49 A very different approach is taken by the plaintiffs. Mr Hancock has made plain that the plaintiffs have given close consideration also, to the question of the most efficient way of conducting the hearing. The plaintiffs submit that a largely paperless trial would be the most efficient way of conducting the subject hearing. The submission is that when one endeavours to count the number of documents which would be included in the so-called 'court book' and the number of trolleys required to carry those documents to and from the courtroom, one is coping with, when one looks at generally the scope of the hearing, something in the order of 300 ringback folders in the court book. Mr Hancock submitted that this, on anyone's view, will take something in the order of 24 trolleys as required to take one set only to court. He then poses the spectre of some similar number of folders being required for perhaps one counsel as well as solicitors. When one adds in the situation on the other side of the Bar table, and the requirement to have the formal exhibit PX [the agreed bundle] in Court, as well as the bundle the Judge would have as his working copy, the spectre which would be faced (including the tying up of lifts) becomes, on his submission, quite obvious.
50 As I understand the position the defendants for their part, contend that whilst there may be indeed a requirement to have a considerable amount of paper present in the court, it is obviously an exaggeration to suggest that all of this material will have to be in court all of the time. It is submitted that, from time to time, sections of the hearing will be able to be quarantined and that the case may well proceed in a segmented fashion with possibly only materials appropriate to the then witnesses.
51 I have made plain during the course of the discussions that from my perspective, as the case is going to take such an extended period of time, the manner in which I personally approach preparation of the case for and during the hearing and in ultimately working towards producing the Judgment, is a further consideration which the court may particularly take into account. This consideration involves the trial Judge's access by hypertext links, to transcript references to exhibits, as well as to statements, as well as to exhibits to statements, as well as to other necessary documents. In this regard early in the day, Mr Halley took the Court to the question of whether or not, if the Technology Court was to be used, one would really be requiring not an electronic 'court book', as much as an electronic 'library', which would embrace within it, the so-called 'court book', and which would include, as discussed today, the discovery lists filed by all parties, witness statements, tender lists, all submissions as well as, subject to a matter to which I shall mention in a moment, documents which the parties propose to tender.
52 In relation to the so-called agreed bundle, the defendants have been at pains to make plain that as they regard their forensic entitlement, there is no obligation and ought not be imposed an obligation upon the defendants, to describe in the agreed bundle, every document which they may or may not ultimately seek to have admitted into evidence. Mr Lovell indicated earlier in the day, that the defendants would be likely to seek to retain a not inconsiderable number of documents, against the event that these may or may not ultimately be seen as appropriate to be sought to be tendered, when the defendants are in their case. I make plain that the court accepts that as the defendants legitimate forensic entitlement. However, as I believe Mr Halley and Mr Lovell understand and accept, the Court generally expects the spirit and intent of the way in which Commercial List hearings are conducted in practice, to be here observed. The court expects that a careful and professional eye will be used by the defendants when they select the material to be included in the so called 'agreed bundle'. Quite obviously there are likely to be a large number of documents which the defendants would presumably realise, are likely to be put into evidence by them. Hence I confidently expect that the agreed bundle, when it comes forward, will be just that, in terms that it represents a realistic endeavour by the defendants, while preserving to their camp the obvious entitlement to keep certain material close to their chest, to include in the bundle, documents clearly germane to the issues and likely be called up and referred to reasonably often. Naturally the parties will both conduct their cases as they see fit.
53 Turning then to the Technology Court, it has been, as I have understood it from Ms Taggart, described as including a fully integrated conferencing facility as well as a document management facility. There is to be provided in the Technology Court, full access for the judge into the Attorney General's wider network. Hence the judge does not have to move equipment such as a lap top and the like, to and from chambers to the court room. That access to the court is to the internet and the like.
54 Both parties by arrangement, where the Technology Court is to be used have, as I understand it, an entitlement to use the document management system. It permits the searching of large numbers of documents by electronic search retrieval methods. As I have understood it, that form of facility is available where documents are imaged. The position with respect to the defendants has already been set out. I should indicate that the plaintiffs have stated that whilst they have not yet imaged their documents or discovered documents, they have taken careful steps to work through how and when they are able to do this. They understand that it will take 2 days for those documents to be imaged and they can then be indexed depending upon the imaging system itself which is determined as necessary for the purpose.
55 I further add that I have understood from the defendants and accept, that the whole question of using a court book and use of their search retrieval and the like, is dependent upon the system which the defendants have used to date, being something which can be made compatible with the Technology Court system.
56 It is next necessary to refer to the bench tops which at the bar table in the Technology Court, can be used to access the document management system and the internet. Were the case to be heard in a conventional courtroom, there would be no such internet access to the parties.
57 The court has also been informed of the facilities available to access the system from either the work place of the parties, or from the Judges chambers, or from his home.
58 There is a rental fee attached to use of the Technology Court which includes a component to permit the internet use to which I have referred.
59 Then there is the fact that the Technology Court is said to be secure. It has been specifically described, as I have understood it, as "its own island", in terms of court room access on this parameter. It has an internal network within the court room. Previous cases which have been run in past years have created their own mini network within the court room.
60 There is judicial access to a research facilities network, the internet and also limited telephone capacity. Many situations apparently involve case software, which as Ms Taggart has indicated, have a web interface which allows secure access over the web by external sources into the case management systems in offices. From the bar table, one is able, through the web, to access such case management systems (where such systems are in place), into solicitors' offices and possibly Counsels' chambers. That facility, I have been informed, is available through the use of the Technology Court. Ms Taggart is able to provide the parties with a direct internet connection through telephone lines from the bar table itself. One would then search discovery documents and other documents through that mode.
61 I have mentioned secure access for the bar table and the bench. That access I have referred to, in terms of internet access, dial out or access via external case systems which the bar table might require. Each person with access, if that was an option taken up, would have a secure telephone "dial in" through the Attorney General's fire wall into the server which would be set up for the case.
62 Next there is the given that the Technology Court has a video conferencing link.
63 A court officer trained in the document management facility and in video link conferencing, would be made available by the court in the Technology Court. One of the questions which was raised particularly by the defendants today, involved the question, should the Technology Court be used, as to whether or not there would be proposed to also be a court officer for the purpose of carrying out the functions and duties which court officers regularly attend to, such as passing documents from witnesses to the Judge, from the witness box to the bar table, and from the Bar table to the Judge. That is a matter which is still to receive consideration.
64 Whilst I certainly understand the difficulties in relation to the need to have a court officer able to operate the system and the apprehension of the defendants, as to the need to have someone able to pass documents to and from the witness box, I would not think that parameter ought be the determinant factor, in terms of whether or not one uses the Technology Court in a case fixed to something up to, if not in excess of one year, involving a claim involving billions of dollars and involving the number of documents to which I have referred and the number of witnesses to which I have referred. A case also involving as I have understood it, quite a number of overseas witnesses, who from time to time would have to be called.
65 In relation to questions relating to overseas witnesses, I have made plain to the parties from time to time, that any application to be brought forward for any cross-examination of such witnesses will, at all times, be dealt with on their merits. To my mind everything depends on the particular circumstances. There may of course, be perceived to be a very special difficulty with being able to cross-examine a particular witness on video link. Nevertheless, it can of course, be the case, that for instance, an expert has given evidence for a certain period and is later required to be recalled, possibly for half an hour, or some more extended time. It may be that the factors which may have led the court at an earlier time, to refuse to order a video link hearing, may eventually fall away and result in portion of a witnesses' evidence being so taken. Hence to my mind, the facility and opportunity of the parties using the video link conferencing facility, is by no means an insignificant aspect of what is currently under discussion and now for determination.
66 There is then also the question of the shelving which is available down both walls in the Technology Court.
67 Returning to the matters which were the subject of discussion earlier today, Mr Halley of counsel stated that one of the concerns that the defendants have, is that it would fall upon the defendants to prepare the court book. The defendants have consented to undertaking the task of preparing the hard copy agreed bundle. Mr Halley yesterday submitted in relation to the defendants' position, that its view that the Technology Court should not be used, had not been a view reached lightly, but was a considered decision. As he put it yesterday, the question really is whether or not the Technology Court really justified the "amount of time necessary to make it work".
68 Ms Stanfield has made plain that if one does have a court book with the documents imaged in the fashion referred to, to be part of an electronically provided court book, it is possible in her view to call up documents extremely quickly and this is said to be a real time saving. Ms Stanfield estimated the amount of time to locate a hard copy document is something like 20 to 30 seconds whereas on her estimates yesterday, it takes something in the order, if the procedure is correctly used, of 2 seconds to call up such a document by a court operator. Mr Halley however pointed out that sometimes longer documents take a lot more time to call up.
69 The position then which confronts the court is that use of the Technology Court will add in a case such as this, a large number of parameters which would in all likelihood make conduct of the hearing reasonably efficient. A great deal of course depends upon the extent to which, during the hearing, the parties elect to use documents in Court on screen. Currently the Court is informed by the plaintiffs they intend to do exactly that. In the result, I anticipate when the plaintiffs come first to present their case and when the plaintiffs come to cross-examine the defendants 117 witnesses, the plaintiffs are going to basically seek to conduct that cross-examination in a paperless fashion. When and if Mr Garnsey QC, of counsel for the plaintiffs cross-examines a witnesses and Mr Bathurst QC opposes that form of cross-examination in relation to that document, I would, of course, should that occur, rule as to that issue. It may be the case that the court would require hard copy to be shown to the witness in many situations. It may be that the approach which will be taken, will be that the witness is entitled to have access to the hard copy versions in his or her own interests, so as to be in a position to understand the document and to fairly cope with the cross-examination. Notwithstanding the uncertainty at the present time as to the fate of any such contested applications, the plaintiffs have a genuine concern to keep the hearing moving as quickly as possible. Their approach, they say, is to endeavour to achieve this end by approaching many aspects of the hearing in a paperless fashion.
70 This is not, of course, to suggest for a moment, that the defendants do not desire to keep the hearing moving as quickly as possible. I accept that they seek precisely this. The problem is that each party has a differing view as to how to achieve the objective. To my mind however, where the plaintiffs are faced with so many witnesses and so much material and genuinely wish to use the document imaging system for the purpose of throwing up onto a screen sundry documents during the hearing, it is difficult for the Court to suggest that the plaintiffs do not have a legitimate and justifiable forensic interest in approaching the hearing in that way.
71 On any one's view this case is going to take a considerable time. It is important for the Court to keep in mind the desire of the plaintiffs to have a paperless hearing to the extent possible. The Court is not able currently to know, because these are matters for the parties, what are the respective resources on the two sides of the bar table. Where however, either party puts forward a desire to use the technology set up by the Court for dealing with certain types of litigation appropriate for that purpose, to my mind the approach which the Court should take, is to accept that the Technology Court should be used and generally in the way discussed today, that the short minutes of order put forward by the plaintiffs, but as varied as appropriate following further discussion inter partes, be made.
72 There are number of terms in those orders which require to be adjusted.
73 Paragraph 1.1 is inappropriate because the plaintiffs have not elected to use the Technology Court for the hearing of these proceedings. They have opposed the use of that court but as I have endeavoured to make plain, I have rather on close examination, understood their opposition to be to what occurs within the courtroom, as opposed to the use of the courtroom itself. In short, as I understand it, the defendants are generally content to accept that many facilities are available and of use for the purposes of the conduct of this litigation in that courtroom. As I have understood it, the defendants essential general opposition to use of the Technology Court, has been to the concept of, in this case, a "paperless" hearing.
74 I would not wish it to be thought for a moment that during the course of the hearing I will not be reaching for hard copy quite often and marking it up, as counsel for the parties do, as for example where the witness is taken to particular sections of documents. I certainly intend quite often to do that.
75 For those reasons I intend to make such directions, or if necessary make such orders, as are generally outlined in the short minutes of order sought to be propounded by the plaintiffs. To my observations the 'electronic court book' should be a court book which will contain the documents which will have been imaged, as well as witness statements, an agreed bundle, overview submissions, chronologies and ancillary materials
76 At best the use of the Technology Court with an electronic 'court and library book', and use of the sundry facilities to which I have referred, may lead to a considerable shortening of the court time, currently estimated to take at least a year.
77 At worst, the use of the Technology Court will still have substantial advantages to all parties, in terms of the special facilities capable of being used.
78 In those circumstances, and having regard to the inherent jurisdiction of the Court to exercise its judicial function according to law and in an effective manner to which I first referred, and having regard to Pt 1 of the Supreme Court Rules, and having regard to the obligation imposed upon the Court to actively manage cases to achieve that objective, to my mind these proceedings are appropriate to be heard in the Technology Court, and I propose to order accordingly.