By Phathu Ratshitanga and checked by Lauren Squier
In this matter, judge Perram of the Federal Court of Australia dealt with an application for postponement of a trial which was set down for a period of six weeks, commencing 16 June 2020. The trial, a class action in relation to faulty gearboxes, begun in 2016 and had a long history leading up to the set down. Ford Motor Company of Australia Limited (“the Respondent”) requested a postponement on the basis that in light of the current COVID-19 emergency, the trial should not proceed on 16 June 2020, but should rather be enrolled for hearing on a date later in the year, perhaps in October. The Respondent on the one hand submitted that it would not be feasible for the trial to proceed on a virtual platform due to several issues including, but not limited to, technological limitations. Biljana Capic (“the Applicant”) on the other hand submitted that technology is such that the trial could realistically proceed.
The court recognised and balanced two realities. On one hand practitioners have to comply with state laws put in place to curb the spread of COVID-19. The court referred to a list of state laws, including the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made 30 March 2020, which restrict movement and gatherings in New South Wales and Victoria and which have the practical effect that practitioners should work from home and only attend to their offices when they cannot work from home (“Lockdown”). On the other hand, the court recognised that all public institutions, including the court, have to do whatever they can to facilitate the continuation of the economy.
The court referred to Section 37M of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) which provides as follows:
“the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.”
The question before the court was therefore whether or not a virtual solution, being the only solution for the trial to proceed during Lockdown, was a feasible solution. Would the trial, if held virtually, be fair, just and in line with Section 37M of the Act?
The court noted that the issues raised by the Respondent as to the difficulties which may arise if the trial proceeded were substantial. The court then proceeded to examine each issue as follows:
- Technological limitations: The Respondent raised the issue that unstable internet connections would pose a difficulty to the conduct of the trial. The court recognised that while this was indeed an issue, it was not an insurmountable one.
- Physical separation of legal teams: The court recognised that, while it was desirable for senior and junior counsel in a matter to be able to confer with each other in person during trial, they could still communicate over WhatsApp or similar services and even share documents while the trial proceeded virtually.
- Expert witnesses: The Respondent submitted that the inability to confer with expert witnesses in person prior to the trial would make the trial longer and more expensive. The court recognised that even though conferring with the witnesses over virtual platforms would be tedious and slower, it would not render the trial unfair or unjust. Expert witnesses could also confer with each other virtually prior to trial to prepare joint reports or to give evidence concurrently.
- Lay witnesses, and in particular cross-examination: The court acknowledged the Respondent’s concern that it was possible that some witnesses may be coached while giving evidence by someone sitting off camera. The court held that it was unlikely that a person would violate state laws and place their life in danger to coach a witness in a class action concerning allegedly faulty gearboxes.
On the issue that some witnesses may not be able to use computers, the court took the approach that, it is best to deal with such an issue when and if it arose. The court also held that virtual platforms can cater for even a large list of witnesses and that platforms such as Zoom or Microsoft Teams made it easier for the court to read the demeanour of a witness during cross-examination than it was in a court room (faces are closer than in a courtroom).
- Document management: The court held that services such as Dropbox allow for easy management of documents in a virtual court room.
- Future issues: The Respondent submitted that future issues were likely to arise in the form of practitioners falling sick or taking care of loved ones who fell sick and that practitioners with children would be under strain due to also having to supervise their children. The court held that this was a substantial point, but that issues of this nature could only be dealt with if they arose, by being sensitive and accommodating to those facing them.
- Trial length and expense: the court accepted that conducting the trial virtually would make it longer and more expensive and noted that the Respondent, due to the pandemic, already had to cease producing cars. The court however recognised that postponements under these circumstances could be indefinite and have poor outcomes.
The court concluded that there was no guarantee that the pandemic would be clear by October. It could last for a year or longer. In the meantime, it is essential for the court to hear the matter now with the technology that is available as closing courts for such a long period would hinder the administration of justice and exacerbate the pandemic’s already damaging effect on the economy. “Those who can carry on should do their best to carry on even though doing so will be inconvenient and challenging”. The court thus refused the application but, since these were indeed pressing issues, made no order as to costs.
This decision emphasises that it is essential that courts and other public institutions, in any country, should endeavour to keep their schedules and avoid falling behind due to the pandemic as they are essential to the survival of the economy and order during and after the pandemic. This judgment addresses an issue that we are currently dealing with in South Africa. The Constitution sanctions reference to foreign law in cases where such law offers valuable guidance through which South Africa can deal with issues that foreign countries have dealt with successfully. As such, the Constitutional Court in S v Makwanyane held as follows:
“We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it.”
The primary issue that the court had to decide was whether or not a fair and just trial could be conducted by means of a virtual solution and whether it would be feasible for the trial to continue as such.
Application for adjournment/postponement, virtual trials, commercial law, civil practice and procedure, administration of justice.