Navigating court protocols in post pandemic practice

Stating ‘I wished the floor would open up and swallow me’ is almost a rite of passage for litigators, but lawyers would prefer not to embarrass themselves by accidentally appearing half-dressed in what they thought was an audio only hearing or by otherwise failing to comply with court protocols. So why do lawyers often find themselves in procedural trouble, particularly since the COVID-19 pandemic took hold in 2020? As it turns out, the confusion and procedural errors may not be entirely the fault of lawyers. The pandemic necessitated a panicked switch to online court procedures, which led to disparate solutions across courts, and even between judges in the same court. The unwinding of lockdowns has led to partial and varied roll backs of online protocols, with courts and lawyers discovering that some online processes were worth retaining in certain circumstances. The Law Society conducted a comprehensive survey of member views on these issues, and the results are available in the summary report ‘A fair post-Covid justice system: Canvassing member views’. The current state of affairs, particularly for lawyers working across multiple courts, is something of a minefield. So, how can practitioners navigate court protocols and ensure they comply with all the requirements?

Legislation remains the most important source of procedure rules

The most important guidelines are legislative. The Civil Procedure Act 2005 (NSW) (‘CPA’) and the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) apply in all NSW state courts. In addition, each court continues to have its own court legislation, although these Acts and rules (such as the Supreme Court Act 1970 (NSW)) are not relevant for most proceedings. Commonwealth Courts have their own legislation including the:

• Federal Court of Australia Act 1976;
• Federal Court Rules 2011;
• Federal and Family Circuit Court of Australia Act 2021;
• Federal and Family Circuit Court of Australia Rules 2021;
• Civil Dispute Resolution Act 2011;
• High Court of Australia Act 1979; and
• High Court Rules 2004.

Procedural legislation is central to how modern proceedings are run and can provide courts and lawyers with significant scope to mould procedure to meet litigant needs. For example, the much-cited s 56 of the CPA provides the ‘overriding purpose’ of ‘just, quick and cheap’ resolution of proceedings and its s 37M Federal Court Act equivalent provides for the ‘overarching purpose’ of ‘just resolution’ of disputes as ‘quickly, inexpensively and efficiently as possible’. These provisions enable courts to adjust procedures as needed to accommodate pandemics and other complexities. Judges considered these sections during COVID-19 lockdowns when determining whether to adjourn or proceed online (see Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 at [6]). The COVID-19 pandemic also necessitated specialist legislation such as the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) to enable the continuation of proceedings through audio-visual evidence.

Check practice notes, announcements and bulletins

Each court produces its own procedures and protocols through practice notes, bulletins and announcements to guide court users. Many are specific to particular court lists or types of proceedings, while others apply to all proceedings in a particular court. Through the pandemic, courts relied heavily on announcements and bulletins to navigate litigants and their lawyers with many courts producing numerous COVID-19 specific announcements (see, for example, the Supreme Court of NSW Covid-19 bulletins and announcements).

Courts use practice notes and other publications to guide court users on everything from what forms to use in different types of proceedings, timeframes for lodging different documents, what processes are permitted in different types of proceedings, notice requirements, and use of technology (including during pandemics). Some practice notes remain for many years and build their own bodies of interpretive case law requiring consideration. For example, there are now over 100 Supreme Court of NSW decisions considering whether discovery is necessary prior to evidence and/or whether the use of subpoenas is permitted instead in the Supreme Court’s Equity Division, due to Practice Note SC EQ 11 limiting the right to discovery before witness evidence in 2012 (see Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2012] NSWSC 913, Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 and Proclear International Pty Ltd v United Beverage Co-Packers Pty Ltd [2022] NSWSC 1630). Practice notes and other court announcements are powerful despite their lack of legislative force. As Brereton J noted regarding SC Eq 11, ‘It is not a statute, nor is it a rule of the Court. It guides, but does not govern, the disclosure process… the importance of its purpose means that it will be in a rare case that the Court will depart from its guidance’ (Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [14]), recently cited in Mulroe v Mulroe [2022] NSWSC 1459 which was a case regarding the application of SC EQ 5 (at [84]).

Remember to comply with judge specific protocols

Visiting a judge in their court is a bit like visiting someone’s house. You need to follow their house rules for your visit to go well. There are some rules that always apply, such as courtesy and respect, but like homeowners, every judge is unique. Some judges provide specific written protocols such as Justice Parker and Justice Kunc in the Supreme Court of NSW. These protocols provide useful information to lawyers on matters such as whether written submissions should be provided digitally or in print (or both) and how to label and index court bundles and appeal books. Although such guidelines are helpful in providing certainty regarding practical details for lawyers appearing in matters before particular judges, the differences between judges adds an extra layer of process to be checked for each matter, and not all judges publish their personal preferences.

Current status of online vs face to face hearings?

Most courts have rolled back most or all of their COVID-19 specific provisions, but this does not mean that courts have entirely returned to pre-pandemic procedures. Some courts, such as the Federal Court of Australia, have retained significant online processes, particularly for directions hearings.

Here is a snapshot of where the courts were at in March 2023. Practitioners should always consult the relevant practice notes of the court or tribunal in which they are appearing.

Scope for improvement in procedural consistency

Most practitioners appreciate detailed instructions from courts but they also value consistency. The introduction of the CPA and UCPR in 2005 brought a welcome increase in consistency to NSW proceedings but, since then, the variation in requirements across NSW courts caused by practice notes and judge protocols seems to have increased. COVID-19 created huge challenges for courts as well as procedural inconsistencies, but the sense of crisis is abating. Steps that might improve consistency, which would assist practitioners and litigants, include:

• Introduction of consistent technology platforms across courts, preferably platforms which are in common use or operate as similarly as possible to commonly used platforms such as Microsoft Teams or Zoom;
• Minimisation of bespoke protocols that apply to only one list or one judge in a particular court;
• Ensuring court protocols consider access to justice and efficiency for users, as well as the courts. For example, it is expensive and inefficient to require a practitioner to travel for two hours each way to attend a non-contentious 10 minute directions hearing face-to-face that could be easily accessed online; and
• Easy access and awareness for practitioners and litigants to all protocols and rules that apply.

Ongoing need for flexibility

Although practitioners desire increased consistency, the need for flexibility in procedures is also appreciated, particularly given the continued incidence of COVID-19 and other crises, e.g. floods. Courts need to ensure fairness and be able to adjourn or flip a face-to-face proceeding online, or partially online, e.g. where a key participant is affected by COVID-19 (see Lally v Grubisa [2022] NSWLEC 1279 at [4]). Courts may also need to adjourn online proceedings where technology fails (see R v Macdonald [2020] NSWSC 382 at [13]).

NSW judges work hard to accommodate litigant needs wherever possible in accordance with their overriding purpose under s 56 of the CPA, but they must also strive for maximum consistency to reduce administrative inefficiencies and costs for litigants and practitioners. Practitioners can assist judges by providing notice of problems when they arise and agreeing to required changes to procedures with opposing counsel in advance of court hearings. The need for continued flexibility presents significant challenges for courts and their users given the multiplicity of proceedings most courts are juggling. Despite everyone’s best intentions, procedural complexity is likely to remain.

Sonya Willis, Sylvia Fernandez, Caroline Hutchinson and Carrie Peterson are members of the 2023 Litigation Law and Practice Committee.