covid19-law.com.au
5. Civil Procedure
D. Determinations otherwise than by oral hearing
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
Courts and other bodies have been prepared to determine applications on the papers, rather than requiring parties to participate in a hearing during the COVID-19 pandemic.
In Goyal (liquidator), in the matter of OLI 1 Pty Ltd (in liq) [2020] FCA 450, the Federal Court exercised its power under s 20A of the Federal Court of Australia Act 1976 (Cth) to determine that a matter proceed otherwise than by oral hearing, on the bases that there were no issues of fact in the proceeding and that the legal arguments could be dealt with adequately by way of written submissions ([3]). For further examples, see Bumbak (Administrator), in the matter of Duro Felguera Australia Pty Limited (Administrators Appointed) [2020] FCA 422, [35(4)]; and Oztech Pty Ltd v Public Trustee of Queensland (No 18) [2020] FCA 399, [2], [5], [23].
In Stopford Malloy & Malloy [2020] FamCAFC 69, the Full Court of the Family Court held (at [15]) that it would be appropriate to determine an application for leave to appeal on the papers, where doing so would minimise the risk of infection and safeguard the wellbeing of participants, as well as avoid unduly burdening the resources of the Court in circumstances where those resources were already impacted by the increasing spread of COVID-19.
The Fair Work Commission is prepared to determine, at least, uncontested matters on the papers. See, for example, Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority [2020] FWC 1624, [5]; Australian Workers' Union, The v Hanson Construction Materials Pty Ltd [2020] FWC 1621, [5]; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited [2020] FWC 1634, [5].
The Victorian Supreme Court has also determined numerous matters on the papers. See, for example, Midson v State of Victoria [2020] VSC 131, [15] (with the consent of the parties and on the basis that a teleconference would be held, if necessary); Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd [2020] VSC 161, [6] (with the consent of the parties); Colakoglu v Ozcelik [2020] VSC 139, [15]; Schmidt (a pseudonym) v Walter; Wagner (a pseudonym) v Walter (No 2) [2020] VSC 122, [66], n 7; Bolitho v Banksia Securities Ltd (No 8) [2020] VSC 174, [4]; Harris v Harris [2020] VSC 256, [245].
The Victorian County Court has done so. See, for example, Pelligra Build Pty Ltd v Australian Crane & Machinery Pty Ltd [2020] VCC 545, [19].
The Victorian Civil and Administrative Tribunal has also done so. See, for example, Fourlis v Mornington Peninsula SC [2020] VCAT 361, [3]; Fourlis v Mornington Peninsula SC [2020] VCAT 511, [3]; Medical Board of Australia v Sutton (Review and Regulation) [2020] VCAT 472, [5]; Medical Board of Australia v Sutton (Review and Regulation) [2020] VCAT 473, [11].
The Supreme Court of New South Wales has also done so. See, for example, Connam Pty Limited as Trustee for Christodoulou Family Trust v George Lazarou and Ors [2020] NSWSC 397, [25]; WLD Practice Holdings Pty Ltd, in respect of the WLD Practice Holdings Trust v Sara Stockham [2020] NSWSC 576, [4].
The New South Wales District Court has also done so. See for example, Park v Choi (No 2) [2020 NSWDC 109, [7] (with the consent of the parties).
The NSW Civil and Administrative Tribunal has done so. See, for example, Health Care Complaints Commission v Lidman [2020] NSWCATOD 48, [6].
The Queensland Supreme Court has also done so. See, for example, Whyte and Anor v Clough Limited and Ors [2020] QSC 53, [1]; Townsville City Council v QNI Metals Pty Ltd & Anor [2020] QSC 61, [1].
The Tasmanian Supreme Court has also done so. See, for example, X v Guardianship and Administration Board [2020] TASSC 11, [1].
D. Determinations otherwise than by oral hearing
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
Courts and other bodies have been prepared to determine applications on the papers, rather than requiring parties to participate in a hearing during the COVID-19 pandemic.
In Goyal (liquidator), in the matter of OLI 1 Pty Ltd (in liq) [2020] FCA 450, the Federal Court exercised its power under s 20A of the Federal Court of Australia Act 1976 (Cth) to determine that a matter proceed otherwise than by oral hearing, on the bases that there were no issues of fact in the proceeding and that the legal arguments could be dealt with adequately by way of written submissions ([3]). For further examples, see Bumbak (Administrator), in the matter of Duro Felguera Australia Pty Limited (Administrators Appointed) [2020] FCA 422, [35(4)]; and Oztech Pty Ltd v Public Trustee of Queensland (No 18) [2020] FCA 399, [2], [5], [23].
In Stopford Malloy & Malloy [2020] FamCAFC 69, the Full Court of the Family Court held (at [15]) that it would be appropriate to determine an application for leave to appeal on the papers, where doing so would minimise the risk of infection and safeguard the wellbeing of participants, as well as avoid unduly burdening the resources of the Court in circumstances where those resources were already impacted by the increasing spread of COVID-19.
The Fair Work Commission is prepared to determine, at least, uncontested matters on the papers. See, for example, Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority [2020] FWC 1624, [5]; Australian Workers' Union, The v Hanson Construction Materials Pty Ltd [2020] FWC 1621, [5]; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Limited [2020] FWC 1634, [5].
The Victorian Supreme Court has also determined numerous matters on the papers. See, for example, Midson v State of Victoria [2020] VSC 131, [15] (with the consent of the parties and on the basis that a teleconference would be held, if necessary); Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd [2020] VSC 161, [6] (with the consent of the parties); Colakoglu v Ozcelik [2020] VSC 139, [15]; Schmidt (a pseudonym) v Walter; Wagner (a pseudonym) v Walter (No 2) [2020] VSC 122, [66], n 7; Bolitho v Banksia Securities Ltd (No 8) [2020] VSC 174, [4]; Harris v Harris [2020] VSC 256, [245].
The Victorian County Court has done so. See, for example, Pelligra Build Pty Ltd v Australian Crane & Machinery Pty Ltd [2020] VCC 545, [19].
The Victorian Civil and Administrative Tribunal has also done so. See, for example, Fourlis v Mornington Peninsula SC [2020] VCAT 361, [3]; Fourlis v Mornington Peninsula SC [2020] VCAT 511, [3]; Medical Board of Australia v Sutton (Review and Regulation) [2020] VCAT 472, [5]; Medical Board of Australia v Sutton (Review and Regulation) [2020] VCAT 473, [11].
The Supreme Court of New South Wales has also done so. See, for example, Connam Pty Limited as Trustee for Christodoulou Family Trust v George Lazarou and Ors [2020] NSWSC 397, [25]; WLD Practice Holdings Pty Ltd, in respect of the WLD Practice Holdings Trust v Sara Stockham [2020] NSWSC 576, [4].
The New South Wales District Court has also done so. See for example, Park v Choi (No 2) [2020 NSWDC 109, [7] (with the consent of the parties).
The NSW Civil and Administrative Tribunal has done so. See, for example, Health Care Complaints Commission v Lidman [2020] NSWCATOD 48, [6].
The Queensland Supreme Court has also done so. See, for example, Whyte and Anor v Clough Limited and Ors [2020] QSC 53, [1]; Townsville City Council v QNI Metals Pty Ltd & Anor [2020] QSC 61, [1].
The Tasmanian Supreme Court has also done so. See, for example, X v Guardianship and Administration Board [2020] TASSC 11, [1].
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