Equity in the E-age; the Online Court

Online Court in the Equity Division of the Supreme Court of New South Wales

May it plEasE the court...

With a touch of irony, Members of the Bar were recently treated to a lunch time seminar on the beguiling juxtaposition of the whispering jurisdiction (Equity) in the online age. The topic, “Online Court in the Equity Division of the Supreme Court of New South Wales”. Irony continued, because the seminar was intended to provide a demonstration of the Online Court to Dinosaurs and Neo Dinosaurs alike. Yet, connection issues prevailed; the computer said "No" and the demonstration was aborted. However, we were grateful to hear the insights of Registrar Walton (the Registrar in Equity and Corporations). She appeared (in person) and shared her experiences and insights thus far with the Online Court in the Equity Division in which, nowadays, she reportedly spends "many" hours "presiding".

What is an Online Court?

Unfortunately as of yet, no Dummies Guide Book exists. Suffice it to say, the Online Court is as follows:

• The e-court is a Court, but it is online.
•  It is a secure online platform that facilitates the making of pre-trial directions.

That is, the Online Court is an alternative and replacement of “attending court” for directions, something that until the e-age, has been the bread and butter of solicitors, “readers” and junior barristers for many decades. The new age court"site" is meant to facilitate justice quickly and cheaply, but the jury is not yet out on that one.

What matters are suitable for Online Court?

• This is the million dollar question. It remains unresolved.
• Typically the simpler matters (such as timetable matters) are the mainstay of the Online Court. But even timetable matters can be hotly contested and not readily amenable to e-resolution...

What you need to know...and more...

• The online court is an “official” court. That is, its orders have the same force as orders made “in the flesh”.   That is, they are binding. Therefore, if you are directed to do something by the Online Court, you must do so.
• The rules of contempt apply to proceedings conducted using online court. True.
• Once the direction is made, you cannot “undo” it. That is, you cannot try to improve or undo the position by seeking to mention the matter in Court (in person) or simply ignoring it. 
• Undertakings given in an online court by a party’s representative either on behalf of the party or the representative, are binding as if the undertaking were given in an ordinary courtroom. 
• Some proceedings have been DISMISSED by means of orders on the Online Court (not without many warnings, albeit). For example, UCPR Rule 13.6 (frivolous and vexations proceedings) comes to play in the Online Court arena as readily as in the physical court room. So beware.
• Persons must REGISTER for the online court at which time you obtain a User ID and password (insert: <funtimes>).
• The Online Court enables parties to submit proposed orders for directions and for the opposing side to counter or consent to such proposed orders.
• The Online Court is not the Online Registry. Therefore, you must not attempt to “file” documents to the Online Court. However, you may attach short submissions and proposed orders etc. 
• The “actual” court is a fall back court.  It tends to be used when the proceedings are unusual in some way...for example, if there are multiple parties involved in the one proceedings or too many issues to deal with...etc.
• Practice Note SC Gen 12 contains more information about the relevant protocols.

Documents

• Documents (eg proposed minutes of order) provided by way of the Online Court must not be scanned documents and they must not be "locked" to enable the Judicial Officer to edit them as need be.
• Draft consent orders should be accompanied by a message stating that all the parties have seen, and agreed to, the terms of the proposed consent order. 

Timing

• There is a cut off time of 11 am for “offers” being submitted. That is, at the stroke of 11 am, you are shut out of the system. But do not fear. If you miss the deadline, you can use the “message” function and explain the reason for the delay in the message system (for example, your computer system may have been malfunctioning…after all, such things can happen). But do not abuse this!
•  There is a cut off time of 2:30 pm for counter offers. The same applies above if you miss the deadline (ie use the message system but do not abuse it). 

Registrar’s Approach

•  Registrar Waldon tries to give “warnings” to parties and be fair. 
• She likes to see “engagement” by the parties.
• If you have not heard to the contrary about being excused to appear, the default position is that you should appear in person.

Barristers and the Online Court

• Yes, barristers can "appear" in the Online Court. They must register and then “attach” themselves to a case by using the “find the case” tool. 

Self-Represented Persons

• Self-represented persons can also apply to access the Online Court system. If problems arise arrangements are made for in person appearances instead. 

Message system 

• There is a “message” system; typical of most platforms (eg Facebook, Instagram, LinkedIn etc).  It is distinct from the “email” system.
• The Registrar checks the message system about 5 times a day. She tends to respond to messages more readily than emails.
•  Messages should be short (no comment made about whether emojis are permissible; presumably not).

Reflections

• The online court calls for a “different style of advocacy”. 
• The language used in online court must be the same as that used if the matter were being dealt with in an ordinary courtroom. 
• Advocacy should be succinct and convincing. If it helps to put short submissions in, do so. 

The Future

• The Online Court is not available for certain lists in the Supreme Court of New South Wales (Equity) (eg Probate, Family Provision, Real Property). However, "watch this space" said Registrar Walton's, ominously.

Final message

• This is the future. Apparently. But the use of technology in court processes raises significant questions for both users and the legal profession. For example, will online appearances improve access to justice or inhibit it?  On this note, e-comments are welcome!

More?

More information here.

And a great article by Pip Ryan is here.