As it must, the administration of justice continues during COVID-19 with courts and tribunals embracing the expanded use of technology, parties conducting mediations through online platforms and affidavits being accepted in draft with a sworn or affirmed version to be provided at a later stage.
In March 2020, the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) was amended to introduce special provisions enabling courts and tribunals to direct that evidence from witnesses and submissions from legal practitioners be made by audio and audio visual link.
This month, the courts have sent a clear message that COVID-19 is not, of itself, a reason to adjourn hearings. As Perram J observed last week, “It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period”1.
If parties wish to adjourn a hearing, the following cases should be considered.
JKC Australia Lng Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38) (JKC case)
The Western Australian Court of Appeal found that a party is not “entitled” to have a face-to-face hearing and that telephone or video link hearings were adequate because:
“Procedural fairness requires that a party be provided with an adequate opportunity to properly present its case. The court's experience is that… the conduct of an appeal hearing by telephone provides for comprehensive and considered dialogue and debate between bar and bench as to the issues raised by the appeal.”
However, the Court will assess the prejudice associated with the lack of a face-to-face hearing by taking 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 will be weighed up 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.
Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504
Defendants to proceedings commenced by ASIC sought to adjourn their trial but the Federal Court held that it would not be deprived of an ability to assess credibility of witnesses where those witnesses give their evidence by video.
His Honour first satisfied himself that it was possible for the trial to be conducted fairly and then indicated his intention and focus to try and make the trial work.
The Court found that the inability of the court to see and hear witnesses in person does not necessarily lead to a diminution in the court’s ability to assess the demeanour of the witness, their difficulty in answering questions, their hesitations or idiosyncratic reactions when being confronted with questions or documents. In some respects, the court considered it can be easier to observe a witness closely through the use of technology compared to a sometimes partially obscured and distant witness box.
His Honour also acknowledged the JKC case handed down a fortnight earlier and stated that he too was “unable to perceive any real risk of practical injustice”.
Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd [2020] VSC 161
Here, a defendant sought to have an April trial date vacated on a number of grounds, including the impact of the COVID-19 pandemic.
The plaintiff opposed the application submitting, amongst other things, that the inconvenience of dealing with the COVID-19 pandemic restrictions was common to all parties to the proceeding and not a reason of itself to justify an adjournment. The plaintiff contended it had a prima facie right to a timely determination of its claim.
The Supreme Court of Victoria granted the adjournment and specifically noted that it is not inconsistent with the overarching obligations under the Civil Procedure Act 2010 (Vic) to:
“extend some latitude to legal practitioners, litigants and witnesses in the circumstances of the unprecedented constrains on economic activity and freedom of movement that currently are in place in response to the pandemic”.
While delay is of itself prejudicial to litigants, the Court noted that the plaintiff did not identify any specific prejudice it would suffer.
Interestingly, the Court also made reference to the current rate of interest payable under the Penalty Interest Rates Act 1983 (Vic) (currently 10% per annum) as being significantly favourable to the plaintiff in any event.
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
In this class action involving allegedly defective gear boxes, the Federal Court declined the respondent’s application to adjourn the six week trial (set down for June 2020).
Perram J’s judgment discusses the relevant factors in determining whether a virtual trial might be appropriate.
For a summary of Perram J’s judgment, read more in this article.
1 Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
