BEFORE THE INDUSTRIAL RELATIONS COMMISSION

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

PRACTICE DIRECTION No 16

Filing of Documents in Computer-Readable Format

(Pursuant to Rule 89 of the Industrial Relations Commission Rules 1996)

1. The purposes of this Practice Direction are:

(a) to facilitate the processing of matters before the Industrial Relations Commission of New South Wales by providing for, encouraging and requiring that documentation filed in certain classes of matters by a party be accompanied by a copy of that documentation in computer-readable format;

(b) to provide for and encourage the use of technology in matters before the Commission; and

2. This Practice Direction shall come into force 14 days after publication in the Industrial Gazette. When it takes effect it will replace Practice Direction No. 9.

3. Except as provided for by paragraph 7 of this Practice Direction, it shall not apply to:

(a) proceedings under s 84 (Unfair Dismissal), s.99 (Dismissal injured employee) or s.130 (Notification of Industrial Dispute) of the Industrial Relations Act 1996;

(b) proceedings under section 106 of the Industrial Relations Act 1996 until such time as a Certificate of Unsuccessful Conciliation is issued at which time both parties will be required to file, within a period of 28 days, a copy of all documentation filed in the proceedings in compliance with this Practice Direction.

(d) annexures or attachments to documents which are not, or not readily, available in computer readable format; or

(e) in respect of the following forms

Notice of Appearance

Notice of Discontinuance

Notice of Change of Solicitor

Certificate pursuant to section 198L of the Legal Profession Act or undertaking to file such certificate

Copies of Summons under section 165 of the Industrial Relations Act 1996 or Notices to Produce (Form 46)

4. For the purpose of this Practice Direction:

"computer-readable format" means an electronic version of a document in such medium and in such format as to be compatible with, and readable by, the computer system of the Industrial Relations Commission of New South Wales from time to time and/or as specified by the Industrial Registrar or the Registrar's delegate from time to time.

"compatible with, and readable by" requires that documents be filed (on either diskette or CD-ROM) in any version of

Microsoft Word (DOC) or

Rich Text Format (RTF)

and in relation to any annexures or attachments to documents (which cannot be provided in the above formats)

Tagged Image Format (TIF)

Graphical Image Format (GIF) and

Joint Photographic Experts Group (JPG) are acceptable.

Portable Document Format (PDF) is not an acceptable format

"matter" means any proceedings heard or to be heard before the Commission.

"party" includes intervenor and any person, firm, corporation, or organisation appearing, or seeking to appear or intervene, in proceedings before the Commission.

5. A party to a matter before the Commission must file a copy of any document lodged in that matter in a computer readable format at the time of filing of the document. The document provided by the party in electronic form shall contain the same text as the paper copy.

This paragraph requires, amongst other matters, that any party seeking orders to be made (for example, in respect of a matter where judgment has been delivered or where the Commission directs short minutes of orders to be filed) must, when filing the hard copy version of the proposed orders, also provide the document in a computer readable format.

6. The electronic version of the documents filed in the proceedings shall be labelled for identification purposes and such label shall include the Matter Number, an abbreviated Title and a list of the documents filed in computer readable format. The documents shall be saved to the diskette or CD-ROM in such a way that allows for easy recognition, for example:

(and should include the IRC matter number where one has been allocated)

7. Notwithstanding the foregoing, the Registrar or the Commission may, on application or otherwise, direct one or more parties to a matter to file, or to file and serve, all or any particular documentation in computer-readable format or may waive the obligations of any party from complying in whole or part with the requirements of this Practice Direction.

8. In addition, the Registrar or the Commission may in any matter, where application is made therefore or in any case where it is considered appropriate, apply to the matter the terms of Supreme Court Practice Note No 127 (Use of Technology in Civil Litigation, issued on 12 February 2004 in whole or in part, subject to conditions or otherwise). A copy of Supreme Court Practice Note No 127 is annexed.

9. In respect of the following class of matters the compliance with paragraph 5 of this Practice Direction may be made by e-mail transmission to the specified address below and the filing, in lieu of a diskette or CD-Rom, a copy of the transmission report:

matters to which Section 34 of the Industrial Relations Act 1996 (re Enterprise Agreements) applies (by e-mail to: irc_electronic_services@agd.nsw.gov.au);

matters to which Section 324 of the Industrial Relations Act 1996 (re Contract Agreements) applies (by e-mail to: irc_electronic_services@agd.nsw.gov.au);

matters to which Rule 32 of the Industrial Relations Commission Rules 1996 applies (this rule requires that a copy of an Award or Award Variation must be supplied in computer readable format) (by email to: irc_electronic_services@agd.nsw.gov.au); and

matters in which the Commission has directed that submissions of parties be filed (by email to: irc_client_services@agd.nsw.gov.au);

10. In respect of the matters to which paragraph 9 applies the subject heading to the e-mail must include the following:

Section 34 matters: The short title of the Enterprise Agreement

Section 324 matters: The short title of the Contract Agreement

Rule 32 matters: The title of the matter and the Commission file number in format year/file number, for example, IRC2004/1000.

Submissions: The title of the matter and the Commission file number in format year/file number, for example, IRC2004/1000.

11. Although it is essential that all aspects of this Practice Direction are strictly observed it is of particular importance that requirements under Rule 32 (that the applicant must file a copy of the award in a computer-readable format) be complied within the time specified by the Commission when the Award or Variation is made as the Industrial Registry provides such material to the Office of Industrial Relations immediately upon receipt for the purpose of that Office's Pay Rate Update Service, its website and Award Enquiry Service.

Dated:	5 November 2004	F L Wright, J
		President.

The Supreme Court
of New South Wales

Practice Note No. 127

Use of Technology in Civil Litigation

Date:

12/02/2004

Purpose

1. The aim of this practice note is to

(a) encourage the use of information technology as a means of improving the efficiency of civil litigation in general;

(b) emphasise the court’s power to require the use of technology in particular cases or circumstances;

(c) offer guidelines on the matters parties in civil actions ought to take into account in deciding how to make use of technology;

(d) offer examples and suggested standards to assist parties in agreeing upon the extent and manner in which they will use technology to exchange information.

Encouraging the Use of Technology

2. All parties in civil proceedings are required at all stages of their litigation to consider the prospect of using technology for the purposes of information exchange and at trial itself. In preparing a case for trial the parties are specifically encouraged to

(a) use electronic data to create lists of their discoverable documents;

(b) give discovery by exchanging databases created in accordance with an agreed protocol;

(d) arrange for inspection of discovered material, and other material to be inspected by way of images if appropriate; and

(e) consider the use of electronic data at trial in accordance with the Court’s requirements. Glossary of technical terms

For the purposes of a better understanding of this practice note, some definitions of technical terms appear in the annexed Glossary.

Court may direct parties

3. The Court retains the power to direct parties to use information technology in appropriate cases. Parties shall comply with any directions issued by the Court in relation to the use of technology and shall comply with any requirements published by the Court in relation to issues concerning the use of technology, such as document formats.

4. It should be noted that whilst this practice note is advisory in nature the Court may mandate the use of the technology standards it describes in cases where the parties fail to agree on exchange and presentation mechanisms within a reasonable time frame.

Electronic exchange of Court documents

5. Where a party serves a pleading, affidavit, statement, list of documents or interrogatory on another party, the recipient may ask the first party to also provide a copy of it in an electronic format.

6. The Court expects parties to accede to reasonable requests for copies of court documents in an electronic format. Before providing copies the parties shall make all reasonable efforts to agree upon:

(a) the word processing or other format in which electronic versions will be provided;

(b) the methods by which electronic versions will be exchanged; and

Document formats

7. Where appropriate the parties may wish to agree upon the preparation of a document in a structured format, such as HTML, so that hypertext links can be made where appropriate. For example, if a document refers to a document ID, a hypertext link can be made to the relevant document image.

Content of court documents

8. A court document provided by a party in electronic format shall contain the same text as the paper copy. Where a court document contains an annexure, however, the text of the annexure will be expected to be contained within the electronic copy only where the annexure was created for the purposes of the litigation by or on behalf of that party or that party’s solicitor.

Risk of computer viruses

9. Generally it will not be regarded as unreasonable for a party to provide documents in electronic format subject to a condition that it is the responsibility of the recipient to test it for viruses.

Providing electronic copies to the Court itself

10. The Court may direct a party to provide the Court with copies of court documents in an electronic format. A party who provides a document to the Court in electronic format shall provide appropriate written warnings about the need to test for viruses.

Electronic exchange of discovery lists and documents:

11. As a general rule the Court will expect the parties to consider preferring the use of technology to exchange information where they believe more than 500 documents between them will be discoverable. Decisions about the appropriate use of technology will be better informed if the parties have identified early in the proceedings the scope of discovery and the categories of documents likely to be discovered.

Agreeing by written protocol

12. Where the parties agree that discovery should be given by exchange of electronic data they should:

(a) endeavour to reach agreement early in the proceedings on the protocol to be used and the scope of that protocol; and

(b) seek either consent orders or directions from the Court, if agreement is not reached, concerning the terms of the protocol.

Directions by the Court

13. The Court may make orders that parties:

(a) meet to discuss how best to use information technology to exchange information about their discoverable documents;

(b) make written submissions on how best to use technology with respect to discovery and the management of information in the proceedings generally.

14. As a general rule, by the second directions hearing the Court will expect each party:

(a) to have investigated the number and categories of documents likely to be discoverable by that party, taking into account any limits on discovery that may be agreed between the parties or are the subject of a direction by the Court;

(b) to have attempted to agree with the other parties on whether and how to use technology to exchange lists of their discoverable documents; and

(c) to be able to make informed submissions about whether and how technology should be used to exchange lists of their discoverable documents.

Technology checklist

15. In developing a protocol on electronic exchange the parties shall consider the matters described in the annexed Technology Check List. The checklist is a guide only and parties should feel free to agree on appropriate changes to it. However, if the parties are unable to agree on a protocol then the default options indicated in the checklist will apply as a minimum standard.

Recommended fields

16. The fields and associated guidelines described in the annexed Recommend Fields are those which ought to be used for the purpose of electronic exchange and which, in the absence of agreement to the contrary by the parties, may be mandated by the Court in a given case.

Verification of electronic lists

17. Each party shall consider how lists of documents shall be verified where data about those documents is to be exchanged electronically.

Orders to dispense with verifications by affidavit

18. Existing rules of Court presuppose that a hard copy list of documents will be verified by affidavit. Where a party believes that it is appropriate to dispense with verification of a hard copy list, that party should ask the Court for an appropriate direction.

Verification by reference to method of service

19. As an alternative to verification of a hard copy list, the parties may wish to consider asking for a direction that the verifying affidavit identify the documents by reference to the medium by which the data was served and the date of service. For example, the affidavit may refer, in a hypothetical case, to: the documents described in the database contained on the compact disks served on the defendant under cover of letters date 21 January, 24 January and 29 March 2003.

Providing electronic lists of documents to the Court itself

20. The parties shall consider whether data relating to their discoverable documents should be provided to the Court in addition to any hard copy list.

Use of technology during a hearing

21. Where parties have used databases or databases and associated documents or images to facilitate discovery and inspection, the parties should consider and make submissions about how best to use technology at the hearing. For example, the parties’ discovery databases might form the basis of an index to the agreed bundle, or for the creation of a database of documents admitted into evidence and rulings on the admissibility of documents.

Equipment at hearing

22. More generally, the parties should consider:

(a) the equipment and services that they and the Court may require at the trial including appropriate hardware, software and additional infrastructure; and

(b) the arrangements that may need to be made between the parties, the Court and any third party service providers to ensure that appropriate equipment and services are available at the hearing.

Technology Check List

Parties are encouraged to use this checklist to identify technology issues that may arise during proceedings. The default or minimum court options may be mandated in a given case if the parties cannot agree.

(** = default or minimum standard)

Pre-Trial

Document Exchange of Court	Electronic Document	Document Exchange Via
Documents and Witness Statements	Format

Hard copy only	ASCII test file **	DX
Electronic Copy only	MS Word version	Courier
Hard copy and electronic copy**	Word Perfect version	Australia Post
	XML	Floppy Disk**
	HTML	Electronic mail
	Other	CD Rom
		Internet

Discovery

Exchange of Document Lists	Electronic Document List Format	Document Exchange Via

Hard copy only	Delimited ASCII text file**	DX
Electronic Copy only	Word processing format	Courier
Hard copy and electronic	Excel spreadsheet	Australia Post
copy**	XML	Floppy Disk**
	Other	Electronic mail
		CD Rom
		Internet

Example Database Formats

MS Access

Lotus Notes

Filemaker Pro

MS SQL

Sybase

Excel Spreadsheet**

Oracle

Other

Document Inspection Format	Electronic Image Formats	Special Considerations

Hard copy only	TIFF - Multi	Redacting (masking)
Electronic/image of hard copy	TIFF - Single**	Confidentiality
Hard copy and electronic/image	PDF	Other
copy**
Non-paper record for example,	GIF
video/audio
tape, database, microfiche, etc	Other
Other Medium

Trial

Exchange of Agreed	Electronic Document Index	Document Exchange Via
Bundle/Court

Book Indexes	Format	DX
Hard copy only	Delimited ASCII text file**	Courier
Electronic/image of hard copy	Word processing format	Australia Post
Hard copy and electronic/image**	Excel spreadsheet	Floppy Disk**
copy	Other	Electronic mail
Other Medium		CD Rom
		Internet/Intranet

(a) Image Resolution

Images may be scanned in at around 200 dpi. Any greater file size may be unworkable.

(b) Filename Structure

Images may be named identically to the relevant Document ID or according to the agreed folder structure. If images are named in accordance with the naming convention of the full document ID then the dots within the Document ID may be omitted (other than the dot preceding the file extension).

Consideration should be given to

whether there are any special requirements, such as redacting (masking).

the implications of using technology in respect of information that may be subject to confidentiality orders or undertakings.

(d) Recommended fields and default fields**

The Court encourages the use of the field definitions in the attachment - Recommended Fields. Among the Recommended Fields the following are the default fields, i.e. those which the parties will be expected to use as a minimum standard unless otherwise agreed or ordered:

Document ID

Date

Document type

Author/Author organisation

Addressee/Addressee organisation

Title.

Recommended Fields

Fields that are identified as default fields are those that ought to be used as a minimum standard and which, in the absence of agreement to the contrary, may be mandated by Court order in a given case.

Field	Data type and	Notes
	length
Document id	Text and Numbers	Each document should be uniquely identified. The field may be
	(if appropriate)	broken into different components such as First Page and Last Page
(Default field 1)		providing the parties agree. The field or fields might comprise a
	Length -	four-part number in form AAA.NNN.NNN.NNNN where "AAA"
	depending on field	represents alphabetic shorthand for the party name. The other three
	structure	sets of numbers could be used to suit the convenience of the
		parties. It may be useful if the first set is used to refer to an archive
		box number, the second to the number of the folder within the box,
		and the third to the page number. Rules for the numbering
		hierarchy can be agreed prior to discovery and the above is to
		be used as a guide not the definitive form.
		The parties should consider whether each page should be
		individually numbered or agree on some other satisfactory
		arrangement. If agreement is not reached then the parties should
		seek the Court’s direction.
		If the parties agree not to number each page, consideration should
		be given to an additional field recording the number of pages in
		each document.
		Attachments to documents can be separately listed and numbered.
		Attachments can be numbered sequentially following the host
		document. For example, a host document may be numbered
		XXX.001.001.0001 and its attachments would be numbered as
		XXX.001.001.0002, XXX.001.001.0003 and XXX.001.001.0004.
		If imaging is to be used the parties can agree to any additional
		information about document identification.
		It is recommended that the document id match the image file name
		i.e. where the document id is AAA.NNN.NNN.NNNN then the
		image file name should be AAA.NNN.NNN.NNNN.tiff
Attachments	Text & Number,	Contains first and last pages of each document physically attached
	Length -	to a discovered document. Does not include documents that are
	depending on the	only referred to in a discovered document. Each attachment should
	number of	be listed separately, with its own discovery number and details.
	attachments	Multiple entries to be separated by commas.
Host Document	Text and Number,	Contains First Page and - if agreed - Last Page of the host
Number	Length depending	document to which an attachment is attached. Should never be
	on the document	multiple entries in this field, as each attachment should only ever
	id. structure	have one host document.
		HWA Host with attachment
Document Group	Text, 3	HNA Host no attachment
		ATT Attachment
		This field may be required if parties agree to swap image files.
		Date can be inserted as:
Date	Date, 11	DD/MMM/YYYY for example 05/Sep/1996
(Default field 2)		DD = Day
		MMM = Month
		YYYY = Year
		Undated documents: = Documents with no discernible date should
		be coded to a standard agreed between the parties which the parties
		will recognise as "undated." For example, the date field may be left
		blank. (Where this option is selected the parties may choose to
		enter the word "undated" in an additional text field.) Alternatively,
		an agreed date format such as 01/Jan/1801 should be used. It is
		important to note that databases that use a Date Type format may
		not accept text such as 'Undated' or dates that include '00' in the
		field.
		If there is no way of ascertaining the date of the document*
		Documents with only the month and year (e.g. August 1997) can
		be coded with the first day of the month, the month and the year
		(e.g. 01/Aug/1997) and a 'Yes' an entry should be made in the next
		field - "Estimated Date". field.
		Documents with the day and month but no year are considered
		undated. . For example a document dated 04/Apr will should be
		coded as "undated." as the year cannot be identified.
		Documents with just the year (e.g. 1997) should be coded with the
		first day of January (e.g. 01/Jan/1997) and a 'Yes' entry should be
		made in the 'Estimated Date' field.
		*If there is no way of ascertaining the date of the document, then
		the parties may agree upon what naming convention to use, for
		example, "Undated", or 00/00/0000, however, it should be noted
		that some database formats may not recognise these codes.
Document type	Text, 254	This field is completed using commonly received document types
(Default field 3)		e.g. letter, memo, deed.
		Parties should endeavour to create a list of agreed document types
		prior to discovery.
		If the document has been faxed, this field should include
		"facsimile".
		If a group of documents is being discovered as a bundle, this field
		should be completed as "Bundle of document type".
Privilege	Text, 6	This identifies whether a claim of privilege is made over the
		document. The permissible entries in this field are "YES", "NO"
		and "PART". If this field is completed with "YES" or "PART", the
		basis of privilege field must also be completed.
Basis of Privilege	Text, 50 (or	Identifies basis of privilege claim. Parties should agree how they
	combination of	will identify privilege claims. One possibility is to set out here the
	text and numbers)	basis of the claim that the document is privileged eg, the section or
		sections of the Evidence Act.
Status	Text, 10	"Copy" or 'Original' or "Fax". "Fax" should be used for a
		document that is either the original facsimile document (i.e. the
		document sent by the sender) or an original facsimile copy
		produced by the recipient's facsimile machine.
Author (Default	Text, 254 or as	Person or persons who wrote the document. To be completed using
field 4)	appropriate	information on the face of the document. Last name First initial
		only eg. "Smith B". If more than one author enter as "Brown J;
		Jones J, ..." etc. If more than one addressee for one company, enter
		as "Brown J; Jones J;.." etc.
		Other ways of addressing multiple values can be agreed between
		the parties.
Author	Text, 254 or as	Organisation from which the document emanated. To be
Organisation	appropriate	completed from information on the face of the document. Multiple
(Default field 4)		entries to be separated by commas. Parties should agree on
		standard spellings or abbreviations for organisations.
		Other ways of addressing multiple values can be agreed between
		the parties.
Addressee	Text, 254 or as	Person or persons to whom the document is addressed. Includes
(Default field 5)	appropriate	persons to whom copies are circulated. To be completed from
		information on the face of the document. Last name First initial
		only eg. "Smith B". Multiple entries to be separated by commas.
		Other ways of addressing multiple values can be agreed between
		the parties.
Addressee	Text, 254 or as	Organisation receiving the document. To be completed from
Organisation	appropriate	information on the face of the document. Multiple entries to be
(Default field 5)		separated by commas.
		Parties should agree on standard spellings or abbreviations for
		organisations.
		Other ways of addressing multiple values can be agreed between
		the parties.
Parties	Text, 254 or as	Identifies parties to an agreement or other legal document (not
	appropriate	correspondence). Multiple entries to be comma delimited.
Title (Default field	Text, 254 or as	Title of a document such as "Report on Technology".
6)	appropriate
Source	Text, 20 or as	Parties may find this field useful to identify documents that have
	appropriate	been obtained from someone other than the party giving discovery,
		e.g. documents obtained on subpoena or through some other
		compulsory process of obtaining access to documents.
		This field would identify the party from whom such documents
		were obtained.
Non-paper record	Text, 3	This field should be used to identify information recorded using
		media other than paper, where the relevant information has not
		been printed out and discovered in hard copy form, e.g. video and
		audio tapes, floppy disks and magnetic computer tapes.
		Permissible entries are "YES" and "NO".

Glossary

ASCII (American Standard Code for Information Interchange)

ASCII is the most common format for text files in computers and on the Internet. In an ASCII file, each alphabetic, numeric, or special character is represented with a 7-bit binary number

Database

A database is a collection of data that is organised so that its contents can easily be accessed, managed and updated

Delimiter

A delimiter is a character that identifies the beginning or the end of a character string (a contiguous sequence of characters).

Electronic Data

In computing, electronic data is information that has been translated into a form that is more convenient to move or process.

Field

A Field represents a column of data within a database. Each record (row) can be made up of a number of pieces of information and, therefore, consists of a number of fields. These fields may be displayed as a box to enter or display data (in a form or report).

GIF (Graphics Interchange Format)

A GIF is one of the two most common file formats for graphic images on the World Wide Web. The other is JPEG.

HTML (Hypertext Markup Language)

HTML is the set of "markup" symbols or codes inserted in a file intended for display on a World Wide Web browser.

Image

An image is a picture that has been created or copied and stored in electronic form, an electronic photocopy.

Medium

A medium is a third-party or element through which a message is communicated.

PDF (Portable Document Format)

PDF is a file format that has captured all the elements of a printed document. PDF is also an abbreviation for the Netware Printer Definition File but is not used in this document in this way.

RTF (Rich Text Format)

RTF is a file format that allows exchange of text files between different word processors in different operating systems.

SQL (Structured Query Language)

SQL is a standard interactive and programming language for getting information from and updating a database.

TIF or TIFF (Tagged Imaged File Format)

TIFF is a common format for exchanging raster (bitmapped) images between application programs, including those used for scanning images.

Virus

A virus is a piece of programming code inserted into other programming to cause some unexpected and, for the victim, usually undesirable event. Viruses can be transmitted by downloading programs from infected sites (including internet sites) or they may be present on a diskette received from an infected system.

J J Spigelman

Chief Justice

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