In brief - When will the COVID-19 pandemic be grounds to adjourn? Some issues to consider for parties intent on proceeding to hearing during coronavirus crisis 

His Honour Justice Sackar has granted an application to vacate the hearing of the David Quince v Annabelle Quince and Anor proceeding in the Supreme Court of NSW, following the imposition of a regime requiring that cross-examination of all witnesses occur by way of video-link following the chaos ensuing from COVID-19.

An application to vacate was made by the plaintiff on two bases, one of which being a regime requiring that cross-examination occur by way of video-link. 

Many of the issues in dispute ultimately boiled down to a credit finding as between the opposing key witnesses. 

Sackar J considered section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). His Honour did not accept the submission that the exercise of this provision was, in effect, suspended due to the nature of COVID-19 and the affect it had on the Court's resources.

Sackar J acknowledged that, in the circumstances, demeanour will likely play a significant part in determinations of credibility. His Honour acknowledged that the plaintiff may be faced with an unfairness in not being given a full opportunity at least to ventilate the issue of creditability in the conventional way.

Western Australia Supreme Court of Appeal denies similar application 

In the recent decision in JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020], an application to adjourn was grounded on issues said to arise from the COVID-19 pandemic. The Chief Justice of WA has made a directive that cases are to proceed by way of telephone, unless all parties have access to video-link, in which case they may take place utilising video. The applicants went so far as to assert that they were "entitled" to a conventional hearing. The Supreme Court of WA made the following determination: 

In the extraordinary circumstances presented by the COVID-19 pandemic the arrangements provided for in the public notice of 18 March 2020 are a necessary but proportionate alteration to the normal practice and procedure of the court consistent with the due administration of justice. Were the submission of senior counsel for the respondents to be accepted this court would be unable to conduct any court hearings for an indeterminate time. That would be antithetical to the due administration of justice in the State of Western Australia and at odds with achievement of the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

NSW Court of Criminal Appeal trial vacated

These decisions come on the heels of a decision from the NSW Court of Criminal Appeal that a jury be discharged, and trial vacated to take a new hearing date after Counsel for the defendant withdrew from the case, following fears he would contract coronavirus. 

It was held that, in making the original decision to press on, the judge failed to address the key question of fairness in choosing to press ahead after Counsel withdrew. The trial was likely to be unfair if the accused was forced on unrepresented. The Court of Criminal Appeal held that the accused's right to competent representation at trial should never have been subverted by the desire to keep the trial on foot. 

Factors courts are considering in decision to delay a matter due to coronavirus

On the basis of recent decisions, including the above, and in our experience, the following criteria are likely measures a court will assess in deciding whether a matter should be delayed due to COVID-19:

  1. Whether there will be a material disadvantage or unfairness to a party by the continuation of the proceeding.

  2. If the proposed regime to continue the proceeding (including by way of virtual hearing), would oppose the administration of justice.

  3. If a material disadvantage will result from a virtual hearing, such as the loss of an ability to assess a witness's demeanor where allegations turn on an assessment of credit.

  4. If the Court is able to provide a venue for the matter to proceed safely. 

  5. The complexity of the hearing and the extent to which Counsel will be required to confer with their junior or instructing solicitors. 

  6. The agreement of the protocol as between the parties, and the ability of any witnesses to comply with that protocol. 

  7. Any potential prejudice that may arise due to delaying the proceedings.

  8. The extent of inefficiency in utilising the Court's time caused by adjourning the proceeding.

  9. The ability to maintain a protocol for the duration of the hearing in the rapidly evolving environment. Courts are unwilling to entertain split trials, particularly when they are unable to ascertain when the matter will be able to resume. 

In this new regime that we all find ourselves, the above matters should be considered by parties intent on proceeding to hearing by deploying the available technology in these uncertain times. While it is clear that the Court intends to ensure, as best as possible, that it continues to operate services in New South Wales, where a material disadvantage or unfairness will occur to a party or the safety of any person is at risk, a hearing date may well be vacated to a future date. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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