By Victoria Hospodaryk, Katie Jones and Jin Yoo
Introduction
The near universal accessibility of the internet in Australia has led to the simplification of many commercial activities such as retail banking and the lodging of tax returns.[1] Conversely, navigation of the judicial system, which prior to COVID-19 had largely resisted digitalisation, remains a complex, expensive and daunting experience for most litigants. Despite the incremental acceptance of technology by the Australian judiciary, the experience of comparable common law jurisdictions suggests a transition to online courts is inevitable. Proponents of online dispute resolution (ODR) point to Canada’s first online tribunal, the Civil Resolution Tribunal (CRT), as the optimum online court model. Offering an end-to-end virtual solution that attempts to resolve small claims disputes before the need for trial arises, the CRT is a product of intensive collaboration with legal and IT professions. This article does not necessarily suggest Australia can feasibly adopt such a solution in the short-term, but analyses the opportunities and challenges that ODR brings, both inside and outside the courtroom. As recent COVID-19 case law indicates, the race to digitalise dispute resolution raises unique challenges for all parties involved, ranging from procedural obstacles of witness management and document sharing, alongside broader perceptions of formality and fairness in an online setting, and the implication for the adversarial character of our legal system. While the CRT is capable of improving access to justice by minimising costs, increasing community engagement and reducing court backlog, whether a similar model will succeed in Australia ultimately depends on the ability of the legal profession to embrace change.
The Australian Response: The Acceptance of E-Trials
In the wake of COVID-19, Australian courts have quickly transitioned to hosting court procedures online and despite being confronted with a variety of logistical obstacles, have held that such challenges are generally not intolerable. The recent Federal Court case of Capic v Ford Motor Company of Australia Limited (Adjournment)[2] held that the challenges of technology, witness procedure, document management and trial length were real, aggravated difficulties inherent in virtual solutions, but were not insurmountable or enough to warrant adjournment to a face-to-face trial. The decision suggests a willingness on behalf of the courts to embrace online trials unless parties can prove a special disadvantage that makes an e-trial particularly unfair. Perram J observed the inability of virtual solutions to be applied equally in every case, such as for non-English speaking applicants. This balancing of fairness seems crucial so as to not exclude disadvantaged groups whose court experience may be unfairly prejudiced, and contradict the overarching objective of ‘just’ civil dispute resolution.[3] A similar decision was held in Australian Securities and Investments Commission v GetSwift Ltd, [4] where Lee J noted the failure of logistical challenges to create ‘any real risk of practical injustice’ [5] to warrant adjournment. His Honour encouraged a flexible approach from the court, suggesting out-of-hours sitting to facilitate different time zones and revisiting adjournment if ‘real prejudice’ arose.[6] The decision emphasised the implications of case backlog, and the ensuing prejudice to delayed parties. In this way, such cases align with the need to facilitate just, efficient and inexpensive resolution of civil disputes.
Despite Lee J’s recognition that justice should be ‘perceived to be done by those involved in it’, [7] there is the alterior challenge of upholding the formality of court procedure online. Professor Celia Kitzinger’s analysis of the serious medical case of A Clinical Commissioning Group v AF & Ors [8] considered the perspective of a witness whose father was at the centre of the case, and how the ‘informality’ of online processes injured the party’s perception of seriousness, fairness and substantive justice in the case. This poses a unique dilemma; all parties appear effectively equal in their respective ‘little squares on the screen’, [9] and this can both humanise a process that is often defined by convention and tradition, but equally threaten the sanctity and legitimacy of court procedure. Australian courts have thus acknowledged that adjournments will not readily be granted based solely on general challenges posed from the abrupt shift to online trial. However, they have also observed that virtual solutions cannot cater for everyone, and the unique circumstances of each case must be recognised; an important reconciliation in the pursuit of a fair process.
Risks: Will Technology Compromise the Integrity of the Trial?
As Australian courts have already discovered, the benefits offered by online trials, such as ease of communication, efficiency and alleviated pressures on courts, are equally accompanied by risks. One of the most serious impacts of technology is upon the crucial duty of confidentiality [10] owed by lawyers to their clients. Client legal privilege is a common law protection against disclosure of certain information[11] held to be privileged within the meaning of the law,[12] and designed to ensure client confidence in lawyers.[13] Nowadays, the pre-trial process presents many opportunities for the inadvertent disclosures of confidential information through emails, electronic storage and metadata, which is especially problematic given that the duty of confidentiality is essential in promoting positive public opinion and trust in the legal profession. These concerns may be further exacerbated by a transition to online trials, as court hearings, examinations, and confidential legal and personal information are likely to become susceptible to third party interception and exposure.
Furthermore, third party providers often require users to accept their provider’s terms of service, reserving the right for the provider to access, store, and scan information uploaded by users as it sees fit, without the user’s prior consent. While allowing for easy recording and sharing of meetings, video conferencing software also carries security and legal risks, as the court process can essentially be stored in the form of a video recording. Further, if the link providing access to the online conference is leaked to the public, which is likely given the proliferation of emails and online messages exchanged between the stakeholders in the lead up to the court hearing, the hearing may become open to uninvited members of the public. As such, clients may no longer be willing to provide full disclosure for fear of third parties being privy to the information, thus undermining the centrality of the client-lawyer relationship, and the integrity of the trial system.
Canada’s Civil Resolution Tribunal: The Inevitable Solution?
The risks posed by online trials may well be overcome by the introduction of an online dispute resolution platform such as the Canadian CRT, which would also serve to dismantle many of the traditional barriers to justice. Established in July 2016, the CRT was initially aimed at small claims disputes of under $5000 and strata property issues,[14] but has since expanded to matters concerning debt, construction, employment insurance property.[15] Following interaction with the CRT’s Solution Explorer, a chat-bot tool providing free legal information and resources,[16] users can choose to initiate an online claim and are provided the opportunity to negotiate directly with parties to the dispute. If negotiation proves unsuccessful, the next phase involves virtual third party facilitation, who assists parties reach a consensual agreement.[17] If this fails, the facilitator then prepares the parties for online adjudication by a tribunal member, who issues a binding decision.[18]
The entire process eliminates both attendance of a physical court, and the need for a lawyer.[19] As the greatest deterrent to seeking legal recourse is usually the expense of lawyers, it is this latter consideration which is of great utility to the public but which presents the utmost threat to the legal profession. The minimal costs incurred in the CRT process, which totals to approximately $200 AUD for each party,[20] would be welcomed by many Australian users, particularly those in rural communities where the infrequency of local court sittings has contributed to the scarcity of legal services.[21] In British Columbia, the CRT has spared many members of rural communities the time and expense of travelling hundreds of kilometres to receive legal advice,[22] and has condensed the entire ODR process to ninety days for most cases.[23] While in 2019, the NSW Local Court processed 90% of the 72,070 civil cases filed in the Small Claims Division within six months of initiation,[24] only 2,052 of the 15,028 small claims disputes resolved by the CRT in August 2020 were referred to adjudication by a tribunal member.[25] Thus, just as the CRT has liberated BC’s Provincial Court system of an enormous burden by diverting simple legal disputes to an alternative resolution mechanism, the establishment of a similar ODR system has immense potential for reducing court backlog in, and improving accessibility to, the Australian justice system.
Conclusion
It therefore remains to be seen whether the public, and the legal profession itself, will be receptive of a system which renders the role of the lawyer obsolete as the Canadian model does. While the CRT represents a golden standard of interaction with the legal system online, technological progression in Australia is hindered by the continuing reliance on physical interaction with the legal system, meaning the e-trial may remain a more realistic approach to achieving the just, quick and cheap resolution of disputes.
Endnotes
[1]Rebecca Varley and Neha Bagga Roy Morgan, ‘Consumer Views and Behaviours on Digital Platforms’, Australian Competition and Consumer Commission (Final Report, November 2018) 49 <https://www.accc.gov.au/system/files/ACCC%20consumer%20survey%20-%20Consumer%20views%20and%20behaviours%20on%20digital%20platforms%2C%20Roy%20Morgan%20Research.pdf>.
[2] Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486.
[3] Federal Court of Australia Act 1976 (Cth) s 37M.
[4] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504.
[5] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [40].
[6] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [21].
[7] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [40].
[8] A Clinical Commissioning Group v AF & Ors [2020] EWCOP 1.
[9] Celia Kitzinger, ‘Remote justice: a family perspective’, Transparency Project Blog, 29 March 2020 (www.transparencyproject.org.uk/remote-justice-a-family-perspective/)
[10] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 9.1
[11] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.
[12] Evidence Act 1995 (NSW) s117.
[13] Attorney General for the Northern Territory v Maurice (1986) 161 CLR 457, at [488].
[14] Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Special Lecture Series on Technology and the Future of the Legal Profession, University of Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326>.
[15] Michael Briggs, ‘The Civil Online Court in England’ in Rabeea Assy and Andrew Higgins (eds), Principles, Procedure, and Justice (Oxford University Press, 2020) 135, 140.
[16] Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Special Lecture Series on Technology and the Future of the Legal Profession, University of Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326>.
[17] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 120.
[18] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.
[19] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 120.
[20] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.
[21] Law and Justice Foundation, ‘People in rural, regional and remote areas’, Access to justice and legal needs. Stage 1: public consultations (Web Page, 2003) <http://www.lawfoundation.net.au/report/consultations/43EEDFB6FD42A68DCA257060007D4EE1.html#bmk_fnote91>.
[22] BC Judges Compensation Commission, Final Report of the 2010 British Columbia Judges Compensation Commission (2010), 19.
[23] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.
[24] Local Court of NSW, Annual Review 2019 (2019) 20 <https://www.localcourt.nsw.gov.au/documents/annual-reviews/Local_Court_Annual_Review_2019_v1_accessible.pdf>.
[25]Civil Resolution Tribunal, ‘Small Claim Disputes - August 2020’, CRT Statistics Snapshot - August 2020 (Web Page, 2 September 2020) <https://civilresolutionbc.ca/crt-statistics-snapshot-august-2020/>.