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Coronavirus Jurisprudence

The novel coronavirus is having a substantial impact on all aspects of Australian life. We have created three resources to assist you stay up-to-date with the effect of the pandemic on the legal system.

This page tracks the developing impact of the pandemic on the common law and the application of general principles, whether it be to bail, sentencing, the decision to grant a trial by judge alone, or otherwise.

We have also prepared a high level overview of all legislative changes in Coronavirus Emergency Act Summary.

In addition, Coronavirus and the Courts looks at the operational impacts of the virus, such as limits on in-person hearings and security and hygiene measures.

These resources are updated regularly. More information about the cases discussed below is available in the companion document, Coronavirus cases.

We welcome further suggestions on cases to add to this collection. Feel free to let us know by email.

Coronavirus Jurisprudence

Sentencing
Bail
Conduct of hearings and adjournment
Open Courts
Judge alone criminal trials and special hearings

Leave to withdraw
Civil trials and appellate proceedings

Commercial Proceedings
Amending or staying orders and decisions
Making orders
Family Law
Guardianship
Immigration
Tort 

Property / Residential Tenancies
Constitutional Law
Costs
Employment Law

Sentencing

  • The risk of contracting COVID-19 within prison may be a source of anxiety for an offender which makes prison more burdensome and may bear upon the length of the sentence, particularly the non-parole period to be fixed. This is especially significant for offenders who are older or otherwise at higher risk from COVID-19 (R v Madex [2020] VSC 145, [51]; R v Kelso [2020] NSWDC 157, [45]; DPP (Vic) v Lang [2020] VCC 759, [113]-[119]). However, where an offender is characterised as being ‘on the cusp’ of imprisonment, the COVID-19 pandemic is not a reason for failing to impose such a sentence (Mendieta-Blanco v The Queen [2020] VSCA 265, [38]). 
  • The fact that prisons have restricted visits in response to COVID-19 is also relevant to sentencing (DPP v Morey [2020] VCC 320, [85]; R v Kelso [2020] NSWDC 157, [46]). As are restrictions on a person’s capacity to be religiously observant, and the cancellation of some rehabilitation programs the latter is the latter is particularly significant (R v Khoder (No 2) [2020] ACTSC 76, [12]). 
  • The impact of COVID-19 is causing additional stress and concern for prisoners and their families. The extent to which that may be taken into account, if at all, is to be resolved on the facts of any individual case (Brown (aka Davis) v The Queen [2020] VSCA 60, [48]; Sazimanoska v The Queen [2020] VSCA 66, [48]; R v Hughes [2020] NSWDC 98, [133]-[136]). But where the offending is very serious it may not loom large in the sentencing synthesis (DPP (Vic) v Chen [2020] VCC 385, [138]-[140]; R v Phan [2020] QSC 95).
  • The impact of COVID-19 on a business may be relevant in assessing the amount of a fine to be imposed for OH&S offences (McAndrew v Simmons [2020] NSWDC 81, [62]-[73], [92]-[93]; R v Sapform [2020] NSWDC 86, [85]-[89]; Safe Work NSW v Wang [2020] NSWDC 260, [78]).
  • The relevance of the coronavirus pandemic to an appeal against sentence is different than it is to an application for bail (Borg v The Queen [2020] NSWCCA 67, [7]-[9] (McCallum JA)).
  • The adverse impact of the COVID-19 pandemic on the burden of imprisonment after an offender has been sentenced is not admissible to establish a stand-alone ground of appeal but may be taken into account in a resentencing exercise (Wyka v The Queen [2020] VSCA 104, [19], [160]-[162]).
  • A guilty plea has a high utilitarian value at a time when the court’s operations are disrupted by the coronavirus pandemic (DPP (Vic) v Zafiratos [2020] VCC 377, [42]-[43], quoting DPP (Vic) v Bourke [2020] VSC 130, [32]). So too may opting for a judge alone trial (R v Ross (No 5) [2020] NSWDC 306, [33]-[37]).
  • The increased burdens of imprisonment and the utilitarian value of a guilty plea during the COVID-19 pandemic may, depending on the circumstances, justify a non-custodial disposition (DPP (Vic) v Wilson [2020] VCC 1177, [37]).
  • An offender of advanced age with poor respiratory health will suffer a level of anxiety, stress and fear at the potentially fatal consequences of being infected with COVID-19 in prison that a younger fitter person would not, and this may be a basis for an appellate court to exercise the residual discretion and not re-sentence the offender despite the clear inadequacy of the sentence below (RC v The Queen [2020] NSWCCA 76, [253]-[255]). Similarly, and according to usual sentencing principles, these factors will be taken into account when resentencing despite not existing at the time of sentence where the appellant has otherwise established the ground of manifest excess (Scott v The Queen [2020] NSWCCA 81, [164]; Wyka v The Queen [2020] VSCA 104, [163]).
  • There is legitimate public interest in ensuring that criminal proceedings are dealt with in a timely way, when it is practical to do so in the current COVID-19 environment, thus alleviating the distress felt by victims of crime when matters are adjourned for lengthy periods (Guest v The Queen [2020] VSC 218, [57]).
  • There will always be some degree of uncertainty about what may occur in a custodial environment in the future. Evidence can be called at a plea hearing about restrictions that may be put into place due to the pandemic, including lockdowns and reduced access to family and friends. These matters may be being offset to some degree by deduction of emergency management days from a prisoner’s sentence and to a large extent these matters are within the purview of the executive. If there was an inability for the offender to have proper access to their legal practitioner, that would raise different considerations. Adjourning a plea hearing on the basis of an inability to foretell the course of future events would be futile (Guest v The Queen [2020] VSC 218, [58]-[59]).
  • The contention that the subsequent emergence of the coronavirus somehow affects the principle of totality fundamentally misunderstands the nature of that principle; whether a sentence offends the principle of totality requires consideration of the  overall circumstances and criminality at the time of sentencing, ‘there is no concept of a retrospective infringement of the totality principle’ (WRT v Western Australia [2020] WASCA 68, [83]).
  • Directions made under the Emergency Management Act 2005 (WA) closing the borders of Western Australia to all but exempt travellers and requiring them to quarantine upon entry are intended to eliminate community transmission of COVID-19. Given this purpose, the seriousness of any breach of the Directions is assessed by the extent to which the offender sough to avoid quarantine, the extent to which they complied with quarantine, whether they have exposed members of the community to COVID-19, and whether they have been or are likely to have been exposed to virus. The state or territory from which they entered Western Australia is also relevant to the gravity of the offending (Vander Sanden v Johnson [2020] WASC 331, [21], [39]-[41]). An offender’s culpability is significantly aggravated, and the offending is at the upper end of seriousness, by attempting to avoid quarantine, failing to disclose their location to police for eight days, and having entered the state by deception, from Victoria. It is not the most serious instance of the offending if exposure to the community is avoided, but the offender ultimately having tested negative is not a mitigatory factor because the Directions seek to avoid the risk of the virus being reintroduced into the state and are not aimed solely at people with the virus (Ibid [44]-[47]).

Bail

  • The COVID-19 epidemic has led to the introduction of measures which cause significant delays within courts, and hence potentially lengthy periods on remand (Re Broes [2020] VSC 128, [36]). Failing to attend a bail hearing because of restrictions imposed by the Magistrates’ Court in response to the coronavirus pandemic is a reasonable excuse (Re Kennedy [2020] VSC 187, [2]-[4]).
  • Delay in trials due to COVID-19 may establish exceptional circumstances (Re McCann [2020] VSC 138, [39]) or compelling reasons (Re JK [2020] VSC 160, [18]-[21]; Re Guinane [2020] VSC 208, [31], [43]). This is especially so where the delays are likely to lead to the accused spending more time on remand than the likely sentence (Re Broes [2020] VSC 128, [41]; Re Tong [2020] VSC 141, [34]; Thomas v Kitching [2020] VSC 206, [6], [92]). The new possibility of judge-alone trials in Victoria does not alleviate the fact that unsatisfactory delays still exist as a result of the COVID-19 pandemic (Re Ashton [2020] VSC 231, [65]-[66]; Re Bochrinis [2020] VSC 411, [8]). However, the unacceptable risk an offender poses may be sufficient to deny a grant of bail even where a compelling reason has been demonstrated because of the inordinate delay likely to occur, as a result of the coronavirus pandemic, before their matter will proceed to trial (Re Lowe [2020] VSC 584, [51]-[52]).
  • Similarly, exceptional circumstances may be found in the increased burden remand restrictions will have on an Aboriginal offender who is both isolated from his family during a period of grieving, a significant process for his community, and the increased danger to him as a person at risk of contracting the virus (Re Kennedy [2020] VSC 187, [6]-[7]; Thomas v Kitching [2020] VSC 206, [70]-[71]). These grounds are even more compelling when several charged offences would not warrant imprisonment and the respondent concedes a non-custodial sentence is the more likely disposition (Thomas v Kitching [2020] VSC 206, [92]).
  • However, courts and practitioners must not assume that the current health crisis will in all cases demonstrate exceptional circumstances. The health crisis is simply one of the surrounding circumstances that bail decision makers must take into account (Re Tong [2020] VSC 141, [33] Re El-Refei (No 2) [2020] VSC 164, [17]-[21], [24]; Lynch v DPP (Qld) (No 2) [2020] QSC 64, [35]; ]; Re Sepehrnia [2020] VSC 247, [58]). It also cannot be assumed the pandemic will cause a significantly lengthy delay, some evidence must support that finding as well as any conclusion that the current onerous restrictions on remand will continue at their present high levels throughout that period (DPP (Cth) v Lee [2020] VSC 275, [93]-[99]). Moreover, even if compelling reasons are established, the risk to an accused’s domestic partner and her children from having him reside with them during the pandemic, when people are required to remain at home, and the accused has a significant history of family violence offending, is unacceptable (DPP (Vic) v Walker (a pseudonym) [2020] VCC 447, [45]-[49], [52]).
  • It is appropriate for bail decision makers to consider what would happen if COVID-19 spreads into the prison system in considering whether the applicant has established exceptional circumstances. If that occurs, it is likely that prisons will be locked down in a way that makes time in custody very difficult (Re McCann [2020] VSC 138, [40]; Re Broes [2020] VSC 128, [39]). But the consequences of pandemic are constantly changing and the courts must assess matters as best they can at the time of an application, and because the level of infections has recently decreased it is impossible to form a certain view regarding the likelihood of future COVID-19 infections in Victorian prisons (Re Ashton [2020] VSC 231, [63]).
  • Apart from delay, the pandemic may impact a bail application in two ways: firstly, it is relevant that correctional facilities are currently not permitting visitors, leading to greater isolation for those on remand. Secondly, by impeding education/rehabilitation opportunities (Re JK [2020] VSC 160, [19]-[26]; Re JB  [2020] VSC 184, [40], [51]; Thomas v Kitching [2020] VSC 206, [5], [92]; Re JF [2020] VSC 250). While limitations on visits to prisons will impact an accused’s ability to prepare their defence, they are not, given current exceptions for professional visits, a barrier to preparation of an effective defence (Re Ashton [2020] VSC 231, [61]-[62]).
  • In the present circumstances of the pandemic, it is not just the likely delay but the uncertainty surrounding all criminal trials in Victoria that is to be considered (Re Assad [2020] VSC 561, [110]).
  • In the ACT, assessing whether COVID-19 has led to changed circumstances for the purpose of a subsequent application for bail, the court will look at the impact of the virus on the accused. This might include whether the accused’s trial date will be delayed, whether the applicant is more likely to contract the virus while in prison and whether the remand experience has been made harsher due to the impact of COVID-19, such as by limiting the accused’s ability to receive visitors. At present, there is no evidence the virus is more likely to spread in prison than in the community, but visits to prisons have been curtailed (R v Stott (No 2) [2020] ACTSC 62). In Queensland, the Court in determining whether to grant bail pending appeal, also considers whether the virus is actually been demonstrated to exist within correctional facilities as well as any measures taken by Corrective Services to prevent transmission within the prison population (Re Young [2020] QSC 75Re Morant [2020] QSC 79). However, Victoria has accepted that evidence of significant unexpected delays that the coronavirus pandemic is causing within the justice system may qualify as a new fact or circumstance sufficient to permit the court to hear a further application for bail under the Bail Act 1977 (Vic) s 18, although it does not necessarily follow that the application will be granted (R v El-Refei (No 2) [2020] VSC 164, [3]-[4]).
  • The Bail Act requires a court to consider all other options before remanding a child in custody, and granting bail with strict conditions is an acceptable alternative to leaving them in custody for an unknown period of time during a pandemic (Re JK [2020] VSC 160, [21], [33]). But that requirement does not guarantee a grant of bail, even in present circumstances (Re KN (No 2) [2020] VSC 490, [76], [86]).
  • Allowing for the different legislative frameworks, the observations of Lasry J in Re Broes [2020] VSC 128 are relevant to the considerations that arise under the New South Wales Bail Act and the factual issues arising from the COVID-19 pandemic will be relevant to various factors under that Act. (Rakielbakhour v The Queen [2020] NSWSC 323, [15]-[19]).
  • A bail condition requiring the accused to remain at a nominated residence may be likened to the “self-isolation” currently being practiced by citizens across Australia. (Rakielbakhour v The Queen [2020] NSWSC 323, [20]).
  • Compliance with the directions of public health officials in respect of the coronavirus may be made a condition of bail (Re Busari [2020] VSC 572, [61(j)].
  • Family hardship may establish exceptional circumstances justifying a grant of bail and the impact of the coronavirus on the family is relevant to that determination (Watson v The Queen [2020] ACTCA 16).
  • Although delay is likely to result from the pandemic, this is not sufficient to establish special circumstances justifying a grant of bail where the length of that delay is undetermined. It is also relevant there are no current cases in South Australian Correctional Facilities, and that if there were in the past the spaces where that person was held have since been satisfactorily cleaned and persons exposed to him have been screened. Prisons are not necessarily premises with a higher risk of COVID-19 than elsewhere, indeed they might be considered safer in some aspects given their screening measures and limits on interaction with overseas travellers. On the other hand, if a prisoner does contract COVID-19, the rapid infection of other prisons is likely. Lastly, although measure may put in place as a result of the virus that make imprisonment more burdensome than usual but some evidence of this must be produced. (Lillyman v The Queen [2020] SASC 55, [14]-[17]).
  • Failing to attend a bail hearing because of restrictions imposed by the Magistrates’ Court in response to the coronavirus pandemic is a reasonable excuse (Re Kennedy [2020] VSC 187, [2]-[4]).
  • COVID-19 travel restrictions will make it more difficult, but not impossible, for an accused released on bail to abscond interstate, and it is still possible for them to abscond within the releasing state or territory (R v Petherick [2020] NTSC 17, [33]).
  • Agencies responsible for the movements of prisoners for bail and other hearings should be mindful that errors resulting in appearances which should have been conducted via video-link have significant follow on effects for prisoners who are already experiencing considerable hardship due to existing emergency management conditions (Re MM [2020] VSC 691, [107]-[110]).

Conduct of hearings and adjournment 

  • A party is not ‘entitled’ to have a face-to-face hearing. Where the court, especially an appellate court, has found that telephone or AV link hearings provide a satisfactory experience, it is not necessary to adjourn hearings at the request of a party who seeks a face-to-face hearing (JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, [6]-[8]; Ozemac Pty Ltd v Jackanic [2020] VCC 790, [6]).
  • In considering the prejudice associated with the lack of a face-to-face hearing, the court may take into account the inability of the parties to participate and the difficulty of counsel in obtaining instructions from the client or assistance from junior counsel who is not co-located with senior counsel. These factors may be balanced against the nature of the issues in dispute, the experience of counsel and the availability of adjustments to address specific prejudice that arises in the hearing (JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, [12]-[18]).
  • Self-isolating ‘on Country’ without taking steps to stay in contact with solicitors in order to provide instructions in matters before the court may constitute a failure to comply with obligations on parties to act consistently with the overarching purpose of civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (Saunders on Behalf of the Bigambul People v Queensland [2020] FCA 563, [57]). The lack of telephone reception whilst on Country is not a basis for an adjournment where there is evidence the applicant can bring themselves within telephone range (Wharton on Behalf of the Kooma People v Queensland [2020] FCA 574, [9]).
  • The inability of the court to see and hear the witness in person does not necessarily lead to a diminution in the ability of the court to assess the demeanour of the witness, their difficulty in answering questions, their hesitations or idiosyncratic reactions. In some respects, it is easier to observe a witness closely through the use of technology (Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [33]; Ozemac Pty Ltd v Jackanic [2020] VCC 790, [10]; Long Forest Estate Pty Ltd v Singh [2020] VSC 604, [23]). This may not be the case, however, where credit is at issue and interpreters will be needed to examine and cross-examine non-English speaking witnesses who are located overseas (Haiye Development Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732, [59]-[64], [79]-[80]). Another consideration is the loss of the sense of solemnity involved in giving evidence from a courtroom witness box (Rooney v AGL Energy Ltd (No 2) [2020] FCA 942, [19]; Motorola Solutions Inc v Hytera Communications Corporation Ltd (Second Adjournment [2020] FCA 987, [30]).
  • In deciding whether to adjourn hearings due to the impact of COVID-19, the court should take into account the procedural history of the matter, when the matter might be relisted and whether the current circumstances would prevent the fair conduct of the hearing. As the situation continues to evolve, it may be necessary to revisit the issue later in proceedings, present circumstances are finely balanced but they may be less so in three, six, or nine months’ time (R v Collaery (No 4) [2020] ACTSC 61, [6]-[7]; Rooney v AGL Energy Ltd (No 2) [2020] FCA 942, [20]). The current worsening of circumstances and the reinstitution of stage three restrictions on Melbourne ‘may represent the fluctuating and restrictive circumstances’ in which the courts and community will have to operate for a considerable period. The postponed resumption of criminal jury trials will probably apply to civil jury trials as well, and any reintroduction is likely to be ‘gradual and consume more court resources at least until the pandemic is resolved’. The number of trials that the court will then be able to accommodate is uncertain, and the result is a need for increased efficiency in the use of court resources – particularly where time to accommodate a trial has been allocated – and adjourning a trial may permit a lengthy delay that fails to use these resources properly and is inconsistent with the overarching purposes of the Civil Procedure Act (Gatto v The Australian Broadcasting Corporation [2020] VSC 420, [33]-[36]). The overarching purpose must be given effect in considering whether to exercise the discretion to vacate or adjourn a hearing, but how that discretion is exercised is fact dependent. Particularly as the pandemic affects everyone differently, including the parties’ and witnesses ability to participate in virtual proceedings (Long Forest Estate Pty Ltd v Singh [2020] VSC 604, [21]).
  • The court may also need to take into account whether older witnesses would need to travel to attend the hearing, the availability of witnesses and the general desirability of supporting the policy of the Commonwealth and other jurisdictions of reducing human interaction (R v Collaery (No 5) [2020] ACTSC 68, [16]-[19]). The health threat posed to people of Aboriginal descent by the coronavirus is also relevant in determining whether to delay proceedings (Mongoo in his or her own right and representing The Trust Advisory Committee of the Yugunga-Nya People’s Trust v Fiduciary Administration Services Pty Ltd [2020] WASC 109, [46]).
  • It is not inconsistent with the overarching obligations of the Civil Procedure Act 2010 (Vic) for a court to extend some latitude to parties and participants during the pandemic (Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd [2020] VSC 161, [21]).
  • The current difficulties in proceeding with a virtual trial, including technical problems, voluminous exhibits that cannot be shared readily, and the need of participants to care for family members during the pandemic, may threaten the accused’s right to a fair trial and require an adjournment of proceedings part heard (R v McDonald [2020] NSWSC 382).
  • The overarching purpose of the civil procedure provisions in the Federal Court of Australia Act 1976 (Cth) is to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. However, in the present circumstances a court’s primary consideration is the health risk posed to practitioners, witnesses, and court staff; both their risk of contracting the coronavirus and of spreading it. The court’s orders cannot ‘result in a situation where these risks are increased’. The parties and their representatives may therefore be directed to comply at all times with relevant public health and order regulations. While this effectively means that practitioners and court staff must work from their homes, ‘public institutions such as the Court must do all they can to facilitate the continuation of the economy and essential services of government, including the administration of justice’ (Capic v Ford Motor Company of Australia [2020] FCA 486, [2]-[5; McDougall v Nominal Defendant [2020] NSWDC 194, [8]-[9]]).
  • These considerations indicate that a virtual trial might be appropriate, the question is whether fairness and the overarching purpose mean the virtual solution (the only one currently viable) is not feasible and the trial must be postponed. It will not be possible to proceed in every case (Capic v Ford Motor Company of Australia [2020] FCA 486, [6]-[7]). However, while there are significant obstacles, these may be overcome and do not necessarily call for adjournment. For example:
    • Technological difficulties, such as patchy internet connections may be inconvenient, but they are not insurmountable;
    • Similarly, the inability of counsel to work from the same place may not be ideal but there are work arounds and it does not mean the trial will be unfair or unjust;
    • Conferring with expert witnesses, and their ability to confer together in a hot tubs, is necessary and time consuming, and while it may be exacerbated by having to do so online, it also does not mean the trail will be unjust or unfair;
    • The isolation of a lay witness may be an issue in some cases but is not likely in this matter. The more significant concern is that their technological literacy and access may vary widely, but that is a problem that may be addressed when and if it arises and a solution may be found, even if imperfectly, from other cases before this trial proceeds in June 2020;
    • Similarly, the large volume of documents involved is not an insoluble problem and may be overcome with technology such as Dropbox;
    • Future problems, such as the illness of a witness or practitioner, or their need to care for a child are certainly significant, but they may be addressed by being sensitive to and making allowances for them;
    • There is no doubt a virtual trial will take longer and be more expensive, and if it was certain the pandemic would be over by October, an adjournment might be called for. But when the timeframe is uncertain, it is not feasible or consistent with the overarching principles to stop the work of the court for such a period, nor is it healthy for the economy.
  • The smooth processing of a virtual trial owes much to the parties’ pre-trial preparation (Long Forest Estate Pty Ltd v Singh [2020] VSC 604, [24]).
  • Under ordinary circumstances, a court would be very unlikely to impose such an unsatisfactory mode of trial on the parties against their will. ‘But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try’ (Capic v Ford Motor Company of Australia [2020] FCA 486, [10]-[25]).
  • Although ‘the Court must continue to do its job’ during the pandemic, ‘fundamental to the discharge of that role is ensuring that cases are determined justly’. This may require ‘significant changes’ to the way a trial is ordinarily conducted. An application to adjourn is ‘entirely about balancing considerations which point in different directions’ and even where ‘properly made’ and closely run, might still be dismissed (Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [9]-[10]). Every case turns on its own facts (Haiye Development Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732, [81]-[82]).
  • The use of technology to facilitate the process of receiving evidence, including evidence adduced in cross examination, and submissions might be described as ‘sub-optimal’ but is not impaired to such an extent that there is anything ‘second-rate’ about the use of technology (Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [25]). There is no harm with an instructing solicitor being in the same room and assisting a witness during a virtual hearing with technological matters and locating documents (Chugha and Comcare (Compensation) [2020] AATA 2835, [72]-[73]). For these same reasons, having witnesses attend a solicitor’s office or self-represented litigants attend the Registry would be helpful (Ibid [78]-[79]).
  • The fact that the extent of the disruption caused by COVID-19 was not fully appreciated at the time of the last case management hearing may be a basis on which to grant an adjournment, however the pandemic is not a basis on which the applicants may expect a procedural standstill or procedural delay. Their interests are not the only interests in the litigation. The respondents also have an interest in getting the matter on for hearing and there is a public interest in moving a proceeding (Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499, [17]; Ozemac Pty Ltd v Jackanic [2020] VCC 790, [12]). 
  • Where matters can be appropriately determined on the papers in the environment of COVID-19, they should be (DPP (Vic) v Combo [2020] VCC 726, [6]).

Open Courts

  • The Federal Court Act 1976 (Cth) requires the jurisdiction of the court to be exercised in open court but allows the public to be excluded if their presence would be contrary to the interests of justice. Doing justice in this case requires that the matter be heard as soon as reasonably possible and that it not be delayed beyond the end of the pandemic, but given the current health crisis physical attendance of the public in court for hearing of the matter poses obvious and significant health risks and is contrary to the interests of justice. Open justice requires a balance to be struck between the two competing interests, and arranging for the matter to proceed via video conference which the public may attend, strikes that balance (Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664, [1]-[6]). However, a child’s privacy interests may be sufficient to require that only those involved in the case may attend via an online platform. The risks of identifying the child and their family is too great if the public and media are permitted to do so in that same fashion, but a balance may be struck and the interests of open justice preserved by allowing them to physically attend court where they can be provided with copies of a suppression order protecting the child’s identity and any recording of the proceedings can be monitored (Re Imogen (No 5) [2020] FamCA 760).
  • The Act also requires that before ordering a matter to proceed via videolink, the court must be satisfied that ‘the courtroom or other place’ where it is sitting has the facilities to allow all in attendance to hear and see the proceeding. A “courtroom” does not need to be a physical place, it may be a digital place, such as when a hearing is conducted via videoconference and all parties attend remotely. This construction is supported by the requirement that the matter be open in the sense that the public can be present, the emphasis on this ability to witness the proceedings rather than on any physical locality makes it the essential characteristic of a court. ‘Given the video conferencing platform upon which this hearing is being conducted can be witnessed by any member of the public…this complies with that essential requirement’ (Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664, [7]-[11]).

Judge Alone Criminal Trials and special hearings

Leave to withdraw 

  • Where a barrister applies for a discharge of a jury and vacation of a trial after seeking to withdraw due to health concerns relating to COVID-19, the question for the court is whether the case can fairly continue if the party is unrepresented (Kahil v The Queen [2020] NSWCCA 56, [23]).

Civil trials and appellate proceedings

  • Uncertainty of trial date, due to the suspension of jury trials, may be a factor that courts take into account in deciding whether to proceed with a civil case by judge alone, despite a party having requested a trial by jury. This is especially so where the proceeding merits an expedited hearing (Mulquiney v Reynolds (Ruling No 1) [2020] VSC 119, [8]. See also Wells v Cossari [2020] VCC 512).
  • The extraordinary situation does not provide a basis for dispensing with appropriate legal principles, such as giving notice to the opposing party, identifying the correct defendant, identifying parties with standing, or being able to give an undertaking of damages in relation to interim injunctions (Sharp v Conroy [2020] NSWSC 271). Nor does it justify a higher court’s intervention in an ongoing Children’s Court proceeding on the basis of a self-represented parent’s urgent application unsupported by adequate evidence (GR v Secretary, Department of Family and Community Services and Justice [2020] NSWSC 348, [13]-[35]).
  • The extraordinary problems created by the coronavirus do not justify an appellate court in departing from the fundamental principles that disallow its intervention based on events occurring after the sentencing of an offender (WRT v Western Australia [2020] WASCA 68, [76]-[82]).
  • An exception to the rule in Browne v Dunn based on the fact that witnesses are unavailable due to travel restrictions and cannot be cross-examined via videoconferencing due to the operation of domestic law is a highly experimental procedural remedy which may involve the risk of a mistrial (Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539, [16])
  • With more proceedings being impacted by the COVID-19 virus, for example by being determined on the papers, it is in the public interest for a court to give reasons, even for procedural matters, in order to provide the parties and public with a record of its reasoning. Similarly, with more people working from home it is inevitable that delays in progressing matters will result and it is unnecessary for the parties to adduce evidence of that fact, a court may ‘take judicial notice of the current environment’. However, if a party fails to comply with more generous timelines set by the court as a result, they may still be required to provide reasons for the delay (Reilly v Australia and New Zealand Banking Group Ltd [2020] FCA 436, [8]-[9]; Kemp v Westpac Banking Corporation [2020] FCA 437, [8]-[9]).
  • It is not a denial of natural justice to direct that an application for leave to appeal be heard on the papers, even if one of the parties is self-represented (Malloy v Malloy [2020] FamCAFC 69). However, there are considerations favouring unrepresented litigants being granted the opportunity to appear before the court on the final hearing of their matters. Further, it would not be entirely satisfactory for a self-represented litigant to appear by telephone where the represented party's lawyers are able to appear by audio-visual link (French v Bremner [2020] NSWCA 77, [19]). 
  • Because of the COVID-19 pandemic it is not ‘practicable’ to serve a document in a way required by the rules and substitute service via email may be ordered (Australian Information Commission v Facebook Inc [2020] FCA 531, [69]-[71], [73]). Even if it is overseas and pursuant to the Hague Convention (NPP Australia Limited v Ripple Labs, Inc [2020] FCA 1237, [36]).
  • Although there may be logistical difficulties in producing documents during the COVID-19 pandemic, this does not itself make production of the documents oppressive (Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840, [98]).
  • Although entitled to have the plaintiff undergo a psychological examination, the defendant cannot expect them to travel to Sydney and quarantine in Adelaide on return, at risk to their mental health, when qualified examiners are available in Adelaide (Kenny v Catholic Diocese of Maitland-Newcastle [2020] NSWDC 481, [14]-[20]).

Commercial Proceedings

  • The current circumstances under which retailers must operate during the coronavirus pandemic may be sufficient, in part, to allow administrators to direct companies not to pay rent for two weeks and to vary the operation of the Corporations Act 2001 (Cth) so the administrators are not personally liable for such rental payments (Strawbridge (Administrator) in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472, [43]-[58]). Uncertainties in relation to the impact of the JobKeeper package and the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles During COVID-19 may justify an extension of the time during which administrators will not be personally liable for a company’s failure to make rental payments (Strawbridge (Administrator) in the matter of CBCH Group Pty Ltd (Administrators Appointed) (No 3) [2020] FCA 555). 
  • Delays and logistical challenges in conducting the administration of companies caused by government measures to suppress the COVID-19 virus, such as physical distancing regulation, may require the courts to exercise powers under the Corporations Act to allow for required processes to be conducted electronically. For example, creditor and committee of inspection meetings may need to be held exclusively via audio-visual link. The circumstances may also justify an extension of time for administrators to give notice under s 443B of the Corporations Act as public institutions such as the Court must do all they can to facilitate the continuation of the economy (Eagle, in the matter of Techfront Australia Pty Limited (administrators appointed) [2020] FCA 542, [4]-[7], [28]).​
  • A condition for granting relief against the forfeiture of a commercial lease may require reinstatement of a bank guarantee even though the lessors might be impeded from calling upon it during the period of legislative and regulatory changes operating to deal with the COVID-19 pandemic (the ‘COVID-19 Regime’). However, in the present economic climate, it may not be fair to require the guarantee’s immediate replacement where the effect of calling on the guarantee is to leave the lessee in credit in relation to future rental payments (Sneakerboy Retail Pty Ltd v Georges Properties Pty Ltd [2020] NSWSC 996, [115]-[116]). It is also an issue of concern that granting relief against forfeiture will immediately subject the parties to the COVID-19 Regime, which, in addition to foreseen impacts such as the amount and timing of rental payments, will likely have unforeseen effects, and in those circumstances the court should not simply publish its reasons and be done. It is proper for it to call upon ‘the parties to agree a suitable and efficient process for implementing the COVID-19 regime in a timely way’ (Ibid [118]-[119]).
  • A contract for the sale of a bar and lounge is not frustrated where the parties entered into it with full knowledge that progressive government restrictions on public gatherings in light of the coronavirus pandemic had been imposed and must have foreseen there was a real likelihood that others might follow (Happy Lounge Pty Ltd v Choi & Lee Pty Ltd [2020] QDC 184, [35]). Nor will those regulations, making operation of the business illegal, support a claim for termination based on a contract term requiring operation of the business as a going concern until the date of settlement (Ibid [72]-[73]).

Amending or staying orders and decisions

    • An order for self-isolation, and an inability in current circumstances to find alternative accommodation, may be grounds to vary or set aside an order requiring a person to give up vacant possession of a property. Such an application must be determined after argument from both parties (Foundas v Arambatzis (No 2) [2020] NSWCA 51).
    • However, the mere possibility that Government may make regulations prohibiting a landlord from evicting a tenant does not provide a basis for a court to stay an existing order requiring a mortgagor to give up vacant possession to the mortgagee following default on the mortgage. It may justify a short stay of execution of a writ of possession to allow for an orderly and safe vacating of the property, but not more (Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324Stacks Managed Investments Ltd v Rambaldi [2020] NSWSC 722, [40]-[48]).
    • Nor does the mere existence of the pandemic call for the suspension of all critical thinking and judgment, evidence of a threat adequate to support a stay must be produced (Wallis v Rudek (No 3) [2020] NSWSC 338, [43]-[51]). However, the advanced age of the applicants and the threat posed by the pandemic to them as vulnerable persons, may justify imposition of a conditional stay and undertaking pending appeal (Wallis v Rudek [2020] NSWCA 61, [24]-[47]). But as the circumstances around the pandemic have changed in NSW and the undertakings have been breached, the stay may be dissolved (Wallis v Rudek (No 2) [2020] NSWCA 175, [25]-[31]).
    • These interests of staff and clients are to be taken into account when considering the application for a stay of a decision to cancel an Australian financial services licence for failure to comply with obligations under the Corporations Act. The impact of the pandemic on the economy may exacerbate the significance of staff losing employment or client’s losing the ability access to ongoing financial advice (Olive Financial Markets v ASIC [2020] AATA 982, [14], [23], [25]). 
    • The interests of parents, particularly essential workers, in maintaining access to paid childcare during the pandemic, weighs in favour of the exercise of discretion to stay the operation of a decision to cancel a Childcare Centre’s provider approval (Early Childhood Education Australia Pty Ltd v Secretary, Department of Education (NSW) [2020] NSWCATAD 118).
    • The balance of convenience in favour of an interim injunction preventing eviction tips in the plaintiff’s balance where, in pertinent part, their age places them in a group at heightened risk of the coronavirus and because of government advice and policy that people remain in their residence (Amato v JAS Property Developments Pty Ltd [2020] VSC 480).

    Making orders

    • The current coronavirus crisis may make it appropriate to direct that orders not take effect until some future time. This may be appropriate to extend the date from which leave to appeal runs (BEA15 v Minister for Immigration and Border Protection [2020] FCA 392, [54]).
    • It is not necessary to delay the making of a valuation order based on the uncertainty of current circumstances, as the Victorian experience with the pandemic demonstrates, changes are happening too quickly to anticipate and there is no guarantee that an order directing a valuation be made at a later date will not, due to continued instability, have to be made again. Trained valuers, moreover, will account for current circumstances and factor in the prospect of recovery (Sampsell v Garard [2020] FCCA 2276, [4]-[7]).

    Family Law

    • Given the COVID-19 pandemic, placing a 17-month old child in out of home care may pose significant difficulties in arranging and supervising contact visits such that the mother/daughter bond is put at risk and this should not be done by compulsion of law except where the child’s ‘circumstances clearly demonstrate unacceptable risk to her best interests’ (Secretary of the Department of Health and Human Services v The Children’s Court of Victoria  [2020] VSC 144, [33]-[36]).
    • Online platforms such as Zoom, etc, are temporarily sufficient to enable meaningful visitation between a parent and child during the pandemic rather than placing children at risk (Banham v Banham [2020] FCCA 1201, [10]-[13]; Collingwood v Collingwood [2020] FamCA 390).  However, one parent should not be able to use the circumstances of the pandemic in order to deny face to face visits between the other parent and their child (Xiu v Hodges [2020] FamCA 225. [79]). Nor should current circumstances be allowed to create a “blanket policy” that children should never leave their primary home – even to visit their other parent (Cheadle v Pointer [2020] FamCA 327, [48]).
    • In making an interim supervision order for the care of a child where there is conflict between the parents and who live some distance apart, so that the father cannot visit the child in the mother’s home or a public place, the child’s well-being requires she cannot be exposed during the pandemic and special arrangements may have to made for visitation (Zeelan v Abney [2020] FCCA 884, [63]-[69], [73], [78]-[80]).
    • The current state of emergency and restrictions that are put in place do not provide a general excuse for not complying with parenting orders of the Court (Mafton v Salmet (No. 2) [2020] FCCA 903, [31]. In considering whether there is an unacceptable risk that current parenting orders will not be complied with it is necessary to consider whether there are particular risks in the circumstances of the case including whether the child or any of the relevant parties have immune-compromised systems, have come into contact with or been exposed to someone who is suspected of having the virus, or have breached the directive and requirements of social distancing (Mafton v Salmet (No. 2) [2020] FCCA 903, [32]-[33]).
    • A significant decline in a parent’s finances as a result of the COVID-19 pandemic may constitute an exceptional circumstance which causes them hardship sufficient to justify setting aside a binding child support agreement (Martyn v Martyn [2020] FamCA 526, [71]). Moreover, given the absence of evidence as to the likely duration and impact of the virus on international commerce, the basis of the parent’s business, it cannot be determined if their finances would ever recover sufficiently and so the obligation should be set aside rather than suspended for a period of time (Ibid [72]).

    Guardianship

    • The circumstances of the pandemic and an impaired individual’s inability to understand the need to self-isolate in order to protect themselves may justify amendment of orders under the Guardianship Act (NSW) allowing their guardian to make significant decisions regarding their residence and freedom of movement, access to the community and further authorising police and ambulance services to follow the guardian’s directions regarding taking, holding, and returning the person toa specific place (UZX [2020] NSWCATGD 3GZK [2020] NSWCATGD 5).
    • ​The additional functions granted to a guardian due to the impact of COVID-19 should be limited so that they are in effect self-extinguishing and cannot be exercised if an appropriate Public Health Order is not in force. The additional function was to be exercised as a last resort and whilst a Public Health order is in force (GZK [2020] NSWCATGD 5).

    Immigration 

    Tort

    • Although the court does not make findings of fact on an interlocutory application, a prisoner’s evidence of the lack of appropriate hygiene in prison and the prison’s failure to obtain a risk assessment regarding the possibility of the coronavirus’ entry and spread in the prison establishes a prima facie case that prison authorities have breached their duty of care towards him. The prisoner will not be released while internal applications for release are pending, but it is within the court’s power to preserve the subject matter of the litigation, eg, his life, and so adjourn his summons on the basis that a risk assessment be carried out and any recommendations made by it are implemented (Rowson v Secretary, Department of Justice and Community Safety [2020] VSC 236, [8]-[13], [92]-[102]).

    Property / Residential Tenancies 

    • There has never been any legislation or order in force preventing someone from seeking new residential accommodation or precluding the execution of a writ of possession during the pandemic (Foundas v Arambatzis (No 4) [2020] NSWCA 100). However, it may be appropriate to stay execution of such a warrant for a period of 14-days after the lifting of stage-4 restrictions in Victoria (Nestor v Ripley [2020] FamCA 694). Similarly, while it may be appropriate to make a termination order, it may not be appropriate to also make a possession order during stage-4 restrictions which will greatly hamper the ability of the tenants to search for a new home (Servinis v Hartwick (Residential Tenancies) [2020] VCAT 1017, [40]).
    • The provisions of Victorian emergency legislation prohibiting the termination of a residential tenancy agreement do not apply when the basis for the termination application is the landlord’s intention to occupy the premises on termination, not the tenant’s failure to comply with an obligation of the agreement. Parliament’s intention of protecting tenants during the pandemic does not mean that termination is a last resort (Koh v Thomas [2020] VCAT 591, [34]-[47]).
    • It may not be reasonable and proportionate to make a termination order in a time of pandemic so that the landlords may maximise the value of their property for sale where the tenants are elderly, in ill health, would have to physically inspect a new residence, and are not financially able to start a new tenancy at this time (LKZ v BSL (Residential Tenancies) [2020] VCAT 909, [28]-[35]).

    Constitutional Law 

    Costs 

    Employment Law