By Alex Lazarevich and Lisa Amabili

The South Australian Courts are introducing a new Electronic Court Management System (ECMS), and with it  a new set of Uniform Civil Rules. The new Rules are anticipated to come into effect on 18 May, 2020.

One consequence of the new Rules is that there will be one set of rules for the Supreme, District and Magistrates Court (albeit that there are some variations as  to the operation of some of the rules as between the Courts). As the Rules are presently in draft form, we have not set out any numbering of the rules referred to below. Given the size of the Rules we have focused on some of the major changes rather than trying to summarise all of the new rules.

TERMINOLOGY   CHANGES

For those who have only finally trained themselves to use the terms ‘disclosure’ rather than discovery, and ‘permission’ rather than leave, the new rules will be going ‘back to the future’.
Disclosure will once again be ‘discovery’, ‘permission’ will once again be ‘leave’, ‘adjudication of costs’ will again be ‘taxation of costs’.

A plaintiff is now an ‘applicant’ and a defendant a ‘respondent’ at first instance (similar to the Federal Court, but leading to possible convoluted appearances like “I appear for the respondent who is the applicant on the application for discovery”). On appeal, the parties will be named appellant and respondent.

A new concept is that of an ‘interested party’. An interested party includes, not only an intervenor, but also a party whose interests are not directly and adversely affected by the claim, but who should be given the opportunity to be heard or who must be joined to be bound by the result.

The notes to the Rules give examples  of the latter as including the Minister in relation to disputes under the s35 of the Housing Improvement Act or the Registrar- General on an application to rectify the real property Register Book. The notes to the Rules also state that an interested party may choose to participate or not participate in the proceeding, and that the automatic or presumptive costs rules that apply as between applicant and respondent do not apply as between applicant and interested party (e.g. costs do not necessarily follow the event).

ECMS SYSTEM

Documents are to be filed by an online portal. There will be a short transition period during which most documents can be lodged physically or electronically, but in due course the intention is that most documents (apart from less common, low volume documents) will be required to be filed electronically.

Parties and their lawyers, including counsel, will be able to access the electronic file, provided they are registered. Requests for access will be processed by the registry before access is granted – it is not intended that the public at large  can view a case file, or that lawyers would have access to files for matters they are not acting in. The Registrar has the power to cancel the registration of a person if they are “not a fit and proper person to be a registered user”, and also has a general discretion to as to whether to admit a person as a registered user.

Some documents will be entered into ECMS directly, with time savings to occur where data like parties names, action numbers, addresses for service and similar data will be ‘pre populated’ so once one form is complete the data does not need to be re-entered each time (for example, there is no longer a Form 1 coversheet). Other documents such as affidavits will be created on the practitioner’s (or party’s) computer system and uploaded for filing.

A document to be filed in a proceeding must be in accordance with the requirements contained in the Rules and prescribed forms. A document that does not comply with these requirements may be rejected by the Registrar or the Electronic System.

There is no longer a requirement for the name of counsel who settled a document filed in a proceeding to appear on that document other than for summaries of argument or written submissions.

When a document is lodged for filing electronically it is conditionally accepted by the Registry if a case number is allocated  to the proceeding and the Court’s seal and a filed document number allocated to the document (where the document is the first document filed in the proceedings) and otherwise for any other documents, if a filed document number is allocated to the document or the Court’s seal applied.

The document is conditionally treated as filed on the day and at the time at which it is accepted for filing if filed when the registry is open, and otherwise on the next day at the next time when the registry is open. Thus, a document filed for example at 5:01p.m. on a Friday would be taken to be filed the following Monday at the time when the Registry next opens.

The Registrar retains the power to reject a document for filing in circumstances where the Court so directs or if it is frivolous, vexatious, scandalous or an abuse of the process of the Court. A document may also be rejected by the Registrar if it does not substantially comply with the rules.

Significantly, if a document filed electronically which was conditionally accepted for filing is rejected within seven days of lodgement by the Registrar, it will be treated as not having been filed. This may have consequences on time sensitive matters (such as applications to set aside  a statutory demand which must be filed and served within 21 days of receipt of the demand and where case law has developed that to be a proper application  it must not just be filed, but also have on it a return date). The Court may order that a document be treated as having been filed on an earlier date if the document ought to have been accepted for filing by the Court earlier.

A document is issued by the Court when a filed document number is allocated, the Court’s seal is applied or the signature of a court officer is applied to the document by the ECMS or the Registry.

It is sufficient for the purposes of the Rules, to serve a true copy of the issued document downloaded from the ECMS or a true copy of a downloaded copy.

THE RULES

The Rules are divided into two components. Most of the new rules will  be contained in the Uniform Civil Rules. There are also ‘Schedules’ to the new  Rules, which largely include topics that are less frequently used such as those relating to electronic document protocols, freezing orders, service of documents overseas, and commercial arbitrations. There is no longer a need to cross reference the rules against the ‘Supplementary Rules’.

Overarching obligations

The new Rules contain a provision placing obligations on both parties and lawyers to, amongst things, act honestly, not take frivolous or vexatious steps, or make assertions for which they do not have a proper basis. Each of those matters represents obligations that already apply. Some new matters include ‘not to take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding’ and to use reasonable endeavours to ensure that time and costs incurred are ‘reasonable and proportionate’ to the importance and value of the subject matter of the proceeding or the complexity of issues raised. Sanctions can be ordered against the parties (including their insurers) and lawyers including as to costs or the making of orders to avoid or mitigate the prejudice to be suffered by a person arising from the failure to comply with the Rules. Further, the Court may, in making orders, have regard to the objects of the Rules, including having regard to (amongst other things) the nature and complexity of issues, the importance of the subject matter or step, proportionality between time and cost incurred and the complexity of issues, and the extent to which a person has complied with the overarching obligations.

Whether these overarching obligations result in a change in behaviour (in terms  of the kinds of applications made or interlocutory disputes) from parties themselves and the way in which the  Court manages litigation will be interesting to monitor. For example, the idea of ‘proportionality’ could potentially see some interlocutory applications dismissed as the costs being disproportionate to the benefit. On the other hand, perhaps nothing will change with applications being justified as being in the applicant’s view ‘reasonable’ and ‘necessary’. It will also be interesting to see whether the Magistrates Court adopts any less technical an approach to issues like pleadings than the Higher Courts, given the inherent disproportion between cost of litigation and amount in dispute in particular in that jurisdiction.

Originating Claims/Originating Applications

Presently most proceedings are issued in the Supreme and District Court by way of Summons, or, in the Corporations List, by Originating Process. In the Magistrates Court proceedings were generally issued by a ‘Claim’ or, for statutory proceedings, an ‘Application’.

The new Rules adopt the Magistrates Court’s approach. There will be the filing of Claims – which are to be accompanied by pleadings, or Originating Applications. Claims are used for common law or equitable causes of action, and statutory remedies analogous to common law or equitable causes of action. Originating Applications are defined as a proceeding that does not include a Claim, and will be used for certain types of statutory proceedings. With Originating Applications, a return date will be given when the application is filed. With Claims a directions hearing will be listed only after a defence is filed. Claims are to be accompanied by a pleading.
Originating Applications are to be accompanied by an affidavit which contains admissible evidence setting out the facts relied upon to obtain the orders sought.

Pre Action Protocols

The rules mandate pre-action steps to be followed before Claims are instituted. For Originating Applications compliance is optional. The object of the pre-action steps is to encourage resolution before commencing litigation (or at least a narrowing of the issues). On the one hand this may result in delays in having matters instituted and determined. On the other hand, matters should be substantially more advanced at the time of filing than they presently are, with the hope of avoiding some matters being lodged at all.

The Rules extend the requirement to give early notice of medical negligence to personal injury claims generally (except in relation to claims under section 126A of the Motor Vehicles Act 1959 or for which notice was given under section 30 of the Return to Work Act 2014 which have statutory requirements for notices).

The Pre-Action Steps for Claims include the requirement to give a pre- action claim by written notice (which replaces the old Rule 33 pre-action letter). Unless otherwise agreed the pre- action claim (and any response) is to be confidential and the subject of privilege (save that they may be relevant to the question of costs).

The particulars for the pre-action claim are more onerous than the previous rule. The notice is to include (amongst other things) the provision of sufficient material necessary for the respondent to respond as required by the Rules; an estimate in  the prescribed form of the total costs likely to be incurred by the applicant if the matter proceeds to trial (except for personal injury claims); an offer to settle the claim in terms capable of giving rise to a legally binding agreement if accepted; and a proposed date and time and physical location or audio visual or telephone link for a pre-action meeting.

There are a number of exemptions from the obligation to serve a pre-action claim including for commencement of proceedings where urgent relief is sought including by way of a search or freezing order or an interlocutory interim injunction is sought and the applicant fears that if a pre-action claim is provided to the respondent the process for obtaining the injunction will be frustrated.

Exemptions include where there is a statutory time limit of not more than 3 months; or if the dispute has been the subject of a similar dispute resolution process; or the applicant reasonably believes the claim will be uncontested (or is not generally contestable) and serves on the respondent a Final Notice; or it is a minor civil matter; or for certain statutory actions including an Originating Application, proceedings for payment under the Building and Construction Industry (Security of Payment) Act 2009, or the proceeding is a dust disease action that meets the criteria for an Urgent Case. Applicants may assert that the Claim is not genuinely contestable, though such an approach may lead to the other party seeking orders for non-compliance.

However, the fact that proceedings are about to become statute barred is not one of the exceptions (other than as set out above) – the expectation is that parties should not avoid the need for compliance by leaving their Claims to the last moment.

Further steps include that a respondent who receives a pre-action claim must within the prescribed time serve on the applicant a pre-action response and a pre- action meeting is to be held within 21 days after the time for service of the last pre- action document. The pre action meeting is a new requirement for most actions (it is part of the present Construction protocols). Absent agreement, the meeting is to be face to face, however the parties can agree to have a telephone meeting or video meeting. The parties are to negotiate in good faith; identify the main issues in dispute and primary cause of disagreement; how the issues may be resolved without recourse to litigation. The parties are directed to consider alternative dispute resolution, and to consider whether to appoint an independent person to chair the pre-action meeting.

The Rules strengthen the cost consequences of non-compliance with the pre-action steps including unless the Court orders otherwise, an applicant who breaches the pre-action rules is not entitled to recover the costs of preparing, filing or serving the Claim. At the time when the proceeding is instituted the applicant must certify on the Claim whether a pre-action claim and pre-action response have been served and if a pre-action meeting has been held. A special directions hearing  will automatically be listed by the Court when the pre-action steps have not been complied with and the Court may make such orders as it thinks fit including, without limitation, ordering that any pre-action step or steps in lieu be taken, staying other steps in the proceeding, making orders for ordinary steps in the proceeding to be taken or making orders for costs of a defaulting party (including costs fixed in a lump sum or on an indemnity basis payable forthwith). Given that the Rules provide that the pre-action communications are confidential, there will be a limit on the Court doing much other than adopting a checklist approach to any such orders (i.e. the Court could not be expected to descend into detail as to whether a party negotiated in good faith as that would involve consideration of privileged material).

Service

The Rules contain a table setting out what is regarded as personal service and also provide for service by express post  if certain requirements are met, including where the sender obtains from Australia Post proof of posting by way of an Article Lodgement Receipt showing when the envelope was received over the counter at a post office and proof of delivery via Australia Post’s online tracking facility showing when the envelope was delivered to that address.

Email service is also permitted provided there has been communication from the relevant email address in relation to the subject matter of the proceeding or the dispute the subject of the proceeding.  A document is served by email where the recipient replies to or acknowledges receipt of the email (though an automated response by the recipient’s email service is not a reply or acknowledgment for the purposes of the rule).

Generally speaking, personal service is no longer required in the District Court and Supreme Court for an Originating Process (although personal service may still have an advantage of certainty given experience in the Magistrates Court shows it is remarkable how many times a defendant asserts that Claims go missing when served through Australia Post!).

The Claim documents must be served on the respondents and interested parties within 6 months of being filed. The notes to the rules provide that the Court expects parties to be served, and, if the claim is  for damages for personal injuries and the injuries are not stable or some other reason exists for no further steps to be taken, that the applicant would invoke the rule relating to a moratorium of steps rather than not serving and seeking an extension of time to serve.

There are also provisions for solicitor service, agent service, agreed service, substituted service, deemed service and original service.

The Rules set out the particular service requirements for certain types  of documents, including an originating process, subpoena, enforcement process and other documents requiring original service which have particular requirements.

They also contain provisions for an Address for Service noting that it must include not only the law firm but also the individual responsible solicitor and if the individual responsible solicitor within a law firm acting for a party changes, a notice of acting showing the new responsible solicitor must be filed and served on all parties within 7 days.

There are also provisions which set out the requirements for proof of service for the different categories of service allowed under the Rules.

Amendments

Terminology has changed – Amended documents should be marked as ‘Revision 1’, ‘Revision 2’, as the case may be. The rules require any amendments to be marked up (including deletions in strike through) and numbering preserved (for example by inserting an additional paragraph between paragraphs 10 and 11 as 10A).

There are changes as to when documents may be amended. For example, pleadings can now be amended on more than one occasion without consent or leave if this is done within the time allowed (14 days after lists of documents are due) - the Rules do provide that the amending party pay the other party’s costs thrown away unless an order is made to the contrary.

Notices of appeal may be amended before the appeal is listed for hearing.

Pleadings

Most of the pleadings rules reflect the current rules.

Particulars are to be requested within 28 days of the receipt of the pleading in question. The Court may order that instead of there being separate pleadings, that there be a Consolidated Pleading where the parties file their pleadings progressively into one document.

Discovery

There are a number of potential  ways to make discovery including general discovery, discovery  categories, or specific discovery, using the Physical Protocol, Simple Electronic Protocol, Complex Electronic Protocol, and Combined List of Documents.

The default position is general discovery by way of the Physical Protocol (when the use of an electronic protocol is not needed or justified). This is the reverse of the current position in the Higher Courts. The Rules clarify that a document is a discoverable document if it is directly relevant to an issue raised in the pleadings, and that a document will be directly relevant if it is intended to be relied upon at trial or supports or adversely affects a party’s case.

Experts Reports

Much of the new Rules are similar to the existing Rules.

An expert who is preparing a report in response to or in the same field of expertise or dealing with the same subject matter as an expert report by another expert should, to the extent practicable, confer with the other expert about their respective assumptions and opinions. The rule is expressed to apply to both the prior expert and subsequent expert.

If an expert subsequently changes their opinion about any material matter, the expert must provide a supplementary report.

Litigation Plans

Litigation plans are no longer compulsory but may be ordered by the Court or the parties may agree to provide them.

Tender Books

Tender books are required in the District and Supreme Courts, and may be required in the Magistrates Court. Documents must be included in a joint tender book if a party nominates its inclusion (even if the other party objects). Generally, documents are to be  in chronological order, paginated, and separated by dividers. The applicant is to prepare the draft index 35 days before trial; the other parties must advise as to any additional documents 21 days before trial; and objections to documents or passages within them are to be filed 7 days before the trial, using the abbreviation codes set out in the rules. Leave of the Court is required to object to a document in the tender book if the rule hasn’t been complied with.

Parties must also, at least seven days before trial, file and serve any objections to any parts of any expert report(s). Again, no objection may be made at trial without leave of the Court if this process is not followed.

The Court can order that evidence be given by way of affidavit or witness statement. The rules provide for timelines for the filing of the same and for notices of objection. Again, if the notice of objection procedure is not complied with, any objection at trial requires leave of the Court.

Appeals

The main changes to appeals relate  to Full Court appeals which are aimed at reducing the time taken to bring a matter to hearing. One of the ways has been to eliminate the joint certification of appeal books and set down procedure.

There is a requirement to file a ‘core appeal book’ within 28 days of the ‘preparation commencement date’. The core appeal book contains what can be described as a list of standard and non- contentious items (including amongst other things the judgment appealed against, current originating process and pleadings, list of exhibits tendered at trial, index to transcript).

The appellant is to file its written submissions and list of authorities within 28 days of the preparation commencement date, along with a ‘draft chronology’. The respondent is to make any revisions to the draft chronology and file its written submissions in reply within 14 days. The appellant is to file the final chronology and any submissions in reply within a further 14 days. The written submissions are not to exceed 20 pages, or 10 pages for the reply without the leave of the Registrar or the Court. The idea is that the chronology is prepared progressively with input from both parties.

Notices of appeal can be amended without leave before the appeal is listed for hearing – preparing the written submissions early is accordingly a good idea to ensure the grounds of appeal match the submissions. The appellant is then to prepare an exhibit appeal book which contains only those exhibits referred to or relied on in the written submissions. 3 copies are to be filed, and within 7 days the parties are to revise their written submissions to incorporate the cross references to the exhibit appeal book.

Minor Civil Actions

There are separate rules for minor civil actions.

Lists

Finally, the rules contemplate that there will be a number of specialist lists including (in addition to the existing Corporations Lists, Fast Track Lists and Possession Lists) the creation in the District Court of a Commercial List, Construction List, and Personal Injuries List. The new inclusions will often be judge managed by judicial officers with special expertise in the field.

CONCLUSION

Given the significance of the changes to the rules and the introduction of the ECMS it is likely that there will be a significant adjustment period for practitioners, the Registry and the Courts generally. It is anticipated that in due course once transitioned, the ECMS and Uniform Civil Rules will create efficiencies for all Court users.

Of more significance however, will be whether strengthening the overarching obligations in the rules (and the enforcement of the mandated Pre-Action steps) has any impact on the Court’s management of litigation generally and the flow on effect that has on the behaviour of litigants and whether this reduces the number or duration of court proceedings.