Nathan Moshinsky, QC | VICTORIAN BAR
The legal profession, and the Australian judicial system, is facing challenging times in responding to the international COVID-19 pandemic. A central concern of the judicial system is the need to balance the health and safety of the community, the profession, Judges and staff with the need to continue this essential service.
In an endeavour to reduce the risk of infection, most Courts have placed considerable reliance upon electronic means of communication to undertake Court work. New rules have been created to accommodate social distancing protocols for face to face contact between judges, court officials and members of the public.
Considering the surreal rate at which changes are flowing through, not only to the courts, but to our day-to-day work, what can legal professionals look forward to as the ‘new normal’?
The critical role of written submissions in advocacy
As a result of ongoing changes to Court practices, written submissions have assumed an important role in advocacy, particularly where cases are decided “on the papers”.
Consequently, precision and skill will be required when written submission are filed, and it will be much more difficult to succeed in persuading a Court with oratory or oral argument, tailored to respond to the mood of the Court.
Thus, an advocate will not have a chance to alter or modify the course adopted in written submission after they are filed.
Overall, the approach of various State and Federal jurisdictions shows a similar response to the crisis--namely to reduce the exposure of Courts to face to face contact by relying on electronic means of communication. Where such contact is permitted, social distancing procedures are established.
However, there are differences of approach.
- In the Australian Capital Territory jury trials will proceed, provided that appropriate hygiene and social distancing standards can be met.
- In Tasmania jury trials are suspended, but not abolished.
- However, in the Victorian Supreme Court, civil jury trials are abolished, and replaced by judge alone hearings.
- In the Federal Court the emphasis is on video conferencing.
Differences between jurisdictions may lead litigants to choose a jurisdiction which provides a more appropriate procedure for their cause. Some parties may seek a venue where jury trials or oral hearings are more likely to be sanctioned, even if compliance with social distancing is required.
Technology plays a greater role in Courts than ever before
Computer technology will play a great role in the implementation of the new rules, particularly where video conferencing is used by the Court. There could be some variation between State and Federal Courts in the quality and accessibility of such technology.
In NSW, for example a greater reliance on technology, including increased use of audio visual links and pre-recording evidence of key witnesses is expected to become part of everyday operations due to new emergency laws.
In some jurisdictions, parties will be required to lodge electronic court books.
Thus, a jurisdiction which provides a speedier resolution of a dispute because of the accessibility of its technology, may be preferred as a forum.
Videoconferencing is being adopted for hearings, but what is the impact?
Where videoconferencing is adopted as a method for hearing a case, the scope for direct interchange between a practitioner and the bench will remain, however, the “distancing” will remove much of the cut and thrust of the court room. However, this may affect a client’s confidence in advocates’ capacity to persuade the Court.
The potential for adjournments
Another consequence of the changes brought about by the current virus crisis, is the adjournment of civil cases, and criminal trials.
Delay in the hearing of matters, can affect the memories of witnesses and impair confidence in the judicial system.
Also, the postponement of cases will place added administrative burdens on Court staff and the judiciary who must cope with changing requirements.
Social isolation in a courtroom–is this even possible?
Some of the changes to Court process seek to accommodate government recommendations concerning social isolation, particularly in face to face contact with members of the public.
Such changes have not yet been fully tested and it is difficult to predict if they can be safely implemented to accord with the changing demands of the developing virus.
If the rate of increase of infections grows considerably, increased community anxiety may make it difficult for the Court to implement these changes of procedure.
Current recommendations are that every person should have a 2-meter space between that person and another one. However, this may prove to be unacceptable if the epidemic becomes much worse.
Also, the enforcement of social isolation rules in a court room, may place an onerous burden on court officials who will be tasked with responsibility to enforce them.
A burden will also be placed on advocates who represent parties participating in face to face appearances before a Court. They will have to counsel their clients about distancing protocols, the use of sanitisers in court buildings and compliance with crowd control measures.
Abolition of jury trials
Another change which may prove to be controversial, is the abolition in Victoria of civil jury trials in the Supreme Court for the time being, and the temporary suspension of new jury trials in New South Wales.
If such an important change is to be undertaken in other jurisdictions, it would be desirable that the decision is make only after careful consideration and debate, and, not merely in response to a temporary crisis.
WHAT IS THE CURRENT STATE OF PLAY IN FEDERAL AND STATE COURTS?
The following round-up of the current state of the courts is as current as of Monday 30 March. It is important to accept that changes in court procedures to deal with the corona virus crisis are not permanent, and that they are likely to change and evolve as the crisis develops further.
At the end of this article you’ll find links to relevant announcements which are reported on within this article. For the most current state of play please refer to the website of each court.
The Judicial College of Victoria has created a resource page to help courts, and court users1 to understand the different practices that have been put in place across the jurisdictions.
The following commentary provides a useful summary of many of these changes, although it is important to understand that further changes are likely as the crisis develops.
The Federal Court of Australia is modifying its practices in order to minimise in person attendance on Court premises. It has requested parties to identify (with the assistance of the Court) opportunities by which listings may proceed either by way of telephone conference or other remote access technology. Such procedures will apply to mediations and Court matters. Some cases may be able to be done on the papers, including first instance docketed matters, and Registrar’s Court matters.
Alternative arrangements will be put in place for all listings and events that would ordinarily require in person attendance. Thus, the Court has released a statement (17-3-2020) indicating that all listings that require in person attendance, including mediations, and listings relying on video link from court premises listed up until 30 June 2020, are vacated. The purpose of this procedure is to put in place reliable video conferencing facilities to allow matters to go ahead.
In relation to Appeals which are listed for the May sittings, the Court will assess which cases will be conducted by video -link where possible.
Also, in a statement (23 March 2020)2the Court has introduced arrangements for reducing personal attendance at the Registry, and e-lodgement of documents via the court’s web site,
If alternative arrangements are not able to be put in place for listings and events that would ordinarily require in person attendance, such listings and events will need to be vacated or adjourned other than in exceptional circumstances and with the express authorisation of the Chief Justice.
The Court will seek to accommodate any listings or events that would ordinarily require in person attendance for half a day or less, without requiring in person attendance, either, by seeking resolution “on the papers”, or by telephone, or by a combination of both of the above.
Longer listings and events that would ordinarily require in person attendance for half a day or more, will undergo a triage and prioritisation process.
A brief guide for practitioners on conducting hearings using remote access and file sharing technology has been published and will be updated regularly, as required.
The Family Court of Australia and the Federal Circuit Court of Australia have also stated (Statement 19 March 2020, and Practice Directions, PD 2 and PD 3 of 2020) that the principle basis upon which work will be conducted in the Courts in the near future will be by telephone, and when it becomes possible, by videoconferencing. Only urgent matters will be dealt with by in court face-to-face hearings, which will be conducted pursuant to the face-to-face in-court protocol, which provides rules implementing social distancing requirements, reduced numbers in courtrooms and general cleanliness procedures.
These Courts have also issued new practice directions (Practice Direction PD2 of 2020, and, Practice Direction PD3 of 2020) regarding electronic filing, annexures to affidavits, and the viewing of subpoenas, which apply to all applications, including appeals.
In a Notice to the Profession dated 19 March 2020, 3 the Family Court has made arrangements for the conduct of First Return Duty Lists, Abridgements, Mentions, Directions, and Interim Hearings either by telephone or in accordance with the face-to-face protocol. Also, procedures have been put in place for final hearings. They require parties to engage in telephone conferences with a presiding judge, who is required to assess the appropriate procedure for the conduct of matters which are listed in their docket for a defended hearing, in the next 2 months.
In the case of appeals, although the attendance of counsel and self-represented parties, is required, represented parties do not have to attend. Also, requests can be made to attend by telephone depending on the circumstances and the nature of the appeal.
All judges are encouraged to consider any matter on the papers where possible in accordance with the usual Rules of Court.
In a Media release dated 26 March 2020,4 the Family Court of Australia, and the Federal Circuit Court of Australia, have acknowledged that special circumstances are now faced by Australian parents and carers, because there may be situations that arise that make strict compliance with current court orders concerning care and custody of children very difficult, if not, impossible. This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders, and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children,and the risk of infection to vulnerable members of the child’s family and household, should also be considered.
If agreement cannot be reached by the parties either as a result of personal negotiation or mediation, the court is available for resolution disputes, providing it is requested to do so by electronic means.
The Supreme Court of Victoria has also changed its procedures in response to the pandemic. (Media Release 20 March 2020).
The Victorian Court of Appeal will not be conducting in-person hearings. Beginning 23 March 2020 (civil appeals) and 24 March 2020 (criminal appeals) all hearings will be conducted by video link. Judges and court staff will be present in the courtroom, but the parties will appear remotely.
Where appropriate, the Court of Appeal will by agreement, determine matters “on the papers” through the filing of written submissions.
The Commercial Court will no longer conduct Directions hearings and interlocutory applications in-person unless there are exceptional circumstances. Instead, parties who cannot agree on consent orders will be required to outline areas of disagreement. Then, when appropriate, matters will be dealt with “on the papers”, through written submissions, and hearings via telephone, videoconferencing and Skype.
From 25 March 2020, all company winding-up applications will be heard via telephone.
Trials will be conducted electronically, and witnesses will give evidence remotely.
The Common Law Division is also undertaking radical changes. Proceedings that would have been heard before a civil jury will now proceed before a judge sitting alone, unless a judge directs otherwise. Existing jury trials are going to be completed.
Trials will be heard using remote telephone or videoconferencing facilities for parties, counsel and witnesses unless ordered otherwise. Regional circuit trials will follow the same approach. Parties will be required to lodge electronic court books.
Some in-person hearings may be permitted where considered necessary by a Judge. However, in such cases, listing times may be staggered to allow for social distancing.
Mediations in the Commercial Court and the Common Law Division will take place by Skype, telephone and videoconferencing.
Practice Court applications and interlocutory and case management hearings will be conducted and determined “on the papers”, unless a judge otherwise orders.
In addition to the usual initiating documents being filed, all parties will be required to file short written submissions in support of their relative positions, incorporating references to principal authorities relied upon.
If either party considers that the application is not suitable for determination on the papers, and that an oral hearing is necessary, they will be required to provide additional submissions as to the requirement for an appearance, and an explanation for the urgency of the hearing. The Court will then consider the material and determine whether the hearing will proceed and in what manner5.
In the Criminal Division, trials to mid-May 2020 will either be adjourned until after October 2020, or reassessed closer to the trial date. Non-jury matters such as pleas, applications, case conferences and preliminary hearings will continue where parties are available. Video link will be used where possible. In person appearances will be staggered to allow for social distancing.
The County Court of Victoria has adopted similar measures (Notice 20 March 2020). The Court has introduced social distancing measures for matters heard in-person, where such hearings are necessary, including limiting the number of people present in any courtroom and staggering appearances to minimise crowding. New jury trials are unlikely to take place until the last quarter of 2020.
In a Notice dated 26 March 20206, the Court stated that it was closing following advice from State and Federal government advice. Before attending the Registry, users are requested to contact the Registry to discuss with Registry staff any possible alternatives to in person attendance. Special arrangements are in place in the Registry to reinforce social distancing and good hygiene practices. Parties should use electronic means for filing.
A similar position has been adopted by the Magistrates Court of Victoria. (Statements by Chief Justice 18th and 20 March 2020). Audio visual link technology will be used to limit in person appearances.
The Koori Court has been suspended to protect the health of the elders. Telephone contact will be used as much as possible by participants in the Drug Court, ARC List and family violence matters.
By a Notice dated 24 March 20207, the Court announced that all Magistrates’ Court venues remain open but to reduce the number of people, a range of non-urgent matters have been adjourned.
Thus, all criminal proceedings (except filing hearings, committal mentions and committal hearings) where the accused is on summons or bail have been adjourned to the nominal date of 15 June 2020.
Committal mentions will continue to be heard. Where an accused is on summons or bail, their attendance will not be required provided their legal representative attends with instructions. However, if the matter has resolved to a straight hand-up brief then the accused must attend.
In civil matters, unless directed otherwise no practitioners or parties are to attend court.
NEW SOUTH WALES COURTS
As the situation continues to evolve, a broad range of amendments to existing laws to help combat the spread of COVID-19 are anticipated in NSW.
The Supreme Court of New South Wales has adopted similar procedures to the Victorian Supreme Court. (Notice 20 March 2020)
Personal appearances in any matters will not be permitted from Tuesday, 24 March 2020 save in exceptional circumstances with the leave of the Chief Justice or head of jurisdiction. This also applies to unrepresented litigants. Electronic lodgement of documents will become mandatory, and video links will be required for mediations.
Amendments to the Criminal Procedure Act, the Evidence (Audio and Audio Visual Links) Act, the Crimes (Domestic and Personal Violence) Act and the Jury Act aim to ensure NSW courts can continue to deliver justice with fewer people required to physically attend court.
Both the Supreme and District Courts of NSW will have greater discretion to order judge-alone trials reducing the need to summon large numbers of potential jurors. Vulnerable people will be exempt from jury summons and provisional Apprehended Domestic Violence Orders have been extended from 28 days to six months.
Current jury trials are expected to continue and will be conducted in accordance with social distancing requirements. However, new jury trials have been temporarily suspended.
Until further notice, the usual Friday Commercial List, Technology and Construction List and Commercial Arbitration List will not be conducted in open Court8.(Notice 25 March 2020)
By a Notice dated 18 March 20209, the Queensland Courts announced the implementation of similar procedures.
In civil matters, practitioners, are urged to use telephone or video link to make applications.
Witnesses should be called, wherever possible, in a manner which minimises the number of people attending court for any given matter.
In criminal matters, practitioners are urged to identify trials which are urgent, because defendants in custody, have spent time on remand approaching the period likely to be served on any sentence. Also, they should take instructions as to whether application should be made for a judge-alone trial.
In a release (18 March 2020), the Supreme Court of Tasmania, has also suspended jury trials until at least 21 July. The media release stated that the level of public alarm about the Coronavirus has become so great that it would not be fair to compel people to serve on juries at this time. If jury trials went ahead, there would be a danger of jurors being distracted by concern about their health and safety.
SOUTH AUSTRALIAN COURTS
In South Australia, the Supreme Court of South Australia (in media releases dated 16 March 2020) has issued directions which follow a similar procedure. Directions hearings are to be done by email, and disputes resolved “on the papers.” All matters under the Corporations Act 2001 (Cth) are to be dealt with in the same way.
From 30 March 2020, all mediations will be postponed. Each mediation will be given a new date, commencing in June 2020 (Notice dated 26 March 2020)10
WESTERN AUSTRALIAN COURTS
The Supreme Court of Western Australia has issued directions (18 March 2020) requiring lodgement of documents by electronic means or leaving them in a drop box. All appeals (civil and criminal) are to be conducted by telephone or by videoconference.
If the appeal involves the calling of witnesses, only counsel and any self-represented party must be present in the courtroom. Appropriate social distancing measures will be applied. Witnesses must appear by video link from a remote location.
Civil trials before judges are permitted to continue as listed. However, they must only occur in courtrooms that can ensure appropriate social distancing. Criminal jury trials are suspended till 1 May 2020 but judge alone criminal trials are permitted providing appropriate social distancing measures can be implemented in the court room.
NORTHERN TERRITORY COURTS
The Supreme Court of the Northern Territory has directed (Notice 20 March 2020) that pre-trial hearings, mentions and directions hearings in the Supreme Court are to be conducted by audio-visual link (if facilities are available in the practitioners’ offices) or by telephone unless, leave is granted by a Judge for an appearance by counsel, in person.
In criminal cases guilty pleas are to be conducted by audio-visual link unless a personal appearance is sanctioned by the Court upon application by e-mail to a Judge’s Associate.
AUSTRALIAN CAPITAL TERRITORY
The Supreme Court of the Australian Capital Territory has directed (Practice Direction 1 of 2020) that in criminal cases guilty pleas are to be conducted by audio-visual link unless a personal appearance is sanctioned by the Court upon application by e-mail to a Judge’s Associate. At present, there has not been alteration to the procedures followed in criminal trials.
What should legal practitioners keep in mind as the situation continues to evolve?
It is important for legal practitioners and litigators to accept that changes in court procedures to deal with the corona virus crisis are not permanent, and that they are likely to change and evolve as the crisis develops.
Practitioners should keep in contact with the web sites of relevant Courts, so that they may learn about any changes in procedure brought about by the crisis.
Nathan Moshinsky QC, is an esteemed author and contributor for many of LexisNexis’ products, including Practice and Procedure High Court and Federal Court and Halsbury’s Laws of Australia.
30 March 2020
For more information on changing court procedures in response to the COVID-19 crisis
If you would like more information on changing court procedures, links to the relevant statements referenced in this article are listed below: