- There are numerous sources of procedure which practitioners must consult before appearing in court, with the COVID-19 pandemic eliciting more complex and varied court protocols for proceedings.
- Despite detailed judicial practice notes, bulletins and protocols, there is a need for greater consistency between courts and between judicial officers within the same court to improve fairness and efficiency.
- As the courts roll back online court protocols enacted during the pandemic, certain technological efficiencies should be retained for routine case management hearings to save time and expense.
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.