Australia: Litigating in 2020: Just a virtual hearing in a viral world

In brief - An update on the virtual courtroom and further decisions considering when COVID-19 constitutes grounds to adjourn

Litigators have been removed from the pomp and circumstance associated with the theatre of court in favour of live streaming hearings on YouTube, watching on as their colleagues address His/Her Honour amongst a sea of electronic monitors and abandoned hand-sanitiser bottles. Parties have quickly become acquainted to attending proceedings and mediations via virtual courtrooms, the majority of them from their own homes where they are practising social distancing.

Just add virus

This comes amid many firms making headlines for their compulsory office shut-downs due to staff's potential COVID-19 exposure. This did not escape Justice Ball's attention, who in a recent decision to "stand down" a large-scale class action lawsuit commented:

Justice Ball directed that Courtroom 12D, the allotted battleground where the parties were to duel it out across some four months, vacate; and stated that the case was to be conducted by way of "virtual trial". These proceedings were ultimately adjourned, but not before the parties participated remotely and on-line through a series of e-Court facilities. These services include live streaming on YouTube, following on from home with the documents tendered at Court through an on-line document sharing platform. Such measures have become the new norm across Australia as a profession steeped in tradition is dragged into 2020.

V is for virtual (not to be confused with viral)

All courts across Victoria have announced that they are to immediately begin e-court trials. Courts have straightaway begun testing virtual courtroom technology after in-person hearings and trials were suspended due to the pandemic pandemonium.

Parties in varying forums across the nation have been directed to deal with matters on the papers and attend to mediation and any hearings by way of teleconference. Directions are strictly being dealt with in chambers. Meanwhile, by comparison, the online court, already in place in the District Court of NSW, is a bastion of familiarity in a profession that is racing to meet the needs of a changing world.

Cases at a glance

In the GetSwift civil penalty hearing brought by ASIC, the judge commented that he was "pleasantly surprised" by the virtual trials, in refusing to delay the much anticipated hearing that is scheduled to begin in June. The logistics company had made an application for adjournment on the now frequently cited "prejudice" that it would suffer as a result of the virtual hearing.

Similarly, Ford has been told to "buckle up" in response to their bid to hit pause on the class action brought against them in relation to vehicles with "PowerShift" transmission, with counsel for the plaintiffs stating in submissions that "this is the reality of litigation in Australia". Ford subsequently lost the application to adjourn the upcoming virtual trial, with the judge stating that the parties must "at least try" to make the unconventional forum work, in circumstances where the pandemic and its resulting impositions could continue for a year or more.

We refer to our prior article, Pandemic pandemonium: the decision in David Quince v Annabelle Quince and Anor [2020] NSWSC 326, and note that, on the basis of the cases to date, criminal matters appear to be more readily adjourned due to concerns regarding a fair trial of the accused. This basis was cited by Her Honour in adjourning the long awaited hearing(s) against Eddie Obeid and Ian Macdonald to August of this year.

As indicated in our earlier article, judges seem to remain reticent to adjourn civil proceedings. This is reflected in the recent decision to refuse such an application in Roach v Malsave Pty Ltd, a personal injury claim where the plaintiff sought to adjourn.

1987: streaming live from 2020

The Supreme Court of NSW ran the frontline on acclimatising to the emerging pandemic, being the first of the judiciary to mandate that parties remain separate at Court where possible. Dick Smith is the landscape upon which the Supreme Court of NSW is demonstrating how complex, multi-party litigation can be run online.

Earlier this year, we published an article on Artificial intelligence and the rise of online dispute resolution. Within that article we stated that, given the increasing inclination towards online dispute resolution, litigants are not merely obliged, but incentivised to adapt and engage with the emergent, online structure. It would appear that the change may represent a much steeper curve than we anticipated, as the current situation is one of sink or swim.

Whatever the future, an address from the Chief Justice's Chambers from the Federal Circuit Court of Australia confirmed that the courts are prepared to see out a long-term future in conducting hearings via a "digital transformation".

Whilst William Alstergren QC assured the profession that over 100 judges, 35 registrars in 40 different locations are now well equipped to handle trials, appeals and applications electronically, it was made exceptionally clear that practitioners should save the sweatpants for internal Zoom calls, with the dress code remaining formal.

One thing is certain, the pandemic and its numerous impending consequences will reorder society and how we conduct this modern life, and the legal profession is not immune. The emerging determinations on adjournment applications can be considered patient(s) zero, to be monitored accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.