Adam Parker, LexisNexis
Since COVID-19 first appeared, Australian Courts have faced considerable challenges in meeting the needs of justice while adjusting rapidly to the new socially distanced reality, as described by Nathan Moshinsky QC in COVID-19 and the impact on our Courts.
The effect of this pandemic may affect the resolution of parties’ disputes in unpredictable ways with a significant number of court decisions being made that are explicitly referencing COVID-19 in their decision-making logic.
In this article, we examine five legally significant court cases from March 2020 which demonstrate the range of concerns addressed to date in Australia. Indicative citations where New Zealand courts have considered related matters are referenced and may provide additional insight.
Of the 36 judgments explicitly referencing COVID-19 published on Lexis Advance during March, most of these judgments are from the NSW and Victorian Supreme Courts and fall largely into two broad classes.
- The first class includes those matters where courts, now impacted by operational constraints as a result of COVID-19, had employed procedural safeguards found in their inherent discretion and relevant court rules to ensure that their work continues as best it can. This forms the bulk of matters published to date.
- The second class consists of those matters where COVID-19 had informed the court’s decision-making logic when addressing the substantive issues before it. While this is a smaller group of matters, it naturally has more legal significance.
The five cases examined in the course of this article are from this second group.
In this matter, Justice Lasry held in the Victorian Supreme Court that the COVID-19 pandemic constitutes a justifiable exceptional circumstance warranting a grant of bail to a previously remanded person facing trial on Schedule 2 offence. The applicant Broes was charged with multiple counts in relation to possession and trafficking of a drug of dependence, then remanded in custody after charges were laid for Schedule 2 offences where justifiable exceptional circumstances are required to warrant bail. Subsequently, the applicant applied for bail on the grounds of exceptional circumstances warranting a grant.
In weighing those factors relevant to satisfying the test established in s 3AAA of the Bail Act 1977 (Vic), Justice Lasry took note of relevant government action to manage pandemic response through activity restriction. The decision to grant bail turned on two factors, firstly the direct risk of COVID-19 infection to the applicant, and secondly the likelihood of considerable remand time versus the prospective sentence length given the impact of pandemic on the Court’s work rates.
This judgment has already been considered in a later case, Re Jk  VSC 160, where bail was also granted to a child awaiting trial on manslaughter for compelling reasons, although in that case the compelling reasons identified for grant of bail did not necessarily include the length of pre-trial detention. By comparison, the New Zealand Supreme Court found in Barton v R  NZSC 24 that the COVID-19 pandemic was insufficient to justify granting bail during appeal to a sentenced prisoner.
In this matter, Justice Harrison held in the NSW Supreme Court that, on its face, NSW’s current COVID-19 emergency measures legislation did not stop mortgage foreclosures and repossessions. On an application for stay of writ of possession, the defendants submitted that, as defaulting mortgagors, they were entitled to relief in anticipation of regulations that might be made pursuant to the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), or alternately relief by way of section 229 of the Residential Tenancies Act 2010 (NSW) given they had issued oral leases to sub-tenants.
However, Justice Harrison held that the Legislation Amendment (Emergency Measures) Act 2020 (NSW) merely granted the power to make regulations protecting defaulting mortgagers. The possibility that such regulations could be made in future did not warrant a stay, nor was the language of act enough to imply that Parliament had necessarily intended to implement a foreclosure moratorium. Furthermore, His Honour held that any possible regulations under the Residential Tenancies Act 2010 (NSW) would extend to the tenants, but clearly not to the defendants themselves. As a result, the foreclosure process was able to proceed.
In this context, it should be noted that the New Zealand High Court recently held in Savill v AMFL Ltd  NZHC 655 that mortgagee sales after foreclosure were open to postponement orders, due to the possible negative impact of COVID-19 on auction results.
In this matter, Justice Cavanagh held in the NSW Supreme Court that private citizens cannot use prohibition orders to shut down private commercial events on the grounds of the public health threat of COVID-19. The applicant Sharp sought leave to file summons for an order prohibiting certain private Mardi Gras events in Wagga Wagga. However, this was refused by Justice Cavanagh, who pointed out a number of fatal flaws in the applicant’s submissions.
Firstly, the order sought to control events on private commercial premises. This raised a matter of the applicant’s lack of standing, as such prohibitions are properly a matter for governmental action rather than private citizens.
Secondly, it was easily inferred that these events were government-approved ones. In support of this position, Justice Cavanagh noted there had been cancellation of public Mardi Gras events by the government without any corresponding cancellation of related private events.
Thirdly, while the application was in the nature of preliminary relief, the order sought would be final in practice rather than preliminary, as it would be made during an ex parte hearing concerning an event happening later that same day. As a result, leave was refused.
In this matter, Justice Macaulay held in the Victorian Supreme Court that COVID-19 justified converting an approved jury trial into a judge-alone trial under the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiff Mulquiney had brought a damages action for psychiatric injuries caused by sexual assault, and consequent economic loss, against both the perpetrator and the State. Before the COVID-19 pandemic had commenced, the court had approved trial by jury on the plaintiff’s request and the respondent’s agreement.
Since that approval, Victoria had suspended the commencement of new jury trial due to the COVID-19 pandemic. For the plaintiff, this raised the issue of whether the matter should now move to a judge-only trial, through use of the Court’s overriding discretion. However, under rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), a court must only halt an approved jury trial where it has been persuaded to use its overriding jurisdiction.
Justice Macaulay emphasised that this jurisdiction, although unfettered, was to be exercised in light of the overarching principles of the just, efficient, timely, and cost-effective resolution of disputed issues. As the uncertainty caused by COVID-19 would impair predicting when a jury trial might take place, the nature of claimant’s injuries required expedited hearing, and there were no technical reasons to prefer a jury trial, Justice Macaulay held that the injustice through delay that would be caused by continuing with a jury trial was persuasive under the terms of the Rules.
By way of comparison, the New Zealand High Court recently held in R v Ekeroma  NZHC 562 that COVID-19 was not in itself a reason to discharge a jury under the emergency provisions of the Juries Act 1981 (New Zealand).
In this matter, John Dixon J held in the Victorian Supreme Court that COVID-19 does not in itself constitute an unacceptable risk to a child’s best interests, such that the child would require removal from its mother on protective grounds. The child in question was a seventeen-month-old infant, with the carer being her mother under an interim accommodation order.
Given the allegedly unstable circumstances of the mother’s life, and injuries sustained by the child, this order was appealed by Secretary of the Department, for reason of alleged unacceptable risk of harm to child. The Secretary additionally noted that the combination of the mother’s insecure housing arrangements and the COVD-19 lockdown regime would make managing this case difficult enough to create unacceptable risk.
This appeal was refused by Justice John Dixon, who noted that the facts were still in doubt as to cause of injuries to child, the mother’s unstable housing situation, and the precise nature of her family and domestic violence. His Honour also noted that should the appeal be granted, and an interim accommodation order be made as per Secretary’s request placing the child in foster care, the COVID lockdown rules would actually create a serious impracticality in maintaining the mother-daughter bond, which would be contrary to child’s best interests as defined under s10(3) of the Children, Youth and Families Act 2005 (Vic).
As unacceptable risk not established, the appeal was refused – however, accommodation and departmental cooperation conditions were attached to mother’s continuing care of her child.
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