HFW looks at the Australian courts’ response to COVID-19 and the technology behind e-hearings and asks “will e-Hearings become the ‘new normal’ post COVID-19?”

The COVID-19 pandemic has triggered significant changes to the day to day operations of businesses in Australia and internationally. The concept of “social distancing” is now a part of everyday life. Governments have urgently implemented a strict regime of lockdown laws. The constant (and almost daily) changes to the economic environment mean that businesses and individuals are required to adapt in order to ensure profitability is maintained

The court system is no different and although court buildings are now physically closed, the idea that “virtual” courtrooms are “open for business” is gaining traction all over the world. Electronic or e-Hearings conducted via videoconferencing facilities, allow litigation to continue despite restrictions imposed by the COVID-19 pandemic.

The role of the law in seeking to deliver new initiatives in an ever-changing environment is of central importance. To stand still in the way that things are done is to stagnate. Heraclius famously addressed the Athenians in ancient Greece to say that “nothing endures except change”.

Whilst law and lawyers are often derided for being conservative and reactionary in character, there is no scope to maintain this criticism. Lawyers are pro-actively taking steps to adapt to an ever-changing environment, to ensure that the proverbial wheels of justice continue to turn.

This raises an important question: will e-Hearings become the “new normal” post COVID-19?

The courts’ response to COVID-19

Following an initial decision to suspend all new jury trials, Australian Courts adopted a relatively hard-line approach to COVID-19, going so far as to suggest that it is “business as usual”, albeit electronically. This was the view adopted by the Court of Appeal in in JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, which dealt with whether an appeal should be adjourned on account of COVID-19. The adjournment of the appeal was ultimately refused on the basis that COVID-19 had no prejudicial bearing on the parties’ legal representatives’ ability to conduct the appeal electronically.

In contrast the Victorian Supreme Court has adopted a softer approach to the effect of COVID-19. In Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd & Ors [2020] VSC 161, the Court acknowledged regard should be had to the practical consequences and its effect on parties’ ability to conduct litigation in these circumstances. The following paragraph from this judgment is instructive:

The impact of the pandemic is the second ground on which the defendant seeks an adjournment of the trial. It is not, in my view, inconsistent with the overarching obligation under the Civil Procedure Act 2010 (Vic) to extend some latitude to legal practitioners, litigants and witnesses in the circumstances of the unprecedented constraints on economic activity and freedom of movement that currently are in place in response to a pandemic. The defendant has noted practical difficulties for its solicitor and its witnesses in the present restrictions. In ordinary circumstances, the plaintiff’s contentions that other solicitors within the defendant’s solicitor’s office could have conduct of the matter, or its contention that there is effectively a level playing field, as all are subject to the restrictions, may have been persuasive.

At face value, it appears that Victorian Courts and Courts in Western Australian are diametrically opposed.  However, these decisions represent very different challenges. The JKC matter is on appeal and so all supportive material (evidence, pleadings, transcript and submissions) has been submitted on the papers.  There is nothing else to do other than for counsel to present oral submissions. Courts of Appeal around Australia have since adopted similar stances, taking steps to adapt quickly to the “new normal”. The NSW, Victorian and Western Australian Courts of Appeal are now exclusively hearing matters via telephone or video link and measures are being taken to limit hard copy filing of documents. The Queensland Court of Appeal, on the other hand, continues to hear matters as usual, demonstrating that even with a pandemic afoot, State courts across the Federation continue to maintain an independent approach.

Most recently, on 17 March 2020 the High Court announced that all sittings from April, May and June 2020 were vacated.

However, on 26 March 2020 Justice Edelman presided over Gibson v Minister of Home Affairs [2020] HCATrans 46 via video-link between Brisbane and Melbourne. The learned Judge was notably pleased with the result, indicating that it may “prove to be a successful model for the next electronic hearing which will be a hearing of the Full Court scheduled in April”. However likely, it remains to be seen whether the Full Court will share Justice Edelman’s views. The High Court may also transition to the “new normal”.

The court in Seven Sisters, was presented with a very different issue as the parties were engaged in preparation for trial. Barristers, by and large, prefer trial advocacy in the courtroom. Whether real or perceived, the courts have largely accepted the advantages of observing witnesses in cross-examination and communicating with the bench in person.

Since Seven Sisters, the Australian courts have moved at varying speeds to adapt to the prospect of trials by video.  Some States have vacated all criminal trials for a number of months, whilst others have only vacated jury trials. The Victorian Supreme Court will hear all civil trials using telephone and videoconference, including witness evidence. Other States are committing to taking “social distancing” measures, whilst maintaining the courts are an essential service (and therefore can continue in person where necessary). The approach to hearings and trials remains in flux and it is likely that the States approaches will continue to diverge as the impact of COVID-19 on States changes over time.

In that sense, the approach to trials will likely be pragmatic and contextual.

It is however evident that courts generally wish to push matters forward wherever possible. After all, justice delayed is justice denied. However, there are certain matters where a full steam ahead approach is more suitable than others.

The technology behind e-Hearings

The court system’s quick shift to e-Hearings was possible, in large part, because of pre-existing technology.

Videoconferencing facilities such as Zoom, Teams and Webex, allow for all concerned parties to appear in a virtual courtroom and for a hearing to proceed in a relatively normal manner. Some courts such as the Victorian County Court have taken to superimposing a court room background behind the judge so as to add an element of realism, while in the Victorian Supreme Court the judge remains seated on the bench, broadcasting the court room to the parties.

Several court rules have already embraced evidence by live-streaming or video-link. This is in large part a result of the international community adopting the Hague Evidence Convention which currently has 85 signatory members. Those signatory members (Australia included) have passed into domestic law, procedures for procuring this evidence for the purposes of foreign proceedings.

Post COVID-19

The use of technology to conduct e-Hearings is not new to the Australian legal system. However, COVID-19 has fast-tracked the broad implementation of e-Hearings out of necessity. The benefits of the technology such as removing the need for voluminous documentation to be printed and facilitating parties and witnesses in different locations to appear in the same hearing are obvious. Similarly, there are clear advantages in attending case management and interlocutory hearings via telephone and video conferencing, rather than in person, as representatives can avoid lost time otherwise spent travelling to court, or waiting in the back of the court room for your case to be heard on a long chambers list. 

Despite this, it will probably take a tall order (or perhaps a further event of catastrophic proportions) to convince most trial lawyers that e-Hearings be the “new normal” as opposed to the exception,

The shift towards electronic hearings for certain matters, such as interlocutory hearings, directions hearings and some trials, has been relatively smooth and these hearings could feasibly continue operating in this manner post COVID-19. However, there has been an unwillingness to embark down this path where a jury is required and Australian courts have not yet grappled with a situation where the presentation of complex evidence is necessary.

While the available technology may allow jury and evidence intensive trials to be conducted electronically, the practical difficulties associated with these types of hearings may mean that, where a choice is available, an electronic hearing will likely not be preferred. However, with the need to accommodate and innovate increasing as each day passes, and no definitive end to this crisis in sight, it would be surprising if the sudden adoption of technology does not have some lasting effect on the courts in the future.

By Alex McKellar, partner, HFW; Andrew Vinciullo, special counsel, HFW; Kerry Ioulianou, senior associate, HFW; and James Thyer, associate, HFW