COVID-19 has had, and continues to have, a major impact on court processes for all parties involved. Courts have been quick to adapt by transitioning to video link hearings. While the height of the pandemic appears to be over in Australia, it seems that online hearings are here to stay in most courts except in certain circumstances. For example, the Supreme Court of Victoria has recently released a Notice to the Profession regarding in-person hearings, available here. In particular, the Court states the default position for case management hearings, directions hearings and mentions is for these to occur online.
While it appears that only substantive hearings will be held in-person for the foreseeable future, the situation could change at a moment’s notice, such as with the recent “circuit breaker” lockdown in Victoria which forced online hearings to resume in almost all instances. This poses obvious challenges for both litigants and legal practitioners, and may result in prejudice and unfairness. In particular, the benefits of having in person hearings are said to include the ability to observe a witnesses demeanour.
Because of these issues, there have been instances where courts have vacated an online hearing in favour of an in-person hearing, as discussed below.
When will a court vacate an online hearing?
It is important to note that a party is not entitled to have an in-person hearing as of right. In general, courts are reluctant to vacate an online hearing date unless it can be shown that there are some exceptional facts or circumstances that will cause unnecessary prejudice or unfairness. Each application to adjourn a hearing will be decided on its facts. Importantly, in deciding whether an online hearing should be adjourned, the court will balance the potential prejudice to a party against the overarching purposes of the court to facilitate the just, quick and cost effective resolution of the proceeding.
For example:
- In David Quince v Annabelle Quince and Anor [2020] NSWSC 326, Sackar J vacated a trial hearing date on the basis that cross examination could not be satisfactorily carried out if the hearing was to proceed via video link. This case involved serious allegations of fraud in circumstances where the competing expert evidence was equivocal. This meant the demeanour of the defendant as a witness would play a critical role in assessing the defendant’s creditability. Therefore, Sackar J held that it would be contrary to the administration of justice for the hearing to be conducted online, as this would cause unfairness to a party.
- In Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732, Robb J vacated an eight day hearing in the New South Wales Supreme Court. This case also involved serious allegations of fraud. Additionally, three key witnesses were located in China and the use of interpreters was required to examine and cross examine them. Robb J held that this would create difficulties for the Court in assessing the credibility of the witnesses. Further, the witnesses would be at risk of contravening Chinese Procedural Law if they were forced to give evidence by video link. Given these circumstances, Robb J held that it would be unfair to the plaintiffs for the trial to proceed by video link. Accordingly, the hearing dates were vacated.
- However, in Ascot Vale Self Storage Centre Pty Ltd (in liq) v Nom De Plume Nominees Pty Ltd & Ors [2020] VSC 242 McDonald J dismissed the plaintiffs’ application for an insolvent trading exoneration defence to be heard separately. In doing so, His Honour dismissed the plaintiffs’ submission that it was not appropriate to assess a witness’ credit remotely. McDonald J held whether it was appropriate to conduct a trial by video link was to be determined on a case by case basis. To the extent the trial was to be conducted by way of video link, McDonald J was satisfied that the issues could be fairly and properly determined.
The Takeaway
The cases discussed above illustrate that courts will not adjourn an online hearing by reference to technological issues or to the current global health crisis alone. To obtain an adjournment, parties will need to point to exceptional factors or circumstances that warrant an in-person hearing.
While it appears virtual hearings are here to stay, courts and tribunals are continuing to update their position in response to the pandemic. Litigants and their advisors can keep up to date with these changes via the homepage of each court or tribunal’s website.
~ with Peter Huang, Graduate at Law
