Litigating in 2020

Litigating in 2020:
How the Courts have adapted to Covid-19 measures and what this means for litigation matters on foot

Clients have approached us about upcoming court dates and concerns surrounding litigation in light of the pandemic. Despite initial restrictions and courtroom closures, NSW Courts and Tribunals have significantly adapted and changed the way they operate in response to COVID-19. In NSW, the majority of court appearances now occur in a “virtual courtroom” which is accessible to parties using audiovisual links and/or telephone conferencing applications.

Different Courts have adopted different technology to facilitate practices. It is essential to prepare and check the relevant Court or Tribunal website to obtain accurate and current information as the status of the operations of the Courts changes as Covid-19 related restrictions are eased.

Here are some key updates, as at 1 June 2020, from the various Courts and Tribunals (excluding those Courts hearing criminal matters):

• The Federal Court has run a series of interlocutory and final hearings remotely and have been encouraging virtual conferencing through modes such as Microsoft Teams.

• The NSW Supreme Court and NSW Court of Appeal have successfully conducted matters in virtual courtrooms via web links and teleconferencing and have announced a resumption of in-person appearance from 1 June 2020. This will occur in a 3-stage process beginning with simple matters later moving to more complex matters in order to get the list back up and running.

• Similar to the Court of Appeal, the District Court has provided a Virtual Court User Guide and matters are continuing to be conducted over the online court.

• For the Local Court, appearances by telephone remain for small claims and the onus is on parties to make teleconference arrangements with the appropriate judicial officer.

• The Land and Environment Court is equipped to utilise the Online Court, Online Registry and telephone conferencing and is continuing accordingly.

• All NCAT hearings are being held online or via phone and lodgment is available through email or website.

Court-based and private mediations are continuing through virtual means such as Zoom or other Audio Video Library (AVL) technology. Most arbitral institutions remain operational and continue to manage existing cases and register new proceedings.

Whilst most of the courts have embraced technology and look forward to continuing virtual practices in the future, there have been some challenges.

Due to the unpredictable nature of technology, judges and registrars are allocating more hearing time. Virtual hearings don’t always run smoothly and getting documents to the relevant parties takes time. Ultimately, managing the hearing is more complex and this may increase costs.

Ultimately, preparation is key and that the technology is working correctly prior to the time. It is essential to build familiarity with the platform being used. Witnesses should be prepped on the logistics and timing of questions and objections under cross-examination. Parties need to be mindful of ethical considerations such as the requirement for witnesses to be alone when giving evidence and confidentiality when it comes to recording court matters.

Covid-19 has been a catalyst for the legal profession to embrace further technological changes to the way the Court system operates. Whilst there are currently some deficiencies in the technological innovations, the virtual courtroom is likely to be the new norm post Covid-19, for many matters.

At David Landa Stewart Lawyers we are technologically ready and have the experience to guide you as several of our lawyers have already participated in virtual court hearings. If you have any further questions about current court procedures or require assistance with your hearing please don’t hesitate to contact us on 9212 1099.