INDUSTRIAL
RELATIONS COMMISSION OF NEW SOUTH WALES
PRACTICE DIRECTION No 9 -
(Pursuant to Rule 89
of the Industrial Relations Commission Rules 1996)
FILING OF DOCUMENTS IN COMPUTER-READABLE FORMAT
1. The purposes
of this Practice Direction are:
(a) to facilitate
the processing of matters before the Industrial Relations Commission of New
South Wales by providing for, encouraging and requiring that documentation
filed in certain classes of matters by a party be accompanied by a copy of that
documentation in computer-readable format;
(b) to provide for
and encourage the use of technology in matters before the Commission; and
(c) to provide an
appropriate foundation for further use of technology in proceedings before the
Commission.
2. This Practice
Direction shall come into force on Monday, 11th November 2002.
3. Except as
provided for by paragraph 6 of this Practice Direction, it shall not apply to:
(a) proceedings
under s 84 (Unfair Dismissal), s 99 (Dismissal injured employee) or s 130
(Notification of Industrial Dispute) of the Industrial Relations Act 1996;
(b) parties to any
matter who are not represented by a barrister, solicitor, agent or industrial
organisation.
(c) Annexures or
attachment to documents which are not, or not readily, available in computer
readable format.
4. For the
purpose of this Practice Direction:
"computer-readable
format" means an electronic version of a document in such medium and
in such format as to be compatible with, and readable by, the computer system
of the Industrial Registry (the Registry of the Industrial Relations Commission
of New South Wales) from time to time and/or as specified by the Industrial
Registrar or the Registrar's delegate from time to time.
"matter"
means any proceedings heard or to be heard before the Commission.
"party"
includes intervenor and any person, firm, corporation, or organisation
appearing, or seeking to appear or intervene, in proceedings before the
Commission.
5. A party to a matter
before the Commission must file a copy of any document lodged in that matter in
a computer readable format at the time of filing of the document.
6. Notwithstanding
the foregoing, the Registrar or the Commission may, on application or
otherwise, direct one or more parties to a matter to file, or to file and
serve, all or any particular documentation in computer-readable format or may
waive the obligations of any party from complying in whole or part with the
requirements of this Practice Direction.
7. In addition,
the Registrar or the Commission may in any matter, where application is made
therefore or in any case where it is considered appropriate, apply to the
matter the terms of Supreme Court Practice Note No 105 (Use of Technology in
Civil Litigation, issued on 15 March 1999 and published at (1999) 46 NSWLR 25)
in whole or in part, subject to conditions or otherwise. A copy of Supreme Court Practice Note No 105
is annexed.
Dated: 16th
October 2002.
|
F. L. WRIGHT J, .President.
|
The Supreme
Court
Of New South Wales
Practice Note
No. 105
Use of
Technology in Civil Litigation
Introduction
1. The purpose
of this Practice Note is to provide for and encourage the use of technology in civil
litigation in the Court. Practitioners requiring assistance in the appropriate
use of technology are encouraged to communicate with the Law Society's
Information Technology Adviser. The benefits of a database of discoverable
documents are maximised when the parties agree to exchange information in
agreed fields in an agreed format.
2. Parties to
civil litigation in the Court are encouraged to:
(a) use databases
to create lists of their discoverable documents;
(b) give discovery
by exchanging databases created in accordance with an agreed protocol;
(c) exchange
electronic versions of documents such as pleadings and statements; and
(d) arrange for
inspection of discovered material, and other material to be inspected, by way
of images if appropriate.
3. Where the
parties have agreed that discovery should be given by exchanging electronic
databases, they shall:
(a) seek a
direction as to the protocol to be used; and
(b) before seeking
a direction, endeavour to reach agreement on the protocol so that the direction
may be made by consent. If the parties believe that they will be discovering
more than 500 documents between them, they should consider exchanging discovery
databases.
4. This Practice
Note provides guidance on the fields that the parties should consider using to
exchange information electronically about their discoverable documents. Parties
should feel free to agree on changes to the suggested protocol.
5. The Court
encourages parties to exchange electronic versions of all documents, as this
will assist the parties to use technology to manage information more
efficiently, and to provide the Court, in appropriate cases, with electronic
versions of all documents filed in the Court, to supplement the hard copy
documents filed with the Registry.
6. The Court
will expect the parties to agree on the appropriate media for exchange of
electronic versions of documents and discovery databases.
7. The Court may
issue further practice directions in the future about such matters as the
exchange of images of documents and the use of technology at trial. Parties are
required to consider these issues from the commencement of proceedings.
Electronic exchange
of court documents
8. Where a party
serves a pleading, affidavit, statement, list of documents or interrogatories
upon another party, the recipient may ask the first party to provide a copy of
that document in an electronic format.
9. The parties
shall accede to reasonable requests for copies of documents in electronic
format.
10. Subject to 11
below, where a party provides a document in electronic format, that document
shall contain the same text as the paper copy.
11. Where a
document contains annexures, the party will normally be expected to provide an
electronic version of those annexures together with the electronic version of
the host document, provided those annexures are documents created in electronic
format by or on behalf of the party or its solicitors for the purposes of the litigation.
12. Parties shall
make all reasonable efforts to agree on such matters as:
(a) the word
processing format in which electronic versions of documents will be provided;
(b) the methods by
which electronic versions of court documents are to be exchanged;
(c) the terms and
conditions on which electronic versions of court documents are to be exchanged.
In general, it will not be regarded as unreasonable for
a party to provide documents in an electronic format subject to a condition that
it is the responsibility of the recipient to test for viruses.
13. The Court may
direct a party to provide the Court with copies of court documents in an
electronic format. Subject to 11 above, where a party provides the Court with a
document in an electronic format, that document shall contain the same text as
the paper copy. The party providing documents in electronic format shall
provide appropriate written warnings about the need to test for viruses.
Electronic exchange
of discovery databases
14. The parties
are encouraged to consider ways to use technology to manage the discovery
process more efficiently from the commencement of proceedings.
The most appropriate use of technology will usually
depend on the volume and categories of documents which the parties agree or the
Court directs are to be discovered.
Decisions about the appropriate use of technology will
be better informed if the parties have identified the scope of discovery and
the categories of documents likely to be discoverable.
15. At directions
hearings, the Court may make orders that parties:
(a) meet to
discuss how best to use technology to exchange information about their
discoverable documents;
(b) make written
submissions on how best to use technology to:
(i) exchange information
about their discoverable documents; and
(ii) manage
information in the proceedings generally.
16. The parties
shall make all reasonable efforts to agree on such matters as:
(a) the media to
be used to exchange data concerning their discoverable documents;
(b) how data
should be delimited;
(c) the format of
the data eg whether it should be in ASCII text format or some other agreed
format;
(d) how the
parties will record the date of service of the data and ensure that the party
providing the data and the nature of the data may be readily identified eg by
appropriate labels on any disks or other media used to exchange data;
(e) the terms and
conditions on which data will be exchanged.
In general, it will not be regarded as unreasonable for
a party to provide data on condition that the recipient tests for viruses.
17. As a general
rule, by the second directions hearing, each party will be expected:
(a) to have
investigated the number and categories of documents likely to be discoverable by
that party, taking into account any limits on discovery that may be agreed
between the parties or the subject of a direction by the Court;
(b) to have
attempted to agree with the other parties on whether and how to use technology
to exchange lists of their discoverable documents;
(c) to be able to
make informed submissions about whether and how technology should be used to
exchange lists of their discoverable documents.
18. Parties shall
consider using the following fields to exchange information about their
discoverable documents. Parties may agree to modify these fields to suit the
requirements of the litigation. For example, if orders are made imposing
confidentiality restrictions in relation to certain categories of documents,
parties may need to add to these fields to ensure that confidential documents
and the restrictions applying to them are identified.
Field
|
Data type and
length
|
Notes
|
Document id
|
Text and Numbers
|
The field may be broken into different components such as
|
|
(if appropriate)
|
First Page and Last Page providing the parties agree.
Generally
|
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Length - depending
|
the field or fields will comprise a four part number in
the form
|
|
on field structure
|
AAA.NNN.NNN.NNNN where "AAA" represents an
|
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alphabetic shorthand for the party name. The other three
sets of
|
|
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numbers should be used to suit the convenience of the
parties.
|
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|
It may be useful if the first set is used to refer to an
archive box
|
|
|
number, the second to the number of the folder within the
box,
|
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and the third to the page number. Rules for the numbering
|
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hierarchy should be
agreed prior to discovery.
|
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|
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The last page of a document should be included in swapping
|
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electronic material to ensure the integrity of documents
is
|
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maintained.
|
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Attachments to documents should be separately listed and
|
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numbered. Attachments should be numbered sequentially
|
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following the host document. For example, a host document
|
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|
may be numbered XXX.001.001.0001 and its attachments
|
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would be numbered as XXX.001.001.0003,
|
|
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XXX.001.001.0004 and XXX.001.001.0005. Where there are
|
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two page attachments the first and last page numbers
should be
|
|
|
listed in the following sequence XXX.001.001.0003 - 0005.
|
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|
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Every page of every
document should be numbered. If there
|
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are to be any exceptions to this rule, they should be
clearly
|
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identified prior to discovery.
|
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|
|
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If imaging is to be used the parties can agree to any
additional
|
|
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information about document identification.
|
Attachments
|
Text & Number,
|
Contains first and last pages of each document physically
|
|
Length -depending
|
attached to a discovered document. Does not include
|
|
on the number of
|
documents that are only referred to in a discovered
document.
|
|
attachments
|
Each attachment should be listed separately, with its own
|
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|
discovery number and details. Multiple entries to be
separated
|
|
|
by commas.
|
Host Document
|
Text and Number,
|
Contains First Page and - if agreed - Last Page of the
host
|
Number
|
Length depending on
|
document to which an attachment is attached. Should never
be
|
|
the document id.
|
multiple entries in this field, as each attachment should only
|
|
structure
|
ever have one host document.
|
Document type
|
Text, 254
|
This field is completed using commonly received document
|
|
|
types eg letter, memo, deed.
|
|
|
|
|
|
Parties should agree
on rules for document types prior to
|
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discovery.
|
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|
|
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If the document has been faxed, this field should include
|
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"facsimile".
|
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|
|
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If a group of documents is being discovered as a bundle,
this
|
|
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field should be completed as "Bundle of document type".
|
Privilege
|
Text, 6
|
This identifies whether a claim of privilege is made over
the
|
|
|
document. The permissible entries in this field are
"YES",
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"NO" and "PART". If this field is completed
with "YES" or
|
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"PART", the basis of privilege field must also
be completed.
|
Basis of
|
Text, 50 (or
|
Identifies basis of privilege claim. Parties should agree
how
|
Privilege
|
combination of text
|
they will identify privilege claims. One possibility is to
set out
|
|
and numbers)
|
here the basis of the claim that the document is
privileged eg,
|
|
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the section or sections of the Evidence Act.
|
Status
|
Text, 10
|
"Copy" or 'Original' or "Fax".
"Fax" should be used for a
|
|
|
document that is either the original facsimile document
(ie the
|
|
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document sent by the sender) or an original facsimile copy
|
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produced by the recipient's facsimile machine.
|
Author
|
Text, 254 or as
|
Person or persons who wrote the document. To be completed
|
|
appropriate
|
using information on the face of the document. Last name
|
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First initial only eg. "Smith B". If more
than one author enter
|
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|
as "Brown J, Jones J, ..." etc. If more than one
addressee for
|
|
|
one company, enter as "Brown J/Jones J/..." etc.
|
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Other ways of addressing multiple values can be agreed
|
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Author
|
Text, 254 or as
|
Organisation from which the document emanated. To be
|
Organisation
|
appropriate
|
completed from information on the face of the document.
|
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Multiple entries to be separated by commas. Parties should
|
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agree on standard
spellings or abbreviations for
|
|
|
organisations.
|
|
|
|
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Other ways of addressing multiple values can be agreed
|
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|
between the parties.
|
Addressee
|
Text, 254 or as
|
Person or persons to whom the document is addressed.
|
|
appropriate
|
Includes persons to whom copies are circulated. To be
|
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completed from information on the face of the document. Last
|
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name First initial
only eg. "Smith B". Multiple entries to be
|
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separated by commas.
|
|
|
Other ways of addressing multiple values can be agreed
|
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between the parties.
|
Addressee
|
Text, 254 or as
|
Organisation receiving the document. To be completed from
|
Organisation
|
appropriate
|
information on the face of the document. Multiple entries
to be
|
|
|
separated by commas. Parties
should agree on standard
|
|
|
spellings or
abbreviations for organisations.
|
|
|
|
|
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Other ways of addressing multiple values can be agreed
|
|
|
between the parties.
|
Parties
|
Text, 254 or as
|
Identifies parties to an agreement or other legal document
(not
|
|
appropriate
|
correspondence). Multiple entries to be comma delimited.
|
Source
|
Text, 20 or as
|
Parties may find this field useful to identify documents
that
|
|
appropriate
|
have been obtained from someone other than the party
giving
|
|
|
discovery eg documents obtained on subpoena or through
|
|
|
some other compulsory process of obtaining access to
|
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|
documents.
|
|
|
|
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This field would identify the party from whom such
documents
|
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were obtained.
|
Non-paper
|
Text, 3
|
This field should be used to identify information recorded
|
record
|
|
using media other than paper, where the relevant
information
|
|
|
has not been printed out and discovered in hard copy form
eg
|
|
|
video and audio tapes, floppy disks and magnetic computer
|
|
|
tapes. Permissible entries are "YES" and
"NO".
|
19. Parties shall consider
how lists of documents shall be verified where data about those documents is to
be exchanged electronically.
Existing rules of court such as Part 23 rule 3
presuppose that a hard copy list of documents will be verified by affidavit. If
a party believes that it is appropriate to dispense with verification of a hard
copy list, it should approach the Court for an appropriate direction.
As an alternative to verification of a hard copy list,
parties may wish to consider a direction that the verifying affidavit identify
the documents by reference to the medium by which the data was served and the
date of service (eg documents described in the database contained on floppy
disks served on the defendant under cover of letters dated 21 January, 24
February and 29 March 1999).
20. Parties shall
consider whether data relating to their discoverable documents should be
provided to the Court (in addition to any hard copy list).
21. If parties
have used databases, or databases and images, to facilitate discovery and
inspection, the parties should consider and make submissions about how best to
use technology at the hearing.
For example, the parties' discovery databases could
form the basis for an index to the agreed bundle, or for the creation of a
database of documents admitted into evidence and rulings on the admissibility
of documents.
More generally, parties shall consider:
(a) the equipment
and services (including appropriate hardware, software and additional infrastructure)
that they and the Court may require at the trial; and
(b) the
arrangements that may need to be made between the parties, the Court and any
third party service providers to ensure that appropriate equipment and services
are available at the hearing.
J J Spigelman
Chief Justice
15 March 1999