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Focus: Supreme Court of Victoria introduces new technology disputes option

8 July 2009

In brief: The Supreme Court of Victoria now combines technology cases with building and engineering proceedings in a new list aimed at the efficient resolution of technical disputes. Partner Tim Golder (view CV), Senior Associate Jesse Gleeson, and Lawyer Kelly Griffiths report.

How does it affect you?

  • The new TEC List in the Supreme Court of Victoria may provide you with a more efficient and cost effective means of resolving technology-related disputes.
  • Even if a proceeding is brought against you in another list, you should consider whether it is desirable to transfer it to the TEC List.

The TEC List

The Supreme Court of Victoria has expanded its existing Building Cases List to include technology disputes, and has renamed it the Technology, Engineering and Construction (TEC) List (TEC List).

The inclusion of technology-related disputes into the new TEC list has significant potential to streamline technology-related proceedings and limit the legal costs involved in pursuing (or defending) your rights in the Supreme Court of Victoria.

The TEC List was established by the Supreme Court's Practice Note No 2 of 2009 and commenced on 19 June 2009. The TEC List is governed by new rules comprised in Order 3, Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.

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Does my dispute qualify for the TEC List?

The TEC List includes matters where it is alleged, for example, 'that a telecommunications or computer system, electrical or mechanical component or other device or industrial process has failed, under performed, or malfunctioned, and which involves an assessment of expert evidence of a technical nature'. This is likely to encompass failed IT projects, or projects that have not delivered required levels of performance. It is also likely to encompass misrepresentation and tender cases which involve substantial technical issues and associated expert evidence.

The court intends that the TEC List will 'provide for the just and efficient determination of TEC cases, by the early identification of the substantial questions in controversy and the flexible adoption of appropriate and timely procedures for the future conduct of the proceeding'.

Matters related to personal injury may not be heard in the TEC List. Other matters, such as matters relating to intellectual property, which are more suitable to be entered into one of the other specialist lists, will not be heard in the TEC List. This means that the TEC List will not be appropriate for technology matters that also involve intellectual property issues. Further, commercial disputes in relation to non-technical issues of technical projects are more likely to be referred to the Commercial List or another suitable court list.

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Key features of the TEC List

Proceedings are entered into the TEC List at the option of the plaintiff. Once an appearance has been filed, a defendant or any other party to a proceeding may apply for an order that the proceeding be moved to the TEC List. Parties are expected to have engaged in serious settlement discussions before commencing any proceeding in the TEC List, which is likely to be canvassed at the first directions hearing in the matter.

Active case management is a requirement of the TEC List as part of the objective to ensure speedy and efficient outcomes. Judges are required to be more active in the exercise of their powers to ensure efficient outcomes. Judges and legal practitioners are required to be mindful of the need not to apply the resources of the parties or the court needlessly or in a manner which is out of proportion to the matters in issue. This can be achieved by a judge limiting the time taken in examination or cross-examination, limiting the number of witnesses or limiting the time to be taken at trial. Interlocutory applications are also to be decided without need for an in-person court hearing wherever possible.

As part of this active case management, a resources conference will be convened following the close of pleadings. This resources conference will establish a budget for the litigation for the use of both the court and the parties. The conference will also identify issues for mediation and identify what further information is required in order to facilitate settlement discussions.

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Conclusions

The TEC List promises a fast and cost-efficient means of litigating technology disputes. However, potential litigants need to be aware that intellectual property disputes may not be heard in the TEC List.

You should keep the TEC List in mind as a means of resolving technology related disputes – whether commencing proceedings or defending them.

If you have been unable to resolve a dispute through other means, the TEC list may make it more realistic to pursue your rights and obtain final judgment in the Supreme Court.

Published 8 July 2009

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