Practice
Direction No. 53
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to list of Practice Directions
Non-Contentious
Electronic Applications Scheme
What types of matter may be dealt with electronically during
the operation of the pilot scheme?
Initiation and termination of
electronic processing
Mode of use of e-mail application
facility
Consent Orders and Minutes of
Order
Procedure where information or
submissions required
Conditions of Use, Privacy
Aspects and Security
Annexure A: Registrar’s Response
to Application for Electronic Disposal
1. Pending the future introduction of a
general system of electronic filing (“e‑filing”) in relation to all civil
proceedings in the Supreme and District Courts, a pilot scheme for the
electronic processing of certain types of chamber applications to those Courts
was established on 5 November 2001. This republished Practice Direction
implements some refinements of the Scheme in light of practical experience to
date.
2. The making and disposal of such
applications are the equivalent of conducting a matter in an ordinary practice
courtroom. This means that:-
2.1 the
system is to be used for issues requiring consideration and determination by a
Master or Judge;
2.2 communications
between the relevant parties or their representatives, particularly in relation
to matters of a confidential or otherwise sensitive nature, are not to be
released to the Court;
2.3 the
language and modes of address used must be the same as would be used if the
matter were being dealt with in an ordinary courtroom;
2.4 undertakings
given, in an e-mail communication, by a party or their representative to the
Court or other parties are binding as if the undertakings were given in an
ordinary courtroom; and
2.5 the rules of contempt apply to proceedings
conducted using the pilot scheme.
3. Of necessity, the pilot scheme will be
restricted to situations in which the legal representative of each potential
party to the matter has an existing e-mail address.
4. 4.1 Whether
a matter, or part of a matter, is to be dealt with electronically will be
determined by the Court having regard to such considerations as the nature and
complexity of the issues to be resolved, the number of parties, the views of
the parties, the nature and extent of any evidence that may be required, and
the urgency of the matter, or part of a matter.
4.2 Examples
of proceedings that will normally be accepted for electronic hearing and
determination are:-
Non contentious ex
parte applications of all types, including applications for final relief
Applications for leave to serve a summons for
Judicial Review;
Consent applications for a judgment or order of any
type;
Most non contentious applications under the Corporations Act; for example,
applications seeking relief such as an extension of time to convene a second
creditor’s meeting, or approval or directions in relation to the settlement of
any matter, or to reinstate a deregistered company;
Applications to renew a summons;
Court issued case flow management directions hearings
where a default has been remedied and an order sanctioning late filing is
required;
Non contentious party or non party discovery or other
interlocutory applications;
Non contentious applications to amend a pleading; and
Applications
to approve a compromise of proceedings on behalf of a person under a
disability.
The
foregoing list is only indicative and not intended to be exhaustive.
5. 5.1 If
the legal representative of a party seeks the electronic processing of an application
or part of an application, this is to be done by sending the application as an
attachment to an e‑mail to the relevant Registrar directed to:-
supreme.efiling@courts.sa.gov.au
(Supreme Court); or
district.efiling@courts.sa.gov.au
(District Court)
The e-mail
should be in Form 46 in the First Schedule to the Supreme Court Rules,
accompanied by a Form 1 related to it.
5.2 If
the matter can be processed by the relevant judicial officer within two (2)
clear business days of the request, all relevant parties will be advised by the
Registrar, by e-mail, of the terms of any order made.
5.3 If
the application cannot be dealt with within that time the Registrar will advise
the applicant by a return message (see Annexure A)
as to whether the application will be accepted and, if so, to which judicial
officer it has been directed. If no
response has been received to an e-mail within two working days after its
transmission, the maker is to assume that it may not have been received and
should contact the Registry to ascertain whether this is the situation. For an annual cost of the order of $50 for
up to 2000 messages, practitioners can subscribe to a service known as
ReadNotify.com, which will, automatically, notify receipt of e-mail
transmissions by addressees.
5.4 If
an e-mail relates to a proceeding of which a specific judicial officer is
already seised, that fact should be advised to the Registrar.
5.5 The Court may terminate the use of
electronic processing of a matter, or any part of a matter, at any time, either
at the request of a party or of its own motion.
6. 6.1 In
any case in which an application relates to a matter which is inter partes in nature, or as to which,
in accordance with the practice and procedures of the court, any other party is
to be given notice of it, a copy of the application should be transmitted by
e-mail to such party, simultaneously with its transmission to the
Registrar. The Registrar is to be
forthwith notified of the e-mail address of each such party.
6.2 All
subsequent documents transmitted to the Court shall, simultaneously, be
transmitted to each other party referred to in 6.1 above. The date and time of each transmission will
permanently be recorded on the relevant document file.
6.3 Due service of, or notice to, a party of any
proceeding or document filed in a proceeding shall be deemed to have occurred
on the day following that on which it is transmitted to that party at the then
correct e-mail address of the party, if that transmission occurs before or
within normal business hours. If it
occurs after normal business hours it will be deemed to have occurred on the
day following the next business day after such transmission.
7. 7.1 All
documents intended to be used and not already filed in the proceeding must be
attached to the transmitting e-mail message, utilising one of the following
application programs:
Word XP
Word 2000
Word 97
Adobe
Acrobat
7.2 Any
document so transmitted must utilise a font such as Arial or Times New Roman
minimum size 12, and be in Rich Text Format (RTF), Portable Document Format
(PDF), Tagged Image Format (TIF), Graphical Information Format (GIF), Joint
Photographic Experts Group (JPG), or as a Word document. If there are documents not already filed
which cannot be attached in electronic format, the e-mail to the Registrar
should indicate that situation and advise when such document will, physically,
be filed in the Registry.
7.3 Where
an e-mail message refers to a document earlier filed in court, a copy of the
filed document may be attached to the message for ease of reference.
7.4 In
urgent matters a document that is to be filed may be attached as stipulated in
7.1 above with an undertaking, in the relevant e-mail message, that it will be
filed in the Court on the next business day.
Exhibits to an affidavit or statement of fact (if any) shall be scanned
so as to convert them to an electronic image (*.tif) file.
7.5 All
copy documents attached to an e-mail message shall, where applicable, have any
ink signatures, dates or other additions to the original document typed in, so
that they may be read as completed documents.
Where a document has already been filed the e-mail message shall indicate
the date of filing and, if known, its File Document Number (FDN).
7.6 The Courts word processing application will
be Microsoft Office 2000. Documents
will be received using Standard Internet e-mail format (SMTP) and be compatible
with that system. They should, preferably, be transmitted using Rich Text
Format. Documents sent by the Courts
will be transmitted in Microsoft Word 2000.
8. 8.1 Where
an e-mail message has been transmitted by a practitioner who is a principal of,
or employed by, a firm of solicitors, that e-mail message must clearly identify
the name of the practitioner sending it and, where appropriate, the separate
e-mail address of that person.
8.2 The
Court will deem that messages and attached documents purporting to have been
sent to it by a legal practitioner have, in fact, been sent by that
practitioner, have been authorised for transmission by the party on whose
behalf they have been sent, and are the responsibility of such practitioner.
8.3 A
practitioner transmitting copies of documents not already filed will be deemed
to accept personal responsibility for payment of any Court filing or other fees
attaching to the matters being dealt with electronically.
8.4 The
Court may give directions as to how a specific matter, or part of a matter is
to be processed. For example,
directions may be given as to:
§
the topic or topics to be dealt with and in what manner;
§
who may participate;
§
the maximum length of e-mail messages and attachments; and
§
the maximum time in which e-mail messages (including
replies) must be sent to the Court.
8.5 Related
e-mail messages sent on behalf of parties to the Court must be:
§
relevant to the topic or discussion thread in relation to
which they are sent;
§
brief and to the point;
and
§
timely
9. 9.1 Where
a consent order or judgment is sought:
9.1.1 The consent of all parties other than that of the applicant is to be
furnished to the Court by either:
9.1.1.1 the endorsement of the consents on
minutes of order which may be lodged electronically;
9.1.1.2 by an e-mail to the Court from the
solicitor for a party;
9.1.1.3 by such other means as are acceptable to
the Court.
9.1.2 Draft minutes of order in a form suitable for being settled “on
screen” for ultimate signature must be attached to the e-mail.
9.2 In
all other cases, the e-mail may attach draft minutes of any proposed fiat.
If the order is one which will normally need to be sealed and entered, a
draft order in a form suitable for being settled “on screen” must be attached. Generally speaking, most routine
orders in the District Court will not attract a requirement for submission of
minutes. On the other hand, minutes will normally be required for most
applications to the Supreme Court. Minutes should conform with Form 47 in the
First Schedule to the Supreme Court Rules.
9.3 Orders
made will be processed in the following manner:
9.3.1 those as to which a fiat only is required will be copied by the
Court onto the court file and authenticated by the relevant judicial
officers. A copy of the fiat will be
transmitted electronically to the party or parties concerned;
9.3.2 those required to be sealed and entered will be settled “on screen” from the minutes sent to the
Court, submitted electronically to the party or parties concerned for approval,
and then hard copied and sealed and entered by the Registry. An e-mail message submitting settled minutes
for approval of a party or parties will normally stipulate that, if no response
is received from a party within 72 hours, that party will be deemed to
have approved the settled minutes. The
Court may review the form of a settled and sealed order if satisfied that a
party did not receive the settled minutes and that they do not properly reflect
the intention of the judicial officer who made the order.
9.3.3 any document so hard copied will bear the FDN
allocated to it, as a means of cross reference.
10. 10.1 The
e-mail transmitting the application may have attached to it brief submissions
or representations to the judicial officer to whom the matter is assigned,
without any direction requiring this to be done.
10.2 In
any case in which the Court may desire further information or submissions to be
made to it by a party in relation to a matter, such party will be advised by
e-mail of the nature of the further information and submissions and the date by
which it or they are to be supplied.
10.3 If such a request is not complied with in a
timely manner the Court may, in its discretion, set the matter down for hearing
in a normal chamber list, and advise the parties that attendance is required at
the Practice Court at a stipulated time.
11. 11.1 By
transmitting an application to the Registrar in accordance with this Practice
Direction, a legal practitioner represents to the Court that:-
11.1.1 such practitioner has made due enquiry and that instructions
received justify the making of the subject application;
11.1.2 insofar as the request attaches a copy of any affidavit or
statement of fact not yet filed, the copy is a true copy of the original of the
affidavit or statement of fact duly sworn which is held by the transmitter and
that the original has duly been sworn or subscribed; and
11.1.3 the transmitter has taken all reasonable precautions to
ensure that all material transmitted is virus free.
11.2 Each
time the legal representative of any party transmits an e-mail message to a
Court at one of the above addresses, the Court system will collect information
as to:-
§
the name of the transmitter;
§
the time at which the message has been received; and
§
the IP address of the transmitter
11.3 Such
information will not be disclosed to any other person not entitled, by law, to
it. However, any e-mail message sent to
a Court may be monitored by its staff, or that of the Courts Administration
Authority in order to facilitate decisions as to possible changes to its
website, maintenance, or when e-mail abuse is suspected.
11.4 Any
legal practitioner having concerns as to the security of information proposed
to be transmitted should communicate those concerns to the Registrar prior to
the transmission and confer with the proper officer of the Court as to such
concerns.
11.5 For their part the Courts will take reasonable
precautions to ensure that their transmissions are virus free. However, it is for legal practitioners,
dealing with them to adopt their own virus protection strategies.
12. 12.1 It
is not intended, during the continuance of the pilot scheme, to modify the
scale of costs provided for in the 9th Schedule to the Supreme Court Rules, to
make special provision for e-applications.
12.2 The
Taxing Officers will exercise their discretion to ensure that allowances made
are fair and reasonable for the work done.
Normally, the avoidance of a need to attend at court will result in some
reduction in costs incurred.
12.3 One factor taken into account, in future, in
the allowance or taxation of costs, will be whether a matter that could have
been processed as an e-application, has, unnecessarily, been set down in a
chamber list so as to require personal attendance at court.
13. 13.1 It
is not intended to specify the duration of this pilot scheme as it is an
interim step towards the implementation of a full scheme of e‑filing. It
is anticipated that, during 2004, facilities will be available to enable the
processing of non-contentious electronic applications via the Courts
Administration Authority website, rather than by separate e-mail.
13.2 The scheme will be further
reviewed and, if necessary, modified from time to time in light of additional
practical experience gained.
13.3 Practical suggestions as to its improvement or
functionality are welcome and should be directed to a Registrar.
14. It should be stressed that the new procedure
is not in any way intended to restrict the option of hearing applications by
means of telephone or videoconferencing facilities, in appropriate cases. Where it is considered that this type of
option is indicated, an application should be made pursuant to the provisions
of section 59IE of the Evidence Act 1929.
DATED 29 May 2006
(Errol
Surmann)
ACTING
REGISTRAR
REGISTRAR’S RESPONSE TO APPLICATION FOR ELECTRONIC
DISPOSAL
Title of Action:
Number of Action
...................... of 20……
To: [Return
address of applicant for electronic processing.]
For
information: [e-mail address of each other party nominated in paragraph 3 of
Request.]
1. Receipt is acknowledged of your
e-mail dated ........................
20…...
2. This matter has been referred to [judicial officer] for hearing and
determination. That judicial officer
will communicate with you in due course.
OR
This matter has been referred to a
judicial officer for initial consideration.
It has been determined that it is unsuitable for hearing and
determination electronically. The
matter has been set down for hearing in the normal manner in the Practice Court
before.............................. on................................ 20…….,
at .............am/pm.
Date: [DD/MM/YYYY]
Name and
title of releasing officer, for Registrar: