Impact of COVID-19 on Courts and Tribunals

  • Newsletter Article
  • Published 09.04.2020

Like the rest of our society, the current health emergency has had an unprecedented impact on the courts and tribunals which deal with life and superannuation disputes. Below is our summary of how each body is responding. 

While each court/tribunal’s specific response has differed somewhat, they have all encouraged or required the following where possible:

  • Agreement on matters obviating the need for personal attendance; and                
  • Where parties are unable to agree on matters, attendance via audio-visual or telephone link. 

All this means of course is that for the next little bit, ‘your day in Court’ is most likely to be through Zoom. 

Finally it is important to note that arrangements can change quickly so for the most up to date information, please clink on the links we have provided. 

Signing Requirements for Affidavits and E-filing of Court Documents

Affidavits are required to be witnessed by an authorised witness (usually a lawyer or a justice of the peace) in order to be properly sworn or affirmed. At the date of this article, we confirm the following jurisdictions have relaxed their position on the requirements that affidavits be witnessed:

  • Victoria: The Victorian Courts have advised that they will accept the filing of an affidavit which has not been sworn or affirmed, provided that the affidavit is signed by the deponent and they include a paragraph similar to the following ‘This Affidavit cannot be sworn or affirmed at this time due to the measures to minimise the spread of COVID-19’
  • Federal Court: the Federal Court will now accept the filing of unsworn affidavits on the understanding that, if required, these will later be sworn or affirmed when circumstances allow (see ‘Special Measures in Response to COVID-19 (SMIN-1) 4.1-4.2).

We have made inquiries with the NSW and QLD Courts and it does not appear that they will accept unsworn affidavits at this time. This may be likely to change (especially in NSW) so we will keep you updated as new information comes to hand. We do note however, that the principal registrar of the QLD Supreme and District Courts has approved the electronic filing of the following documents in the following circumstances (noting that usually in QLD, originals of court documents must be physically filed):

  • Where consent orders of the Registrar are sought: Request for Consent Order of Registrar (Form 59A), Proposed Draft Order (Form 59), Affidavit (Form 46);
  • All civil proceedings: Notice of Discontinuance (Form 27).

Electronic filing will be by email to the email address/es or by such other electronic means notified on the Queensland Courts website.

Administrative Appeals Tribunal (AAT)

  • The AAT is closed to all visitors from Thursday 26 March 2020 until further notice.
  • The AAT will temporarily cease ‘in person’ hearings, conferences and other events at their registries and instead aim, where possible, to deal with the cases by telephone or video link. The AAT will contact impacted parties to discuss alternative arrangements.
  • The AAT has also temporarily suspended the issuing of non-urgent summonses. 
  • AAT staff remain available to answer telephone and email enquiries, process applications and deliver other services in support of AAT members and Tribunal users.

www.aat.gov.au/news/covid-19-temporary-closure-of-aat-registries-to-vi
www.aat.gov.au/news/covid-19-message-from-justice-thomas

AFCA

  • All meetings involving external guests will be conducted via video or telephone conferencing rather than face-to-face.
  • Complaints involving COVID-19 will be prioritised and fast-tracked to ensure those impacted have their issues resolved as quickly as possible. AFCA will take into account the circumstances and context in which lenders and other financial firms are currently operating when considering complaints. AFCA understands that firms may be putting in place alternate staffing arrangements and may not be in a position to quickly act on requests for information.
  • AFCA is establishing a support hotline to ensure a priority service is provided for those impacted by the COVID-19 pandemic -- it will be open from Tuesday 24 March. In addition to the hotline, AFCA has setup an online COVID-19 information hub that is regularly updated with information for consumers and small businesses (afca.org.au/covid-19).
  • AFCA encourages financial firms to continue to openly and transparently communicate with consumer and small businesses about any delays that they may experience in decision making, claims or complaints handling caused by the impact of COVID-19.

www.afca.org.au/news/media-releases/afca-sets-out-how-it-will-work-with…

NSW Courts – Local Court

  • Any hearings listed from 23 March 2020 to 1 May 2020 (both civil and criminal) have been vacated and listed for mention in the week of 4 May 2020.  
  • For civil claims, practitioners will be allowed to appear via telephone for small claims hearings, review lists, directions lists and motions lists.
  • Where parties have not made arrangements to appear via telephone, hearings are to be vacated and listed at a later date. 
  • The usual electronic listing/timetable processes are to continue. 

www.localcourt.justice.nsw.gov.au/Pages/coronavirus.aspx

NSW Courts – District Court 

  • On and from Monday 30 March 2020, the District Court will endeavour, to the extent possible, to limit personal appearances in court rooms by requiring use of the ‘virtual courtroom’.        
  • Legal practitioners will be expected to appear by use of the virtual court room. 
  • The virtual courtroom ‘brings the physical courtroom to a virtual space. It is a digital method for court cases to be progressed without the need to attend in person’. A guide to using the virtual courtroom has been set out at the end of this section.
  • The General List managed by the Judicial Registrar in Court 7D of John Maddison Tower will be conducted:
    • In the Online Court.
    • Where the matter is not eligible for the Online Court, by telephone directions.

www.districtcourt.justice.nsw.gov.au/
(see ‘Updated Notice of Procedural Changes’).

www.districtcourt.justice.nsw.gov.au/Documents/Virtual%20Court%20User%2…

NSW Courts – Supreme Court

  • From 24 March 2020 there will be no personal appearances in any matter save for exceptional circumstances with the leave of the Chief Justice or head of jurisdiction (e.g. equity).     
  • The Court will contact parties in relation to future listings to advise of video and teleconference facilities available for their specific matter.            
  • Listings may alter at short notice and practitioners are encouraged to refer to the Court’s website for regular updates and review the daily listing notices.        
  • All Court documents must be provided via electronic means through the Online Court, E-subpoena and the Online Registry.

www.supremecourt.justice.nsw.gov.au/Pages/coronavirus_covid19_announcem…

Queensland Civil and Administrative Tribunal (QCAT)

  • Urgent Minor Civil Disputes will go ahead as listed. Non-urgent Minor Civil Disputes will be adjourned to a date to be fixed.            
  • Minor Civil Dispute Mediations will continue, but by telephone only.            
  • All other Mediations will be adjourned to a date to be fixed.
  • All Directions Hearings and Compulsory Conferences will be conducted by telephone.        
  • In all other hearings, parties are encouraged to attend by telephone.                
  • Persons are not encouraged to appear in person at QCAT but if they do, they will be required to sign a statement advising that they are not exposed to COVID-19.

www.qcat.qld.gov.au/about-qcat/covid-19

Queensland Courts – Magistrates’ Court

  • On and from 30 March 2020 there will be no physical appearances in any matter except by the media or with leave of the Magistrates’ Court.        
  • All matters will be conducted by telephone or video conference.                     
  • All matters, civil and criminal, currently before the Magistrates’ Court (excluding certain nominated matters) will be adjourned on the papers, without appearance, to a date to be fixed by the Magistrate. Notice of the adjournment date will be posted or emailed to the parties and their legal practitioners by the Magistrates’ Court Registry.            
  • All civil applications will be dealt with on the papers. 

www.courts.qld.gov.au/courts/magistrates-court/covid-19-response-magist…

Queensland Courts - Queensland Supreme and District Courts 

  • Consent orders, and any other applications whereby it is practicable, will be dealt with on the papers; brief written submissions may be required for matters where discretion is required.
  • Call-overs will be conducted via telephone.
  • Any matters which are reasonably capable of being heard by telephone will be heard in that way.
  • Matters requiring an oral hearing will be dealt with by making arrangements for video conferencing (using the Cisco WebEx app). For any applications requiring an oral hearing, parties and practitioners are encouraged to ensure submissions, affidavits and draft orders are provided by email, to the other party(s) and the court, ahead of time.   
  • Applications will only be dealt with by in person attendance at Court if the matter is urgent, and cannot practicably be dealt with by telephone or video conferencing. Parties must provide an explanation for this, in writing at least 24 hours before the matter is listed, so that a determination can be made.

www.courts.qld.gov.au/about/news

SA – Supreme Court  

  • Civil Trials - All current hearing dates will be maintained and new trials will continue to be set down. The Court will endeavour to ensure that they proceed in the ordinary way.
  • Civil Listing Conferences - These conferences will be held by an electronic audio communication unless the Judge otherwise directs.  If any orders other than a trial date are sought, the procedure for directions hearings and interlocutory applications must be followed.
  • Directions hearings – Parties are to email Judge’s chambers by 4:30pm on the day preceding the directions hearing with draft minutes of order either by consent or a marked up version to show the differences between the parties. Directions hearings are to proceed by electronic audio communication, unless directed otherwise by the Judge.
  • All directions hearings before Masters of the Court are to proceed via email and all Supreme Court mediations will be postponed from 30 March 2020.

www.courts.sa.gov.au/Information/Pages/Coronavirus-Information.aspx (update as at 26 March 2020)

SA – District Court

  • Where possible, applications will be conducted without the need for counsel to attend in person.
  • Consent orders and adjournments are to be dealt with on the papers and proposed minutes of order are to be provided to the Court by email by 4:30pm the day before the hearing.        
  • Contested matters are, so far as practicable, to be dealt with on the papers. Any party seeking an order is to provide an electronic copy of proposed minutes of order to the Court by close of business 48 hours prior to the hearing.

www.courts.sa.gov.au/Information/Pages/Coronavirus-Information.aspx (update as at 27 March 2020

Tasmania - Supreme Court 

  • The Tasmanian Supreme Court states that it is ‘still conducting as much business as possible’, with the rider that it is using video conferencing to reduce the number of people attending the court building.
  • Until further notice, all appearances at mediation conferences are to be by audio visual link or where a participant does not have access to such a link, by teleconference.
  • Following the allocation of a trial date, a telephone directions hearing will be convened. By the time of the directions hearing, the parties will be expected to have given consideration to the following matters:
    • The use of written witness statements.
    • The suitability of some or all witnesses giving evidence by audio visual link.
    • If there is to be no cross-examination of witnesses, whether appearances at the trial by audio visual link is appropriate.
    • The filing of full written submissions following the conclusion of the evidence.
    • Whether oral submissions in addition to written submissions are anticipated to be needed.

www.supremecourt.tas.gov.au/publications/covid-19-information-for-court… (see Practice Direction No. 1 of 2020 CORONAVIRUS (COVID-19) RESPONSE – Civil Litigation And Appeals)

Victoria – Victorian Civil and Administrative Tribunal (VCAT)

  • VCAT venues are closed to the public including VCAT Magistrates' Court counters. VCAT will still be hearing some matters by telephone.
  • No face-to-face hearings are scheduled, and all non-critical cases listed up to and including 17 April 2020 will be adjourned for the foreseeable future. 

www.vcat.vic.gov.au/news/coronavirus-covid-19-response

Victoria – County Court

Common Law Division    

  • Cases will be allocated a Judge, where possible. 
  • For cases which cannot conclude within 2 days, the parties must provide information relevant to the number of counsel and witnesses likely to be present in the courtroom for the purpose of the Court determining whether the scheduled listing should be maintained. 
  • If the scheduled listing cannot be maintained, the parties are to consider engaging in a Judicial mediation. If so, the Court will seek to arrange such a mediation to occur that day.
  • For matters that do not settle and cannot proceed due to COVID-19, the case will be listed for an Administrative Mention in the week commencing 1 May 2020.  
  • Parties that have a trial listed that will take longer than two days and would not benefit from a Judicial mediation, are invited to assist the Court by submitting consent orders on the papers adjourning the trial to an Administrative Mention in the week commencing 1 May 2020. 
  • The Court will shortly pilot conducting some hearings via video link. Serious injury cases, of 1-2 days, and in which the plaintiff is usually the only witness, and there is an electronic court book, will be considered for this method of hearing. If successful, it may then be considered for longer cases.
  • Whether a remote video hearing is practicable will be determined on a case-by-case basis. 
  • From Monday 23 March 2020, Directions Hearings will be conducted via a video-conferencing software, to avoid the need for parties to attend Court. 

www.countycourt.vic.gov.au/files/documents/2020-03/divisional-and-list-…

Victoria – Magistrates’ Court

  • Unless directed otherwise, no practitioners or parties are to attend Court.
  • All direction hearings and applications will be adjourned to a date to be fixed and directions will be given on the papers if appropriate.

www.mcv.vic.gov.au/news-and-resources/news/changes-operations-during-co…

www.countycourt.vic.gov.au/files/documents/2020-03/divisional-and-list-…

Victorian – Supreme Court 

Judgments will be delivered without the parties’ attendance.

Commercial Court

  • Directions hearings and interlocutory applications will no longer be conducted in-person unless there are exceptional circumstances. Instead, parties who cannot agree on consent orders will be required to outline areas of disagreement. Then, where appropriate, matters will be dealt with ‘on the papers’ through written submissions and hearings via telephone, video-conferencing and Skype.
  • Trials will be conducted electronically and witnesses will give evidence remotely. Trials that are expected to be short will be prioritised.

Common Law Division

  • Trials will be heard using remote telephone or video-conferencing facilities for parties, counsel and witnesses unless a judge directs otherwise. Regional circuit trials will follow the same approach. Parties will be asked to lodge electronic court books.
  • Judges may require in-person hearings for essential matters with strict time limits and other directions. Where in-person appearances are necessary, listing times may be staggered to allow for social distancing.        
  • First, an ad hoc directions hearings will be conducted on the papers unless a judicial officer determines otherwise.    
  • Practice Court applications and interlocutory and case management hearings will be conducted and determined ‘on the papers’, unless a judge orders otherwise.

www.supremecourt.vic.gov.au/law-and-practice/areas-of-the-court/common-…
www.supremecourt.vic.gov.au/news/supreme-court-changes-in-response-to-c…

WA – Supreme Court

  • Any person proposing to attend the Court who has flu-like symptoms or who has travelled overseas in the last 14 days is directed not to enter the Court precincts (including courtrooms, hearing rooms and registries).  
  • Hearings are still being held but to be held remotely via phone/video link where possible. 

www.supremecourt.wa.gov.au 

WA – District Court 

  • All current trials and hearings remain listed.
  • Court users (litigants, witnesses, practitioners etc) who have COVID-19 symptoms or possible exposure to the virus or who have recently travelled overseas or been in contact with a person who has a confirmed case of COVID-19 should contact the associate of the relevant judicial officer hearing the matter (or otherwise enquire through the registry) as to whether it is appropriate to attend the court or whether alternative arrangements are necessary.
  • The Court currently remains open to the public but individuals should only attend the Court if it is necessary. 
  • Pre-trial conferences may be taken outside of the Court Building if all parties agree. 

www.supremecourt.wa.gov.au