The remote courtroom: Tips and tricks for online hearings
What you need to know
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Courts around Australia have introduced new protocols enabling parties to appear and participate in proceedings remotely in line with social-distancing measures.
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These protocols have, in essence, shifted the courtroom online, with parties, their legal representatives and witnesses now required to appear by phone or videolink other than in exceptional circumstances.
What you need to do
- Parties should take steps to minimise the impact of the shift to virtual hearings, including by identifying and pre-empting issues with the technology to be used, investing additional time and resources into preparing written evidence and submissions, and narrowing the issues in dispute prior to any hearing.
- Above all, remain patient and flexible when participating in proceedings under the new protocols as Courts adapt to managing their operations remotely.
As a result of the coronavirus (COVID-19) outbreak Australian Courts have introduced new remote protocols.
At this stage, in civil proceedings all essential Court services are generally still available. However, the following changes are notable:
- most Courts have shifted to electronic systems for filing documents, to the extent electronic filing was not adopted prior to the pandemic shutdown;
- the significant majority of Court appearances, including interlocutory matters and final hearings, are to occur remotely via telephone or videoconferencing platforms;
- in-person appearances in most Courts will only be available in exceptional circumstances (and in some Courts, only with leave) and subject to restrictions on the number of attendees.
Courts are continuing to update and refine their response to the pandemic, with many now releasing practice notes or other directions that apply specifically to remote hearings. Details of the current arrangements for each Court can generally be found on the homepage of each Court's website. Parties should familiarise themselves with the applicable policies immediately before any hearing, particularly as these can differ between different divisions or Judges within the same Court and are continuously being updated and reviewed.
How do remote courtrooms work?
The procedures and protocols for Court attendance during the coronavirus pandemic are subject to change from time to time as Courts deploy technological solutions, such as Microsoft Teams, and adapt to the changing environment.
Shorter matters, such as directions hearings or mentions that cannot be addressed through consent orders, will be dealt with on the papers, by telephone or videolink appearances or a combination of the two. The approach to more substantial matters including final hearings will be dealt with on a case by case basis.
Certainly, Courts have become increasingly willing to conduct final hearings remotely, even over the objection of a party. Shortly after the COVID-19 restrictions began, the New South Wales Supreme Court adjourned the Dick Smith class action proceedings which it had previously been running remotely, on the basis that it was not feasible to continue.
More recently, the Federal Court of Australia ruled that a case involving 50 witnesses, including experts, would proceed to be heard, notwithstanding the contention of one of the parties that it would be prejudiced.
Court appearance by phone or videolink is now available in most Courts, and functions with the same rules, etiquette, protocols and procedures as a physical Courtroom (including that those appearing need to be suitably attired). Details of how to access remote hearings will generally be sent to parties prior to their appearance.
Will having a virtual hearing impact prospects?
The virtual courtroom is unlikely to be the ideal forum for dealing with complex disputes, particularly those which are document-intensive or likely to involve significant cross-examination. Put simply, it takes longer to canvas the same ground in a virtual hearing than it does in a regular hearing given that participants are in separate locations and will have to deal with technical issues such as latency, poor internet connections or simply the fact that, for example, a witness may not possess adequate computer hardware. A recent hearing in which we appeared had to be abandoned because the Court's video conferencing platform was unstable.
In addition, advocates may have less opportunity to respond to reactions from the bench during virtual hearings, witnesses appearing over videolink may have more time to carefully consider their responses during cross-examination, and it will take longer for instructors to pass notes to, and respond to queries from, Counsel.
Notwithstanding these challenges, the Courts are unlikely to grant parties significant additional hearing time (although sitting days may be lengthened) and will instead expect parties to take a strategic and efficient approach to virtual hearings.
At the same time, new virtual hearing practices may present a window into the future of Court procedure. The COVID-19 pandemic may prove a catalyst for Courts to embrace technology and reduce their reliance on in-person hearings and hard copy documents, particularly for case management purposes, even after the pandemic. As such, developing good virtual hearing practices now is likely to pay significant dividends in the future.
Do I have to proceed with a virtual hearing?
Although virtual hearings may present downsides for certain kinds of matters, parties may have little choice but to proceed under these new arrangements.
Justice Perram in the recent Federal Court decision, Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486, refused to adjourn a lengthy six week trial due to concerns about conducting the hearing virtually, on the basis that the length of time that the pandemic will disturb normal work practices is indefinite and that it was essential that the normal operation of the Courts (and wider economy) continue to the extent feasible.
His Honour accepted that many aspects of a virtual trial – in that case, one involving 50 lay witnesses – were onerous and undesirable, but concluded ultimately that a virtual trial should proceed because technical problems could be accommodated, and the adjournment of matters indefinitely did not serve the public interest.
Adjourning a hearing indefinitely is likely to be unsatisfactory for litigants themselves due to the indefinite nature of the pandemic. Furthermore, many of the issues outlined above will apply equally to alternative dispute resolution procedures conducted remotely.
The decision in Capic strongly suggests that it is unlikely that Courts will grant adjournments as a matter of course: Courts are doing their best to keep the legal system operating during the pandemic and expect parties and practitioners to do the same. Adjournment applications are unlikely to be looked upon favourably other than in exceptional circumstances. That said, as acknowledged in Capic, there may be situations where Counsel and solicitors, acting consistently with their ethical obligations, may need to apply for an adjournment because they consider that they simply cannot properly represent their client in the particular circumstances. An example given in Capic was where an asylum applicant in detention, who could not speak English, needed to be cross-examined. This will need to be dealt with on a case by case basis.
Additionally, alternative dispute resolution procedures conducted remotely, for example arbitrations, will be subject to many of the same limitations as virtual Court hearings (although in these situations the parties may have more control over the technology and procedure used at the hearing).
Courts have also been granted new powers to facilitate remote hearings. For example, the NSW Government has passed legislation enabling Courts to direct any witness or legal practitioner to appear by way of audio visual link if it is in the interests of justice to do so, the technology is available and the parties are able to privately communicate with their legal representatives (see s 22C(4) of the Evidence (Audio and Visual Links) Act 1998 (NSW)). A direction under s 22C(4) may be made on the court's own motion or on application of a party, but only after the parties have had an opportunity to be heard on the matter: s 22C(5). These legislative amendments still leave room for a party to submit that it would be unfair to have evidence heard by audio or videolink, for example if a witness' demeanour may play a very significant part in the determination of a critical issue in the proceedings (see, as an illustration Quince v Quince & Anor [2020] NSWSC 326 although this case was decided before s 22C came into effect).
Preparing for a virtual hearing
Good preparation will be key to ensuring success in the virtual courtroom and should remain a guiding principle for parties engaged in litigation. Counsel and solicitor teams should have the skills to operate well in the new environment, including a strong track record of preparing persuasive written submissions. To the extent that not all members of a legal team may have the same proficiency with information technology, appropriate supports will need to be put in place.
The increased emphasis on written advocacy and preparation may mean that the switch to virtual hearings does not result in significant cost savings for litigants, particularly in complex matters, as ensuring an outcome will ultimately mean more preparatory work.
It will also be desirable to check the quality of the computer hardware being used, not only by the legal team, but also by witnesses, to ensure that the hearing can proceed smoothly and that the quality of the virtual environment (both visual and aural) is adequate.
Evidence & Submissions
The new remote Court protocols mean that written submissions and evidence is likely to have an increased significance in proceedings, particularly in Courts where affidavit evidence is not the ordinary procedure.
In many cases, the preparation of this material may be determinative for a party's case – an obvious example being where applications in interlocutory matters will now be determined on the papers. This increasing reliance on written material, which reflects existing trends, will give parties more notice of the issues in dispute and the strengthen the parties' respective position, which may promote opportunities for settlement.
Parties should take particular care to ensure that the evidence they intend to rely on covers all the facts they are required to establish their case, as the scope to "fix gaps" during a hearing may in practical terms be even more limited than previously. Similar considerations apply to written submissions. However, this should not be taken as an invitation to overwhelm the Court with documents. One strategy to manage this may be to prepare a detailed road map document that can be used as a check list during the proceedings. The document could also function as a reference in written submissions to assist a party to explain to the Court how matters have or will be proved. Some Judges have requested parties prepare these documents in advance of a hearing.
While there will still be scope to tender last minute documents via email or drop box uploads, this should be kept to a minimum and parties should look to agree a protocol for doing so before the hearing (to the extent that this is not dealt with in practice directions).
Given the stresses that the Courts are currently under to service already very demanding caseloads, parties will be expected to be as selective and concise as possible in the presentation of cases – the judiciary will expect parties to be as efficient as possible and to minimise the use of court time and resources.
Given the introduction of social distancing measures, many Courts and governments are currently taking steps to relax the requirements around swearing or affirming affidavits and other documents. For example, the Federal Court is currently willing to accept unsworn affidavits on the understanding that these will later be sworn or affirmed if required when circumstances allow.
Narrowing the issues in dispute
Given the challenges inherent in the transition to virtual hearings, Judges will expect parties, now more than ever, to adhere to their existing obligation to work constructively to narrow the issues in dispute as far as possible. This is also likely to be in the interests of the parties as it will free up the limited Court time available for the Court to focus on the issues that matter. Judicial officers are unlikely to look favourably on parties who are seen to be wasting the Court's limited time on points and issues that either should not be pressed, or which are capable of resolution by agreement.
Tips for appearing or instructing during a virtual hearing
Phone or video appearance?
Subject to the technology being used by the Court, in many cases it will be in the interests of parties to appear by video wherever possible. This will enable the legal practitioners appearing to better gauge responses from the bench in real time, as in a physical courtroom, and adjust their strategies and arguments accordingly.
Providing instructions
Given that the communication channel with the Court will be open, parties should set up an alternative channel to enable private communications between a party, their solicitors and counsel – the equivalent of note passing. Ideally, this should be done using a separate messaging platform or video conference. Whichever method is used, we recommend trialling this prior to the hearing and consider implementing a back-up channel where possible. A sensible risk management protocol would be to keep the separate channel on a different electronic device, in order to avoid accidents.
Confidentiality & security
Duties with respect to confidentiality continue to apply in remote hearings. When making confidentiality and suppression order applications, parties will need to ensure that the technological solutions used by the Court ensure sufficient confidentiality over the material in question – ie. that confidential exhibits are "locked down" on shared document drives or drop boxes that might be used.
More fundamentally, both generally and in the case of materials that are subject to confidentiality or non-publication orders, parties must ensure that the systems used to house that material, and the systems used to discuss it, are secure.
Dealing with technical issues
Remote hearings are new for many Courts. As such, there are currently teething problems as the Court and practitioners get used to the new remote systems. Parties and practitioners should be patient and flexible in dealing with these issues.
In order to limit the impact of these and other connectivity issues, it is important to immediately notify the Court and the other parties if a member of your team has dropped out of the hearing. This may not otherwise be apparent to the Court. It is also important to keep detailed notes so that the Court can be informed of when you dropped out and the Court can backtrack if necessary.
Parties should also ensure the technology they intend to use is compatible with the Court's systems prior to the hearing (eg, by updating their web browser).
Most Courts are continuing to maintain transcription services as would ordinarily be available. However, parties should keep detailed notes given possible transcription quality issues given the use of phone or videolink, and should pay particular attention to the accuracy of transcripts to enable necessary corrections to be made.
Providing documents
As noted above, it is vital that the parties send each other and the Court advance copies of all documents they will refer to and take the Judge or Registrar to, so that the parties and the Court know what is being referred to throughout the hearing.
If additional documents need to be provided during the hearing, a mechanism to do this should be agreed with the Court in advance of the hearing commencing (to the extent that the process is not otherwise dealt with in a practice direction) wherever possible.
Directions hearings
Directions hearings, particularly before the List Judge or Registrar, are often frantic even without the additional complexity of parties appearing remotely. It is therefore vital that parties familiarise themselves and comply with the practice directions issues by each Court or division. Those directions specify matters such as when consent orders must be provided and the materials that must be provided in the event that agreement is not reached.
Open justice
The use of telephone or videolink for Court hearings poses challenges for the principle of open justice and public access to courtrooms. Again, the approach to when and how the public or the media will get access to virtual hearings will differ from Court to Court. For example, the Federal Court is allowing members of the public to request access to hearings (subject, of course, to the ordinary confidentiality obligations). Other Courts, such as the District Court of New South Wales, have now introduced specific procedures for allowing media entities to request and obtain access to virtual hearings.
Generally speaking, access to the virtual courtroom requires the approval of the Court, which will be granted in conformity with the principles of open justice. As such, we expect access to the virtual courtroom will only be refused in circumstances where the Court would order the public be excluded from a physical courtroom or if access would compromise the Court's technical ability to hold a virtual hearing.
Authors: Robert Todd, Partner; Wen-Ts'ai Lim, Partner; Julie Cheeseman, Counsel; Jason Strachan, Counsel; Ted Talas, Lawyer; and Maggie Kearney, Lawyer.
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