There is no strategy for the introduction of electronic case files, as such, into Australian courts. Courts are, however, moving closer to the concept as a result of a project to introduce electronic appeal books. The development is also being given an impetus by the use and development of other technologies, particularly Internet-based communications.

Electronic filing is not yet widespread, but the pace of its introduction is expected to increase in recent years. Systems that incorporate service of process are being developed. Electronic filing will pave the way for electronic case files, which will be integrated with the electronic case management systems that already exist.

Use of electronic communication technologies is becoming more widespread, but courts have been slow to adopt it at the case management or pre-hearing stage.

Video technology for hearings and other processes has been widely adopted and Australian courts have demonstrated a degree of innovation in its use. Commentators are already pointed to the development of the ‘virtual court’.

Australia has well developed resources to enable legal research to be conducted electronically and well developed databases of court judgements. Issues that remain to be resolved include questions about the accessibility of court judgements, the need for standards in judgment production and the development of medium neutral forms of citation.

The need to cope with the demands of complex litigation has been one of the driving forces for technological developments in the courts in this country and Australia has an international reputation in the field of litigation support systems and electronic courts. This technology may come to be more widely used in the future.

Much of the focus in Australian courts in recent years has been on the use of technology in appeals. A recent project to encourage the use of electronic appeal books holds the potential to integrate much of the use of technology across Australia’s state and federal jurisdictions, to the benefit of all courts.

1. Completely Digitised Procedures: Electronic Case Files

Courts in Australia are moving closer to the concept of electronic case files. Interestingly, this is not coming about as a result of any decision to implement that process of itself. The move to digitise court procedures in Australia is occurring rather as a by-product, or as a necessary stepping-stone, to the implementation of other projects and as a result of the integration of technologies that are currently used in various parts of the litigation process.

The most recent major initiative has been a project to examine the feasibility of electronic appeal books initiated by the Council of Chief Justices of Australia and New Zealand. The final report on that project, released in May 1998, (‘the EAP Report’) recommended that courts should consider the introduction of electronic filing to facilitate the movement of electronic appeal material. [1] Many Australian courts already largely operate on electronic case management systems and the introduction of electronic filing and its integration with those systems, would set the stage for the development of electronic case files and case management.

Video-conferencing is coming to be widely used in Australian courts, although the possibilities of electronic communication technologies, including email and Internet are just beginning to be explored.

The High Court of Australia, the county’s ultimate appellate court, is moving closest to electronic paradigm with the introduction of a new case management system that seems likely to incorporate the facility for parties to file initiating process and appeal documents with the court via the Internet. [2] The system will also enable parties and others, to obtain selected information from the court’s case management system via the Internet. [3] The High Court already makes extensive use of video-conferencing and with these recent developments, the day is probably not too far away where it will deal with an application for special leave to appeal which has been filed electronically, with the supporting documentation in an electronic case file, in a hearing conducted by video-link and with the decision handed down in the same way.

2. Use of Advanced Technologies in Parts of the Proceedings Following the Path of a Common Litigation

Initiation of proceedings

Most proceedings initiated in courts in Australia today are done by the filing of a paper copy of a document in the form prescribed by the court and its subsequent service on the party or parties to the litigation.

A few courts and tribunals have taken steps to implement electronic filing systems in which documents which are created using electronic technology are not physically filed over the counter at a court registry, but transmitted directly from the party’s computer desktop in electronic form to the court. [4] This is not yet a widespread development, but it is clear that ‘[a]s courts move towards the more extensive use of electronic material, the need for electronic filing will assume greater importance.’ [5]

The pace of the introduction of electronic filing will be given impetus by its recent endorsement in the EAP Report. [6] As previously mentioned, the High Court of Australia is investigating the possibility of implementing electronic filing as part of its new case management system and a number of other courts are believed to be examining it.

As the High Court’s move appears to indicate, the trend appears to be towards the use of the Internet in this regard, rather than the private infrastructure solutions adopted in earlier solutions. [7]

Issues that Australian courts are beginning to address as they move towards electronic filing include:

In relation to all these issues, there will be a need for close consultation and co-operation between the courts and the legal profession.

Internal case and file management

Most Australian courts now operate on the basis of some type of electronic case management system including a time-table for the conduct of the pre-trial preparations. That time-table may consist of a series of set phases and time-lines, subject to variation in different ways. The internal organisation will generally be documented electronically but written communication is still the norm.

Typically, file and case management relies on electronic records, compiled by the court from the written material filed by the parties, as part of the court’s case management system. These systems will often generate written material as well; for example, notices delivered to parties at various stages of the preparation for a hearing.

As electronic case files are still a rarity, the issue of authenticity of electronic case files has not yet been raised. However, it will largely fall to be addressed at the stage when documents are filed and, as indicated above, the current thinking in this country seems to be that the technology exists to ensure that electronic files are at least as secure as paper files.

The implementation of electronic filing and the development of electronic case files, together with the emerging use of Internet technology to make information available from case management systems via the World Wide Web will make it necessary for courts to make decisions about rights of access to electronic files. What type of information should be made available to judges, to parties, to their legal representatives, the media, to the public at large?

Listing information from many courts is now widely available on the Internet, in some cases, provided directly from the court’s own Web page. As previously mentioned, the next step was recently taken by the High Court of Australia which has implemented a new case management system that will make selected information available over the Internet to any person with a Web browser. [13]

The system includes several interconnected databases and information is passed between the different databases. Users move between databases by following links between documents.

The system will allow a user to obtain information about events in the case management process, as well as access to relevant document for example, a user seeking information about the hearing of a case will be able to obtain access to an on-line copy of the transcript. Parties will also be able to obtain access to electronically filed documents. [14]

Security concerns are proposed to be addressed by providing, in effect, that Internet users will not obtain access to the court’s databases themselves, but rather to selected information from the databases which is regularly copied to a proxy server. Levels of access will determine the type of information to be made available. [15]

It has been noted that, while in the United States the vast majority of court records are public records and so, in theory accessible to any member of the public, in practice, access has been limited by considerations of time and location. That situation has enabled courts to avoid making decisions about access:

Courts have counted on both the accessibility and financial costs to insulate their organisations from potential discord. Unfortunately, this strategy is becoming increasingly ineffective as people become more sophisticated in their knowledge of information systems.

How in the United States of America, with our history of an open public record, can we keep information from the Internet for long? Where is the dividing line? [16]

Similarly in Australia, the potential for Internet communications to enhance access to court records will mean that courts will have to make some policy decisions in relation to access in coming years.

Service of initiating process

At this time, no Australian jurisdiction provides for service of court process by electronic file transfer. However, as electronic filing becomes more common, this development will come and the indications are that it will be driven by Internet technology.

One of the most interesting electronic filing systems in Australia has been recently introduced by the Residential Tenancies Tribunal (now incorporated into the Victorian Civil and Administrative Tribunal) in the state of Victoria. It is intended to allow estate agents - who are parties external to the Tribunal - to connect to the Tribunal system and do direct data entry into the system, as the first step in potential disputes. Estate agents will be able to give early due notice to the Tribunal and via the Tribunal to the tenant, of possible future legal action. The estate agent in this way triggers correspondence to be automatically sent, in the Tribunal's name, to the tenant. If the matter escalates to a more serious level, the basic information for case management is already in the system with no duplicated effort. By using Internet itself (with appropriate log-ins and passwords for estate agents) and Browser software, the Department keeps the costs for estate agents low, and makes the system highly accessible. [17]

Again, the current thinking in Australia is that the use of digital signatures and encryption technology will ensure the security of electronic communications, at least to the standard of paper communications.

Preparation for hearing by judges and parties i.e. communication between the court and the parties, their lawyers and potential witnesses.

Courts in Australia have only just begun to explore the possibilities of using electronic communication technologies to handle communication needs during the pre-hearing process. Both telephone and video-conferencing are widely used to manage pre-trial hearings and directions conferences in appropriate cases. Email is not yet widely used by the courts, although its use among the legal profession is certainly on the increase.

One recent development in Australia is the use of Intranet technology in association with the litigation support and document management systems. This

Can enable parties to share a virtual space to conduct electronic discussions and facilitate the exchange of documents. Such a support system uses world wide web technology where access is provided to security cleared users via a direct dial-up communication to the Court's Web server. This system also enables users to have remote access. [18]

The recent Estate Mortgage Case in Victoria is an example of system that was designed and developed specifically for a case, in consultation with the court and the parties. The management of the court document file and the discovery process were developed under a protocol agreed by the parties and supervised by the court. It included a multi-platform Intranet for all parties to the case, including email and common access to key data such as pleadings or documents. This not only facilitated the pre-trial preparation between the parties, some of whom were located interstate and overseas, but enabled a level of remote but active participation in the case itself by providing dial-in access to the real-time transcript feed, and other court information, as well as the email services. This meant solicitors not in court could view the transcripts on screen and make email comments to their colleagues when appropriate. [19]

Hearing and evidence

One of the technologies most widely used to receive evidence in courts in Australia today is video conferencing. In a sense, it has provided an extension of another earlier technology still widely used in Australian courts, namely, telephone conferencing.

Video conferencing was initially adopted as a means of taking evidence from children, or other vulnerable parties. Its use has since been extended to cover a wide variety of circumstances in a variety of courts and tribunals, including situations where it is necessary to take evidence from overseas, [20] where a witness or party is in custody, [21] to hear expert evidence, [22] as an alternative to circuit hearings, [23] to conduct directions hearings, or pre-trial conferences, to hear chamber applications and applications for special leave to appeal, [24] for appeal hearings, [25] for a variety of internal administrative purposes, [26] and even to bring a magistrate ‘on-line’ to a country court house to overcome difficulties caused by the absence of a country magistrate. [27] It would seem that, in some respects at least, Australian courts have taken the lead in exploring new uses for this technology. [28]

Provisions that empower the courts to use this technology in quite broad terms have probably been a sensible approach in a period where courts have been experimenting with their potential. In Victoria, for example, the courts are able to use video conferencing facilities

To take or receive evidence and submissions from witnesses or persons involved in court proceedings in circumstances where it would be expensive, inconvenient or otherwise not desirable for a person to attend a court in person. [29]

However, there may be a need for courts to set out quite detailed guidelines to address some of the issues that arise in relation to these use of these facilities, even extending to issues such as camera placement, use of microphones and access to legal advisers. [30]

Although some concerns have been expressed about the use of the technology in terms of its effect on witnesses and the potential for prejudice to a party as a result, [31] in practice its use does not seem to have given rise to any great objection to date. The Australian Law Reform Commission has raised a number of issues to be considered in relation to the future use of this technology, including:

It has been predicted that:

Video conferencing will increasingly benefit the judicial process, as the technology spreads and we become more proficient and comfortable in using it. With such advances we would expect our infrastructure capacity to increase, costs to decline, laws to be amended to include telepresence and video evidence, and arrangements made to support its use in the provision of evidence available in one jurisdiction to another where it is required. [34]

The development of digital technology and the possibilities opened up by Internet conferencing in coming years will serve to further reduce costs and increase access to the technology, moving Australian courts closer to the concept of ‘the virtual court.’ [35]

The Queensland Law Reform Commission recently undertook an extensive review of the application of the laws of evidence to electronic records and to the various methods of taking and presenting evidence electronically, which will be of wide application to all Australian jurisdictions. As it noted:

Although the Commission is unaware of extensive practical problems to date with applying existing law on admissibility of evidence to electronic records, the issues surrounding their admissibility may become more apparent as the use of, and reliance on, electronic records increases. [36]

The Commission has noted that judges are tending to utilise and develop the common law in dealing with issues relating to electronic evidence, rather than relying on statutory provisions which may have become outdated. The general approach of the courts seems to favour the admissibility of these new types of evidence, providing the information is relevant to an issue in dispute. [37]

The report makes clear that the process of reforming statute law in Australia relating to the use of advanced technologies in litigation is falling far behind the pace of technological development. There is a clearly identified need for the relevant legislative provisions in each jurisdiction to be regularly up-dated to keep pace with changing technology.

While there is certainly an argument that the courts should not rush to adopt new technologies without proof of their reliability and the veracity of the information they contain, it is certainly odd to be in the position where, as one commentator has pointed out ‘ . . .we will trust out lives to computer-designed aircraft and cars, yet refuse to receive computer reports in evidence unless they have been tried through all the levels of Dante’s Inferno.’ [38]

The Virtual Court

Current developments are focusing on the integration of technology. It has been said that: ‘We are not far from the day when data, text, image, graphics, audio, and video are merged in a multimedia docketing system that is the court record.’ [39]

The explosive development of the Internet and advanced digital communications technology will have a significant impact.

The digital future eliminates many of the barriers of time and space. Since the entire case file and tracking information will be available on-line, a judge can be literally anywhere in the world at anytime and be able to access the information needed for a decision. [40]

Add to that the predicted development of sophisticated virtual reality systems and the logical extension of video conferencing may be the development of the ‘virtual court’. This concept:

has to do with reversing the assumptions that there must be a physical courthouse or courtroom, which is opened at fixed hours, manned by court staff and physically attended by those interested in its proceedings. The predominant idea is revolutionary: a court existing in cyberspace, overcoming the constraints of time and space. ... one can imagine a Virtual Court taking evidence from deponents all over the world, communicating by multimedia teleconferencing and issuing orders via secured e-mail. [41]

The Australian Law Reform Commission has noted the major advantage of virtual courthouses in terms of cost and convenience:

The suggested disadvantages, according to the Commission, involve concerns that:

Some of these concerns may, perhaps be capable of being overcome as the technology improves and users become more familiar with it. However, in the period of change ahead, it may be as well for courts to consider the philosophy that has been expressed in relation to the use of video conferencing in Victorian courts, namely, that the technology ‘will never replace the personal contact in the court room which the judiciary and court users feel is needed in some areas. It will only provide an alternative for those matters where such contact may not be critical to the running of a case. [44]

Research

Electronic Resources

Both statute law and judgments are widely available in Australia in electronic form. Sources include ‘free to air’ internet services such as AUSTLII and SCALEPlus and products supplied by commercial Publishers via CD ROM services or Internet sites where access is available by subscription.

Indeed one effect of the widespread availability of legal research materials in electronic form is the perceived risk of information overload. Concern has been expressed that large databases of judgments are blurring the distinction between reported and unreported judgments and resulting in courts being swamped with large lists of computer-generated authorities. [45] The solution to that problem may, perhaps, lie not in restricting the flow of information, but rather in encouraging the development of better and more power searching tools and for courts to take measures to control the number and nature of cases cited before them.

The former Chief Justice of Australia, Sir Gerard Brennan, has outlined some of the other benefits and the associated with the use of judgment databases on the Web.

As databases are more closely linked and the sophistication and speed of search engines are developed, ideas which have been thought out in many jurisdictions will become available to practitioners. The power of ideas will challenge the hegemony of precedent and the techniques of judicial reasoning may be modified. ... Likewise there are risks in the ease of access to authorities and statutes which IT permits. A rule of law applicable to a particular case may be ascertainable only by making nice conceptual distinctions that do not necessarily correspond with words detected on a search of a database. ... cases which have been buried without notice for centuries may acquire a new life when words are plucked from the context and given a dubious modern connotation. [46]

Judicial Support Systems

In addition to the normal resources available to the parties, many jurisdictions have developed judicial support systems, which provide access over an intranet system to primary research materials, such as cases and legislation, augmented by a variety of other material including sentencing information, bench books and other publications. [47]

Australia has not yet considered related issues, such as the extent to which courts should be able to use information available on the Internet to supplement the facts of a case at hand? How does the concept of ‘judicial notice’ apply in such circumstances?

Final decision

Production

Most judgments of Australian courts today would be produced, at least in their final form, using electronic word processing technology. The extent to which that technology is used by individual judges in drafting and reviewing their judgments is more difficult to assess, but its use is probably on the increase. There is certainly the potential for the use of other types of software, for example, spreadsheet programmes to assist with financial calculations relevant to some types of cases.

Perhaps surprisingly at this time, it would appear that not all judges have access to electronic databases of their court’s previous decisions and the EAP Report recommended that all courts should move to establish such databases. [48] In addition to its advantages in terms of securing access to judgments for including in electronic appeals (see below) it has been suggested that: ‘Such a database can be used to assist the judiciary to make consistent decisions, to operate as a quality control mechanism and to provide an effective research facility.’ [49]

To date it would not seem that courts have not adopted electronic technology, other than video link, as a means of handing down decisions; however, we may not be too far away from the point where decisions will be both handed down and served by electronic means.

Publication

As indicated previously, judgments of Australian courts are now widely available in electronic form. There are, however, a number of issues that have to be addressed concerning their publication and distribution.

Accessibility

While some courts publish their judgments electronically, others make them available to commercial publishers and ‘free to air’ services such as AUSTLII which provide for public access.

It has been said that:

Australia has an international reputation in the provision of electronic and publicly accessible law. Nowhere in the world do you see a more progressive and coordinated approach to the electronic provision of legal information. [50]

However, there appears to remain an ongoing debate about the issue of free electronic access to court judgments. Some jurisdictions have been able to implement policies based on the type of views expressed by the Queensland Court of Appeal, when it stated that:

Free electronic access to judgments would be consistent with an appropriately open and accountable judicial system and the Court would benefit if such a resource was used by legal practitioners, and unrepresented litigants, to improve the quality of arguments presented to the court. [51]

Others have found themselves in a situation where the desirability of that approach has been countervailed by the need to retain a source of income from the sale of judgments to commercial publishers. [52]

Standards

A related issue and one that was highlighted by the EAP Report, is the need for Australian courts to develop standards for the creation, maintenance and distribution of judgments in electronic form. [53] The report recommended that there should be consistency in the preparation and production of the electronic version of judgments and that quality control mechanisms be established by each court. [54]

The report pointed out that the use of a consistent format in the production of judgments will assist judges and others in the process of legal research, as well as facilitating their access for later use in an Electronic Appeal Book. [55] A range of other possible benefits for courts have also been identified. [56]

As was noted in the EAP Report, the Australian Institute of Judicial Administration (‘AIJA’) is currently revising its Guide to Uniform Production of Judgments , a publication which is available for all Australian judicial officers. The next version of the guide will address both the format of judgments and issues such as numbering systems and citation. [57] That work is being undertaken in consultation with bodies such as the Legal Information Standards Council, AUSTLII, the Council of Law Reporting and the courts themselves, with the objective of producing a guide that will reflect a general consensus by all interested parties. [58]

Citation

One of the problems encountered when referencing to electronic documents is that format can often be lost, for example, as a result of, conversion, or printing. This means, for example, that the page numbering that appears on two copies of the same document printed using different printing software may not be congruent. The potential confusion that this can cause when counsel attempt to reference cases in the course of argument is obvious.

The solution that has been posed to this in Australia, as elsewhere, is to suggest that courts should move to numbering the paragraphs of their judgments. The EAP Report contained such a recommendation. [59] Following the lead of the High Court of Australia a number of courts have now moved to adopt paragraph numbering and others are considering doing so. [60]

A related issue is the general need to find a citation system for electronic judgments. As has been noted above, a system that involves reference to page numbers is not suitable. There has been a move to find a 'medium neutral' citation system, that is, ‘one that can be used regardless of the medium in which the document is contained i.e. in hard copy or in electronic format and is publisher independent.’ [61]

The need for the development of such a system is now widely accepted in Australia and was recommended by the EAP Report. [62] The High Court has adopted a format that has been adopted by a number of other courts (and is in the process of being considered by others) [63] and the AIJA is also considering this question in its forthcoming revision of the Guide to Uniform Production of Judgments .[64]

Complex Litigation Proceedings

Most of the developments in relation to computerised litigation support and document management systems in Australia has taken place in relation to white collar crime trials, complex multi-party civil litigation or lengthy commissions of inquiry. [65] These types of cases have also been the impetus to the development of a number of high technology electronic courtrooms. Examples include the systems developed for the Royal Commission into the New South Wales Police force, the Bond and Rothwells trials in Western Australia and, most recently, the Estate Mortgage case in Victoria. [66]

Typically these types of systems involve a networked computer operation in the courtroom providing electronic document management and exhibit handling (that involve sophisticated storage, imaging, searching and retrieval capabilities) real-time electronic transcript (including storage, retrieval and searching capabilities) and electronic communications facilities. As previous mentioned, the most recent example, Estate Mortgage, included a Intranet facility to enable dial-in access for all parties for the case, including transcript, email and access to pleadings and documents. [67]

The benefits of these systems include reductions in preparation and hearing time, consequent cost savings and improvement in the quality of the presentation of the case in court. Advantages at the hearing can also include a saving in courtroom space and increased convenience in terms of access to material. [68]

Courts in Australia do not appear, to date, to have encountered any great legal obstacles to the use of electronic communications technology. Provided that court rules permit the use of technologies such as email, telephone and video-conferencing, the issues that have arisen appear to relate more to:

Many of these issues will need to be addressed as part of the court’s pre-trial management process. Other issues that will require attention at the case management level are the delivery and management of exhibits and the overall maintenance of discipline in the use of systems. [71]

It also appears that these types of cases involve far greater attention at the pre-trial management stage, where technology issues, as well as the general case management issues, have to be factored into the planning process. [72]

This technology may come to be used more widely in the future. In the United Kingdom, it has been predicted that their use will gradually become standard practice in medium sized, as well as large, cases. [73] In Australia too, it has been suggested that the savings in time and legal costs might well translate to smaller trials. [74]

Appeals

The application of electronic technology to the work of appellate courts that has been one of the major areas of focus in Australia during the last few years.

As previously mentioned, the Council of Chief Justices of Australia and New Zealand (CCJ) project to investigate the feasibility of the use of Electronic Appeal Books released its final report in May 1998.

The project was designed to overcome a number of the problems seen as associated with the traditional production of hard copy appeal books:

The report contained a series of recommendations designed to advance the concept of the Electronic Appeal Book and a prototype Electronic Appeal Book. [76]

While the project had the appellate stage as its primary focus, much of its attention, necessarily was focused on the processes at trial level which result in the production of documents which form part of appeal books. [77] A major theme of those recommendations and of the entire report, is that for electronic appeals be viable, source documents (such as pleadings, transcripts and judgments) should be produced in a way that is consistent.’ [78]

The EAP Report’s specific recommendations in relation to appeals were that:

The Prototype Electronic Appeal Book itself is not intended to set a prescriptive framework, but rather to set basic guidelines for the capture, storage and representation of electronic material for appeal record books. The prototype lists various types of material that may be include in the Electronic Appeal Book according to the circumstances of the case. [81] It is intended that the model should be flexible, allowing courts to determine the extent to which they would implement it depending on the circumstances of the court itself and needs of the individual case. [82]

To date the Federal Court of Australia has piloted the protocol in a number of cases [83] and the Supreme Court of Western Australia has also heard its first electronic appeal. [84]

Conclusion

The extent to which a completely paperless court may be a realistic, or even a desirable goal is but one of the issues that Australian courts will have to consider as information technology becomes increasingly a part of the litigation process.

The EAP report made the point that to simply automate existing court practices is not necessarily the most efficient approach and that what may be required, when considering technology-based solutions, is to first re-examine the actual process and re-structure it in the most efficient way. [85]

The way of the future may involve the integration of the best features of paper and electronic systems, in an approach that looks to improve upon manual document management practices, rather than simply replace them.

[1] Jo Sherman and Allison Stanfield, ‘Council of Chief Justices of Australia and New Zealand Electronic Appeals Project - Final Report May 1998’ (May 1998).

[2] Australian Law Reform Commission, Technology - what it means for Federal Dispute Resolution Issues Paper No 23 (1998) [5.9]. See also High Court of Australia Web Page, High Court of Australia Website <http://www.hcourt.gov.au/link33.htm> as at 12 November 1998.

[3] Tony de la Fosse and James Popple ‘Escaping the Relational Database Paradigm: Case Management in the High Court of Australia’ Technology for Justice Conference Presentations, Australian Institute of Judicial Administration (CD ROM), (1998).

[4] Sherman and Stanfield, above n 1, Appendix 11 [11.3]. These include:

• The Victorian Magistrates’ Court where the Courts Electronic Document Interchange (EDI) program has been operating since June 1994. The system allows law firms to issue legal process and file documents electronically in the court, from their office.

• The Residential Tenancies Tribunal in Victoria which has recently implemented e-filing through the Internet, in a system that allows landlords and tenants to file applications electronically.

• An e-filing pilot conducted between the Queensland Court of Appeal and Legal Aid Queensland.

See also Jim Nelms, 'Victorian Residential Tenancies Tribunal System' Technology for Justice Conference Presentations, Australian Institute of Judicial Administration, (CD ROM), (1998).

[5] Joanne Sherman, ‘Council of Chief Justices Electronic Appeals Project - the Consultant’s Overview’ (August 1998) 36 Computers and Law 29, 31.

[6] Ibid. See generally Sherman and Stanfield, above n 1, Appendix 11.

[7] Sherman and Stanfield, above n 1, [7.3].

[8] Ibid.

[9] Australian Law Reform Commission, above n 2, [5.11-5.12].

[10] Ibid [5.3].

[11] Jim McMillan "Toward the Electronic Court", (1995) Trial 19 referred to in Sherman and Stanfield, above n 1, Appendix 11. See also Jim McMillan, ‘Court Technology in 2007’ Fifth National Court Technology Conference, September 9-12, 1997, National Center for State Courts, (CD ROM), (1997).

[12] McMillan, "Toward the Electronic Court", above n 11.

[13] de la Fosse and Popple, above n 3.

[14] Ibid.

[15] Ibid.

[16] McMillan, ‘Court Technology in 2007’ above n 11, 6.

[17] Jim Nelms, 'Victorian Residential Tenancies Tribunal System' Technology for Justice Conference Presentations, Australian Institute of Judicial Administration, (CD ROM), (1998).

[18] Australian Law Reform Commission, above n 2, [5.21].

[19] Justice Tim Smith and Ian Chivers, ‘The Estate Mortgage Court System’ Technology for Justice Conference Presentations, Australian Institute of Judicial Administration (CD ROM), (1998).

[20] Australian Law Reform Commission, above n 2, [5.37]. See also The Hon Daryl Williams, ‘Address to the Australian Institute of Judicial Administration Technology for Justice Conference’ Technology for Justice Conference Presentations, Australian Institute of Judicial Administration (CD ROM), (1998).

[21] Practice Note No 2 of 1998 issued under Section 42Q of the Evidence Act 1958 (Vic) ‘Courts and Tribunals Practice Notes’ (May 1998) Vol 72 No 5 Law Institute Journal 71.

[22] GRD Waldron, DAT Jones, Clive Alsop and Mick Francis, ‘Audio visual Technology and Victorian Courts’ Technology for Justice Conference Presentations, Australian Institute of Judicial Administration (CD ROM), (1998). See also Australian Law Reform Commission, above n 2, [5.40].

[23] Australian Law Reform Commission, above n 2, [5.41].

[24] Sir Gerard Brennan, ‘Opening Address AIJA Technology for Justice Conference Melbourne’ Technology for Justice Conference Presentations, Australian Institute of Judicial Administration , (CD ROM), (1998). See also Australian Law Reform Commission, above n 2, [5.57].

[25] Australian Law Reform Commission, above n 2, [5.39].

[26] Ibid [5.38 - 5.40].

[27] Author’s notes, ‘Session Five: Videoconferencing- a Multi-purpose Tool’ AIJA Technology for Justice Conference, 23 March 1998, Melbourne.

[28] Martin Gruen ‘Courtroom Audio, Video, and Videoconferencing’ Fifth National Court Technology Conference, September 9-12, 1997 , (CD ROM), National Center for State Courts, 1997.

[29] Practice Note No 2 of 1998, above n 21. The Federal Court of Australia has a similarly broad power - See Federal Court Rules Order 24 Rule 1A.

[30] Practice Note No 2 of 1998, above n 21.

[31] Williams, above, n 20.

[32] Australian Law Reform Commission, above n 2, [8.28-8.29].

[33] Ibid [2.40].

[34] Williams, above n 20.

[35] The emerging use of Internet technology in this regard was noted by the Australian Law Reform Commission, above n 2, [5.36]. See also Waldron et al, above n 22.

[36] Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: Electronic Records , Issues Paper WP No. 52, August 1998, Queensland Law Reform Commission, 13.

[37] Ibid 255.

[38] Brown, RA, Documentary Evidence in Australia (2 ^nd ed 1996) at 366, as quoted in Queensland Law Reform Commission, above n 36, at 59.

[39] Lawrence Webster, ‘Strategic Thinking: Essentials for Leadership in the Next Millennium’ Fifth National Court Technology Conference, September 9-12, 1997, National Center for State Courts, (CD ROM), (1997). See also Fredric Lederer, ‘Courtroom Technology- An Introduction to the Onrushing Future’ Fifth National Court Technology Conference, September 9-12, 1997, National Center for State Courts, (CD ROM), (1997) and Lord Chancellor’s Department, ‘Resolving and Avoiding disputes in the Information Age. A Lord Chancellor’s Department Consultation Paper’ September 1998, <www.open.gov.uk/lcd/consult/itstrat/> as at 30 October 1998.

[40] McMillan, ‘Court Technology in 2007’ above n 11, 5.

[41] Foo Chee Hock, ‘Judicial Philosophy in Information Technology Strategy’ paper presented to the Technology for Justice Conference Presentations , Australian Institute of Judicial Administration, (CD ROM), (1998).

[42] Australian Law Reform Commission, above n 2, [8.31].

[43] Ibid [8.32] (footnote omitted). See also Lord Chancellor’s Department above n 39.

[44] Waldron et al, above n 22.

[45] Australian Law Reform Commission, above n 2, [2.38].

[46] Brennan, above n 24.

[47] In New South Wales, for example, the Judicial Commission of New South Wales has developed the Judicial Information Research System (JIRS);which contains a highly developed Sentencing Information System see Ernie Schmatt, ‘Judicial Information Research System (JIRS) - A new and integrated approach to the provision of electronic information services for the judiciary’ (August 1996) Vol 8 No 7 Judicial Officers Bulletin 1.

[48] Sherman and Stanfield, above n 1, 34.

[49] Sherman, above n 5, 29.

[50] Sandra Davey, ‘Managing the Magic - Standards for Australian Electronic Legal Information’, (August 1998) 36 Computers and Law 21, 25-26.

[51] Queensland Court of Appeal’s annual report for 1994-95, cited in Davey, above n 50, 25-26.

[52] Ibid. See also Australian Law Reform Commission, above n 2, [4.37].

[53] Davey, above n 50, 21.

[54] Sherman and Stanfield, above n 1, 37.

[55] Ibid.

[56] Davey, above n 50, 25, where she lists the following:

• The ability to maintain powerful internal research tools and services

• Reduction in the costs of creation, maintenance and distribution

• The short and long-term benefits of knowledge management

• Ability to sell the data because of the value built into it

• Speeding up the production and reporting processes

• Increase in productivity.

[57] Sherman and Stanfield, above n 1, [5.4.2].

[58] Author’s telephone discussion with Justice Trevor Olsson, Convenor of AIJA Project Advisory Committee for the Guide to Uniform Production of Judgments Project, 7 September 1998.

[59] Sherman and Stanfield, above n 1, 35.

[60] Chris Doogan, ‘Media Neutral Citations’ (Paper presented to the Fifth AIJA Biennial Court Librarians’ Conference, Melbourne, 4 September 1998), table of developments as at 25 August 1998 attached to the paper.

[61] Sherman, above n 5, 30.

[62] Sherman & Stanfield, above n 1, 36. See also Davey, above n 50, 26-27. For an American perspective see ‘The Universal Legal Citation Project: a Draft User Guide to the AALL Universal Case Citation’ Fifth National Court Technology Conference, September 9-12, 1997, National Center for State Courts, (CD ROM), (1997).

[63] Chris Doogan, above n 60, 13-14 and attached table.

[64] Justice Olsson, above n 58.

[65] Australian Law Reform Commission above n 2, [5.16-5.18].

[66] Ibid [5.42-5.49]. See also Terry McAdam, ‘The Role of Technology in the Rothwells Trial’ (March 1997).

[67] Smith and Chivers, above n 19.

[68] ‘Session One: Electronic Courts - Session Notes’ Technology for Justice Conference Presentations, Australian Institute of Judicial Administration (CD ROM), (1998). See also Australian Law Reform Commission, above n 2, [5.33].

[69] Sue McGovern, Director of Information Technology, Consultancy Supreme Systems quoted in B. Howarth, ‘Digital technology has its day in court’ The Australian Tuesday September 15 1998 ‘Computers/The Cutting Edge’ 3 See also Smith and Chivers, above n 19.

[70] Graham Greenleaf and Andrew Mowbray, Information Technology in Complex Criminal Trials (1993) xiii-xx. See also John Buxton, ‘Computerised Litigation Support Systems in Australian Courts’ (1995-1996) 5 Journal of Judicial Administration 246.

[71] Smith and Chivers, above n 19.

[72] .Ibid.

[73] Lord Chancellor’s Department, above n 39.

[74] Smith and Chivers, above n 19 and Australian Law Reform Commission, above n 2, [5.19] (footnote omitted).

[75] Sherman and Stanfield, above n 1, 12-14.

[76] Sherman and Stanfield, above n 1. The Prototype Electronic Appeal Book was developed using a web browser interface and can be viewed at the CCJ website: http://www.ccj.org.

[77] Sherman, above n 5, 29-31. Its recommendatons relating to the trial process are:

• Each court should establish its own electronic judgments database, accessible to the judges within that court.

• Courts should make arrangements with the relevant transcript preparation agencies for transcript to be stored electronically for either an indefinite period or at least for five years. (To cover those situations whether leave may be given to lodge an appeal out of time.)

• Courts should move to a system of paragraph numbering for their judgments, to ensure quick reference to part of a judgment when it is being referred to in electronic form. This overcomes the problems occasioned by the fact that electronic documents often lose the format, including the page numbering, that appears on the printed copy of the document.

• Court should adopt medium neutral citations for their judgments.

• There should be consistency in the preparation and production of the electronic version of judgments and quality control mechanisms should be established by each court.

• The electronic version of court transcripts should be prepared and produced in a consistent format.

• Court should consider the introduction of electronic filing to facilitate the movement of electronic appeal material.

[78] Ibid 29.

[79] Ibid 30-31.

[80] Ibid 29-31.

[81] Sherman and Stanfield, above n 1, 15-16. They are:

• orders and reasons for judgment from the lower court ;

• transcript from lower court hearings ;

• sentencing remarks from the trial judge (criminal appeals only) ;

• outlines of argument or written submissions of counsel ;

• authorities to be relied upon by counsel (sometimes this is a list of references, sometimes full copies are included) ;

• key documentary exhibits ;

• registry filed documents (e.g. notice of appeal, pleadings, etc.) ;

• criminal history (criminal appeals only) ; and

• legal research materials (e.g. legislation, rules of court, textbook or journal extracts etc.).”

[82] Ibid 15.

[83] Ibid Appendix 8.

[84] Ibid Appendix 9.

[85] Ibid 9-10.