covid19-law.com.au
5. Civil Procedure
I. Stay of proceedings, judgments, orders and other decisions
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
As a practical matter, disruption to court and tribunal processes caused by the COVID-19 pandemic may affect the time for delivery of decisions: Kojicin v Nillumbik SC [2020] VCAT 493, [104]; Montgomery Investment Group Pty Ltd v Manningham CC [2020] VCAT 550, [117]. It may also affect the form of reasons given by a court or tribunal: BRH18 v Minister for Immigration and Anor [2020] FCCA 805, [1]; Halal Restaurant Supplies Pty Ltd v Minister for Immigration [2020] FCCA 956, [1] (where near-identical reasons were given in matters in which near-identical grounds of review had been relied upon).
More significantly, the circumstances of the pandemic may supply a basis for courts and tribunals to stay proceedings, judgments or orders, or decisions under review.
Stays of proceedings
That an application has been prepared and initiated under restrictions imposed as part of the response to the COVID-19 pandemic may be a factor weighing against the granting of a permanent stay of proceedings: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876, [54]-[60].
The operation of legislation providing for commercial rent relief may be a factor weighing against staying an appeal, even where, prior to the commencement of the relevant legislation, an undertaking had been given to a court to the effect that rent arrears would be paid and that the appeal would be stayed in the event of default: Whitelaw v Hookey [2020] QCA 145, [44]-[49] (concerning the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), made under the COVID-19 Emergency Response Act 2020 (Qld)).
Stays of judgments and orders
Courts have also considered whether to stay the operation of their orders in light of issues arising from the COVID-19 pandemic.
In dismissing an appeal from the Federal Circuit Court, the Federal Court in BEA15 v Minister for Immigration and Border Protection [2020] FCA 392 considered it appropriate, in light of the COVID-19 pandemic, to direct that its orders dismissing the appeal not take effect until 30 June 2020, so as to delay the commencement of the time for seeking special leave to appeal ([54]). The Federal Circuit Court made a similar order in AKY18 v Minister for Immigration [2020] FCCA 893, [35], AKX18 v Minister for Immigration [2020] FCCA 892, [39] and AKX18 on behalf of ALA18 v Minister for Immigration [2020] FCCA 894, [27]. While the intended effect of these orders is clear, it is, with respect, unclear precisely what effect such stay orders might have. Taking the AKX18 decisions by way of example, the Federal Circuit Court in each case stayed its dismissal of an application for judicial review of the Immigration Assessment Authority’s decision to affirm a decision to refuse to grant a protection visa. Presumably, the applicants remain unlawful non-citizens by reason of the original refusal decision, regardless of whether the Court’s order is stayed or not. However, we also presume that the intention of the order is to communicate to the Minister for Immigration that the Court considers the applicants should be permitted to remain in Australia until at least 30 June 2020, pending any appeal. It may be that intention will have a practical effect in the administration of the Migration Act 1958 (Cth).
Difficulties involved in liquidating assets during the COVID-19 pandemic may be a factor in favour of staying a money judgment pending the hearing of an appeal: Snell v Glatis [2020] NSWCA 78, [24].
The NSW Supreme Court has considered the circumstances of COVID-19 in the context of several applications seeking to defer the enforcement of orders requiring vacant possession of real property.
Wallis v Rudek [2020] NSWCA 61 was an appeal against a refusal to stay an order for vacant possession, on the basis that individuals in possession of the premises were of an age and had a medical history that placed them in a high-risk category for COVID-19.
The primary judge, in refusing the application (Wallis v Rudek (No 3) [2020] NSWSC 338), had held that:
On appeal, the Court of Appeal (Wallis v Rudek [2020] NSWCA 61, [23]-[30]) relevantly observed that:
In N and M Investments/Properties v Bao [2020] NSWSC 202, the NSW Supreme Court considered that a mortgagor being unable to return to Australia, due to COVID-19 travel restrictions, was not a sufficient basis for the Court to stay entry of a judgment for possession and/or delay granting leave to issue a writ of possession (see [17]-[18], [22], [33]-[34]). In refusing the relief sought by the mortgagor, the Court held that the application had no merit because it was premised on the defendant mortgagor wanting to return from China to Australia to pack away items in the property, yet the mortgagor had placed no evidence before the Court as to why it might expect travel from China to improve over the following month. The Court further observed that, based on then current reports, the travel situation could well be worse in late March and April than at the time of the Court’s judgment (5 March 2020).
In Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324, the NSW Supreme Court refused to stay a writ of possession by a mortgagee where the application had been made on the basis of anticipated regulations under the Residential Tenancies Act 2010 (NSW), which might have prohibited recovery of the relevant premises. Although a power to make such regulations had been inserted into the Residential Tenancies Act 2010 (NSW) (by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)), relevant regulations had not been made at the time of the application ([6]-[9]). In refusing to grant a stay, the Court observed that it was unclear whether regulations made under the relevant regulation-making power could even extend to limit actions by mortgagees, but that it was clear that such regulations would not provide relief to the defendants ([9]). Further, although one of the defendants was said to be exhibiting flu-like symptoms and to be in self-isolation, in circumstances where there was no evidence that the defendants would be unable to secure alternative accommodation, the Court was not satisfied that there was a proper basis for granting the stay sought ([10]-[11]).
The requirements of self-isolation were also invoked in a similar context in Foundas v Arambatzis (No. 2) [2020] NSWCA 51, although the relevant application for setting aside/variation of the order for vacant possession was not determined in that instance. In a similar context, the Supreme Court of Victoria took into account constraints imposed by ministerial directions relating to COVID-19 in staying the operation of declarations entitling a mortgagee to dispose of personal possessions in a recovered property and to use the proceeds of their sale: National Australia Bank v Bezeg [2020] VSC 163, [1], [29]. The stay was granted to allow the mortgagor to inspect and collect chattels left at the property in a timely fashion, allowing for constrains relating to COVID-19 ([29]).
Courts may hear from the parties on the appropriate period to stay the operation of orders in the circumstances of the COVID-19 pandemic: Dalian Huarui Heavy Industry International Company Ltd v Clyde & Co Australia (a firm) [2020] WASC 132, [273].
Even where a stay is not granted, a court may take into account the circumstances of the pandemic in fixing timeframes for compliance with its orders: BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd [2020] QSC 87, [64]; EPU19 v Minister for Home Affairs [2020] FCA 541, [55]. Alternatively, the circumstances of the pandemic may supply a basis for parties to consent to variation of orders requiring the payment of money, for the purposes of Rules of Court permitting such variation with consent: Williams v LG Staff Pty Ltd [2020] FCCA 1000, [19]-[20].
Stays of other decisions
COVID-19 has also been considered relevant by administrative tribunals when deciding whether to stay the operation of a decision under review, pending the substantive determination of the review proceeding.
The AAT stayed a decision by the Australian Securities and Investments Commission to cancel a financial services licence, pending review of that decision, on the basis of job losses that would result if a stay were not granted and the inability of clients of the licensee to obtain superannuation advice: Olive Financial Markets Pty Ltd and Australian Securities and Investments Commission [2020] AATA 982, [41]-[45]. In both respects, the potential impact of refusing a stay on third parties was considered to be more significant in the context of the COVID-19 pandemic.
In Birdseye and Tax Practitioners Board [2020] AATA 1250, the AAT considered that the circumstances of COVID-19 weighed both in favour and against the granting of a stay of a decision by the Tax Practitioners Board to terminate tax agent registrations: in favour, because the termination of registration would be disruptive to the tax agent’s clients who would need to engage other tax agents, which would be a particularly acute disruption for those clients needing immediate assistance to access support under COVID-19 assistance measures; and against, because the risk for clients and the broader community arising from the tax agents continuing to practise would be more acute in circumstances where the community would be relying on tax agents to conduct themselves with diligence and integrity in acting for clients seeking to access COVID-19 related assistance (Birdseye and Tax Practitioners Board [2020] AATA 1250, [112]-[116]). In the circumstances of that case, the AAT considered that, on balance, the interests of clients provided some, but limited, support for granting the stays sought ([115]).
In deciding to stay, pending review, a decision to cancel the statutory approval of a family day care service, NCAT accepted a submission that the public interest favoured the continuation of a daycare service relied on by families during the COVID-19 pandemic: see Early Childhood Education Australia Pty Ltd v Secretary, Department of Education (NSW) [2020] NSWCATAD 118, [28], [29], [35].
As a practical matter, disruption to court and tribunal processes caused by the pandemic may affect the time for delivery of decisions: Kojicin v Nillumbik SC [2020] VCAT 493, [104]; Montgomery Investment Group Pty Ltd v Manningham CC [2020] VCAT 550, [117]. It may also affect the form of reasons given by a court or tribunal: BRH18 v Minister for Immigration and Anor [2020] FCCA 805, [1]; Halal Restaurant Supplies Pty Ltd v Minister for Immigration [2020] FCCA 956, [1] (where near-identical reasons were given in matters in which near-identical grounds of review had been relied upon).
I. Stay of proceedings, judgments, orders and other decisions
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
As a practical matter, disruption to court and tribunal processes caused by the COVID-19 pandemic may affect the time for delivery of decisions: Kojicin v Nillumbik SC [2020] VCAT 493, [104]; Montgomery Investment Group Pty Ltd v Manningham CC [2020] VCAT 550, [117]. It may also affect the form of reasons given by a court or tribunal: BRH18 v Minister for Immigration and Anor [2020] FCCA 805, [1]; Halal Restaurant Supplies Pty Ltd v Minister for Immigration [2020] FCCA 956, [1] (where near-identical reasons were given in matters in which near-identical grounds of review had been relied upon).
More significantly, the circumstances of the pandemic may supply a basis for courts and tribunals to stay proceedings, judgments or orders, or decisions under review.
Stays of proceedings
That an application has been prepared and initiated under restrictions imposed as part of the response to the COVID-19 pandemic may be a factor weighing against the granting of a permanent stay of proceedings: State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876, [54]-[60].
The operation of legislation providing for commercial rent relief may be a factor weighing against staying an appeal, even where, prior to the commencement of the relevant legislation, an undertaking had been given to a court to the effect that rent arrears would be paid and that the appeal would be stayed in the event of default: Whitelaw v Hookey [2020] QCA 145, [44]-[49] (concerning the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld), made under the COVID-19 Emergency Response Act 2020 (Qld)).
Stays of judgments and orders
Courts have also considered whether to stay the operation of their orders in light of issues arising from the COVID-19 pandemic.
In dismissing an appeal from the Federal Circuit Court, the Federal Court in BEA15 v Minister for Immigration and Border Protection [2020] FCA 392 considered it appropriate, in light of the COVID-19 pandemic, to direct that its orders dismissing the appeal not take effect until 30 June 2020, so as to delay the commencement of the time for seeking special leave to appeal ([54]). The Federal Circuit Court made a similar order in AKY18 v Minister for Immigration [2020] FCCA 893, [35], AKX18 v Minister for Immigration [2020] FCCA 892, [39] and AKX18 on behalf of ALA18 v Minister for Immigration [2020] FCCA 894, [27]. While the intended effect of these orders is clear, it is, with respect, unclear precisely what effect such stay orders might have. Taking the AKX18 decisions by way of example, the Federal Circuit Court in each case stayed its dismissal of an application for judicial review of the Immigration Assessment Authority’s decision to affirm a decision to refuse to grant a protection visa. Presumably, the applicants remain unlawful non-citizens by reason of the original refusal decision, regardless of whether the Court’s order is stayed or not. However, we also presume that the intention of the order is to communicate to the Minister for Immigration that the Court considers the applicants should be permitted to remain in Australia until at least 30 June 2020, pending any appeal. It may be that intention will have a practical effect in the administration of the Migration Act 1958 (Cth).
Difficulties involved in liquidating assets during the COVID-19 pandemic may be a factor in favour of staying a money judgment pending the hearing of an appeal: Snell v Glatis [2020] NSWCA 78, [24].
The NSW Supreme Court has considered the circumstances of COVID-19 in the context of several applications seeking to defer the enforcement of orders requiring vacant possession of real property.
Wallis v Rudek [2020] NSWCA 61 was an appeal against a refusal to stay an order for vacant possession, on the basis that individuals in possession of the premises were of an age and had a medical history that placed them in a high-risk category for COVID-19.
The primary judge, in refusing the application (Wallis v Rudek (No 3) [2020] NSWSC 338), had held that:
- in determining whether the circumstances of COVID-19 justify a stay, the Court must bear in mind that, although the threat posed by COVID-19 is serious, contracting the virus, even for vulnerable persons, is not a death sentence ([43]-[44]). Further, the risk of COVID-19 infection cannot completely be eliminated, no matter how stringent the precautions taken ([45]);
- the mere invocation of the COVID-19 emergency should not result in a suspension of all critical thinking or judgment, although the Court will not behave pedantically or require the proof of matters which are obvious ([51]); and
- there was no evidence before the Court as to the availability of alternative accommodation in the event that the stay were refused and the applicants were required to vacate the property ([50]-[51]).
On appeal, the Court of Appeal (Wallis v Rudek [2020] NSWCA 61, [23]-[30]) relevantly observed that:
- the absence of alternative accommodation is not a ground for granting a stay ([23], [25], [27]);
- in circumstances where persons in possession of premises are in a higher risk category for COVID-19, by reason of age or medical history, the pandemic might supply a basis for staying an order for vacant possession ([30]);
- it may be contrary to public health policy to increase their exposure to risk of infection by requiring them to move ([30]); and
- it may not be necessary for the applicants for a stay in such circumstances to adduce evidence of how removalists might be expected to guard against the spread of infection ([30).
In N and M Investments/Properties v Bao [2020] NSWSC 202, the NSW Supreme Court considered that a mortgagor being unable to return to Australia, due to COVID-19 travel restrictions, was not a sufficient basis for the Court to stay entry of a judgment for possession and/or delay granting leave to issue a writ of possession (see [17]-[18], [22], [33]-[34]). In refusing the relief sought by the mortgagor, the Court held that the application had no merit because it was premised on the defendant mortgagor wanting to return from China to Australia to pack away items in the property, yet the mortgagor had placed no evidence before the Court as to why it might expect travel from China to improve over the following month. The Court further observed that, based on then current reports, the travel situation could well be worse in late March and April than at the time of the Court’s judgment (5 March 2020).
In Catalyst Provisional Lending Pty Ltd v Dick-Telfar [2020] NSWSC 324, the NSW Supreme Court refused to stay a writ of possession by a mortgagee where the application had been made on the basis of anticipated regulations under the Residential Tenancies Act 2010 (NSW), which might have prohibited recovery of the relevant premises. Although a power to make such regulations had been inserted into the Residential Tenancies Act 2010 (NSW) (by the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW)), relevant regulations had not been made at the time of the application ([6]-[9]). In refusing to grant a stay, the Court observed that it was unclear whether regulations made under the relevant regulation-making power could even extend to limit actions by mortgagees, but that it was clear that such regulations would not provide relief to the defendants ([9]). Further, although one of the defendants was said to be exhibiting flu-like symptoms and to be in self-isolation, in circumstances where there was no evidence that the defendants would be unable to secure alternative accommodation, the Court was not satisfied that there was a proper basis for granting the stay sought ([10]-[11]).
The requirements of self-isolation were also invoked in a similar context in Foundas v Arambatzis (No. 2) [2020] NSWCA 51, although the relevant application for setting aside/variation of the order for vacant possession was not determined in that instance. In a similar context, the Supreme Court of Victoria took into account constraints imposed by ministerial directions relating to COVID-19 in staying the operation of declarations entitling a mortgagee to dispose of personal possessions in a recovered property and to use the proceeds of their sale: National Australia Bank v Bezeg [2020] VSC 163, [1], [29]. The stay was granted to allow the mortgagor to inspect and collect chattels left at the property in a timely fashion, allowing for constrains relating to COVID-19 ([29]).
Courts may hear from the parties on the appropriate period to stay the operation of orders in the circumstances of the COVID-19 pandemic: Dalian Huarui Heavy Industry International Company Ltd v Clyde & Co Australia (a firm) [2020] WASC 132, [273].
Even where a stay is not granted, a court may take into account the circumstances of the pandemic in fixing timeframes for compliance with its orders: BGM Projects Pty Ltd v Durmaz Corporation Pty Ltd [2020] QSC 87, [64]; EPU19 v Minister for Home Affairs [2020] FCA 541, [55]. Alternatively, the circumstances of the pandemic may supply a basis for parties to consent to variation of orders requiring the payment of money, for the purposes of Rules of Court permitting such variation with consent: Williams v LG Staff Pty Ltd [2020] FCCA 1000, [19]-[20].
Stays of other decisions
COVID-19 has also been considered relevant by administrative tribunals when deciding whether to stay the operation of a decision under review, pending the substantive determination of the review proceeding.
The AAT stayed a decision by the Australian Securities and Investments Commission to cancel a financial services licence, pending review of that decision, on the basis of job losses that would result if a stay were not granted and the inability of clients of the licensee to obtain superannuation advice: Olive Financial Markets Pty Ltd and Australian Securities and Investments Commission [2020] AATA 982, [41]-[45]. In both respects, the potential impact of refusing a stay on third parties was considered to be more significant in the context of the COVID-19 pandemic.
In Birdseye and Tax Practitioners Board [2020] AATA 1250, the AAT considered that the circumstances of COVID-19 weighed both in favour and against the granting of a stay of a decision by the Tax Practitioners Board to terminate tax agent registrations: in favour, because the termination of registration would be disruptive to the tax agent’s clients who would need to engage other tax agents, which would be a particularly acute disruption for those clients needing immediate assistance to access support under COVID-19 assistance measures; and against, because the risk for clients and the broader community arising from the tax agents continuing to practise would be more acute in circumstances where the community would be relying on tax agents to conduct themselves with diligence and integrity in acting for clients seeking to access COVID-19 related assistance (Birdseye and Tax Practitioners Board [2020] AATA 1250, [112]-[116]). In the circumstances of that case, the AAT considered that, on balance, the interests of clients provided some, but limited, support for granting the stays sought ([115]).
In deciding to stay, pending review, a decision to cancel the statutory approval of a family day care service, NCAT accepted a submission that the public interest favoured the continuation of a daycare service relied on by families during the COVID-19 pandemic: see Early Childhood Education Australia Pty Ltd v Secretary, Department of Education (NSW) [2020] NSWCATAD 118, [28], [29], [35].
As a practical matter, disruption to court and tribunal processes caused by the pandemic may affect the time for delivery of decisions: Kojicin v Nillumbik SC [2020] VCAT 493, [104]; Montgomery Investment Group Pty Ltd v Manningham CC [2020] VCAT 550, [117]. It may also affect the form of reasons given by a court or tribunal: BRH18 v Minister for Immigration and Anor [2020] FCCA 805, [1]; Halal Restaurant Supplies Pty Ltd v Minister for Immigration [2020] FCCA 956, [1] (where near-identical reasons were given in matters in which near-identical grounds of review had been relied upon).
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