Technology and the Court Practice Note (GPN-TECH)

J L B Allsop, Chief Justice 25 October 2016

General Practice Note

1. Introduction

1.1 From July 2014 the Court began the implementation of the Court's electronic court file ("ECF") across Australia. The ECF has enabled the Court to consider the judicial work of the Court at a national level. Since its implementation, the official Court file in the Federal Court, subject to any order made by the Court in that proceeding, is the ECF for that proceeding.^[1]

1.2 The Court embraces the use of technology in proceedings^[2] and in its wider operations. Some ways in which the Court uses technology includes through the use of the ECF, the Court's electronic lodgement of documents system ("eLodgment"), eTrials, electronic discovery, eCourtroom and videoconferences.

1.3 The purpose of this practice note and the technology resources (described at paragraph 1.5 below) is to facilitate the effective use of technology in the preparation for and at all stages of a proceeding as well as to assist parties in the use of technology within the Court. This practice note provides guidance on:

(a) the Court's expectations about how technology should be used in the conduct of proceedings before it;

(b) electronic discovery in the Federal Court; and

(c) the types of technology available and how those technologies should be used in the Federal Court, including: the use of technology in the preparation and lodgement of Court documents, the use of technology during a hearing and the use of technology to access Court documents.

1.4 This practice note should be read together with the Central Practice Note (CPN-1), which sets out the fundamental principles concerning the National Court Framework of the Federal Court and the key principles of case management procedure. It takes effect from the date it is issued and, to the extent practicable, applies to all proceedings in this Court whether filed before, or after, the date of issuing.

Additional Technology Resources

1.5 As an important accompaniment to this practice note, the Court has developed a range of informative protocols, guides and checklists ("Technology Resources") to assist any person utilising technology within the Court.

1.6 Given the dynamic and constantly evolving nature of technology, it is not practical to set out and update all technology-related information in this practice note. Rather the Technology Resources will be maintained on the Court's website so they can be reviewed and updated from time to time to allow for the continual changes occurring in technology and the law.

1.7 Technical expressions used in this practice note are defined in the Technology Glossary, which forms part of the Technology Resources.

2. Court's Approach to Technology

2.1 The Court views technology as an important tool to assist in achieving the Court's key objective of quick, inexpensive and efficient resolution of proceedings. However, the Court acknowledges that the use of technology, if inappropriately applied or not properly managed, can itself have the potential to be expensive and to reduce, rather than increase, efficiency.

2.2 Technology changes rapidly. The Court aims to be flexible and adaptable to these changes by using contemporary technology solutions to better meet the needs of the parties and the requirements of each case.

2.3 The Court continues to encourage the use of appropriate technologies and to develop new technologies to ensure the efficient conduct of a proceeding and to achieve the Court's key objective. Additional resources relating to any emerging technological processes, will continue to be included in the Technology Resources on the Court's website.

2.4 The Court has dedicated staff to assist parties in facilitating electronic processes and using technology within the Court and parties are encouraged to contact the eRegistrar or District Registrar in their local registry if they have any queries.

Appropriate Use of Technology in Court Proceedings

2.5 Parties and their legal representatives must always act in a manner that is consistent with the overarching purpose in the Federal Court of Australia Act 1976 (Cth) (ss 37M and s37N). As such, the Court expects parties and their legal representatives to consider and discuss, as early as practicable in the preparation or conduct of the proceeding, how the use of technology, may lead to increased efficiency and cost effectiveness.

2.6 The Court will approach suggestions from the parties about the use of technology in proceedings with an open mind, having regard to the needs of the parties and the nature of each case.

2.7 Such consideration include parties utilising as far as possible, the advantage of eLodgment to commence proceedings and lodge documents and may also include:

(a) electronically exchanging court documents and other material between the parties;

(b) using videoconference facilities to communicate between the parties and the Court from different locations;

(c) using advanced analytics technologies (or other electronic discovery solutions) to assist in understanding key documents and minimising the document review process. Such solutions may also be useful to:

create any lists of discoverable documents and exchange electronic discoverable documents and other material;
presenting documents and other material to the Court during a hearing or trial electronically;

(d) where authorised, conducting a hearing or trial electronically, which may include, all parties and the Court having:

shared electronic access to relevant material before and during the trial, which is fully searchable and accessible ;
private access to the relevant material (which can be accessed while in Court).

3. Electronic Discovery

3.1 The Central Practice Note provides guidance on the Court's approach to discovery and the parties' obligations regarding discovery. Parties should be familiar with the Central Practice Note, including Part 10 relating to discovery. Parties should also be familiar with Part 20 of the Federal Court Rules. The matters below seek to supplement the Central Practice Note and Federal Court Rules, where the Court assisted by the views of the parties, consider that discovery is appropriate in an electronic format.

3.2 Generally, one of the most costly phases of any litigation is the discovery stage. In appropriate cases, the use of electronic discovery (and the procedures set out below) may assist the Court and the parties in minimising the cost and burden of discovery.

Planning for Electronic Discovery

3.3 At an appropriately early stage in a proceeding that may be benefited by an electronic discovery processes, and before the Court may consider making an order for electronic discovery, the parties will be expected to have:

(a) discussed and agreed upon a practical and cost-effective discovery plan having regard to the issues in dispute and the likely number, nature and significance of the documents that might be discoverable; and

(b) conferred for the purpose of reaching an agreement about the protocols to be used for the exchange and management of documents in electronic form and other issues relating to efficient document management in a proceeding.

3.4 The Court may require the parties to address these issues at the first case management hearing or any other subsequent case management hearing (see Part 8 of the Central Practice Note).

3.5 In all situations, any discovery plan and document management protocol considered by the parties must be proportionate to the nature, size and complexity of the case and should not amount to an unreasonable economic or administrative burden on the parties or the Court.

Protocols for the Exchange of Electronic Documents

3.6 The Court has developed a template Standard Document Management Protocol ("SDMP"), which summaries the terms under which information may be electronically exchanged between parties, typically during the discovery process.

3.7 The Court recognises that each case will differ in its technological requirements and, as such, parties are encouraged, whenever it is appropriate to do so, to develop a proposed customised version of the Court's SDMP, to ensure the most effective and efficient use of technology in their proceeding.

3.8 The Court's SDMP sets out the fundamental considerations for parties to consider and agree, for efficient document management in electronic discovery including: determining the document descriptions for any List of Documents; agreeing on the document structure, format and page numbers; and determining the most appropriate electronic exchange media. The SDMP may also set out the parties agreement in relation to:

what data security will be put in place;
managing errors in exchanged documents;
redacting documents and managing privileged or confidential documents;
reviewing and processing documents, including what methods may be used, such as keyword searches, predictive code, de-duplication of documents and email threading.

3.9 The establishment of such a document management protocol early in the litigation and prior to the commencement of electronic discovery increases the likelihood that the material exchanged will be in a consistent and mutually utilisable format.

3.10 Proceedings where there may be relatively few discoverable documents or where exceptionally large or complex document management is required, may necessitate a significantly different protocol from the Court's SDMP.

3.11 Any alternative protocol for the exchange and management of documents should:

(a) involve consensual measures agreed to by the parties which may obviate the need for strict compliance with the Federal Court Rules (such as avoiding the need for a list of documents) (see also Part 10 of the Central Practice Note). In such cases, the parties should seek to reach agreement on the most efficient and cost-effective way to manage documents and notify the Court of their proposed protocol so that the Court may consider it;

(b) be provided to the Court for consideration and approval and should not be used unless it is fully agreed to by the parties and accepted by the Court.

3.12 Where the parties are unable to agree on an appropriate protocol, it may be that the form of the protocol and related discovery issues will be referred by the judge to a registrar for case management or other procedure. Alternatively, the judge may refer one or more technical issues affecting any protocol to a suitably qualified referee familiar with the technical issues at hand.

3.13 Further information to assist parties to identify the issues that they are expected to consider, is included in the Technology Resources on the Court's website. The Court's template SDMP is also included in the Technology Resources (see further information below).

4. Use of Technology for Litigation

Types of Available Technologies

4.1 The Court has a range of technology and equipment in courtrooms in each of the registries to support the efficient hearing of proceedings. Such technologies include: videoconference facilities; document cameras; Wi-Fi; computer / power access points for court users; and for approved cases, the ability to webcast television footage or stream part of the proceeding (eg. the handing down of a judgment).

4.2 In addition to the website and the technologies available in the courtrooms, there are a number of additional electronic systems that the Court has developed to assist in the efficient and effective conduct of proceedings, including: eCourtroom; the ECF; and the tools to access Court documents (such as, the Commonwealth Courts Portal ("CCP"), Federal Law Search and Online Files for public interest cases).

Videoconference facilities

4.3 The Court has videoconference facilities in courtroom(s) in each registry nationally. These videoconference facilities enable the Court and parties to communicate between registries, as well as to other external locations within Australia and overseas.

4.4 The Technology Resources on the Court's website contains a guide to videoconference arrangements, including details of the current technical standards of the Court's equipment, compatibility requirements at an external site (including known incompatibilities) and application forms for the use of and charges for videoconferences.

eCourtroom

4.5 eCourtroom is a virtual courtroom used in the management and hearing of some matters before the Federal Court. These matters usually relate to ex parte applications for substituted service in bankruptcy proceedings and applications for the issuing of summonses for examination in bankruptcy and corporations matters. eCourtroom allows for evidence to be considered and orders to be made online. The application is usually dealt with entirely online and without the need for any Court appearances in person.

4.6 eCourtroom is integrated with eLodgment, providing parties with a seamless link to eLodgment to file documents. Additionally, eCourtroom provides parties with a facility to exchange correspondence and draft documents through the supplementary eCase Administration application.

4.7 A transcript facility provides a record of all messages posted by the presiding registrar or judge and the parties in any matter that is conducted via eCourtroom. This transcript is viewable by parties as well as the public. However, documents posted or filed are only viewable to parties to the action and the Court.

4.8 While eCourtroom is designed to be an efficient and cost effective way for parties and the Court to interact without the need for physical court attendance, it is important that parties participating in an eCourtroom environment conduct themselves as though they are in a real courtroom. This means that:

(a) the registrar or judge will control and initiate the discussion and submission of material;

(b) the eCourtroom is not to be used as a vehicle for ad hoc or informal liaison between the parties and the Court;

(c) in accordance with the r 4.01(2) of the Federal Court Rules, a corporation must be represented by a lawyer in Court, and therefore a lawyer must appear in eCourtroom.

4.9 As many proceedings conducted through eCourtroom are ex parte in nature, parties putting forth evidence and seeking that orders be made have the responsibility to ensure that they are candid with the Court and disclose all relevant information to the Court as part of their application, including information that may be detrimental to the interests of the applicant.

4.10 The terms of use are contained in the eCourtroom protocol which forms part of the Technology Resources available on the Court's website. Users of this service must adhere to these requirements when using eCourtroom.

Preparing and Lodging Documents Electronically

4.11 The Court expects the parties will use technology efficiently and effectively in preparation for, and in the conduct of, the trial or other hearing.

Preparing Court Documents

4.12 The Court has established guidelines for preparing and lodging documents which satisfy the requirements of the Court and the technological requirements of the Court's eLodgment facility. These guidelines include information relating to:

document types and standards (size, font, font size, colour etc) and how to manage large documents;
how to prepare documents to eliminate unnecessary personal or sensitive information (ie. names, addresses, date of birth, bank details etc);
how and when a document may be redacted;
suppression and confidentiality; and
providing the Court with documents for urgent or ex parte matters.

4.13 These guidelines form part of the Technology Resources available on the Court's website, and are in addition to the requirements specified in the Federal Court Rules 2011 (Cth) ("Federal Court Rules"), other rules (such as the Federal Court (Bankruptcy) Rules 2016; Federal Court (Corporations) Rules 2000) and other practice notes of the Court.

eLodgment of Court Documents

4.14 The Court's eLodgment facility allows court users to electronically lodge, for filing, a document that commences a proceeding or is relevant to an existing proceeding. The Court encourages all users to lodge any document in or relating to a proceeding, including draft consent orders and correspondence, through eLodgment. Parties should utilise this facility unless they do not have the technological capacity to do so or unless the Court has directed otherwise.

4.15 The eLodgment facility can be accessed via the Court's website, together with information about how to use eLodgment. The use of eLodgment provides many benefits to court users. It:

(a) is available online from each user's computer, at any time, which avoids the cost and inconvenience of physical attendance to the local registry;

(b) provides a complete record of all lodgement transactions with the Court;

(c) allows court users to lodge other documents relevant to a proceeding, for example: a draft order, terms of consent and case management correspondence (emails and letters).

Lodging Document Other than via eLodgment

4.16 Other methods of lodgement are available (eg. in person in a local registry). Further information about these methods of lodgement is on the Court's website.

Technology and Hearings

Preparing for Trial

4.17 In preparation for the pre–trial case management hearing, parties should consider the ways in which the use of technology might lead to the more efficient conduct of the trial. For example, a judge may order the parties to prepare an electronic court book, upload documents to an electronic court-based platform or engage an external provider to assist in conducting an electronic trial (or eTrial).

4.18 Further information to assist parties in identifying issues that the parties are expected to consider for a Pre-Trial Case Management Hearing (refer to Part 13 of the Central Practice Note) and information providing guidance to parties on what should be agreed by them prior to trial, is included in the Technology Resources, which are available on the Court's website.

Using Communication Devices in the Courtroom

4.19 Division 6.2 of the Federal Court Rules, the Court Security Act 2013 (Cth) and the Court's Communication Devices Protocol (on the Court's website) set out the appropriate use of communications devices (such as mobile phones, tablets, camera's and other recording equipment) when at Court. Failure to comply with these requirements may result in contempt of the Court.

Accessing Court Documents Electronically

4.20 The Federal Court Rules and the Court's Access to Documents Practice Note (GPN-ACCS) set out when parties and non-parties may inspect and/or copy court documents in a proceeding, whether electronic or paper (see particularly r 2.32).

CCP and Federal Law Search

4.21 There are a number of ways that court users may access information and certain court documents including:

(a) the CCP: which provides web-based services for court users to access information about cases in this Court. Parties may register for the CCP to gain access to documents which have been eLodged, as well as orders of the Court, judgments and listing events (past or future).

(b) the Federal Law Search: which provides selected information, such as listing dates, orders and judgments of, cases to members of the public.

4.22 Further information about seeking access to court documents, the CCP and Federal Law Search is available the Court's website. Parties should familiarise themselves with the Court's Access to Documents and Transcript Practice Note (GPN-ACCS).

Online Files for Public Interest Cases

4.23 Special arrangements for the access of file documents may be made for cases that attract significant public interest cases. Publicly available documents in public interest cases may be published (as an online file) on the Court's website. When information relating to a public interest case is updated, an announcement will be made in the News and Events section of the Court's website.

4.24 The decision to establish an online file is taken after consultation involving the relevant judges and/or registrars, the Court's Director of Public Information and the parties. It is based upon consideration of a number of factors, including:

the degree of media / public interest;
the expected impact that the demand for documents will have on the Court; and
the amount of documentation likely to be required to be published online.

4.25 Once an online file is established, the Director of Public Information will inform the media, advising that the usual non-party requests for access to documents will not ordinarily be required and that all publicly accessible material will be uploaded to the file. The presiding judge or registrar will, throughout the course of the proceeding, authorise material for publishing online. After a document has been authorised for online publication, the Director of Public Information may inform the media.

J L B ALLSOP
Chief Justice
25 October 2016

^[1] However, for older proceedings that commenced prior to the commencement of the Electronic Court File, the official file may be wholly or in part, the paper file created by the Federal Court for that proceeding. Note: As to the management of the Federal Court's official records, such records are managed, including the official files for its proceedings, under the Archives Act 1983 (Cth) in accordance with specific and general authorities and normal administrative practice approved by the National Archives of Australia.

^[2] See, for example, Part 8 (Case Management) and Part 9 (Alternative Dispute Resolution) of the Central Practice Note.

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