Update – Virtual hearings in the Federal Court during the coronavirus disruption
In early May, we published an article about the Federal Court of Australia’s commitment to conduct hearings by audio visual technology wherever possible during the coronavirus disruption. The Federal Court issued a Special Measures in Response to COVID-19 Information Note, which provided that all hearings before the Court would proceed using remote access technology, except in truly exceptional circumstances.
Our previous article discussed three recent decisions of the Court, which indicate the factors that the Court would consider when deciding whether or not to adjourn a virtual hearing. These decisions indicated that the Court will endeavour to proceed with virtual hearings, where possible, so long as to do so would not result in an unfeasible result or injustice to the parties. As these decisions suggest, technical challenges and difficulties associated with the giving of oral evidence are insufficient to adjourn a hearing – parties are expected to be flexible, and the Court will make accommodations to assist.
Since publishing our previous article, there have been three relevant decisions concerning adjournment applications, all of which were denied.
Personal reasons for adjournments: age and chronic illness
Saunders on Behalf of the Bigambul People v State of Queensland  FCA 563
An application to adjourn a virtual hearing for a native title matter until the end of the pandemic was made on the basis that:
- the applicant had decided to ‘go bush on Country’ to avoid the potential for severe complications as a result of COVID-19 infection due to his age and chronic health issues;
- as a result of being on Country, the applicant had very limited telephone reception making it extremely difficult for the applicant’s lawyers to receive instructions;
- the solicitor himself was unable to be present to instruct counsel during the hearing as he similarly suffers from a health condition; and
- virtual hearings generally create difficulties with the conduct of the hearing.
Whilst Rangiah J acknowledged that the applicant’s decision to self-isolate was reasonable, his Honour stated: ‘I do not accept that [the applicant] was entitled to simply absent himself without making arrangements to stay in contact with his solicitors in order to provide instructions.’
His Honour was critical of the applicant’s solicitors for failing to take all reasonable steps to contact their client. For example, the applicant’s daughter had previously provided instructions on behalf of her father but the solicitors had not contacted her to seek instructions in this instance. Justice Rangiah noted that Mr Saunders, like all parties to civil disputes, is required to conduct the proceeding in a manner consistent with the objectives of section 37M of the Federal Court of Australia Act 1976 (the Act). This means that parties must facilitate the efficient and just determination of proceedings. In His Honour’s view, Mr Saunders’ continued failure to make himself available to provide instructions was not consistent with these obligations.
Further, Rangiah J considered that the issue of justice extended to procedural fairness and that the State of Queensland was entitled to have the application heard and determined within a reasonable time.
On that basis, His Honour denied the application to adjourn the hearing for an indefinite period but did allow an adjournment for five weeks to enable the applicant’s lawyers to obtain their client’s instructions.
Wharton on Behalf of the Kooma People v State of Queensland  FCA 574
This was also an adjournment application before Rangiah J, which was based on very similar facts and sought an adjournment for very similar reasons to the Saunders v State of Queensland matter. On a similar basis, the application in this matter was denied.
Evidentiary reasons for adjournments: significant new expert reports and new issues raised
Desira v Airservices Australia  FCA 818
The applicant sought an adjournment of a virtual hearing relating to an action concerning alleged sexual harassment on the basis that:
- the respondent had served (one week late) a new expert report which, in addition to being lengthy, brought into dispute ‘subpoenaed material of over 900 pages’. The applicant submitted that additional time was necessary to file lay and expert evidence in response;
- in addition to this material, the Transport Accident Commission was served with a subpoena to produce and, in response, produced 999 pages of documents, which needed to be managed and consequently posed significant logistical issues for an electronic hearing;
- the respondent’s list of issues raised new and important factual and legal issues that the applicant had not previously considered were in dispute; and
- contrary to the agreed position taken by the parties during the case management hearing, the applicant argued that credit would be in issue in the case.
Justice Davies dismissed the applicant’s arguments regarding the volume of documents and concerns about issues of credit being tested by video link facility, citing Capic. Additionally, her Honour was not satisfied that the applicant’s change of heart had a proper basis as the applicant had not provided an elucidation or explanation for the change of heart. As a result, and in light of the overarching purpose in s 37M of the, Davies J denied the adjournment application.
Considerations regarding adjournment of virtual hearings
These decisions are consistent with the Federal Court’s stated position that COVID-19 related delays to the administration of justice should be limited where possible, in line with the overarching purpose in s 37M. Parties should be aware that applications for adjournment are likely to turn on whether the applicant is able to show that it would suffer severe prejudice that could be easily avoided by way of adjournment.
 Australian Securities and Investments Commission v GetSwift Ltd  FCA 504; Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment)  FCA 539; Capic v Ford Motor Company of Australia Ltd  FCA 486.
 Federal Court of Australia Act 1976 (Cth) s 37N(1).
 Capic v Ford Motor Company of Australia Ltd  FCA 486.
 Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment)  FCA 539 at .