On 30 January 2017, the Supreme Court of Victoria introduced a new Practice Note “Guidelines for the Use of Technology”.

The Practice Note covers 5 major areas:

1. Service and correspondence.
2. Communications with the Court.
3. Filing (the use of e-filing).
4. The conduct of trials.

The introduction of the Practice Note comes in the wake of recent decisions where technology-assisted review (TAR) was used for the purpose of discovery. In McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734 the Court outlined that the very large number of documents involved in the proceedings called for special management, as the use of traditional manual discovery processes would place the cost-benefit of conducting litigation in such a document heavy case at serious risk.

In McConnell the Court appointed a special referee. The special referee then made several recommendations as to what processes should be adopted for the review of the voluminous documents. Among these was the use of predictive coding to refine documents into relevant categories, one of the many different forms of TAR.

The use of TAR and other e-discovery methods has at least 4 major consequences for parties to litigation:

1. An overall increase in the efficiency of the litigation process, including a reduction in the time between commencing proceedings and final determination.
2. A reduction in relevant documents produced in discovery being overlooked.
3. Reduced costs to the parties.
4. Innovation and competition among legal practitioners in the services that they can offer to clients.

The change in the attitude of courts to the utilisation and relaince upon technology is not confined to Victoria. In the New South Wales court system as well as in the Federal Court of Australia, the use of e-filing and Online Court has become a common feature of civil litigation, all aimed at reducing the costs ultimately borne by the parties.

As outlined by the Federal Court’s practice note regarding the use of technology:

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.

Whilst the growing use of technology in litigation has the potential to reduce the time and costs that will be incurred in civil litigation, it is clear that the courts still have some reservations as to its use by litigants and practitioners. As litigation specific technology develops, we expect to see a change in how the courts approach its use and implementation.

For more information, please contact ERA Legal.