Virtual hearings in the Federal Court of Australia: The show must go on

Virtual hearings in the Federal Court of Australia: The show must go on

Virtual hearings in the Federal Court of Australia: The show must go on

The Federal Court of Australia is continuing to operate during COVID-19 disruption, with hearings continuing (where practicable) using remote access technology.  This article provides information about how the Court is operating “remotely” and comments on the outcome of a number applications for orders that “virtual” trials be adjourned until they can occur “in person”.

Continued operation of the Federal Court of Australia

The Federal Court has issued a Special Measures in Response to COVID-19 Information Note detailing the arrangements for the continued operation of the Court during the COVID-19 pandemic. Relevantly, the Note provides that all hearings before the Court will proceed using remote access technology, except in truly exceptional circumstances. To facilitate this, the Court has also published a guide to virtual hearings using Microsoft Teams.

As is appreciated by all involved with the litigation process, the more complex the hearing in question, the further these virtual arrangements depart from (what used to be) the procedural norm. Perram J commented to this effect in the recent decision of Capic v Ford Motor Company of Australia Ltd [2020] FCA 486 (Capic):

Under ordinary circumstances I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.[1]

The unfortunate cost of material procedural change is uncertainty; something that litigants and their advisors are rarely comfortable with. Unsurprisingly then, there have been numerous applications made to the Court to adjourn virtual hearings to a time when those hearings can again be held in person, in the usual way (or a closer approximation of the usual way).

The Court has indicated that a decision to adjourn a virtual hearing will be made in accordance with the overarching obligations set out in sections 37M of the Federal Court of Australia Act 1976 (Cth): to conduct proceedings “according to law, and as quickly, inexpensively and efficiently as possible.”[2] Given that it is unclear when hearings may again be conducted in the usual way, the Federal Court has determined that “it is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period.”[3] Although the Court acknowledges that virtual hearings will inevitably be less efficient, and as a result, more expensive, delaying hearings now will only increase the strain on the judicial system in the years to come.[4]  

Three recent Federal Court decisions underline the Court’s determination to proceed with virtual hearings as the “new normal”. Those three decisions, which are analysed in more detail below, indicate that that a high threshold must be met by the parties in order for the Court to adjourn a virtual hearing. In general, virtual hearings will proceed unless to do so is “not feasible”[5] or if the Court is satisfied that proceeding would result in a hearing that is “second-rate or substandard.”[6] Exposure of one or both parties to unfair prejudice or procedural risk may, alongside other factors, necessitate an adjournment.[7]

A brief outline of the matters taken into account by the Court when determining whether to allow an application to adjourn a virtual hearing, by reference to the recent decisions of Capic, Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (GetSwift) and Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539 (Motorola) is set out below. Whilst the factors identified in these cases provide useful guidance on the Court’s approach to these adjournments, their application will of course depend on the particular facts (including the procedural history) of each case. 

Applications to adjourn virtual trials denied – GetSwift and Capic

Applications to adjourn upcoming virtual hearings were denied in both GetSwift and Capic. The GetSwift matter concerned a prosecution by the Australian Securities and Investments Commission (ASIC) to be followed immediately by a class action dealing with substantially similar issues. Lee J held that regulatory proceedings such as the ASIC prosecution should be determined promptly, particularly where the ‘knock-on’ effect of an adjournment would result in a significant delay to an associated proceeding.[8] Although two key witnesses were located in New York and the time difference made the hearing of their evidence inconvenient, the Court indicated that it was prepared to sit during irregular hours (and presumably make other such arrangements) to allow matters to proceed.[9]

According to Perram J, the Capic matter had a ‘tortured procedural history’[10] and had already been set down for trial twice when the respondent sought an adjournment. Although His Honour agreed with the respondent that virtual hearings pose frustrating technical challenges, these were not ‘insurmountable.’[11] In denying the application to adjourn, His Honour made recommendations to address these issues. For example, His Honour suggested that the parties could collaborate to ensure their systems would be compatible before trial,[12] and that counsel who were physically separated could use WhatsApp groups to communicate during hearings.[13]

Application to adjourn virtual trial granted – Motorola   

An example of a matter in which the threshold to adjourn a virtual hearing was met is the Motorola case. In this matter, the cross-examination of seven Chinese witnesses was not possible using audio visual technology due to the operation of Chinese law.[14] Whilst evidence in chief was available in affidavit form, any attempt to discredit the evidence would be impermissible according to well-established rules of evidence.[15] If the hearing were to proceed, it was anticipated that the parties would suffer severe prejudice that could be easily avoided with an adjournment.[16]

Factors considered when determining whether to adjourn a virtual trial

(1)    Adducing evidence through virtual means

  • The sheer task of cross-examining a large number of witnesses through video-conference is generally seen by the Court as unsatisfactory,[17] but with new platforms like Microsoft Teams, it is now being managed successfully.[18] This is especially so where evidence in chief is adduced through affidavits, and in these cases, the Court will generally consider it satisfactory to proceed with cross-examination by virtual means.[19]
  • The Court has dismissed claims that it cannot assess the demeanour of witnesses adequately in virtual hearings. Rather, the judge often has a clearer view of the witness on a screen than across the room in the witness box.[20] Arguments suggesting that hearings should be adjourned due to the burdensome nature of electronic court books and documentary evidence have been similarly dismissed.[21]

(2)    Overseas and interstate witnesses

  • The mere fact that witnesses are located overseas will not delay a hearing in the present circumstances.[22] The Court is prepared to accommodate time differences (and presumably other related concerns) by, for example, sitting outside of regular hours.[23]
  • However, the Court will not order witnesses to give evidence by video link in circumstances where the provision of evidence through virtual means is prohibited by international law, and seeking an exemption is not feasible.[24]

(3)    Technology

  • Parties regularly cite technical difficulties as a chief concern when seeking an adjournment, and the Court accepts that virtual hearings will present such challenges. However, particularly if a hearing is not listed for some time, the Court will encourage parties to minimise difficulties by ensuring that their technology is compatible and of suitable quality before the hearing.[25] When technical glitches materialise, the Court has indicated that it will make the appropriate adjustments, such as pausing the hearing during intermittent connection issues.[26] Any witness experiencing challenges with access to technology will be dealt with on a case–by-case basis as the need arises, for example, by abandoning the taking of evidence from a witness and rescheduling to a time and place with a better internet connection.[27]

(4)    Teamwork

  • For teams of lawyers, the challenge of preparing for large-scale litigation whilst complying with social distancing requirements is significant, but not impossible.[28] Should unanticipated problems arise, the Court will revisit a decision to proceed. [29]
  • Practitioners, as well as senior and junior counsel, may also experience inconvenience during the hearing when they cannot readily communicate due to physical isolation. However, this can been addressed by legal teams using their own WhatsApp or other similar communications.[30]
  • Expert witnesses involved in preparing joint reports or giving concurrent evidence are likewise affected. The consequent delays will inevitably increase costs, but that does not make a hearing necessarily unjust (though this outcome may differ if one or both parties are experiencing financial strain).[31]

 (5)   Proceeding nature and history

  • Where a proceeding has already been delayed significantly, the Court will resist another adjournment because of COVID-19,[32] unless to do so would cause unfair prejudice to a party or an unacceptable risk of mistrial.[33] If the adjournment would also delay an associated proceeding the Court may refuse to adjourn the hearing.[34]
  • A decision to adjourn a hearing where the nature of the proceeding is very serious,[35] for example a prosecution by ASIC which could affect the rights of a party to manage a corporation,[36] will not be made lightly. Wherever possible, a virtual hearing will proceed to facilitate the just resolution of the dispute in accordance the overarching obligations.[37]

 General comments and “virtual” public access to hearings

  • Unexpected challenges will be addressed on a case–by-case basis. This includes circumstances in which a party or a member of the Court falls ill with COVID19.[38] Practitioners are also not precluded from raising issues of compliance with programming orders or other matters due to the pandemic, if and when they arise.[39]
  • The Court has indicated that “open justice” will be maintained despite the present requirement for virtual hearings to ensure that the public can continue to access and observe proceedings. Orders for these arrangements will be made as necessary.[40]

The judicial system is not immune from the challenges that the COVID-19 pandemic has produced. The GetSwift, Capic and Motorola decisions demonstrate that the Court is determined to proceed with virtual hearings wherever possible. To facilitate this, the Court will expect parties to be flexible, and will make accommodations to assist. No costs orders were made in these three cases in recognition that the applications to adjourn the virtual trials were genuine and reasonably made.[41] With domestic and international travel restrictions unlikely to be lifted for some time, virtual hearings will continue in some form for the foreseeable future.

[1] Capic at [25].

[2] Federal Court of Australia Act 1976 (Cth) s 37M(1); Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 (GetSwift) at [10] and [42]; Capic at [2], [6].

[3] Capic at [23].

[4] GetSwift at [38].

[5] Capic at [6].

[6] Getswift at [25].

[7] Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539 (Motorola) at [11].

[8] GetSwift at [1] and [38].

[9] GetSwift at [36].

[10] Capic at [1].

[11] Capic at [10].

[12] Capic at [11].

[13] Capic at [13].

[14] See Motorola at [2]; The Civil Procedure Law of the People’s Republic of China (1991).

[15] (1893) 6 R 67 at 70-71.

[16][16] Motorola at [15].

[17] Capic at 19, citing Hanson-Young v Leyonhjelm (No 3) [2019] FCA 645 at [2]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 at 171.

[18] See eg, GetSwift at [25], discussing a virtual trial hearing the oral evidence of 33 witnesses in a native title dispute that is currently underway.

[19] Ibid at [29].

[20] GetSwift at 33.

[21] Capic at [20].

[22] See for example, GetSwift.

[23] Ibid at [36].

[24] This was the situation in Motorola.

[25] GetSwift at [31]; Capic at 11.

[26] Capic at [11].

[27] Ibid at [10], [17].

[28] GetSwift at [30].

[29] Ibid.

[30] Capic at [13].

[31] Ibid at [15].

[32] Capic at [1] and [24].

[33] As was the case in Motorola at [16].

[34] As was the case in GetSwift.

[35] GetSwift at [40].

[36] As was the case in GetSwift.

[37] Ibid at [38].

[38] Capic at [21].

[39] See, for example, Kemp v Westpac Banking Corporation [2020] FCA 437 cited in Capic at [12].

[40] GetSwift at [41].

[41] GetSwift at [43]; Motorola at [21]; Capic at [26].

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