Courts and Covid-19: Are parties entitled to see the whites of the Court's eyes?

As the novel coronavirus pandemic continues, many people have had to quickly adapt the ways they work and otherwise interact with people. Some have adapted more smoothly than others. This is as true in the law and the Courts as anywhere else.

If you are like me, you have seen various reports come across your social media pages showing litigation continuing through the use of technology, such as videoconferencing facilities. Those reports tend to take the form of a post assuring everyone that things are going along as close to ‘business as usual’ as possible. However, as anyone who has had to use the technology knows, it is not a perfect replacement for an in-person appearance. Are those imperfections sufficient reason to adjourn matters until regular hearings resume? In the case of appeals conducted in the Supreme Court of Western Australia, they are not.

JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd

In JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38, the Respondent’s counsel applied for the appeal listed for 27 March 2020 to be adjourned to a date to be fixed.

The Respondent made its application the day after the Chief Justice of Western Australia issued a public notice suspending all in person appearances at appeal hearings. From 19 March 2020, the Supreme Court of Western Australia has conducted appeal hearings by telephone unless all counsel have access to videoconferencing facilities.

The respondent’s counsel submitted that an appeal hearing by telephone would be manifestly inadequate, while a hearing conducted by video would be merely inadequate. Those hearings’ inadequacy was submitted to be because neither parties’ counsel would be able to ‘read’ the bench, a right to which he submitted parties were entitled.

It is fair to say that the Court did not think much of this submission. The judgment’s tone describing the respondent’s counsel’s submissions is rather caustic. More substantively, the Court said (at [7] to [8]):

The court's experience is that, having regard to the other practices and procedures in the Court of Appeal, the conduct of an appeal hearing by telephone provides for comprehensive and considered dialogue and debate between bar and bench as to the issues raised by the appeal. It is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal hearing by video-link is inadequate.

In the extraordinary circumstances presented by the COVID-19 pandemic the arrangements provided for in the public notice of 18 March 2020 are a necessary but proportionate alteration to the normal practice and procedure of the court consistent with the due administration of justice. Were the submission of senior counsel for the respondents to be accepted this court would be unable to conduct any court hearings for an indeterminate time. That would be antithetical to the due administration of justice in the State of Western Australia and at odds with achievement of the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).

The Court also considered a number of other Covid-19 related matters relevant to the hearing of the appeal. These included, the respondent’s junior counsel having been tested for the virus, which was ultimately irrelevant as she was not infected, and the respondent’s senior counsel’s self-isolation after picking up a close relative who had recently returned from overseas. Senior counsel’s isolation had the result of his instructors, client representatives and junior counsel not being co-located with him, causing the respondents a disadvantage. Again, the Court was not convinced of the merits of these submissions. It noted that the appeal related to discrete matters, which were the subject of detailed written submissions. It also thought the fact that the respondent’s senior counsel had been involved in the proceeding from an early stage of its trial was relevant.

Further, the Court was not convinced the difficulties of isolation were insuperable for the respondent’s senior counsel, given the availability of electronic communication.

While the Court was alive to the need for justice to be seen to be done, it did not consider there was a real risk of injustice from the repondent being unable to observe the hearing.

Ultimately, the Court was able to accomodate a hearing over two days, with the appellant making its submissions on the first day and the respondent making its submissions on the following Monday. These accomodations ameliorated any remaining difficulties the respondent might suffer from its senior counsel being remote from his instructors and junior.

Application

It remains to be seen if similar applications are made in other jurisdictions. If they are, I think it likely they will receive similar treatment to that in this case. However, it should be noted that many of these considerations are unique to appeals or other hearings not involving in person evidence. The considerations surrounding unavailability of counsel at trial, even where there is a possibility of counsel apprearing by video will often be quite different. This is particularly so in criminal trials, as shown in the New South Wales matter of Kahil v R [2020] NSWCCA 56.

Postscript

Before it made its determination, the the Court explicitly pointed out that its experience in telephone hearings for both appeals and other applications has been satisfactory. This is particularly so where the parties have engaged in significant pre-hearing preparation. As things are unlikely to return to normal soon, if they ever do, those comments reinforce the importance of thorough pre-hearing preparation. Welcome to the future, I guess.