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Litigation and disputes during COVID-19: The Courts are Open

James Ferguson, ||

COVID-19 has forced many industries to re-think how they operate, and the legal sector is no different. From a litigation point-of-view, perhaps the biggest impact brought about by the COVID-19 pandemic has been the transition to “virtual courtrooms”. Both State and Federal Courts have rapidly implemented online hearings facilitated through audio-visual platforms in order to keep the Courts open.

Practically, what does this mean for parties who are looking to commence legal proceedings, or who are in the middle of legal proceedings?  In short:

  • parties looking to commence legal proceedings are still able to file Court documents. The Court’s “Online Registry” function means that parties can file documents 24 hours a day, 7 days a week, electronically online;
  • whilst the Federal Government has encouraged creditors and debtors to “work together” to resolve disputes (typically in relation to rental/leasing agreements), no formal legislation has been introduced that would otherwise operate to prevent a party from commencing legal proceedings; and,
  • for parties in the middle of litigation, it is “business as usual” albeit virtually, rather than in-person. The Court is utilising audio-visual platforms that allow legal representatives to appear by video-link for interlocutory and final hearings. When a party requires a witness to appear in Court, that witness can also appear by video link.

The move to “virtual courtrooms” has meant that the Courts can continue to operate with a view to facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible. If the Courts had shut for the COVID-19 period, it would have led to mass delays which would have created a backlog in the legal system for years to come.

But whilst the Court’s rapid technological progression will no doubt yield some positive results for the legal industry, there are obvious difficulties that parties will face in conducting lengthy hearings via video link. Some of these issues were recently raised in Capic v Ford Motor Company of Australia Limited in the Federal Court of Australia.

In Capic v Ford Motor Company, the matter had been listed for a 6-week hearing, commencing on 15 June 2020.  Ford Motor Company of Australia Limited, the Respondent, filed an application seeking to have the hearing adjourned until later in the year (around October) due to the need to ensure safe work systems and the increasing restrictions on movement and gatherings. In particular, Ford Motor Company cited the physical separation of legal teams, technological limitations, access to witnesses and document management as factors which weigh in favour of having the hearing adjourned until an “in-person” hearing can be conducted.

His Honour, Perram J, in refusing Ford Motor Company’s application, made several comments which may be relevant to all parties currently facing a virtual hearing. In summary:

  • the mere risk that a party, or witness, in a hearing may have technological limitations, such as access to hardware and software, is not a sufficient basis to adjourn a hearing. Parties typically have enough notice of a hearing that proper arrangements for access to the appropriate equipment can be made;
  • the separation of legal teams can be overcome through the use of instant messaging services. For example, his Honour referred to a recent online hearing in which senior and junior counsel communicated via WhatsApp throughout the course of the proceedings;
  • document management will not be a sufficient basis to adjourn a hearing. Many courts now have access to documents (such as affidavit and court books) electronically; and,
  • in circumstances where it is unclear for how long the COVID-19 pandemic will last, the Courts cannot adjourn hearings for indeterminate amounts of time.

Whilst the Courts have remained open, the decision in Capic v Ford Motor Company highlights that parties are likely to face practical difficulties in conducting litigation during COVID-19. Nonetheless, as the legal sector continues to adapt to the evolving COVID-19 pandemic, parties can remain confident that their access to justice systems remains intact.

If you have a query relating to any of the information in this blog, please do not hesitate to contact a lawyer in Coleman Greig’s Litigation and Dispute Resolution team, who would be more than happy to assist you today.


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