We are understandably receiving numerous queries regarding the manner in which Australian courts are functioning during the current coronavirus disruption, and also the manner in which Australian laws address a number of the issues which are consistently arising.
For the benefit of our existing clients, we will continue to update and supplement the topics as the current situation continues. Clients are welcome to raise specific issues which they would like us to comment upon.
Australian court operation
Courts across Australia have rapidly implemented changes to continue operation while minimising in-person attendances. For example, in the Federal Court, where many of our client's matters are listed, judges are hearing short matters by telephone and video-link. The Court is also waiving some procedural requirements, for example, allowing electronic signing of documents and accepting the filing of unsworn affidavits. A helpful central repository of up-to-date information about the operation of courts across Australia during the pandemic is the Judicial College website.
Electronic signing
With many Australian and international businesses shifting to remote working arrangements in light of the government's COVID-19 response, companies and individuals are likely to need to sign documents without easy access to hard copies or a printer. We have published an article on our website, which sets out the general position under Australian law on the use of electronic signatures (including suggestions on how the requirements may be met to provide a greater level of certainty regarding the validity of electronic signatures) and also highlighting some important exceptions to the general rule.
Contracts, cancellations
We are assisting our clients to review current contractual arrangements in light of these unprecedented circumstances and assisting with how business operations may be adapted. The ACCC has advised that it is remaining alert to any instances of unfair or unconscionable conduct on the part of businesses in dealing with consumers during the current crisis. A helpful resource published by the ACCC (which is consumer-focused, but nevertheless is helpful for businesses) is here.
Estate planning and succession planning
The COVID-19 pandemic has crystallised the importance of having estate planning and business succession plans up to date. In addition to having an up to date will, we recommend clients consider their superannuation nominations, business succession arrangements in the case of incapacity or death of an equity holder and succession arrangements for family trusts. We also suggest considering putting Enduring Power of Attorney arrangements in place for medical and financial decisions.
Moves are afoot to (temporarily) relax the strict signing requirements for wills and powers of attorney, but in the meantime, our team is advising clients on alternatives if they cannot have their will signed in the presence of two witnesses, or their Enduring Power of Attorney signed in the presence of at least one authorised witness and one lay witness.
In the courts, state based Probate Registries continue to process applications for grants of probate with no significant interruptions reported.
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.
