covid19-law.com.au
5. Civil Procedure
B. Adjournments
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
Applications for adjournment have been made in a number of jurisdictions on the basis that proposed alternative hearing arrangements required by measures in response to COVID-19 are said to give rise to a risk of prejudice or unfairness to a party.
The courts have generally reached the conclusion that, as the response to COVID-19 requires fundamental changes to the traditional mode of trial — where parties, lawyers and witnesses are all physically present in court — the administration of justice generally requires that trials be conducted in those changed circumstances, even though that will create difficulties.
The Federal Court has given careful consideration to the relevance of the measures taken in response to COVID-19 to applications for adjournment. In Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 and Capic v Ford Motor Company of Australia Limited [2020] FCA 486 the Court refused such an application, while noting that making the application had nevertheless been justified: Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [9], [43]; Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [26] (ordering the parties to bear their own costs).
In Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, the Court observed that:
See also Desira v Airservices Australia [2020] FCA 818, [36], citing Capic v Ford Motor Company of Australia Limited [2020] FCA 486 as authority for the proposition that difficulties attending cross-examination by video-link do not necessitate adjournment.
To the extent that Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 and Capic v Ford Motor Company of Australia Limited [2020] FCA 486 considered the impact of virtual modes of hearing on cross-examination, the result in those cases can be contrasted with Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614. In the latter case, the Federal Court vacated the date for a defamation trial, in part, on the basis that the credibility and reliability of certain witnesses would be crucial, and that the allegations the subject of the proceeding were very serious. In those circumstances, the Court accepted that key witnesses should give their evidence in person, in order to allow the parties a fair and proper opportunity to present their respective cases ([22]). The decision also turned on issues relating to national security information, with the Court accepting a submission that Microsoft Teams was not a suitable platform for communicating national security information, within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ([15(2)], [22]).
GetSwift was followed in Sheahan & Lock v Chan [2020] SADC 59 at [58]–[61], [67], [70], after referring to Roberts-Smith. There is also a useful discussion in Sheahan, [48]–[56] of pre-COVID-19 decisions about the effect on oral evidence, and cross-examination, of trial by video-link as opposed to in-court.
In a different context, the Federal Court was satisfied that a proceeding should be adjourned in circumstances where expert evidence was to be given by a particular public health physician and epidemiologist and, after the expert's report had been filed, the Victorian Government requested that she assist with an outbreak of COVID-19 within that State: Palmer v State of Western Australia [2020] FCA 962, [8]-[20].
In JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, the Court of Appeal of the Supreme Court of Western Australia considered the requirements of procedural fairness in the context of an appeal proposed to be conducted by telephone. In dismissing an application to adjourn the appeal, the Court relevantly held ([7]-[8]):
In that case, the Court did not accept that the respondents would be materially prejudiced by the appeal being conducted by telephone in circumstances where, among other things, there were no factual disputes, the questions in the appeal were clearly identified in the grounds of appeal and notice of contention (and had been the subject of detailed written submissions), senior counsel for the respondent had acted in the proceeding before the primary judge, and counsel could communicate electronically during the hearing of the appeal ([12]-[14], [16]).
The Family Court may, on its own initiative, vacate listings due to procedural difficulties arising from COVID-19: Kipling & Netis [2020] FamCAFC 79, [3].
In considering an application to vacate a trial date, a court may take account of constraints imposed by COVID-19 restrictions on the capacity of experts to prepare their reports: Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd [2020] VSC 161, [19].
When refusing an adjournment, the courts have observed that a decision to proceed with a hearing by alternative means can always be revisited at a later stage of a proceeding: see, for example, Roach v Malsave Pty Ltd [2020] NSWSC 364, [45]; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [35]. Similarly, the "fluid nature of attempts by government, at different levels, to respond to the pandemic" may bear on assessment by a court of whether a case should proceed at a later date: McDougall v Nominal Defendant [2020] NSWDC 194, [8]-[11].
In Roach v Malsave Pty Ltd [2020] NSWSC 364, the NSW Supreme Court held that the plaintiff would not be disadvantaged by giving evidence by audio-visual link, even where their credibility was in issue in the trial, as the tribunal of fact was required not to give their evidence any greater or lesser weight by reason of it having been given by audio-visual link ([36], [43]-[44]). Similarly, and consistently with the Federal Court's observations in GetSwift (at [33]; see above), the NSW Supreme Court has held that a hearing by audio-visual is not necessarily less effective or less just than one in person and that the magnification of a witness’s or judge’s face on screen may, in some cases, be advantageous because of the better vantage point it gives of facial expressions: Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846, [11]-[13].
Courts have refused applications for adjournments made on other bases relevant to COVID-19.
In ELP18 v Minister for Immigration [2020] FCCA 647, the Federal Circuit Court held that the stress associated with having a family member ill with COVID-19 was not, in the absence of other grounds, a sufficient reason for an adjournment ([7]-[8]).
Applications for adjournment may be more readily refused where the party seeking the adjournment has not acted reasonably.
In Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563, the Federal Court refused to adjourn an application indefinitely because of difficulties contacting an applicant who had gone into remote self-isolation. The Court relevantly held that it would not be just to grant an indefinite adjournment in circumstances where the applicant had absented himself without taking steps to stay in contact with his solicitors in order to provide instructions: Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563, [58]. The Court refused an adjournment in similar circumstances in Wharton on Behalf of the Kooma People v State of Queensland [2020] FCA 574, [4]-[10].
However, courts have also on occasion adjourned a trial of a civil proceeding having regard to COVID-19 measures.
The Federal Court vacated a trial date because of difficulties in cross-examining witnesses located in China, including the possibility of Chinese law preventing such cross-examination, and questions about the operation of the rule in Browne v Dunn in that context: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd [2020] [2020] FCA 539, [2]-[18].
The NSW Court of Appeal vacated a hearing in circumstances where certain parties were unrepresented, noting that there were considerations favouring unrepresented litigants being granted the opportunity to appear physically before the court on the final hearing of their matters, at least where it was not clear whether they would be able to access necessary audio-visual equipment: French v Bremner [2020] NSWCA 77, [16]-[21].
In David Quince v Annabelle Quince and Anor [2020] NSWSC 326, the NSW Supreme Court vacated a trial date, rather than allow the trial to proceed by video-link. The Court considered that it would be unfair to require the matter to proceed by video-link in circumstances where allegations of fraud had been made in the absence of substantial corroborative or other material ([5], [15]-[20]). The Court considered that, in those circumstances, the demeanour of key witnesses might play a very significant part in determining whether such serious allegations had been made out and it would be unfair to deny the parties an opportunity to ventilate the issue in a conventional setting ([16]). The Court rejected a submission that s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) should not be given its usual operation because all litigants were “in the same boat” as a result of COVID-19 ([18]-[19]). The Court also observed that the test in s 5B is an objective one and there will be many cases in which proceeding by video-link will not be unfair ([19]).
The Supreme Court of Victoria has cautioned that David Quince v Annabelle Quince and Anor [2020] NSWSC 326 is not authority for the proposition that a trial conducted by video-link should not proceed wherever there is a question of credit to be determined: Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242, [19]. Rather, whether trial by video-link is appropriate is a matter to be determined on a case-by case-basis: Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242, [19].
In Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64, the ACT Supreme Court adjourned proceedings concerning the sale of real property, for reasons including the following ([14]-[16]):
Similarly, bodies other than superior courts have considered adjournment applications made on the basis of COVID-19 restrictions.
The interests of justice, properly balanced, may require the hearing of an appeal against a deemed refusal of a development application to proceed before the NSW Land and Environment Court, at least where the Court is satisfied that appropriate procedures can be put in place to ensure that there will be an appropriate hearing of the appeal: DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31. This may involve the Court being satisfied that documentary evidence can be provided in lieu of a site inspection or objectors giving evidence orally: DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31, [33]-[34], [37].
The obligation of certain decision-making bodies to conduct hearings in a quick and informal manner may bear on decisions as to whether to grant adjournments in light of COVID-19. In Muthukuda Arachchige Dona [2020] AATA 753, the applicant had sought an adjournment on the basis of concerns about the “social and financial implications” of his family travelling from Launceston to Melbourne for the purposes of the hearing, in light of the spread of COVID-19 (see particularly: [15], [21]-[24]). In refusing the request, the AAT relevantly had regard to its obligation to decide the application in a manner that was reasonable, as well as of the need to conduct its review in a manner that was “fair, just, economical, informal and quick”. Further, the AAT considered that the applicant could appear by telephone and appears to have taken into account that the applicant had not previously responded to certain requests for information.
Travel restrictions imposed in response to COVID-19 were also considered by the AAT in the context of an application for adjournment in 1928904 [2020] AATA 673. The applicant was offshore, and it was uncertain when they would be able to return to Australia (see [2]-[3]). The AAT refused the application and the applicant ultimately appeared by telephone (see [3]).
In Clark and Comcare (Compensation) [2020] AATA 864, the AAT found that the inability of a lawyer to conduct a face-to-face conference with their client, for the purposes of taking instructions, did not give rise to prejudice or procedural unfairness so as to justify vacating the date for a hearing proposed to be conducted virtually ([24]). Further, the AAT held that the fact that only four participants can be viewed at any one time on Microsoft Teams is a not a sufficient reason to vacate a hearing, observing ([17]-[18]):
However, the AAT ultimately vacated the hearing on the basis that the AAT had been undertaking a review of its procedure for issuing summonses in light of the pandemic, which had caused a number of summonses sought to be issued in the proceeding to not have been processed ([26]-[28]).
The AAT has held substantial review hearings by telephone: see, for example, Crisp and Comcare [2020] AATA 1122, [4], where the AAT was satisfied having regard to relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) that it was reasonable to hear the review proceeding by telephone, including adducing evidence from expert witnesses, where the applicant was self-represented. See also McKenzie and Secretary, Department of Social Services [2020] AATA 1120, [15].
B. Adjournments
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
Applications for adjournment have been made in a number of jurisdictions on the basis that proposed alternative hearing arrangements required by measures in response to COVID-19 are said to give rise to a risk of prejudice or unfairness to a party.
The courts have generally reached the conclusion that, as the response to COVID-19 requires fundamental changes to the traditional mode of trial — where parties, lawyers and witnesses are all physically present in court — the administration of justice generally requires that trials be conducted in those changed circumstances, even though that will create difficulties.
The Federal Court has given careful consideration to the relevance of the measures taken in response to COVID-19 to applications for adjournment. In Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 and Capic v Ford Motor Company of Australia Limited [2020] FCA 486 the Court refused such an application, while noting that making the application had nevertheless been justified: Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [9], [43]; Capic v Ford Motor Company of Australia Limited [2020] FCA 486, [26] (ordering the parties to bear their own costs).
In Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, the Court observed that:
- the Court’s judicial function can be performed effectively, even where a hearing cannot be conducted in accordance with traditional practices and procedures, and the Court must continue to do its job while ensuring cases are determined justly ([7]-[9]);
- the application for adjournment was justified — no litigant, particularly those involved in serious proceedings, should apprehend that they will be materially prejudiced by reason of the mode of trial ([9]);
- determination of an adjournment application required competing considerations to be balanced in light of the Court’s obligation under s 37M of the Federal Court of Australia Act 1976 (Cth) to facilitate the just resolution of disputes, accordingly to law, and as quickly and inexpensively and efficiently as possible ([10]);
- evidence of the reasons supporting an application for adjournment of trial may not be necessary, as the Court can take judicial notice of the circumstances of the COVID-19 pandemic in assessing the application ([11]);
- the process of receiving both evidence (including evidence adduced in cross-examination) and submissions, although sub-optimal, may not be impaired to such an extent as to render the trial “second-rate” ([25]);
- it would be unrealistic to expect overseas witnesses, in the circumstances of COVID-19, to travel to Australia, although they may be able to give evidence remotely ([28]);
- there may be real disadvantages to junior counsel not being able to communicate face-to-face with senior counsel about matters of cross-examination, although use of other modes of communication and short adjournments, where necessary, can ameliorate such difficulties ([29]);
- difficulties involved in large legal teams working together remotely do not themselves make a trial unfair ([30]);
- similarly, unexpected technological difficulties may be overcome by the parties working together, and with the Court, and by the Court showing latitude and forbearance in allowing such difficulties to be resolved ([31]);
- it may be easier to assess a witness’s demeanour virtually than in person, as technology may facilitate a closer view of the witness ([33]);
- difficulties involved in counsel taking instructions remotely are not insuperable ([34]);
- a decision on the mode of trial can be revisited at any time, where circumstances require ([30]), and the costs involved in starting a trial and then adjourning it may be outweighed by countervailing considerations ([35]);
- the Court can sit outside ordinary hours to ensure that overseas witnesses are not required to give evidence late at night ([36]);
- class actions and regulatory proceedings may present particular issues requiring them to be determined more promptly than other types of proceedings ([38]); and
- the demands of open justice can be met in the context of virtual hearings ([41]).
- orders made by the Federal Court must not increase the risk posed to practitioners, witnesses, court and transcript staff and judicial officers, of spreading and of contracting COVID-19 ([3]);
- 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, during the COVID-19 pandemic ([5]);
- there will be cases in which a virtual hearing will not be feasible, including having regard to considerations of fairness. For example, it might not be possible to have a fair hearing virtually where an applicant does not speak English and is in immigration detention ([7]);
- the possibility of intermittent internet connections was not itself a reason to adjourn a trial rather than proceed virtually ([11]);
- the possibility of internet architecture failing can be confronted by parties being given leave to raise issues concerning COVID-19 impacting their compliance with programming orders, if and when they arise ([12]);
- the potential difficulties for practitioners arising from not being in one place for the trial — including difficulties giving and receiving instructions, conferring between counsel and sharing documents — do not necessarily render the trial unfair or unjust ([13]);
- similarly, difficulties involved in dealing with expert witness virtually — including, counsel conferencing expert witnesses, expert witnesses conferring for the purposes of producing a joint report and multiple experts being examined at the same time — do not necessarily render the trial unfair or unjust ([14]-[15]);
- potential risks to the integrity of lay witness evidence — such as the risk of lay witnesses being coached while giving evidence virtually — were not acute in the circumstances of the case ([16]);
- difficulties involved in assisting lay witnesses to access and use technology necessary for participating in a virtual hearing can be confronted as they arise ([17]);
- the applicant’s intention to call 50 witnesses raised no special issues in the context of a virtual trial listed for six weeks ([18]);
- in the circumstances of the response to COVID-19, cross-examination of witnesses virtually is not unsatisfactory, although there will be differences involved in how counsel deals with witnesses on cross-examination and in how objections are made ([19]);
- difficulties involved in document management during a virtual hearing do not render a trial unfair or unjust ([20]); and
- it is not feasible or consistent with the overarching concerns of the administration of justice to postpone the work of courts for a prolonged and indeterminate period of time ([23], [24]).
See also Desira v Airservices Australia [2020] FCA 818, [36], citing Capic v Ford Motor Company of Australia Limited [2020] FCA 486 as authority for the proposition that difficulties attending cross-examination by video-link do not necessitate adjournment.
To the extent that Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 and Capic v Ford Motor Company of Australia Limited [2020] FCA 486 considered the impact of virtual modes of hearing on cross-examination, the result in those cases can be contrasted with Roberts-Smith v Fairfax Media Publications Pty Limited (No 4) [2020] FCA 614. In the latter case, the Federal Court vacated the date for a defamation trial, in part, on the basis that the credibility and reliability of certain witnesses would be crucial, and that the allegations the subject of the proceeding were very serious. In those circumstances, the Court accepted that key witnesses should give their evidence in person, in order to allow the parties a fair and proper opportunity to present their respective cases ([22]). The decision also turned on issues relating to national security information, with the Court accepting a submission that Microsoft Teams was not a suitable platform for communicating national security information, within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ([15(2)], [22]).
GetSwift was followed in Sheahan & Lock v Chan [2020] SADC 59 at [58]–[61], [67], [70], after referring to Roberts-Smith. There is also a useful discussion in Sheahan, [48]–[56] of pre-COVID-19 decisions about the effect on oral evidence, and cross-examination, of trial by video-link as opposed to in-court.
In a different context, the Federal Court was satisfied that a proceeding should be adjourned in circumstances where expert evidence was to be given by a particular public health physician and epidemiologist and, after the expert's report had been filed, the Victorian Government requested that she assist with an outbreak of COVID-19 within that State: Palmer v State of Western Australia [2020] FCA 962, [8]-[20].
In JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, the Court of Appeal of the Supreme Court of Western Australia considered the requirements of procedural fairness in the context of an appeal proposed to be conducted by telephone. In dismissing an application to adjourn the appeal, the Court relevantly held ([7]-[8]):
- procedural fairness requires that a party be provided with an adequate opportunity to properly present its case - it does not “entitle” a party to a face-to-face hearing (compare Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64, discussed further below);
- an appeal hearing by telephone would not be “manifestly inadequate”, nor would an appeal hearing by video-link be inadequate;
- there may be no significant disadvantage arising from counsel being unable to have the benefit of non-verbal communication with the Court throughout the course of an appeal;
- in the extraordinary circumstances presented by the COVID-19 pandemic, arrangements for telephone and video-link hearings implemented by the WA Supreme Court are a proportionate alternative to the normal practice and procedure of the Court, consistent with the due administration of justice; and
- it would be antithetical to the due administration of justice, if the WA Supreme Court were unable to conduct any hearings for an indeterminate time, which would be the consequence of accepting the submissions in support of the adjournment in that case.
In that case, the Court did not accept that the respondents would be materially prejudiced by the appeal being conducted by telephone in circumstances where, among other things, there were no factual disputes, the questions in the appeal were clearly identified in the grounds of appeal and notice of contention (and had been the subject of detailed written submissions), senior counsel for the respondent had acted in the proceeding before the primary judge, and counsel could communicate electronically during the hearing of the appeal ([12]-[14], [16]).
The Family Court may, on its own initiative, vacate listings due to procedural difficulties arising from COVID-19: Kipling & Netis [2020] FamCAFC 79, [3].
In considering an application to vacate a trial date, a court may take account of constraints imposed by COVID-19 restrictions on the capacity of experts to prepare their reports: Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd [2020] VSC 161, [19].
When refusing an adjournment, the courts have observed that a decision to proceed with a hearing by alternative means can always be revisited at a later stage of a proceeding: see, for example, Roach v Malsave Pty Ltd [2020] NSWSC 364, [45]; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504, [35]. Similarly, the "fluid nature of attempts by government, at different levels, to respond to the pandemic" may bear on assessment by a court of whether a case should proceed at a later date: McDougall v Nominal Defendant [2020] NSWDC 194, [8]-[11].
In Roach v Malsave Pty Ltd [2020] NSWSC 364, the NSW Supreme Court held that the plaintiff would not be disadvantaged by giving evidence by audio-visual link, even where their credibility was in issue in the trial, as the tribunal of fact was required not to give their evidence any greater or lesser weight by reason of it having been given by audio-visual link ([36], [43]-[44]). Similarly, and consistently with the Federal Court's observations in GetSwift (at [33]; see above), the NSW Supreme Court has held that a hearing by audio-visual is not necessarily less effective or less just than one in person and that the magnification of a witness’s or judge’s face on screen may, in some cases, be advantageous because of the better vantage point it gives of facial expressions: Stott v Advanta Seeds Pty Ltd [2020] NSWSC 846, [11]-[13].
Courts have refused applications for adjournments made on other bases relevant to COVID-19.
In ELP18 v Minister for Immigration [2020] FCCA 647, the Federal Circuit Court held that the stress associated with having a family member ill with COVID-19 was not, in the absence of other grounds, a sufficient reason for an adjournment ([7]-[8]).
Applications for adjournment may be more readily refused where the party seeking the adjournment has not acted reasonably.
In Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563, the Federal Court refused to adjourn an application indefinitely because of difficulties contacting an applicant who had gone into remote self-isolation. The Court relevantly held that it would not be just to grant an indefinite adjournment in circumstances where the applicant had absented himself without taking steps to stay in contact with his solicitors in order to provide instructions: Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563, [58]. The Court refused an adjournment in similar circumstances in Wharton on Behalf of the Kooma People v State of Queensland [2020] FCA 574, [4]-[10].
However, courts have also on occasion adjourned a trial of a civil proceeding having regard to COVID-19 measures.
The Federal Court vacated a trial date because of difficulties in cross-examining witnesses located in China, including the possibility of Chinese law preventing such cross-examination, and questions about the operation of the rule in Browne v Dunn in that context: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd [2020] [2020] FCA 539, [2]-[18].
The NSW Court of Appeal vacated a hearing in circumstances where certain parties were unrepresented, noting that there were considerations favouring unrepresented litigants being granted the opportunity to appear physically before the court on the final hearing of their matters, at least where it was not clear whether they would be able to access necessary audio-visual equipment: French v Bremner [2020] NSWCA 77, [16]-[21].
In David Quince v Annabelle Quince and Anor [2020] NSWSC 326, the NSW Supreme Court vacated a trial date, rather than allow the trial to proceed by video-link. The Court considered that it would be unfair to require the matter to proceed by video-link in circumstances where allegations of fraud had been made in the absence of substantial corroborative or other material ([5], [15]-[20]). The Court considered that, in those circumstances, the demeanour of key witnesses might play a very significant part in determining whether such serious allegations had been made out and it would be unfair to deny the parties an opportunity to ventilate the issue in a conventional setting ([16]). The Court rejected a submission that s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) should not be given its usual operation because all litigants were “in the same boat” as a result of COVID-19 ([18]-[19]). The Court also observed that the test in s 5B is an objective one and there will be many cases in which proceeding by video-link will not be unfair ([19]).
The Supreme Court of Victoria has cautioned that David Quince v Annabelle Quince and Anor [2020] NSWSC 326 is not authority for the proposition that a trial conducted by video-link should not proceed wherever there is a question of credit to be determined: Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242, [19]. Rather, whether trial by video-link is appropriate is a matter to be determined on a case-by case-basis: Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242, [19].
In Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64, the ACT Supreme Court adjourned proceedings concerning the sale of real property, for reasons including the following ([14]-[16]):
- litigants have a “right” to appear in court to give evidence and observe the running of their case, including by providing instructions, sometimes very promptly;
- there is a relevant distinction between procedural steps in a proceeding and a final hearing;
- the hearing proceeding as listed could result in the relevant property being sold in a climate where property values were likely to be substantially reduced; and
- if the property were sold, the applicant would be required to leave his residence, which would expose him to the risk of contracting COVID-19 in circumstances where he had a pre-existing medical condition that placed him in a higher risk category with respect to the virus.
Similarly, bodies other than superior courts have considered adjournment applications made on the basis of COVID-19 restrictions.
The interests of justice, properly balanced, may require the hearing of an appeal against a deemed refusal of a development application to proceed before the NSW Land and Environment Court, at least where the Court is satisfied that appropriate procedures can be put in place to ensure that there will be an appropriate hearing of the appeal: DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31. This may involve the Court being satisfied that documentary evidence can be provided in lieu of a site inspection or objectors giving evidence orally: DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31, [33]-[34], [37].
The obligation of certain decision-making bodies to conduct hearings in a quick and informal manner may bear on decisions as to whether to grant adjournments in light of COVID-19. In Muthukuda Arachchige Dona [2020] AATA 753, the applicant had sought an adjournment on the basis of concerns about the “social and financial implications” of his family travelling from Launceston to Melbourne for the purposes of the hearing, in light of the spread of COVID-19 (see particularly: [15], [21]-[24]). In refusing the request, the AAT relevantly had regard to its obligation to decide the application in a manner that was reasonable, as well as of the need to conduct its review in a manner that was “fair, just, economical, informal and quick”. Further, the AAT considered that the applicant could appear by telephone and appears to have taken into account that the applicant had not previously responded to certain requests for information.
Travel restrictions imposed in response to COVID-19 were also considered by the AAT in the context of an application for adjournment in 1928904 [2020] AATA 673. The applicant was offshore, and it was uncertain when they would be able to return to Australia (see [2]-[3]). The AAT refused the application and the applicant ultimately appeared by telephone (see [3]).
In Clark and Comcare (Compensation) [2020] AATA 864, the AAT found that the inability of a lawyer to conduct a face-to-face conference with their client, for the purposes of taking instructions, did not give rise to prejudice or procedural unfairness so as to justify vacating the date for a hearing proposed to be conducted virtually ([24]). Further, the AAT held that the fact that only four participants can be viewed at any one time on Microsoft Teams is a not a sufficient reason to vacate a hearing, observing ([17]-[18]):
- in the context of a hearing concerning compensation entitlements, it would be adequate if, at any given time, the applicant’s counsel were able to see opposing counsel, any witness and the Tribunal;
- if a situation arose where some restriction in the Microsoft Teams platform prevented a party seeing an important participant at a crucial stage, the matter may need to be adjourned;
- as a general proposition, the use of Microsoft Teams does not raise procedural fairness concerns and its use is consistent with s 2A of the Administrative Appeals Tribunal Act 1975 (Cth), as well as authorised by s 33A of that Act.
However, the AAT ultimately vacated the hearing on the basis that the AAT had been undertaking a review of its procedure for issuing summonses in light of the pandemic, which had caused a number of summonses sought to be issued in the proceeding to not have been processed ([26]-[28]).
The AAT has held substantial review hearings by telephone: see, for example, Crisp and Comcare [2020] AATA 1122, [4], where the AAT was satisfied having regard to relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) that it was reasonable to hear the review proceeding by telephone, including adducing evidence from expert witnesses, where the applicant was self-represented. See also McKenzie and Secretary, Department of Social Services [2020] AATA 1120, [15].
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