FEDERAL COURT OF AUSTRALIA Jadwan Pty Ltd v Rae & Partners (A Firm) (No 2) [2017] FCA 551 File number(s): TAD 39 of 2016 Judge(s): KERR J Date of judgment: 19 May 2017 Legislation: Federal Court Rules 2011 (Cth) Date of hearing: 5 May 2017 Registry: Tasmania Division: General Division National Practice Area: Other Federal Jurisdiction Category: No Catchwords Number of paragraphs: 15 Counsel for the Applicant: Mr M Deller Solicitor for the Applicant: McKean Park Lawyers Counsel for the First, Second, Third, Fourth and Fifth Respondents: Mr S McElwaine Solicitor for the First, Second and Third Respondents: Tremayne Fay Rheinberger Lawyers Solicitor for the Fourth Respondent: Landers and Rogers Lawyers Solicitor for the Fifth Respondent: Shaun McElwaine & Associates ORDERS TAD 39 of 2016 BETWEEN: JADWAN PTY LTD (ACN 006 203 112) Applicant AND: RAE & PARTNERS (A FIRM) First Respondent WILSON DOWD (A FIRM) Second Respondent TOOMEY MANING & CO (A FIRM) (and others named in the Schedule) Third Respondent JUDGE: KERR J DATE OF ORDER: 19 MAY 2017 THE COURT ORDERS THAT: 1. Any provisions of the Federal Court Rules 2011 that prevent the USB drive (USB) delivered to the Registry by the Applicant being accepted for filing by the Registry as the Court Book be dispensed with. 2. The USB delivered to the Registry by the Applicant in these proceedings be accepted for filing as the Court Book. 3. The USB be retained by the Registry until the conclusion of these proceedings and the expiry of any appeal filed therein. 4. The Applicant to provide a duplicate of the USB for the use of the trial judge. 5. A party seeking to tender a document or documents in the hearing by reference to the Court Book is to upload it or them to the ECF prior to doing so. 6. A party given leave to tender a document by reference to the Court Book not previously uploaded to the ECF is to upload it to the ECF as soon as practicable thereafter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KERR J: 1 On 20 April 2017 I made orders extending time for the Applicant to file and serve the Court Book and that it be sufficient compliance if electronically filed in the Federal Court of Australia's (Federal Court) ECF not later than 4.00pm on 4 May 2017. 2 The Respondents were given leave to make an oral application for the dismissal of the proceeding if that order was not complied with. The proceedings adjourned to 5 May 2017. 3 The Applicant advised the Court that it engaged an external litigation support provider to help it prepare the Court Book for electronic filing. The volume of materials it gave to its provider for inclusion was very large. The litigation provider compiled an electronic document in which over 1,000 pdf files were electronically linked to an index. However it appears that the provider did not have regard to the technical requirements of the ECF system. 4 There is evidence before the Court to the effect that on the morning of 4 May 2017 the Applicant's solicitors approached the Registry for advice on how to electronically file the large document. The Applicant was advised that it would not be possible to upload the Court book to the ECF without first breaking the single document into approximately 20 separate parts. However, if that were to be done the index links to the pdfs would not operate. 5 The Registry accepted the index for electronic filing. However, as noted the intended links from that index to the referred pdf files do not work. 6 To mitigate the consequences of its unintended non-compliance with the Court's orders the Applicant immediately sent a USB drive (USB) containing the index linked to those documents by express post to each of the Respondents solicitors. 7 When the matter came before the Court on 5 May 2017 the Respondents accepted that the Applicant had attempted to comply with the Court's orders. The Respondents were content for the trial listed for July to proceed on the basis of hard copies being made available to them and the trial judge. 8 I noted that, even if the trial judge was content with that course, the pdf documents would not form part of the court file. 9 Counsel for the Applicant, Mr Deller, submitted that the Court might make orders permitting the USB to stand as the Court Book. Mr McElwaine, for all Respondents, submitted it would be more consistent with usual practice if the Court was to require a hard copy of the documents currently stored as pdf files to be printed and filed for that purpose. Neither alternative was vigorously pressed. 10 I gave leave to the parties to file and serve written submissions no later than 4 pm on 10 May 2017 if they wanted to add anything to their oral submissions. I indicated I would make orders in Chambers. No further submissions have been made. 11 I have concluded that the least inconvenient course in these circumstances would be for the Court to dispense with any requirements of the Rules that would prevent the USB that was given to the Registry by the Applicant being the Court Book. I see no purpose in requiring the Applicant to produce an additional hard copy of those pdf documents to simply stand as a formal record. Provided the USB is securely stored by the Federal Court any documents recorded within it can be accessed if required. The Applicant should also provide a further copy of the USB for the trial judge. 12 Permitting the USB to serve as the Court Book solves one problem but it does not overcome the difficulty that documents tendered in the trial by reference to the index in the Court Book will not automatically be accessible in the ECF as part of the official Court record. 13 For that reason I further order that a party seeking to tender a document or documents in the trial by reference to the index in the Court Book must upload that document or those documents to the ECF prior to doing so. Given that the documents are indexed to pdf files and that each of the parties have a copy of the USB I anticipate that such a requirement will not be difficult to comply with. 14 If, as a result of unplanned events arising in the course of the trial, a party seeks to tender a document contained in the Court Book which they have not already uploaded the party must upload it as soon as practicable thereafter. 15 I make orders as foreshadowed above. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate: Dated: 19 May 2017 SCHEDULE OF PARTIES TAD 39 of 2016 Respondents Fourth Respondent: MRS JANET KAY HOGAN AS EXECUTRIX OF THE ESTATE OF THE LATE JOHN MICHAEL HOGAN Fifth Respondent: WORSLEY DARCY & ASSOCIATES (A FIRM)