New South Wales Supreme Court CITATION : Koompahtoo Local Aboriginal Land Council v KLALC Property & Investments Pty Ltd & Anor (No 2) [2006] NSWSC 169 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 24/03/06 JUDGMENT DATE : 24 March 2006 JUDGMENT OF : Gzell J DECISION : Orders made opening an ECM court CATCHWORDS : PROCEDURE - Supreme Court procedure - ECM court - Electronic case management systems - CourtLinkNSW - Hearing of proceedings before an ECM court - Hearings conducted in the absence of the public other than hearings conducted for the purpose of receiving oral evidence - Form of order Electronic Transactions Act 2000 LEGISLATION CITED : Electronic Transactions (ECM Courts) Order 2005 Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v K.L.A.L.C PROPERTY & INVESTMENT PTY LTD & ANOR (NO 2) PARTIES : KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v CKT DEVELOPMENTS PTY LTD & ANOR (NO 2) KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v K.L.A.L.C PROPERTY & INVESTMENT PTY FILE NUMBER(S) : SC 5114/03 ; 4680/03; 2573/03 LOWER COURT DATE OF DECISION : 24/03/2006 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J 2573/03 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v K.L.A.L.C PROPERTY & INVESTMENT PTY LTD & ANOR (NO 2) 5114/03 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v CKT DEVELOPMENTS PTY LTD & ANOR (NO 2) 4680/03 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL v K.L.A.L.C PROPERTY & INVESTMENT PTY LTD & ANOR (NO) 2 JUDGMENT ECM Court 1 The Electronic Transactions Act 2000, s 14B(1)(f) enabled the Attorney General to establish an electronic case management system, called an ECM system, which would, amongst other things, enable parties to legal proceedings to communicate in electronic form with other parties to the proceedings and with the court before which the proceedings are being taken. Section 14C provided that the Attorney General might, by order published in the Gazette, authorise the use of an ECM system by such courts, and for such purposes, as were specified in the order. An ECM court is defined in s 14A(1) to mean a court in respect of which the use of an ECM system is authorised pursuant to s 14C. 2 Under clause 4 of the Electronic Transactions (ECM Courts) Order 2005, the Attorney General made an order that CourtLinkNSW was authorised to be used by any court specified in sch 1 for any purpose specified in that schedule in relation to that court. With respect to the Supreme Court, the specified purposes include use in civil proceedings in the Equity Division, but only so as to enable parties to the proceedings to communicate in electronic form with the Supreme Court in connection with any business of the Court that is being conducted in the absence of the public. 3 The Electronic Transactions Act 2000, s 14I(1) was amended with effect from 1 December 2005 to provide that the section applies to any hearing of proceedings before an ECM court, other than a hearing conducted for the purpose of receiving oral evidence. Section 14I(2) provides that such a hearing may be conducted by electronic communication sent and received by means of the ECM system, but only if the rules of court so provide. 4 It follows that if the rules of court make such provision, CourtLinkNSW may be used to communicate in electronic form in civil proceedings in the Equity Division that are being conducted in the absence of the public if oral evidence is not to be taken. 5 The Uniform Civil Procedure Rules 2005, r 3.9(1) provides that any business that pursuant to the Civil Procedure Act 2005, s 71 may be conducted in the absence of the public, may be conducted by electronic communication sent and received by means of the ECM system as provided by s 14I of the Electronic Transactions Act 2000. 6 To complete the chain, the Civil Procedure Act 2005, s 71(f) provides that the business of a court may be conducted in the absence of the public if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit. The section contains other bases upon which proceedings may be held in the absence of the public. 7 These matters have been set down before me for 14 days commencing on 31 July 2006. The cases are to be heard one after the other and, as between two parties, the evidence in one will be evidence in the others. I have given some directions but only in relation to the delivery of outlines of argument and lists of authority. 8 In order that future directions and interlocutory applications that it is appropriate to conduct in the absence of the public may be conducted by the ECM system, I will open an ECM Court. 9 The parties are advised that Practice Note SC Gen 12, that came into operation on 22 March 2006, applies to ECM court proceedings. Order 10 Pursuant to the Civil Procedure Act 2005, s 71(f) I direct that any future directions hearings and, unless otherwise ordered, any interlocutory applications in these matters be conducted in the absence of the public. In terms of the Electronic Transactions Act 2000, s 14I and the Uniform Civil Procedure Rules 2005, r 3.9, I direct that until further order such pre-trial directions and interlocutory applications be conducted by electronic communication sent and received by means of the ECM system. 11 I direct the plaintiff in each matter to enter these orders. ********** 13/09/2006 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.