covid19-law.com.au
5. Civil Procedure
F. Hearings by alternative means
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
A number of jurisdictions have imposed procedures in response to COVID-19 (see the summary of relevant Practice Notes in the Legislation, Rules and Practice Notes section of this Chapter), which require hearings to be conducted otherwise than by face-to-face hearing, unless the Court determines otherwise.
Accordingly, courts and tribunals have been prepared to hear proceedings by telephone. See, for example, AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429, [3] (Federal Court of Australia); Asghar v Minister for Immigration & Anor [2020] FCCA 716, [2], and Jeevaratnam & Anor v Combis & Anor [2020] FCCA 746, [2] (Federal Circuit Court of Australia); Oliver and Secretary, Department of Social Services [2020] AATA 761, [6], and Tsiaras and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 808, [3] (Administrative Appeals Tribunal); 4 yearly review of modern awards [2020] FWCFB 1539, [8] and Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor [2020] FWC 736, [87]; JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 (WA Court of Appeal); Chau v Surenddar (Residential Tenancies) [2020] VCAT 393, [5]-[6] (Victorian Civil and Administrative Tribunal); Smith v Li [2020] NSWCATAP 59, [21] (NSW Civil and Administrative Tribunal); Hanna v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2020] NSWIRComm 1021, [3] (NSW Industrial Relations Commission); Darc Design and Architecture Pty Ltd v Georges River Council [2020] NSWLEC 1177, [2]-[3], ILME Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1165, [3]-[7], and Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181, [5] (NSW Land and Environment Court)]).
In the circumstances of the pandemic, it may be appropriate for a party who fails to appear at a hearing conducted by telephone in order to comply with social distancing requirements, to be given a right to seek reinstatement, at least where there is a reasonable explanation for their failure to appear: 1950 Investments Pty Ltd t/as Hogan Prestige Garage v Wabbits Pty Ltd [2020] NSWCATAP 67, [3], [51]; .
Similarly, courts and tribunals have been prepared to hear proceedings by audio-visual link. See, for example, Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 and Capic v Ford Motor Company of Australia Limited [2020] FCA 486 (Federal Court of Australia); Epiroc Financial Solutions Australia Pty Limited v Kenworthy [2020] NSWSC 316 (Supreme Court of New South Wales); Opera Australia v Sydney Metro; Kritikos Developments Pty Ltd trading as Iron Duke Hotel v Sydney Metro [2020] NSWLEC 28, [16]-[17] (NSW Land and Environment Court).
Post-hearing written submissions may be ordered by the Federal Circuit Court where the circumstances of COVID-19 make scheduling a further face-to-face hearing difficult: Ansari and Ors v Minister For Immigration and Anor [2020] FCCA 458, [22].
Applications for adjournment in the context of proposed virtual hearing arrangements are addressed further in the Adjournments (Criminal Procedure) and Adjournments (Civil Procedure) sections of this text.
F. Hearings by alternative means
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
A number of jurisdictions have imposed procedures in response to COVID-19 (see the summary of relevant Practice Notes in the Legislation, Rules and Practice Notes section of this Chapter), which require hearings to be conducted otherwise than by face-to-face hearing, unless the Court determines otherwise.
Accordingly, courts and tribunals have been prepared to hear proceedings by telephone. See, for example, AYZ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 429, [3] (Federal Court of Australia); Asghar v Minister for Immigration & Anor [2020] FCCA 716, [2], and Jeevaratnam & Anor v Combis & Anor [2020] FCCA 746, [2] (Federal Circuit Court of Australia); Oliver and Secretary, Department of Social Services [2020] AATA 761, [6], and Tsiaras and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 808, [3] (Administrative Appeals Tribunal); 4 yearly review of modern awards [2020] FWCFB 1539, [8] and Southern Cross Care (SA & NT) Inc T/A Southern Cross Care v Carleine Taylor [2020] FWC 736, [87]; JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 (WA Court of Appeal); Chau v Surenddar (Residential Tenancies) [2020] VCAT 393, [5]-[6] (Victorian Civil and Administrative Tribunal); Smith v Li [2020] NSWCATAP 59, [21] (NSW Civil and Administrative Tribunal); Hanna v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2020] NSWIRComm 1021, [3] (NSW Industrial Relations Commission); Darc Design and Architecture Pty Ltd v Georges River Council [2020] NSWLEC 1177, [2]-[3], ILME Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1165, [3]-[7], and Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181, [5] (NSW Land and Environment Court)]).
In the circumstances of the pandemic, it may be appropriate for a party who fails to appear at a hearing conducted by telephone in order to comply with social distancing requirements, to be given a right to seek reinstatement, at least where there is a reasonable explanation for their failure to appear: 1950 Investments Pty Ltd t/as Hogan Prestige Garage v Wabbits Pty Ltd [2020] NSWCATAP 67, [3], [51]; .
Similarly, courts and tribunals have been prepared to hear proceedings by audio-visual link. See, for example, Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 and Capic v Ford Motor Company of Australia Limited [2020] FCA 486 (Federal Court of Australia); Epiroc Financial Solutions Australia Pty Limited v Kenworthy [2020] NSWSC 316 (Supreme Court of New South Wales); Opera Australia v Sydney Metro; Kritikos Developments Pty Ltd trading as Iron Duke Hotel v Sydney Metro [2020] NSWLEC 28, [16]-[17] (NSW Land and Environment Court).
Post-hearing written submissions may be ordered by the Federal Circuit Court where the circumstances of COVID-19 make scheduling a further face-to-face hearing difficult: Ansari and Ors v Minister For Immigration and Anor [2020] FCCA 458, [22].
Applications for adjournment in the context of proposed virtual hearing arrangements are addressed further in the Adjournments (Criminal Procedure) and Adjournments (Civil Procedure) sections of this text.
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