covid19-law.com.au
5. Civil Procedure
J. Timetabling
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
Various issues relating to timetabling have required consideration in the context of COVID-19.
Difficulties for litigants in progressing proceedings during the COVID-19 pandemic require allowances to be made in timetabling orders: Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9]; Kemp v Westpac Banking [2020] FCA 437, [9]; Pathmanathan v Healthscope Operations Pty Ltd (No 2) [2020] FCA 503, [2]; Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 7) [2020] FCA 572, [98]; Lyons v Commissioner of Taxation [2020] FCA 651, [318]; Viscariello v Macks (No 2) [2020] SASC 78, [65]. [68]-[69].
Further, it may be unnecessary for parties to adduce evidence of such difficulties. Relevantly, the Federal Court has indicated that it is prepared to take judicial notice of the circumstances of COVID-19 : Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9]; Kemp v Westpac Banking [2020] FCA 437, [9] (for a further discussion of judicial notice in the context of COVID-19, see the Evidence section of this Chapter). That Court may, however, expect parties to confer on additional difficulties encountered in complying with a timetable that has been set with COVID-19 in mind: Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9], [28]; Kemp v Westpac Banking [2020] FCA 437, [9], [27].
In a different context, the Federal Court has held that, although difficulties involved in taking instructions from clients in immigration detention in the context of COVID-19 may not be fully appreciated initially, applications for variation of procedural orders should be made promptly and practitioners should not expect a procedural standstill: Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499, [7], [16]-[18].
Conversely, the Federal Court refused to grant an earlier hearing date, in circumstances where the pandemic had caused significant disruption to the Court’s lists and there was no evidence of the need for an earlier date: Kelly in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) [2020] FCA 533, [76].
Where limits imposed by alternative modes of hearing make it difficult for a matter to proceed to substantive hearing, a court may consider it appropriate to resolve certain issues by way of preliminary question: see, for example, Kabbara v Australian National Sports Club Incorporated [2020] NSWSC 497, [3]. That certain witnesses may fall into a category of persons at higher risk from COVID-19, such as those of Aboriginal descent, may be a relevant consideration in determining whether a claim should proceed by way of preliminary question, without evidence, rather than to a full trial in which the calling of those witnesses would be necessary: Joslyn Maria Mongoo in his or her own right and representing The Trust Advisory Committee Of The Yugunga-Nya People's Trust v Fiduciary Administration Services Pty Ltd [2020] WASC 109, [46]. Additionally, the impact of the pandemic on a party's quantum claim may weigh in favour of a separate trial on liability: Brisbane Airport Corporation Pty Limited v Arup Pty Limited [2020] QSC 202, [42]-[55].
Courts may also hear procedural applications together with the substantive cause, where doing so separately is impractical because of the pandemic’s impact on court processes. See, e.g., Clarke v Herrick [2020] NSWCA 71, in which the NSW Court of Appeal heard an application for a referral to a registrar for pro bono assistance at the same time as argument on an application for leave to appeal ([3]).
The Queensland Supreme Court has observed that the possibility of the Queensland District Court having a substantial backlog of cases to be listed after the COVID-19 pandemic may be a factor weighing against an application to transfer proceedings to the District Court from the Supreme Court, at least where a matter was likely to receive an earlier trial date if it remained in the Supreme Court: Tickner v Teys Australia Biloela Pty Ltd [2020] QSC 62, [25]-[30]. Similarly, disruptions to court processes caused by COVID-19 may bear on the Federal Circuit Court’s assessment of whether it would be more cost-effective or convenient to transfer a proceeding to the Family Court: Scully & Scully [2020] FCCA 803, [13]-[16]. Where transfer to another hearing location is resisted on the basis of the risk of COVID-19 infection being lower in the original location, the Queensland Supreme Court will require specific evidence in order to make a finding on the relative risks of infection: Kember v Carl [2020] QSC 105, [17].
The impact of courts’ responses to COVID-19 on court lists may be a factor weighing against ordering that a case proceed on an expedited basis. In the context of the Family Court, see: Tirado & Richmond [2020] FamCA 199, [10].
Where the ACT Supreme Court considers the state of the Court’s lists, for the purpose of determining whether to give directions in a case, the impact of COVID-19 on court operations may be a particularly significant consideration among the other considerations to which the Court is permitted to have regard under s 1401(5) of the Court Procedure Rules 2006 (ACT): Russell v Glenn [2020] ACTSC 81, [18]. Such a consideration may weigh in favour of the Court giving directions providing for the service of expert evidence, where that evidence may narrow the issues in dispute and assist the settlement process: Russell v Glenn [2020] ACTSC 81, [18].
J. Timetabling
i. Legislation
As of the last update, we are not aware of any COVID-19 related legislation in this area.
ii. Case law
Various issues relating to timetabling have required consideration in the context of COVID-19.
Difficulties for litigants in progressing proceedings during the COVID-19 pandemic require allowances to be made in timetabling orders: Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9]; Kemp v Westpac Banking [2020] FCA 437, [9]; Pathmanathan v Healthscope Operations Pty Ltd (No 2) [2020] FCA 503, [2]; Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 7) [2020] FCA 572, [98]; Lyons v Commissioner of Taxation [2020] FCA 651, [318]; Viscariello v Macks (No 2) [2020] SASC 78, [65]. [68]-[69].
Further, it may be unnecessary for parties to adduce evidence of such difficulties. Relevantly, the Federal Court has indicated that it is prepared to take judicial notice of the circumstances of COVID-19 : Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9]; Kemp v Westpac Banking [2020] FCA 437, [9] (for a further discussion of judicial notice in the context of COVID-19, see the Evidence section of this Chapter). That Court may, however, expect parties to confer on additional difficulties encountered in complying with a timetable that has been set with COVID-19 in mind: Reilly v Australia and New Zealand Banking Group Limited [2020] FCA 436, [9], [28]; Kemp v Westpac Banking [2020] FCA 437, [9], [27].
In a different context, the Federal Court has held that, although difficulties involved in taking instructions from clients in immigration detention in the context of COVID-19 may not be fully appreciated initially, applications for variation of procedural orders should be made promptly and practitioners should not expect a procedural standstill: Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499, [7], [16]-[18].
Conversely, the Federal Court refused to grant an earlier hearing date, in circumstances where the pandemic had caused significant disruption to the Court’s lists and there was no evidence of the need for an earlier date: Kelly in the matter of Halifax Investment Services Pty Ltd (in liquidation) (No 8) [2020] FCA 533, [76].
Where limits imposed by alternative modes of hearing make it difficult for a matter to proceed to substantive hearing, a court may consider it appropriate to resolve certain issues by way of preliminary question: see, for example, Kabbara v Australian National Sports Club Incorporated [2020] NSWSC 497, [3]. That certain witnesses may fall into a category of persons at higher risk from COVID-19, such as those of Aboriginal descent, may be a relevant consideration in determining whether a claim should proceed by way of preliminary question, without evidence, rather than to a full trial in which the calling of those witnesses would be necessary: Joslyn Maria Mongoo in his or her own right and representing The Trust Advisory Committee Of The Yugunga-Nya People's Trust v Fiduciary Administration Services Pty Ltd [2020] WASC 109, [46]. Additionally, the impact of the pandemic on a party's quantum claim may weigh in favour of a separate trial on liability: Brisbane Airport Corporation Pty Limited v Arup Pty Limited [2020] QSC 202, [42]-[55].
Courts may also hear procedural applications together with the substantive cause, where doing so separately is impractical because of the pandemic’s impact on court processes. See, e.g., Clarke v Herrick [2020] NSWCA 71, in which the NSW Court of Appeal heard an application for a referral to a registrar for pro bono assistance at the same time as argument on an application for leave to appeal ([3]).
The Queensland Supreme Court has observed that the possibility of the Queensland District Court having a substantial backlog of cases to be listed after the COVID-19 pandemic may be a factor weighing against an application to transfer proceedings to the District Court from the Supreme Court, at least where a matter was likely to receive an earlier trial date if it remained in the Supreme Court: Tickner v Teys Australia Biloela Pty Ltd [2020] QSC 62, [25]-[30]. Similarly, disruptions to court processes caused by COVID-19 may bear on the Federal Circuit Court’s assessment of whether it would be more cost-effective or convenient to transfer a proceeding to the Family Court: Scully & Scully [2020] FCCA 803, [13]-[16]. Where transfer to another hearing location is resisted on the basis of the risk of COVID-19 infection being lower in the original location, the Queensland Supreme Court will require specific evidence in order to make a finding on the relative risks of infection: Kember v Carl [2020] QSC 105, [17].
The impact of courts’ responses to COVID-19 on court lists may be a factor weighing against ordering that a case proceed on an expedited basis. In the context of the Family Court, see: Tirado & Richmond [2020] FamCA 199, [10].
Where the ACT Supreme Court considers the state of the Court’s lists, for the purpose of determining whether to give directions in a case, the impact of COVID-19 on court operations may be a particularly significant consideration among the other considerations to which the Court is permitted to have regard under s 1401(5) of the Court Procedure Rules 2006 (ACT): Russell v Glenn [2020] ACTSC 81, [18]. Such a consideration may weigh in favour of the Court giving directions providing for the service of expert evidence, where that evidence may narrow the issues in dispute and assist the settlement process: Russell v Glenn [2020] ACTSC 81, [18].
|
Image credit: Fusion Medical Animation
|
Site powered by Weebly. Managed by SiteGround