During this challenging time, we are all no doubt adapting to how we conduct our matters.

The COAT website now contains links to notices and information about COVID-19 produced by Tribunals and associated bodies  https://coat.asn.au/information/

Another useful website, Remote Courts Worldwide, is hosted by the UK Courts & Tribunals Service, and while it relates primarily to Courts, the issues faced by the courts are very similar to tribunals. The link is here: https://remotecourts.org/

Guardianship Division of NCAT related to COVID-19

Many matters that are being heard have been largely prompted by concerns about a person’s inability to comply with the self-isolation and physical distancing requirements of the Restrictions on Gathering and Movement Order made pursuant to the Public Health Act (NSW) on 30 March 2020, and the risk to the person of contracting the disease and/or having personal support services terminated because of potential transmission of the disease to support workers.

Three cases have recently been published that address issues arising from the pandemic:

1. GZK [2020] NSWCATGD 5
2. UZX [2020] NSWCATGD 3
3. GMI [2020] NSWCATGD 6

Case summaries –court decisions

The following two case summaries highlight some of the issues currently arising in hearing matters under COVID-19 being the issue of adjournment.

Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Federal Court of Australia, Perram J, 16 April 2020

These proceedings had been commenced in 2016 and had been set down for a six-week hearing commencing on 15 June 2020. The Respondent made an application for an adjournment and contended that in light of the current COVID-19 emergency, the hearing ought not to proceed on 15 June 2020 and should instead be listed later in the year, such as October 2020.

Section 37M of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) provided that the overarching purpose of civil practice and procedure provisions was to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.  The issue for the Court was whether s.37M of the Act and considerations of fairness to the parties meant that a virtual solution—which was the only viable solution—was not feasible and that the hearing must be postponed.

The Respondent argued that conducting the hearing virtually was not feasible for reasons including the problem of internet connections and other possible technological limitations, such as access to hardware and software for witnesses; the fact that practitioners could not all be in the one place for the hearing; the fact that it would not be possible to see whether a witness may be coached in a virtual environment; the fact that document management in a virtual court room would be made much more difficult; practical problems such as practitioners and witnesses falling sick or having to care for children during the hearing; and that conducting the hearing in a virtual environment will prolong the hearing and thereby increase its expense.

Held: adjournment refused; parties directed to confer about how the trial might be conducted.

1. To adjourn the hearing because of the pandemic may be to adjourn it for an indeterminate period. There was simply no guarantee that the situation will be any better in October 2020. It was not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period. [23]-[24]
2. There was the possibility of putting together much superior technology solutions to the somewhat ad hoc arrangements embraced by the Court early on. Another solution to any internet connection issues may be to pause the hearing until the connection improved. [11]
3. There were many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link. However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. What was different—and significant—is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. [19]
4. The use of a virtual courtroom has had no impact on the document management aspects of a hearing. The Court has been operating with a digital court book for some time now. The problem of witness and cross-examination bundles was readily soluble with a service such as Dropbox. It was not ideal, but this did not result in an unfair or unjust trial.  Further, the use of a third-party operator may carry with it enhanced document management procedures. [20]
5. Problems such as practitioners or witnesses falling sick, or having to care for, or supervise children, are not insurmountable although they are challenging. These problems may be addressed by being sensitive to them and allowance being made for them when they arise. [21]

David Quince v Annabelle Quince & Anor [2020] NSWSC 326
Supreme Court of New South Wales, Sackar J, 19 March 2020

This matter concerned allegations including that certain transfers of shares purportedly executed by the plaintiff were forgeries. It was unclear as to the precise time and circumstances when and how the first defendant either implemented or procured that fraud, however this allegation was to be ventilated at the hearing.

The hearing in this matter was fixed to commence on 23 March 2020 for a number of days. Apart from some medical evidence, which was not be capable of being called in that time, it was intended that all the lay evidence would be heard and dealt with during the time allocated.

The plaintiff made an application to vacate the listed hearing dates for reasons including that the trial judge had imposed a regime on the parties requiring that the cross-examination of all the witnesses called in the matter be undertaken via video link, due to the COVID-19 pandemic. The plaintiff contended that he wished to be able to cross-examine the first defendant in a conventional setting and argued that the atmosphere of the trial, and the first defendant’s demeanour in answering questions about any allegations would be crucial in assessing her credit.

The issue for the court was whether the plaintiff would be dealt an unfairness in not being given a full opportunity to ventilate the issues relating to fraud, in the conventional way.

Held: application allowed; hearing vacated.

1. Given the nature of the allegation, and the video link regime which the court has imposed upon the parties, it would be antithetical to the administration of justice if the regime worked an unfairness upon any party. [20]
2. There will be many cases where the video link procedure will be more than fair and that issue will clearly have to be determined objectively on a case by case basis. [19]