What factors will be determinative for a court in considering whether to grant an application for adjournment of a hearing date made on grounds related to the ongoing COVID-19 pandemic?

In brief

In this alert, we consider when a Court will allow a hearing to proceed by video and provide some practical tips for conducting a virtual hearing.

When will the Court allow a trial to proceed by video-link

While certain sectors have ground to a halt as a result of the COVID-19 pandemic, courts in Australia have remained focused on ensuring that their functions continue to the fullest extent possible. Many trials, at least in NSW, are now operating partially in courtrooms and partially by video, with some legal representatives and witnesses based in Australia able to appear in person. In Victoria, the majority of trials continue to be conducted via video link.

While some litigants have embraced this new age of trial (particularly plaintiffs who are keen to have their case determined), others have used the difficulties associated with virtual hearings as a reason to apply to the court for an adjournment of proceedings.

The particular difficulty for NSW courts at present is where witnesses are located overseas and cannot travel to Australia to give evidence. There have been various Supreme and Federal Court decisions on whether these restrictions should result in a deferral of a trial, with varying outcomes. An in-depth analysis of those decisions can be found here.

While the cases do not demonstrate any "hard and fast" rules, and the situation remains fluid, more and more courts are taking the approach that "the show must go on" even if the arrangements in place are less than perfect. Courts have made clear, however, that procedural fairness and the administration of justice will always be paramount considerations.

In our experience, the key factors that will be taken into account by the Court in deciding whether to allow a trial to proceed with overseas witnesses appearing by video are:

• how contentious the evidence of the witness is likely to be and whether the credibility of the witness is in issue;

• how long any resultant delay in the scheduling of the trial will be (taking into account COVID-19 considerations as well as court timetabling and availability);

• the robustness of any video-link facility; and

• the laws of the place the witness is located (a particular problem presents in this regard for witnesses based in China, where it is unlawful for witnesses to give evidence overseas; there are however ways around this, including by seeking appropriate permissions or witnesses travelling outside of China).

Given most applications to adjourn a trial in COVID-19 circumstances are considered to be properly brought, there has been a degree of acceptance by courts that there should be no adverse cost consequences for the unsuccessful party.

Practical tips for conducting a virtual hearing

Aim for agreement, including by seeking to have an agreed form of court book, where possible, and by maintaining open communications with other parties and court staff as to how the virtual trial will run and which platform will be used.

Seek appropriate orders for the virtual hearing ahead of time, including (for example) obtaining orders as to the administration of remote oaths/affirmations.

Consider engaging a third party provider's assistance to run the virtual trial, for example to assist with the administration of the court book and timetabling of witnesses.

Prepare witnesses thoroughly, including by explaining the virtual process to witnesses and by ensuring that they take the process as seriously as they would if they were physically seated in a courtroom.

Ensure that microphones are muted where appropriate, but consider having a signal for counsel wishing to object, to ensure that all objections are raised in a timely way.

Establish channels of communication between solicitor/counsel/client teams, which may involve a singular team running the trial from a central location, or, where that is not possible, using a secure messaging service (such as WhatsApp) to facilitate real-time communication.

Practice makes perfect: ensure that comprehensive testing of systems is conducted beforehand, to minimise the risk of things going wrong in real-time.