14 October 2020
23 min read
#Dispute Resolution & Litigation, #COVID-19
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Well before the COVID-19 pandemic, Australian courts had been moving towards the wider use of litigation technology to improve efficiency and effectiveness in the administration of justice.
For example, item 15 of the Supreme Court of Queensland Practice Direction 18 of 2018, Efficient Conduct of Civil Litigation, relevantly provides that:
“Litigants must utilise technology where possible to achieve efficiency. For example, litigants should investigate the use of technology to create and exchange electronic lists of documents, inspect documents and other material, prepare for trial and present evidence at trial.[1]”
The Federal Court of Australia, via the Central Practice Note: National Court Framework and Case Management (CPN-1), has actively encouraged parties to use technology that may make the management or hearing of cases, trials and Alternative Dispute Resolution processes more efficient, including:
Notably, and in conjunction with CPN-1, the Federal Court released the Technology and the Court Practice Note (GPN-TECH) in October 2016, in which item 2.2 states:
“Technology changes rapidly. The Court aims to be flexible and adaptable to these changes by using contemporary technology solutions to better meet the needs of the parties and the requirements of each case”.
Before March 2020, the practical implications of these types of court directions meant that parties and practitioners have had to become familiar with a range of matters such as document management software, conducting “e-Trials” and ensuring that any material filed at the registry complies with relevant requirements, such as providing text-searchable PDF versions of documents.
In March 2020, the World Health Organisation formally declared the outbreak of COVID-19 a worldwide pandemic.
Notwithstanding the progressive attitude of the Federal Court, the COVID-19 pandemic has been a considerable impetus for the implementation of measures by Australian courts towards ‘online’ or ‘virtual’ conduct of litigation. Urgent steps were taken to employ processes and technology to ensure that the wheels of justice continued to turn where possible and alternate arrangements were made in compliance with state and federal COVID-19 directives.
In-person attendances and services have been substituted with technology. Mediations, hearings and trials have been, and continue to be where practicable, conducted wholly online via the virtual courtroom and registry services are provided remotely. In some instances, witnessing requirements have been waived and documents are now eligible to be authorised with e-Sign software.
In this article, we consider the range of steps taken by some Australian courts and the legal profession broadly to utilise technology in this unprecedented era and analyse the benefits and challenges faced in the virtual courtroom. We conclude by observing that the changes to the courts’ systems and processes, which have been necessitated by COVID-19, should not only remain in place, but be improved and expanded by the courts in the future to benefit the courts, parties, and ultimately, the proper administration of justice in Australia.
Court responses to COVID-19 – Federal Court, Queensland, NSW and Victoria
So, what steps have been taken so far in response to COVID-19?
By way of example, and as at the date of this article:
Of course, the current measures in place are not permanent and will vary as and when the course of the COVD-19 pandemic progresses and the courts’ processes are updated. It is vital that parties and practitioners keep abreast of the requirements in each jurisdiction in which they practice.
We look at each in detail below.
Federal Court
The Federal Court released its first Special Measures Information Note (SMIN-1) on 23 March 2020. This note set out the initial arrangements for the continued operation of the Federal Court during the COVID-19 outbreak.
SMIN-1 implemented a limitation on the number of people within the court precinct, and those who attended were required to comply with physical distancing measures.[2] To the extent possible, all Federal Court filing was to be carried out electronically via the “eLodgment” portal.[3] Allowances were made for the swearing documents and affidavit material, and the Registry was to accept the filing of unsworn affidavits on the basis that such documentation will be sworn and affirmed at a later date.[4] The Federal Court also introduced a triage process whereby non-urgent matters were referred to the National Operations Registrar without the provision of a first return date.[5]
On the same day, the Federal Court closed public-facing counters and ceased face-to-face services from Tuesday, 24 March 2020, but face-to-face services were still be provided after initial assessment via telephone.
On 31 March 2020, SMIN-1 was updated and advised that Registry services were to be provided remotely. The update also advised that as the Federal Court had successfully begun to operate using remote means, allocations would be made to move the court to operate at about 50 per cent to 60 per cent of its normal capacity. Shorter listings would be conducted via telephone or other remote means, with the balance of hearings before the court (other than in truly exceptional circumstances) were to be conducted using remote access technology, namely Microsoft Teams and telephone conferencing. The Federal Court released a guide to virtual hearings here and Microsoft Teams for practitioners and litigants. This guide contained information regarding conducting online hearings.
On 7 April 2020, the Federal Court released the Special Measures Information Note: Appeals and Full Court Hearings (SMIN-3) and applied it to all appeals and Full Court matters to minimise in-person attendances. SMIN-3 advised:
On 16 June 2020, the Federal Court released the Special Measures Information Note: Court Attendance (SMIN-4). As at the date of this article, SMIN-4 is still in effect. Only a limited number of people are allowed within the court precinct and there are physical distancing requirements and limits on the size of gatherings for all persons who are in attendance. It also advises that there are increased hygiene requirements and cleaning services.
Queensland
The directives and notices released by Queensland courts do not expressly state that the courts (save for the Supreme Court library) are ‘closed’ in response to the COVID-19 pandemic. Instead, a large proportion of courtroom attendances were conducted online in the virtual courtroom.
On 18 March 2020, the Queensland Supreme and District Courts released a notice to legal practitioners regarding the COVID-19 pandemic here, advising civil practitioners to minimise court appearances by:
On 23 March 2020, the Land Court of Queensland released a statement, advising that it will continue to hear matters as listed and all hearings, reviews, Case Management Expert Evidence conferences and mediations will be held by teleconference or videoconference wherever practicable. All coronial inquests were adjourned until a date to be fixed after July 2020.
On 22 April 2020, the Supreme Court of Queensland released Practice Direction 10 of 2020, which dispensed the requirement under section 10 of the Succession Act 1981 that a party be physically in the presence of the testator to execute documents subject to the production of evidence to the satisfaction of the Registrar. From 21 May 2020, some hard copy court documents and forms filed according to the Uniform Civil Procedure Rules 1999 (Qld) were permitted to be electronically signed and accepted for filing by all Queensland court registries.
Criminal matters were also impacted and there was significant concern about the transmission of infection with respect to prisoners and jurors. Jury trials were wholly suspended from 16 March 2020, and on 21 May 2020, it was advised that criminal trials could recommence in the second half of the year. Subject to the same considerations, regional Supreme and District Court hearings would recommence listing jury trials to the extent possible.
On 20 July 2020, it was announced that the Queensland Supreme and District Courts will resume in-person hearings to the extent consistent with medical advice and health directives from the Chief Health Officer. It was noted that the Queensland Supreme and District Courts would continue to investigate the wider use of audio-visual technology. At this time, the courts were using Chorus Call, Cisco Webex and Pexip with a view to transition to Microsoft Teams.
On 10 August 2020, it was announced that parties and legal practitioners who applied for oral hearings were expected to attend court in-person for the hearing, including for the call over if required. If that was not practicable, the parties would need to seek leave of the court to appear via teleconference or videoconference.
NSW
On 23 March 2020, the NSW Supreme Court and Court of Appeal implemented its first set of restrictions, whereby:
In June 2020, the NSW Supreme Court announced it would initiate a staggered three-stage recommencement of civil proceedings. In doing so, social distancing measures must be upheld, regular cleaning will occur and thermal scanning will be in place. Hybrid hearings, whereby submissions were given via audio or visual link and witnesses to give evidence in person, are being undertaken on a case-by-case basis. Mediations are to be conducted via Microsoft Teams or teleconference, and registry services continue to be digital-first.
Stage 1 of the recommencement plan commenced on 1 June 2020 and allowed for one courtroom per floor, in addition to those being used for remote hearings, and matters involving two parties, a limited number of witnesses, small number of legal professionals, matters involving interpreters. Stages 2 and 3, which allow matters involving multiple parties, multiple witnesses, directions hearings and face-to-face court-annexed mediations will commence at a later date.
Victoria
In Victoria, in-person attendance is limited and the majority of hearings are being conducted remotely.
On 23 March 2020, it was announced that the Victorian Court of Appeal would cease in-person hearings and would instead be conducted by audio or visual link. Where appropriate, matters would be heard on the papers and judgments were to be delivered in lieu of parties’ attendance.
On 31 March 2020, it was announced that the registry would remain open but the court encouraged attendance at the office by appointment only and that filing had to be done by sending documents via mail.
By April 2020, civil matters were to be heard via Cisco Webex, Skype or Zoom, depending on the requirements of the proceeding. Criminal hearings were to be heard via Webex or existing video link technology. By May 2020, e-hearings were used across almost all divisions and guidebooks were released to assist parties. In lieu of physical documents, parties were required to prepare electronic court books.
As at the date of this article, Victorian courts continue to conduct hearings and services remotely to minimise in-person attendance. Hearings in both civil and criminal matters in the Trial Division are conducted remotely, with exceptions to be made on a case-by-case basis for urgent or priority matters where conducting hearings via the virtual courtroom is not practicable and physical attendance is necessary. The registry remains open by appointment only.
For the latest information on the corporate and commercial impact of COVID-19, see our factsheet here.
The effectiveness of the virtual courtroom
On all accounts, the courts’ response to the COVID-19 pandemic has changed the way hearings and trials are being conducted and has accelerated the courts’ utilisation of technology.
Most hearings have been conducted online using remote technology – sometimes dubbed the “virtual courtroom” or “e-court” – where new practices and procedures have been applied, but parties can still make oral submissions and witnesses can give evidence and be cross-examined via videoconferencing or teleconferencing facilities.
The courts have strongly encouraged practitioners to cooperate more than ever with their colleagues and court personnel to ensure the efficient conduct and integrity of any proceeding in the virtual courtroom. There is an obligation on practitioners to familiarise themselves with e-court technology and to adequately prepare for any challenges that may arise, including dealing with technological issues, determining how and when to provide materials to the court before a hearing, tendering evidence electronically during a hearing, and how to handle commercial-in-confidential material.
The tenor of media releases and practice directions issued by the court has emphasised the courts’ intention that proceedings and registry services are to continue to operate on a ‘business as usual’ basis. For example, in the Federal Court, His Honour Justice Lee declined to adjourn a high profile trial brought by the Australian Securities and Investments Commission against GetSwift Limited (ACN 604 611 556) noting:
“Just because one cannot have a hearing conducted in accordance with traditional practices and procedures, does not mean that the Court’s judicial function cannot be performed effectively where it is necessary to do so. As Voltaire observed, one must ensure the perfect does not become the enemy of the good.”
While the COVID-19 pandemic has presented unusual circumstances for parties, the courts and practitioners have endeavoured to carry out court functions and services remotely via the virtual courtroom – but what are the challenges and how effective have the processes been?
Delay, timetabling and connection issues
The virtual courtroom is a new experience for many courts and practitioners, and it is certainly not a seamless operation yet. Despite its intended purpose, issues do arise with the use of technology and practices which have frustrated the progression of some proceedings. Anecdotally, some litigants have experienced a delay with progressing both pre-existing and newly-filed matters, and timetabling issues have arisen due to the unpredictable nature of the technology and user error. In some circumstances, hearings set down before courts in regional townships have been adjourned and rescheduled to capital cities due to insufficient resourcing and a lack of access to the required technology and connection efficacy.
Obstructions of this nature were articulated in R v Macdonald (No 11) [2020] NSWSC, which involved a criminal trial that was adjourned five weeks after it commenced following the outbreak of the COVID-19 pandemic. In her reasons, Her Honour Justice Fullerton addressed the difficulties in utilising the virtual courtroom and queried its effectiveness in affording natural justice to the parties:
“[5] In the course of the “test run” it became clear that the system did not easily cope with the appearance of all six counsel, and each of the solicitors instructing … The Court also expressed concerns as to how it was envisaged that witnesses would give evidence via the AVL and be cross-examined when the Court Book exceeds 7,500 pages and with an additional 79 documents marked for identification. The parties agreed to continue to work with the Court to endeavour to resolve the numerous technological challenges involved in the trial continuing at this time.
[12] On repeated occasions throughout the proceedings that afternoon one or more of the parties “dropped out”, necessitating a communication between them and my tipstaff advising of the steps they should take to “dial back in”. Reconnection was successful on each occasion, although not without interruption to the course of the proceedings. From time to time counsel were also difficult to hear and on other occasions their submissions were fractured or time delayed. Despite the valiant endeavours of the court reporters, the integrity of the transcript suffered as a result.
[13] I was advised by the Courts Administration that the problems the parties were having in maintaining a connection to the virtual courtroom was not as a result of the court system but as a consequence of either the internet connection the parties were utilising or their devices, or both … the AVL facilities in the Court more generally have been placed under very considerable pressure with parties in both criminal and civil matters using the technology simultaneously, and experiencing differing degrees of success in doing so. The Court has also encountered problems in the managing of court lists in both common law and equity, given the volume of internet traffic through the Court system when those lists are operating.
[29] The accused are entitled to a fair trial which includes, necessarily, fair process and procedures. I am of the view that a trial in a virtual courtroom is impractical. I have further resolved to the view that the accused’s right to a fair trial would be at risk were I to order that it continue at this time.”
The circumstances articulated in R v McDonald are not exclusive to the criminal jurisdiction and have occurred in other jurisdictions utilising the virtual courtroom. There is a real question as to whether it is reasonable in such conditions to continue with a hearing via the virtual courtroom in circumstances where the parties’ entitlement to a just resolution of proceedings is adversely impacted.[6]
Online and ‘virtual’ advocacy
Before the COVID-19 pandemic and the existence of the virtual courtroom, many advocates had little to no experience in conducting a hearing, making submissions and cross-examining a witness via video link, and the challenges that arise in doing so.
Of course, the usability and robustness of the technology involved can play a very important role – for example, the sound quality of the audio-visual system being used can create problems, not only during the hearing itself but for the quality of the transcript. This may then create difficulties for writing judgments and any appeal where the judges and parties may be left to ponder what was, in fact, said during the trial. It is conceivable that words or phrases missing from the transcript may be crucial to the outcome of the trial and any appeal. Furthermore, there is a lot to be said in favour of in-person advocacy. It is arguably easier to persuasively articulate a question or argument when standing directly before a judge, jury or witness (particularly when there are no technological interruptions).
Despite those challenges, the use of the virtual courtroom and remote technology brings great benefits. For example, counsel and solicitors who are able to ‘appear’ in court from their chambers or offices can avoid the time that was once wasted by having to wait around at court for their matter to be called. Instead, they can continue to work on other matters and then be called to appear when their matter is ready, saving costs to the clients. Moreover, the existence of remote hearings allows clients and practitioners to more easily engage lawyers and counsel from interstate (if they wish), whereas clients and practitioners may otherwise feel more restricted in engaging counsels who were based locally in lieu of covering travel and accommodation expenses for those from interstate. That can only be good for competition in the market.
As for advocacy skills in the virtual courtroom, no doubt Australian bar associations and law societies will provide professional development for advocates to bolster ‘online advocacy’ and strategies in instances where oral submissions are interrupted by faulty technology and where cross-examination is to be conducted via video link.
Practice and procedure
In conjunction with utilising remote technology, the legal profession has endeavoured to uphold the prescribed procedural framework as it applies to court proceedings generally.
One issue to note is the use of e-signatures and e-signing software. Australia is one of the first countries to legalise e-signing software which has been popular with legal practitioners and has mitigated the further risk of delay, particularly in conjunction with the COVID-19 pandemic. From May 2020, companies are permitted to execute documents electronically without the common seal.[7] This will be reviewed in November 2020. In some states, there has been a relaxation in the rules to accommodate remote witnessing, which allows for wills and statutory declarations to be witnessed via video conference, and in some circumstances, affidavits.[8]
Temporary measures have been implemented in some states to permit the swearing and ‘special’ witnessing of affidavits using electronic means, and in some circumstances, to allow courts to admit unsworn or purported affidavits provided that the court is satisfied that compliance with the relevant legislation is not practicable and a formally sworn affidavit will be filed when circumstances permit.[9] In Queensland, these measures will expire on 31 December 2020.[10]
With respect to practice and procedure in the courtroom, access to remote technology and the general prevalence of ‘working from home’ has given practitioners, litigants and court staff the flexibility to attend court from the office or home office, which is a significant departure from the formality of a courtroom. While the virtual courtroom may be a more relaxed environment for some, His Honour Justice Ball in Blackmores Ltd v Jestins Enterprises Pty Ltd [2020] NSWSC 1177 issued a warning as to the importance of maintaining a suitable degree of formality in Court processes:
“[98]…No doubt, as hearings by videolink have become standard practice in response to the pandemic a degree of informality has crept into the processes followed by the Court and it has become easier for witnesses to overlook the fact they are still giving evidence in Court proceedings. Nonetheless, a degree of formality remains important. It is one mechanism by which all participants are reminded of the importance of the proceedings both to the community as a whole as a manifestation of the rule of law and to the individual litigants and witnesses, for whom the outcome of the proceedings can have major financial and reputational ramifications…”
Accessibility and security
Virtual courtrooms are hosted on various platforms including Zoom, Microsoft Teams, Cisco Webex and Chorus Call which are necessary and, for the most part, relatively accessible and user friendly. Comparatively, commissions of inquiry and Parliamentary sittings are frequently live-streamed to the public at no cost, yet Australian court proceedings are rarely conducted in this manner.
Nevertheless, the accessibility of these platforms presents various security and confidentiality risks.
Recently, an Australian journalist working for the Financial Times in the United Kingdom was suspended for accessing “confidential and sensitive” Zoom calls without authorisation and publishing the content in the Financial Times. To prevent instances like that occurring (with respect to Australian hearings which are conducted as “closed court”), there is a need for hearings of a confidential nature to be restricted, and information generally to be kept secure. Yet, there may be little evidence as yet about the security of these platforms to give rise to concerns about whether the court and parties can communicate freely and securely.
In lieu of a virtual courtroom platform specifically tailored to the legal profession, further enquiries and evidence are required to ensure the security and confidentiality of proceedings that are carried out online.
That being said, it is a fundamental feature of the law that the administration of justice is open and accessible for public scrutiny, particularly with respect to matters of public interest.[11] It will be important, therefore, that the courts ensure that virtual hearings are, in general, readily accessible to the public.
Conclusion
In general, it appears to us that the legal profession has responded well to the COVID-19 pandemic and has endeavoured to minimise disruption and delay to the just resolution of proceedings by utilising technology. The Australian courts have responded well, and the virtual courtroom has largely proved to be effective in ensuring that matters, particularly directions hearings, mediations and case management conferences, continue to progress amidst the COVID-19 pandemic.
However, the absence of a legal-centric virtual courtroom and the teething issues experienced by legal practitioners and the courts in some matters has hindered the effectiveness of conducting proceedings remotely. It is difficult to predict what the future of the virtual courtroom will look like. While the shift to technology has been accelerated, we expect the legal profession will continue to adapt to technological advances and platforms like the virtual courtroom. These platforms should be, and can be, effective and beneficial in ensuring an efficient and just resolution of proceedings.
Authors: Toby Boys & Ashleigh Sams
[1] Supreme Court of Queensland, Practice Direction 18 of 2018, “Efficient Conduct of Civil Litigation”.
[2] Special Measures in Response to COVID-19 (SMIN-4).
[3] Special Measures in Response to COVID-19 (SMIN-1) at [3].
[4] Special Measures in Response to COVID-19 (SMIN-1) at [4].
[5] Special Measures in Response to COVID-19 (SMIN-1) at [6].
[6] Noting, of course, the need to balance the interests of all the parties and the administration of justice as address in the High Court decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
[7] Corporations Act 2001 (Cth) section 127.
[8] Succession Act 1981 (Qld) section 10; Electronic Transactions Regulation 2017 (NSW) Sch 1.
[9] Oaths and Affirmations Act 2018 (Vic) ss 49A – 59, Sch 1; Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld) r 12A – 12E; Electronic Transactions Amendments (COVID-19 Witnessing of Documents) Regulation 2020 (NSW), amending the Electronic Transactions Act (No 8) 2000 (NSW) s 17.
[10] Justice Legislation (COVID-19 Emergency Response – Documents and Oaths) Regulation 2020 (Qld) r 27.
[11] See, for example, the comments of Jackson J in Velocity Frequent Flyer Pty Ltd v BP Australia Pty Ltd [2019] QSC 29, [21] – [22].
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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