not eLodged – by presenting or sending that document to the Registry in a closed envelope which, on acceptance for filing, will be sealed with the stamp of the Court and stamped with the date of filing;

(Note: it should be explained on presentation or in a covering letter that the envelope contains a preliminary act and identify (by short title and proceeding number) the maritime claim in which it is to be filed. Alternatively this could be endorsed on the front of the envelope.)

(ii) if eLodged – by the lodger checking the “confidential” box and uploading in eLodgment with the preliminary act a letter or explanation that the document is “a confidential preliminary act which must only be opened as permitted under rule 28 Admiralty Rules 1988” and identify (by short title and proceeding number) the maritime claim in which it is to be filed.

(b) Originating or interlocutory process and supporting affidavit for issue of summons for examination under sections 596A or 596B of the Corporations Act 2001 – must be lodged^[33]:

(i) if not eLodged – by presenting or sending these documents to the Registry in a sealed envelope which has marked on its face (as appropriate):

“Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001” or

“Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”;

(ii) if eLodged – by the lodger checking the “confidential” box and uploading in eLodgment with the documents a letter or explanation that (as appropriate) these are:

“Application and supporting affidavit for issue of summons for examination under section 596A of the Corporations Act 2001” or

“Application and supporting affidavit for issue of summons for examination under section 596B of the Corporations Act 2001”.

(c) A supporting affidavit for issue of summons for examination under section 81 of the Bankruptcy Act 1966 – may be lodged^[34]:

(i) if not eLodged – by presenting or sending the affidavit to the Registry in a sealed envelope which has marked on its face:

“Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966”.

(ii) if eLodged – by the lodger checking the “confidential” box and uploading in eLodgment with the document a letter or explanation that it is a “confidential affidavit supporting an application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966.

(d) A document used in a native title proceeding that refers to cultural or customary material that a party claims is of a confidential or secret nature must have that claim endorsed on its front page and be accompanied by a document containing a short description of the material and the reasons for its confidential or secret nature which is presented or sent to the Court in a sealed envelope^[35].

Urgency and other listing requests

7.7 Paragraphs 7.8 to 7.13 are not intended to prevent a party approaching the Chambers of the Duty Judge on an urgent basis where this is appropriate under the Duty Judge arrangements in operation in the relevant District Registry.

7.8 Any request for an urgent hearing by the Court in any proceeding (for example for a freezing order) or for the processing of a lodgment urgently (for example an application to set aside a statutory demand lodged on the last day for compliance which requires service that day) requires a written explanation. eLodgment allows a lodger to do so by checking the “urgent” box. A letter, which sets out the details of urgency must be uploaded in eLodgment with the relevant document. The checking of the “urgent” box will bring the lodgment to the attention of the Registry for appropriate action.

7.9 Any request for urgency will be promptly referred to the docket judge (or duty judge if the proceeding has not been docketed or if the docket judge is unavailable) or a registrar for consideration.

7.10 Similarly any request for an ex parte or “without notice” hearing (that is a hearing held without serving or advising another party or other person that the application is being made to the Court) requires a written explanation - even if such a hearing is authorised specifically under a rule^[36]. eLodgment allows a lodger to do so by checking the “request ex parte hearing” box. A letter, which sets out the details of the reasons for such a hearing must be uploaded in eLodgment with the relevant document. The checking of the “request ex parte hearing” box will bring the lodgment to the attention of the Registry for appropriate action.

7.11 Any request for an ex parte or without notice hearing will, as necessary, be promptly referred to the docket judge (or duty judge if the proceeding has not been docketed or if the docket judge is unavailable) or a registrar for consideration.

7.12 eLodgment allows a lodger to request a hearing on a particular day by checking the “request a hearing on a particular day” box and indicating the preferred listing date. The checking of the “request a hearing on a particular day” box will bring the lodgment to the attention of the Registry for appropriate action.

7.13 Any request for a listing on a particular day will, as necessary, be promptly referred to the docket judge (or duty judge if the proceeding has not been docketed or if the docket judge is unavailable) or a registrar for consideration.

Leave

7.14 The leave of the Court or a Registrar may be required before a step can be taken or to enable something to be done in a proceeding^[37]. Where a court user lodges a document for filing or requests any administrative action that requires leave, a written explanation is required. This must include what the court user seeks leave to do, brief reasons and the relevant provision or other basis relied upon. eLodgment allows a lodger to do so by checking the “request leave” box. A letter, which sets out the appropriate details, must be uploaded in eLodgment with the relevant document. The checking of the “request leave” box will bring the lodgment to the attention of the Registry for appropriate action.

7.15 Any request for leave will, as necessary, be promptly referred to the docket judge (or duty judge if the proceeding has not been docketed or if the docket judge is unavailable) or a registrar for consideration.

Draft Orders, terms of consent and case management correspondence

7.16 Draft orders, terms of consent and case management correspondence in existing proceedings can be directed to the proper Registry, subject to any order, direction or request made in that proceeding, by being presented or sent by post, email or fax. Court users are encouraged to submit all draft orders, terms of consent and case management correspondence in any proceeding for which an electronic court file has been created by eLodgment.

Signing of documents (other than affidavits, annexures and exhibits)

7.17 All documents (other than affidavits, annexures and exhibits) which are lodged for filing in a proceeding and which must be signed for or by a party to that proceeding must be signed by that party’s lawyer or, if that party does not have a lawyer, that party^[38]. The signature on any such document can be affixed to the document by electronic means^[39].

Filing documents in the courtroom

7.18 A document may, with the leave of the Court, be filed in the courtroom during a hearing or other Court event in a proceeding. Where a filing fee is payable on that document, it is usual that the relevant party’s lawyer, in seeking leave, undertakes to the Court to pay that fee within a specified short period of time or, alternatively, for the Court’s leave to be on condition that that fee be paid within such a time.

7.19 Subject to any condition imposed or order made, in any proceedings for which an electronic court file has not been created the hard copy of the document filed in the courtroom will be placed on the Court’s paper file for the proceeding. In any proceeding for which an electronic court file has been created, it will be necessary for the document to either be eLodged by the relevant party as soon as possible after the hearing or Court event or for the hard copy of the document filed in the courtroom to be scanned and stored in the Court’s electronic court by court staff. Prior to seeking leave, the relevant party should give consideration to the most effective way for the document to be stored in the Court’s electronic file and, through the undertaking given or in discussion of conditions of the Court’s leave, seek appropriate direction from the Court.

Documents tendered in the courtroom

7.20 Documents and things may be tendered in the courtroom during a hearing or other Court event. All such documents and things will be handled as required by the relevant court rules and otherwise as ordered by the Court.

Certificate of Taxation on Short Form Bills

7.21 Where a party has served a short form bill under Division 40.3 (including as permitted by rule 13.03 of the Federal Court (Bankruptcy) Rules) and seeks a certificate of taxation in the absence of the filing of a notice of objection within the time specified, that party must, at the time of filing an affidavit of service of the bill, request in writing that a certificate of taxation be issued and, if required, lodge a draft certificate of taxation.

8.1 All documents lodged with the Court for filing must be substantially complete; prepared in substantial compliance with the relevant court rules, approved forms and Practice Notes; and properly signed. If they are not, they will not be accepted for filing^[40]. If a Registrar is satisfied that a document is an abuse of the process of the Court or is frivolous or vexatious on its face or by reference to other documents already filed or submitted, that document may be refused^[41]. A document will not be accepted for filing if the Court has directed it not be accepted or if it has directed that the document not be accepted without first obtaining leave and that leave has not been obtained^[42].

8.2 Even if a document is accepted for filing the Court can order it be removed from the Court’s file at any time if the Court is satisfied that the document is an abuse of process or should not have been accepted^[43]. Alternatively, if appropriate, the Court can order such a document be removed from the Court’s file and replaced with a redacted copy omitting a part or parts^[44].

8.3 All originating documents, documents which attract a filing or other court fee, documents that require a listing and documents the subject of a specific request (such as suppression, confidentiality, urgency and leave as mentioned in part 7 of this Practice Note) will be examined before acceptance. Other documents lodged may not be examined before acceptance or only examined to a limited extent. For the assistance of parties or other persons or entities lodging documents who are not represented by a lawyer, the Court will also examine all of their documents before acceptance. In eLodgment the term “automatic acceptance” is used to describe the immediate acceptance of a document lodged without examination for substantial compliance as mentioned in paragraph 8.1 above.

8.4 If a Registrar refuses to accept a document which is sent to the Court by post, fax or eLodgment, that Registrar must notify the sender. Such notification will be sent by post, fax or email.

8.5 The date of filing of a document is the day it was lodged (if that is a business day for the District Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise on the next business day for that Registry^[45]. If a document is eLodged and accepted, the notice required by either rule 2.24(1)(a) or 2.24(1)(b) to be inserted as the first page of the document will show the date and time that the document was received by the Court. Where necessary this will enable the date of filing to be calculated.

9.1 Inspection of documents on a Court file for a proceeding, whether electronic or paper, is managed according to the Federal Court Rules, particularly rule 2.32. Information about seeking access to Court files is available on the Court’s website.