Coronavirus jurisprudence: Court procedure.

This page summarises key developments in relation to court procedure due to the COVID-19 pandemic.

Generally, evidence concerning society-wide impacts, including the impact of COVID-19, affecting an offender’s conditions in custody which occur after the time they were sentenced is not admissible. GAR v The Queen [2021] NSWCCA 265, [49]-[50].

Judicial notice might be taken of the fact that there is a COVID-19 pandemic, but the impact of the pandemic on Australia or the United States is not a matter of which judicial notice can be taken because it is a matter on which expert opinion would differ. Litigation during this time calls for precise and up to date evidence, not generalisations. Police Commissioner of South Australia v Agustina (No 2) [2020] FamCA 1100, [129].

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 to stay an existing order requiring a mortgagor to give up vacant possession 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 simple existence of the pandemic call for the suspension of 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 an applicant 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 see Wallis v Rudek (No 2) [2020] NSWCA 175, [25]-[31] (changed circumstances of pandemic and breach of undertaking permit dissolution of stay). Similarly, 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.

The 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 clients losing the ability to access 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.

Business as usual

The extraordinary circumstances of the pandemic do 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]. Similarly, 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].

Because of the COVID-19 pandemic it may not be "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 this 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 [202] NSWSC 840, [98].

In person appearances

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]. 

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. Reilly v Australia and New Zealand Banking Group Ltd [2020] FCA 436, [8]; Kemp v Westpac Banking Corporation [2020] FCA 437, [8].

Miscellaneous

The uncertainty of a 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.

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, [9]; Kemp v Westpac Banking Corporation [2020] FCA 437, [9].

Although entitled to have the plaintiff undergo a psychological examination, the defendant cannot expect them to travel to Sydney and then 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].

Remote attendance and virtual trials

“Natural justice” does not require a physical hearing, Sandhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1299, [87], 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]. Moreover, an accused may, with consent, be arraigned via video-link under COVID-19 pandemic special provisions. R v Dougas [2020] NSWSC 1731.

The overarching purpose of the civil procedure provisions is to facilitate the just resolution of disputes 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. 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 is not feasible and the trial must be postponed. It will not be possible to proceed in every case. 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….[t]he 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 trial proceeds;
  • 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 a given date, 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. Capic v Ford Motor Company of Australia [2020] FCA 486, [6]-[7].

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].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].

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].

But 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 the civil practice and procedure provisions. 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 their demeanour, difficulty in answering questions, 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 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 the 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 re-listed 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 future. 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 re-institution of restrictions ‘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 ActGatto 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].

Because good virtual court communications exist, witnesses may give evidence virtually without any obvious prejudice to either party, and that militates against granting a stay of proceedings. Toyota Material Handling Australia Pty Ltd v Cardboard Collection Service Pty Ltd [2020] NSWDC 667, [43]-[45].  However, 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 (No 11) [2020] NSWSC 382.

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].

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 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].

It is not inconsistent with the overarching obligations 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].

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].

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].

The principle of open justice requires the jurisdiction of a 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 requires a 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 may pose 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 a 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 attend in the same fashion, but a balance may be struck and the interests of open justice protected by allowing the media 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.

Open justice 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].