The following guidance is provided for those practising in the Supreme Court including the Court of Appeal, Commercial Court, Common Law Division, Cost Court and Probate in the current coronavirus (COVID-19) environment.
Updated 7 May.
Civil Procedure Act 2010
As new procedures are adopted by the Court to reduce the need for physical proximity of parties, it is apparent that lawyers have been conscious of their obligations under the Civil Procedure Act 2010, in particular the paramount duty to further the administration of justice in relation to any civil proceeding in which that person is involved (s 16), the obligation not to engage in conduct which is misleading or deceptive, or likely to mislead or deceive (s 21) and to cooperate with the parties to a civil proceeding and the Court in connection with the conduct of that proceeding (s 20).
While parties certify their understanding of these at the commencement of proceedings, lawyers may wish to remind their clients of these obligations, and that they prevail over other obligations to the extent of any inconsistency (s 13). Lawyers may also wish to remind their clients of the sanctions for contravening the overarching obligations (Part 2.4).
The Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2015 give the Court great flexibility to do what is necessary to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, including where appropriate dispensing with compliance with the rules as they would ordinarily apply (r 2.04) giving any direction or imposing any term or condition for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination (rr 1.14 and 34.01)
Personal service may pose difficulties in the current circumstances. Lawyers are reminded that the Rules provide means for avoiding physical contact by:
- allowing a person not to accept a copy and for the copy to be put down in the person’s presence (r 6.03(1)(b))
- acceptance of service by a solicitor with authority (r 6.09) which can be done electronically
- substituted service where it is impracticable to serve a document in the manner required by the rules (r 6.10)
- deemed service when a document comes to the notice of the person served (r 6.11).
In this regard the Court highlights the duty of parties and lawyers to cooperate under the Civil Procedure Act 2010. The Court expects that acceptance of service electronically would be adopted in almost all cases.
Where necessary applications for substituted service may be made so that the current circumstances may be taken into account in relation to the impracticality of effecting personal service.
The current circumstances may pose significant challenges in having affidavits sworn or affirmed.
Following recent changes to the Oaths and Affirmations Act 2018, affidavits may now be completed remotely by
- the deponent or the authorised affidavit taker signing or initialling the affidavit using electronic means
- the deponent or the authorised affidavit taker doing things in each other’s ‘presence’ by audio or audio-visual link
- the authorised affidavit taker signing or initialling a scanned hard copy or electronic copy of the affidavit.
Part 5A of the Act provides the detailed requirements for this form of affidavit taking.
The amendments (new s 49F of the Act) also provide that the Court may admit unsworn or ‘purported’ affidavits if
- the Court is satisfied that compliance with the Act was not reasonably practicable; and
- the unsworn or ‘purported’ affidavit states why compliance with the Act was not reasonably practicable.
Where an unsworn affidavit it sought to be filed the party filing should continue to ensure
- the deponent has been instructed that this relaxation of formality does not diminish the need for them to satisfy themselves that the content of the affidavit is true and correct
- the deponent is prepared to swear or affirm the affidavit in the form provided
- a formally sworn or affirmed affidavit is filed when circumstances allow.
In relation to Probate matters, once RedCrest-Probate is operational the formally sworn/affirmed affidavits will be able to be filed electronically. Where it has been necessary to file an unsworn affidavit, practitioners are requested to await the commencement of the RedCrest-Probate to file the sworn version to assist the operations of the Court.
For affidavits prepared for use in applications and trials in the trial division refer to the guidance note - Electronic court books for virtual courtrooms.
Orders 42 and 42A of the Supreme Court (General Civil Procedure) Rules 2015 provide for the following types of subpoena requiring the production of documents in civil proceedings in the Court:
- Form 42B ‘Subpoena to produce’, which compels a person to produce documents at the trial of a proceeding;
- Form 42C ‘Subpoena to attend to give evidence and to produce’, which compels a person to give evidence and produce documents at the trial of a proceeding; and
- Form 42AA ‘Subpoena for production to the Prothonotary’, which compels a person to produce documents to the Prothonotary for inspection by the parties prior to the trial of a proceeding.
Production of copy documents in electronic format in response to a subpoena is permitted pursuant to rules 42.06(7)(b) and 42A.05(3)(b) as applicable.
In the current coronavirus (COVID-19) circumstances, where possible, subpoenaed persons (addressees) are encouraged to comply with a subpoena requiring the production of documents by providing an operable link to download and access the documents (i.e. uploading the documents to a storage service and sharing the link). The Registry can be contacted to provide further information or assistance regarding options for how to do this, or alternatives which might be available depending on the size of electronic files.
Links should be sent to firstname.lastname@example.org@saneopbus , copied to the chambers of the judicial officer before whom the trial is listed (where known).
Those filing subpoenas should provide the above information to the addressee when serving them with the subpoena.
Trial Division Court Books
In proceedings across all civil divisions of the Trial Division of the Court, parties are from time to time required to file and serve Court Books. This is often done by delivering a hardcopy folder or folders of documents to the Court. Electronic court books will usually be necessary in hearings remotely conducted by audio-visual links with a copy accessible at every remote location being used.
In the current coronavirus (COVID-19) circumstances, unless directed otherwise by the relevant judicial officer, where possible, parties ordered to file and serve court books are encouraged to comply by providing an operable link to download and access the court book (i.e. uploading the documents to a storage service and sharing the link) in a paginated pdf bundle. (Pagination must be consistent with the electronic pagination of the pdf). The Registry can be contacted to provide further information or assistance regarding options for how to do this. The requirements for preparing electronic court books in the trial division are contained in the following guidance notes:
Links should be sent to the chambers of the judicial officer before whom the trial is listed (where known) and copied to email@example.com@saneopbus
Court of Appeal Application Book and Combined Folder of Authorities
In relation to an application book or combined folder of authorities which is required to be delivered in a civil proceeding in the Court of Appeal, parties remain required to prepare and deliver hard and electronic copies in accordance with any orders or directions made.
The requirements for preparing an application book and a combined folder of authorities (both hard and electronic copies) are contained in the following:
- Registrar’s Note on the preparation of application books dated 30 September 2019
- Guide on the preparation of a combined folder of authorities dated 30 September 2019