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In recent months, the courts have determined numerous applications to adjourn substantive hearings due to the ongoing COVID19 crisis. We provide here brief summaries of the judicial considerations in some of these applications. They illustrate that the courts are grappling with finely balanced considerations in determining the extent to which court procedures can be adjusted; the primary concern being to ameliorate potential and actual prejudice to the administration of justice brought about by COVID19’s severe curtailment of in-person hearings. The decisions show the willingness of the courts to adapt their procedures to preserve the listing of trial and appellate hearings despite COVID19-related disruptions.
The respondent, CH2M Hill Companies Ltd, cited numerous issues in support of its adjournment application, including the inadequacy of conducting the appeal via video/telephone and the various locations of its counsel.
In rejecting the application, the Court found that based on prior satisfactory experience, conducting the appeal via video or telephone would not be inadequate and senior and junior counsel would be able to communicate electronically. The Court held that the arrangements to hear cases electronically during the COVID19 pandemic are a “necessary but proportionate alteration” to the Court’s ordinary procedures in facilitating the administration of justice.
The respondent, GetSwift Limited, argued that the impossibility of key witnesses being able to travel to Australia, technical difficulties with the use of virtual court processes, logistical difficulties involved with large legal teams and limitations on the Court’s capacity to assess witness demeanour were sufficient reasons to adjourn an upcoming trial.
The Court rejected the application, finding that it would not be unjust to undertake the trial in a remote format, reasoning that technology enables parties to give evidence remotely, allows large teams to work together, and enables the demeanour of witnesses to be observed. The Court was unable to perceive “any real risk of practical injustice” of such a degree as to mean that the case should not proceed.
Ford Motor Company of Australia Limited applied to adjourn a six-week trial, citing technological limitations, physical separation of legal teams, document management issues, and difficulty in briefing and cross-examining witnesses.
The Court refused the adjournment and held that technology difficulties could be resolved effectively, legal teams could communicate over instant messaging platforms (such as WhatsApp), document management could be facilitated by the use of digital court books and services such as Dropbox, and the briefing and cross-examination of witnesses and the preparation of joint reports over virtual platforms, although challenging, time-consuming and expensive was “not unjust or unfair”. An adjournment of the trial because of COVID19 would be to adjourn it for an indefinite period and as the case had been pending for years, it was in the interests of the administration of justice that the proceeding should be resolved if possible.
All parties in this dispute applied to vacate the hearing, with the plaintiff and defendant submitting that a trial by virtual courtroom would be procedurally unfair. In addition, the defendant submitted that witnesses could be expected to consider a large range of documents and it would be inconvenient if senior and junior counsel and instructing solicitors appeared in different locations. The defendant also drew upon the Court’s reluctance prior to the COVID19 pandemic to hear evidence by audio-visual link if a party was subject to a “credibility attack” due to its possible unfairness.
In dismissing the adjournment application, the Court held it should give effect to the ‘imperative to facilitate the continuation of the economy and essential services of government, including the administration of justice’. The Court held that there was nothing unique about the case that made it unsuitable for a virtual courtroom process and that the presence of both senior and junior counsel and instructing solicitors together in Chambers during the virtual courtroom is not considered a ‘real problem.’ It was also noted that reservations previously expressed by judges about the use of audio-visual links in cases where credit is an issue to be ‘somewhat dated’ in light of enhanced technology that has been efficiently and effectively deployed by the courts since commencement of the pandemic.
The plaintiff submitted that it would be ‘inapt’ for a witness’s dishonesty to be tried by video link in the COVID19 environment, relying upon the David Quince v Annabelle Quince (summarised below). However, the Court did not accept that case to be authority for the proposition that a trial by video link should not proceed where there is a question of credit to be tried. Whether video link trials are appropriate is to be determined on a case-by-case basis. The Court was not satisfied that the proceeding could not be ‘fairly and properly conducted’ where it is necessary for the trial to occur by video link.
In this proceeding, the plaintiff sought to vacate the trial hearing, claiming that it would be unfair if the trial were to occur by video-link. The plaintiff’s counsel sought to cross-examine the defendant in a conventional setting, claiming that the defendant’s demeanour in the atmosphere of a trial concerning allegations of fraud with no supporting documentary evidence, would be crucial to assessing her credibility.
The Court allowed the adjournment and held that given the allegation of fraud, unfairness would arise for both parties if the trial were conducted by video-link, as demeanour plays a significant role in the establishment of serious allegations of this nature where there is limited corroborative material. In making its decision, the Court found that an unfairness would be created if the trial were to be conducted by video-link and that such an unfairness would be antithetical to the administration of justice. The Court noted that although there would be cases where the use of video-link procedures would be fair, this should be objectively determined on a case-by-case basis.
Hytera Communications Corporation Ltd (Hytera) sought an adjournment, as seven of its witnesses were located in China and were unable to attend the hearing for cross-examination. Hytera argued that The Civil Procedure Law of the People’s Republic of China (1991) also prevented them from being cross-examined via video-conferencing while in China without permission from the Chinese state which would be unobtainable before the trial date.
Motorola Solutions Inc. (Motorola) disputed that Chinese law operated this way but accepted that Australian courts would be unable to secure cross-examination of the witnesses. Given this difficulty, Motorola indicated that it did not require the seven witnesses for cross-examination and instead intended to rely on other evidence which contradicted those witnesses’ evidence. Both parties accepted that to do so would breach the obligation on a party to put their case to an opponent’s witness in cross-examination which contradicts that witness’ evidence (the rule in Brown v Dunn). Motorola foreshadowed that it would later argue that an exception to the Brown v Dunn rule was enlivened because they were unable to put their evidence to the witnesses.
Hytera submitted it would be unfair if the trial were to proceed in these circumstances because the witnesses’ responses might be persuasive if the matter were tried in-person. The Court accepted that if the trial proceeded, Hytera would be exposed to the risk that the Court may not be presented with potentially ‘exculpatory material’.
In ordering that the hearing be vacated, the Court expressed uneasiness about commencing a hearing in which one possible outcome was the jettisoning of an important principle of cross-examination, which might result in a mistrial. The Court did not wish to fragment the trial by hearing some aspects in May 2020 in circumstances where an in-person hearing would ultimately be conducted and fragmentation would not speed up the process and would increase expense.
Finally, despite concluding that the trial should not proceed, the Court rejected Hytera’s submission that time zone differences and the problems of conducting a remote trial rendered the trial inappropriate to proceed. Citing the decision in Capic v Ford (summarised above), the Court did not accept that those problems are insurmountable or sufficient to adjourn a hearing in most cases.
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