Australia’s newest tribunal will open on 1 March 2021. The Personal Injury Commission of NSW will be vested with the power to deal with workers compensation and motor accidents disputes. 

It is the first time that a single specialist tribunal has been entrusted with these two jurisdictions.  

The new Commission will have a judicial head, Judge Gerard Phillips who is the current President of the Workers Compensation Commission of NSW and will be comprised of two Deputy Presidents, two Divisional Heads, Principal, Senior and General members. Members will be assigned to either or both of the 2 divisions that will comprise the Commission. This structure is based upon the successful NCAT model.

Judge Phillips has said that the COAT Framework for Tribunal Excellence will be foundational in the establishment of the new Commission.

The Workers Compensation Commission, which has been around in various forms since its commencement in 1926 will be abolished and the regulator’s dispute resolution function in the motor accidents area will likewise be ended with both being combined in the Personal Injury Commission.

“There are decades when nothing happens, and there are weeks when decades happen.” Vladimir Lenin

As you all know, the coronavirus is first and foremost a deadly disease. It is also however a disruptor. In the short space of time since the disease arrived on our shores from mainland China, it has completely disrupted our economy and way of life. The courts and tribunals have not been immune to this disruption and new ways have been rapidly implemented to keep the system functioning. Experience in business tells us that when a disruptor enters the market, those businesses operating in that area must adapt or die. What is certain is that business does not go back to the way things were conducted before the arrival of the disruptor. The legal industry will be no different.

The coronavirus has not only changed and ended lives, it is going to change legal practice in the courts and tribunals. I recall as a young solicitor spending many long hours sitting in courts in motions lists or in return of subpoena lists. The courtroom would be full of many practitioners waiting their turn for what might often be a relatively short hearing. Multiplied across the lawyers present, this process was not without expense for the clients. In the past 8–10 weeks, not only have such interlocutory matters been dealt with online, but also so have contested hearings. It is apparent that once the pandemic is over, many of the changes and efficiencies implemented to keep the public and practitioners safe will remain as a permanent part of the practice and procedure of the legal system.

To use the Commission that I am a member of as an exemplar, from 1 January 2020, we no longer accepted any hard copy paper filings. During 2019, working with the profession, the Commission developed its online portal. Cases filed in the Commission must be uploaded onto the Commission’s online portal. This is immediately made available to the other side and all counsel who are briefed in the jurisdiction access their brief through the online portal. In terms of the current pandemic, this has meant that there was no need for multiple hands to touch the paper application or reply in the law firms, or by our Registry staff or on our members’ desks. The online portal is a perfect foil for the coronavirus because it contains no hard surface to which the virus can attach itself.

The portal has also been foundational in terms of the Commission’s practice since all in-person hearings ceased on 23 March 2020. Since that date, the Commission has continued to dispose of its normal workload, that is when in-person hearings were taking place, with all members and staff working remotely. Case filings have remained at their pre-pandemic levels. In-person hearings will remain an exception conducted under strict rules whilst the public health crisis remains current.

The Commission’s investment in its online portal has meant that the litigants and practitioners here were well placed to contend with the restrictions imposed by the pandemic. The longer this new way of practising has gone on, the better the technology has worked.

However as social restrictions are eased, this deadly disease still remains in our community. I therefore do not see legal practice returning to what it was pre-23 March 2020. The experience of the past few months has shown that technology has reached a point where most, if not all interlocutory matters and settlement conferences can take place in the virtual environment. In terms of hearings, a number of hearings in the superior courts are proceeding by way of a virtual courtroom. Clearly there are some matters which will always require an in-person hearing, but as a result of the disruption we have all suffered, it is clear that in the future courts and tribunals can deploy a suite of hearing options, both in-person and online. This will mean that on any given day, a court or tribunal could list for example 10 matters for in-person hearings and another 10 for virtual hearings without the need for the construction of new court complexes. So long as the judge or decision maker has the technology and secure chambers in which to conduct the hearing, which facilities currently exist, this scenario will doubtless be a very real option for heads of jurisdiction.

Allied to this is the long-discussed concept of remote or flexible working. Whilst this has been part of the lexicon of most big Australian companies, including law firms, for many years, its take-up has not been great. The coronavirus has shown that remote or flexible working is a very real option for the legal industry.

What all this means is that the disruption brought to our shores by the coronavirus is here to stay. Lawyers who will want to prosper in the future will not only need to be highly skilled legal practitioners, they will also need to be highly proficient in the technology. I can see courts and tribunals asking practitioners why particular matters or applications cannot be heard online. Clients will also be asking this, especially if the online court can provide a more cost efficient and swifter outcome.

These changes to practice and procedure have been occasioned by the deadly necessity of contending with the coronavirus. These changes to legal practice, consistent with Comrade Lenin’s aphorism headlining this article, have been implemented far more quickly than would otherwise have been the case. They are likely to remain a permanent part of the legal landscape which I both think and hope will also improve or enhance access to justice.

Judge Gerard Phillips, President, Workers Compensation Commission

* This article was first published in Thomson Reuters Workplace Review Winter Edition 2020 and is kindly reproduced with their permission

Case summaries –court decisions

The following two judgment summaries again highlight some of the ongoing issues arising in hearing matters under COVID-19.

These judgment summaries (and those appearing in the previous edition of the COAT NSW Newsletter), were prepared by Michelle Yu, Frederick Jordan Chambers.

Australian Securities and Investments Commission v Wilson [2020] FCA 873

Federal Court of Australia, Jackson J, 23 June 2020

This was an interlocutory application made by the Applicant (ASIC) seeking permission for the testimony of 11 witnesses and the appearances and submissions of counsel at trial to proceed by way of video link due to the COVID-19 pandemic. Seven of the 11 witnesses required for cross-examination at the hearing lived in Western Australia, three lived in Melbourne and one lived in the USA (Texas). ASIC contended that that the evidence of these witnesses may be given by remote access technology without practical injustice to the Respondent.

Section 47A(1) of the Federal Court of Australia Act 1976 (Cth), permitted the court for the purposes of any proceeding to direct or allow testimony to be given by video link, audio link or other appropriate means. Section 47C imposed certain conditions that must be satisfied before the power under s.47A is exercised. In essence these required the court to be satisfied that there was technology permitting all eligible persons in the courtroom (eligibility being determined by the court: s.47C(6)) to see and hear the witness, and that the technology in the place where the witness is located enabled all eligible persons in that place to see and hear all eligible persons in the courtroom. The Court was satisfied that there was no difficulty in finding that these preconditions were satisfied on the present application. 

ASIC was concerned that if the trial could not proceed without in-person attendance by the witnesses, it would not be held for an indefinite period particularly as it was not possible to say when travel restrictions resulting from the pandemic would be eased so that the witness living in the USA could travel to and from Australia. In addition, there were presently restrictions imposed under the Quarantine (Closing the Border) Directions 2020 (WA) preventing travel to Western Australia from interstate.

The Respondent argued, among other things, that this was a regulatory proceeding in which allegations of serious misconduct were made against him which may result in a fine and disqualification from managing corporations. He argued that it was not essential to proceed to trial in a speedy way; but what was essential is that he have a fair and proper opportunity to test the serious allegations made against him.

Held: application dismissed.

There was a real risk that the Respondent would not have a fair and proper opportunity to test the evidence of the US-based witness if that evidence was not given in person. [26], [37]
The time difference between Perth and Texas was also relevant here. Depending on the time of year, Texas would be between 12 and 13 hours behind. That means that evidence will need to be taken at a time which will be evening in one place and early morning in the other. The possible need for the US-based witness to be cross examined for an extended period of time, and the possible difficulties in achieving that which may arise, mean that the importance of the time difference goes beyond mere inconvenience. The potential impact of all these factors on the cross‑examination of that witness, in the context of the importance and particular nature of his evidence, provides a strong reason why the trial should not proceed unless his evidence is given in person. [31]

Rooney v AGL Energy Limited (No 2) [2020] FCA 942

Federal Court of Australia, Snaden J, 8 July 2020

On 30 June 2020 and in consequence of the increased COVID-19 infection rates that have recently beset Victoria, the Court announced an immediate suspension of in-person hearings in Melbourne through until the end of July 2020. In light of that development, it became necessary to consider whether the matter could proceed by remote means or whether the existing trial dates should be vacated.

The Applicant maintained that this matter was not one that lends itself entirely to trial by video for reasons including that a trial by remote means would require additional time, such that the eight days that are presently allocated would not be sufficient. That, in turn, would increase the cost of the proceeding. Second, the Applicant contended that the matter was one in which demeanour and witness credit will be squarely in issue, such that it was imperative that the court hear from the central witnesses in person and to subject those witnesses to the usual rigours of cross-examination and in-person assessment. Third, the Applicant contended that it was impractical to require that her legal team conduct a complex trial such as this remotely. Most Victorians (including the Applicant’s counsel and instructing solicitors) have returned to a state of government-imposed “lockdown”. Her counsel, who lived with his partner and their infant, could not sensibly conduct the trial from his home.

The Respondent opposed the vacation of the existing trial dates and contended that the difficulties associated with a remote hearing can, at least to some extent, be overcome through the use of technology. The Respondent also contended that if the existing trial dates are vacated, it will effectively throw away costs recently expended in preparation for the trial. Of most significance, it submitted that any further delay will prejudice its defence of the Applicant’s claims. The events that were at the centre of the proceeding occurred more than three years ago.

Held: hearing vacated.

1. The available technology cannot fully replicate the court room environment that is so often central to an adversarial system of civil justice. The technology inhibits (if not prohibits) the cadence and chemistry—both as between bar and bench, and bar and witness box—that personify well-run causes. Those are traditional forensic benefits of which litigants ought not too lightly be deprived. [18]
2. There is a sense of solemnity—perhaps even intimidation—that attaches to the receipt of oral evidence from a courtroom witness box that not even the best technology can replicate. When all witnesses (or crucial witnesses) in a matter are subjected to that same stage, the truth is less easily spun, and unsuccessful parties are less inclined or less able to find fault with the process that delivered their defeat. That is especially important in cases such as this one, where serious allegations of statutory contravention are advanced, and the outcome of the cause turns upon contested facts and the credit of those who recount them. [19]