Seamus E. Byrne's - In Pursuit of Relevance

Introduction

Chief Justice Warren has issued the Supreme Court of Victoria's new Practice Note 2 of 2009 ("Practice Note"). The Practice Note outlines operational procedure for the Court's Technology, Engineering and Construction ("TEC") List.

The TEC List

In order to accommodate the rapid advances of this century, the TEC List draws together under one management regime the three strands of related disputes in the areas of technology, engineering and construction. Matters to be admitted to the TEC List will include cases falling within the former definition of a "Building Case" as it applied to the former Building Cases List. This has now been significantly expanded to include matters where it is alleged, for example, that a telecommunications or computer system, electrical or mechanical component or other device or industrial process has failed, under performed, or malfunctioned, and which involves an assessment of expert evidence of a technical nature.

The objective of the TEC List is to provide for the just and efficient determination of TEC cases, by the early identification of the substantial questions in controversy and the flexible adoption of appropriate and timely procedures for the future conduct of the proceeding which are best suited to the particular case.

Please note that the TEC List replaces the Building Cases List.

Relationship between Practice Notes 1/2007 and 2/2009

Practice Note 1/2007 provides a flexible framework and guidance in relation to the "use of technology in a civil litigation matter".

Where a proceeding is conducted under the Practice Note, the Court's Practice Note 1/2007 remains significant, particularly to assist parties to reach appropriate agreements in relation to the efficient discovery of paper and electronic documents.

The Case Management Information Sheet

5. Discovery
(a) Are there any special considerations concerning the discovery documents that should be brought to the attention of the Court?
(b) Is it appropriate to limit or stage discovery of documents in this case?
If Yes, in either case give details on a separate sheet and attach it to this form.

First Directions Hearing

37. The first directions hearing will be conducted by the Judge in charge of the List or by the TEC trial Judge, pursuant to the summons for directions issued in accordance with r.3.04 of the TEC Rules.

38. At the first directions hearing the legal practitioners for the parties will explain to the Court what the proceeding is about and what interlocutory steps they would like to be taken including:
h. Whether there should be an electronic trial of the proceeding.

Resources Conference

25. For the purpose of achieving the objective of the TEC List a resources conference will be convened at an early stage after the pleadings are closed by the Judge in charge of the TEC List and chaired by an Associate Judge. The resources conference will establish a resources budget for the litigation for the use of both the Court and the parties. The outcome will assist the Court in appointing the TEC trial Judge and allocating a trial date. The conference will also identify issues for mediation and the information and investigation required to enable effective settlement discussions to take place at the earliest possible opportunity.

26. At the resources conference the parties should be represented by a legal practitioner who is sufficiently instructed to deal with the matters to be considered at the conference.

29. Matters for consideration at the resources conference will include:
c. Whether any limit should be placed upon these resources or costs or upon discovery or other interlocutory step;
f. Whether there should be an order for the electronic trial of the proceeding and the
likely costs of this.

Discovery Disputes

23. The following matters will be determined by an Associate Judge unless the Judge in charge of the TEC List or the TEC trial Judge orders otherwise:
a. discovery disputes

E-Discovery Preservation Orders

59. In any TEC case in which the disclosure of documents in electronic form ("e-disclosure") is likely, any party at any time in the proceeding may make application to the Judge in charge of the List or the TEC trial Judge for an order for the preservation of electronically stored documents.

60. Any such application for an order for the preservation of electronically stored documents is in addition to and does not derogate from the obligation under the general law to preserve evidence. It is to be emphasised that the obligation not to destroy evidence is sanctioned by criminal penalty pursuant to ss. 253 – 255 Crimes Act 1958.

61. The Judge in charge of the List or the TEC trial Judge may at any time in a TEC case make such orders as are necessary or desirable for e-disclosure, in addition to any other orders for discovery which may be made.

Cost Orders for Unnecessary Discovery

62. Without limiting the power and discretion of the Court as to costs, the Judge in charge of the List or the TEC trial Judge may, if the occasion warrants, make orders that costs be awarded on an issues basis, or that the costs of an unsuccessful issue, of unnecessary discovery, of the unnecessary inclusion of documents in the court book or the unnecessary use of resources may not be allowed to the successful party or that these costs be awarded against a successful party.