Magistrate’s Court Refuses to Accept Technology

//Magistrate’s Court Refuses to Accept Technology

Magistrate’s Court Refuses to Accept Technology

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It is very easy to be frustrated with the processes of the Magistrate’s Court and, in particular, it’s resistance to using everyday technology such as email and the electronic lodgement of documents (or eLodgment).

However, this became even more apparent when I recently opened my own legal practice and started working from home.

The court rules require a lawyer to specify their “principal place of business” on court forms as an address for the service of documents by other parties and the court itself. A lawyer is prohibited from using a PO Box or an email address (by itself).

For a lawyer who works from home, this requires them to specify their home address. Yet, lawyers are often the target of threats and intimidation by opposing parties, witnesses who are summoned against their will and, in a criminal law context, even their own clients (which is why lawyers usually swear affidavits using their business address).

You would think this would encourage a change in the rules; however, the court remains steadfast in its refusal to address the issue or recognise technology at all.

So, doing what lawyers do, we brought a test case against a registrar of the court and the Chief Magistrate challenging the court’s interpretation of, and the validity of, the court rules that seemingly prohibit the use of email.

Not surprisingly, we lost. In the case of Justice Legal Pty Ltd v Prosser and Anor [2018] WASC 267 (ironically, available online), the Supreme Court upheld the court’s interpretation and the validity of the court rules.

Despite acknowledging:

  • the “Kafkaesque (sic a term often used to describe illogical bureaucratic entanglements with no reasonable solution) nature of the situation faced by Justice Legal” (at [12]); and
  • that the desire not to disclose a home address is “quite understandable” (Ibid), the Supreme Court was unable to assist.

However, among other things, the Supreme Court stated (at [66]):

Physical service has been the norm for centuries. Electronic service is a relatively new phenomenon. It is not remarkable that, even though some parties might have a preference to effect or receive service electronically, the Magistrates Court may consider it appropriate that a party wanting to serve a document be provided with the means to effect service physically as well as electronically.

The court had previously told me that I could make a standard (Form 23) application with a (Form 2) supporting affidavit and pay the usual application fee of $162.50 seeking leave of the court to use an email address as an address for service.

We tried this. However, the court frustrated the outcome by rejecting the application for lodgement. Why? You guessed it, because the application did not contain a physical address for service. This prompted the motivation for the action in the Supreme Court.

The Supreme Court later described the application process suggested by the court as “wholly illogical” (at [12]).

Where to now?

It seems that the only way to solve the problem is to change the court rules to allow lawyers to specify a PO Box or an email address (by itself) as an address for service. The chances of this happening appear pretty slim.

If you are a lawyer working from home, or a lawyer or other user of the Magistrate’s Court who is perhaps a little tired of the court’s manual or ‘analogue’ processes, we would love to hear from you. Or, if you know a person who is one or more of the above, refer them our way.

Please contact us.

Tristan Cockman
Director
Justice Legal Pty Ltd
Fighting injustice

2019-01-14T04:16:47+00:00

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