Supreme Court update regarding civil proceedings

15 April 2020: The Supreme Court has today published a guidance around practical issues arising from COVID-19.

Subpoenas, Court Books, Appeal books

Electronic filing and / or service of these documents can be done, where possible, by sending links to electronic versions of documents.

Personal service

Where personal service is impractical, documents may be put down in a person’s presence, solicitors with authority can accept service electronically, and substituted service or deemed service may be viable alternatives.

Affidavits

Affidavits can be filed unsworn provided they contain a few key provisions, including a statement that they cannot be sworn at the time due to restrictions arising from COVID-19 and will be sworn later.

The guidance can be viewed in full here.

County Court transition period: 30 March 2020 to 9 April 2020

27 March 2020: The County Court has announced a temporary scaling back of its operations between Monday 30 March 2020 and 9 April 2020 in a ‘Divisional and List Responses to COVID-19 Update - 27 March 2020’.

During this transitional period the Court will review and implement changes to its processes and procedures with the aim of building its capability to administer justice during the Coronavirus pandemic over the coming months.

The Court will temporarily reduce its work in some areas where necessary. Matters considered high priority, essential or urgent will be the Court’s primary focus at this time, though there will be capacity to hear other matters.

I extract the paragraphs relating to the Commercial Division below:

The Commercial Division will endeavour to continue to hear and determine matters both during and after the transition period. In particular, applications and directions hearings listed before the Judicial Registrars, matters listed to be heard by the Duty Judge, and matters listed to be heard by the Judge in Charge of the Building Cases List will continue to be determined primarily on the papers, supplement by hearings by videoconference where necessary. There will be no hearings in person during the transition period, and this is likely to continue to be the case for the foreseeable future.

The conduct of trials during the transition period will be more constrained, because the Judges and Judicial Registrars in the Division will be using that period to prepare to offer trials by videoconference once the transition period has concluded. There may be some limited capacity to conduct trials during the transition period, and this will be explored in conjunction with the parties on a case-by-case basis. Parties with trials listed during the transition period will be contacted to discuss possible arrangements under which the trial can proceed.

In the meantime, the Commercial Division encourages practitioners with trials listed either during or after the transition period to consult and proactively submit written directions by email to commercial.registry@courts.vic.gov.au, copied to all parties, which includes references to either a Judicial Resolution Conference or Non-Binding Neutral Evaluation, as appropriate, as outlined in the Court’s first Divisional Response document issued on 20 March 2020.

The Commercial Division will be receptive to requests to modify its procedures to deal with any specific concerns. This includes urgent requests resulting from unexpected disruptions from COVID-19, for instance, as a result of the unexpected unavailability of any party, practitioner or witness who is involved in a proceeding. Any urgent requests should be emailed to commercial.registry@courts.vic.gov.au copied to all parties and marked “Urgent COVID-19 Request”.

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20 March 2020: Here’s what you need to know about hearings in the County and Supreme Court commercial lists during the COVID-19 outbreak (for now).

County Court

The County Court of Victoria has announced changes to operations in response to the COVID-19 pandemic. In short, they include:

Summonses proceeding in person before a duty judge unless other arrangements are made (eg appearance by video or phone);
Interlocutory applications before a judicial registrar being made ‘on the papers’;
Trials proceeding in person if listed for 5 days or less;
Building cases will be determined where possible ‘on the papers’ especially security of payment matters, otherwise in person (with safe distancing measures) or remote hearings are available depending on the circumstances of the case and the parties.

I’ve extracted the commercial division arrangements in full below.

COMMERCIAL DIVISION

Arrangements for Trials

At present, trials of 5 days or less will proceed on the listed trial date unless vacated by consent or Court Order. As the majority of cases listed in the Commercial Division have an estimate of 5 days or less, the Court considers that as an interim measure, the focus of work should be on cases of this duration. In the current environment, the risk of disruption to the running of longer cases is significant. Cases of 5 days or less face a much greater certainty of completion without disruption, and they are of sufficient volume to justify this interim approach.

The Court nevertheless understands that there will be practitioners, parties and witnesses who are unable or unwilling to attend Court at this time. The Court is continuing to explore ways to limit interactions between court users and between court users and front-line staff (including Associates).

The Court will be receptive to requests to modify its usual procedures to deal with any specific concerns. To this end, the following arrangements will apply to forthcoming trials:

Parties with a listed trial in the following two weeks will be contacted by email by the Commercial Registry Manager and required to respond in relation to the completion of pre-trial steps; the readiness of the proceeding for trial; the estimate of trial and any impact of COVID-19 on the conduct of the trial, including any requirements for video-link or other remote attendance.
Trials of longer than 5 days’ duration will be referred to Judicial Registrars for vacation of the trial date and re-timetabling on the papers. In appropriate circumstances, the parties may be offered a Judicial Resolution Conference or Non-binding Neutral Evaluation by video conferencing software on or shortly after the listed trial date.
Trials of 5 days or less duration will be listed for a directions hearing before the Judicial Registrars by video conferencing software or telephone conference, to determine whether the trial can realistically proceed, including by discussing measures required to ensure physical distancing, avoid passing of physical documents and otherwise minimise the risk of the spread of COVID-19. The Judicial Registrars will determine, in consultation with the Head of Division, whether the trial should:
- proceed on its listed date;
- be vacated and the parties offered a Judicial Resolution Conference or Non-binding Neutral Evaluation via video conferencing software; or
- be vacated and re-time-tabled.
In considering whether the proceeding is suitable for a Judicial Resolution Conference or Non-binding Neutral Evaluation, parties should be aware that, in the current environment, it is not possible to predict when a vacated trial will re-listed for hearing and whether it will be reached on the re-listed date, given the backlog of cases likely to be ready for trial by that time. Parties should assume that, if they are unable to reach agreement on an alternative process for resolving their dispute, the period of delay for the trial could be 12 months or more.

Duty Judge Summonses

At present, all summonses listed for hearing before Duty Judge will proceed unless vacated by consent or Court order.

However, the parties are encouraged to co-operate with Duty Judge chambers:

for the determination of Duty Judge applications on the papers, with appropriate directions for the submission of affidavits and submissions; or
for determination remotely by video conferencing software or telephone conference.
Hearings conducted via video conferencing software will be recorded. Any party wishing to request access to the recording for the purposes of obtaining transcript should email the Associate to the relevant Judge, copied to all parties.

Judicial Registrar directions hearings, summonses, trial assessments and other hearings

From Thursday 19 March 2020, almost all interlocutory determinations by Judicial Registrar will be made on the papers.

Parties with a listed hearing before Judicial Registrar will be notified via email of the vacation of the listed hearing date and provided a timetable for submission of material and determination by Judicial Registrar on the papers.

Parties seeking an interlocutory determination by Judicial Registrar should submit the Request for Interlocutory Determination form which is available on the County Court website. Parties will then be informed via email of the timetable for submission of material and determination.

A hearing will only be held if a Judge or Judicial Registrar determines that the matter is not appropriate for determination on the papers. Any hearing by Judicial Registrar will be conducted via video conferencing software or telephone conference. The Associate to the Commercial Judicial Registrars will contact practitioners before the listed hearing to make arrangements for the conduct of the hearing and ensure all parties have access to devices with appropriate software.

Building Cases List (“BCL”)

BCL directions hearings, interlocutory applications and applications pursuant to the Building and Construction Industry (Security of Payment) Act 2002 (Vic) or s57(4) of the Domestic Building Contracts Act 1995 (Vic) will, wherever possible, be determined on the papers. If a hearing is required, this will be conducted via video conferencing software or by telephone conference. Hearings in person will occur only in exceptional circumstances.

To this end, parties with a listed hearing before the Judge in Charge of the BCL (“JIC”) will be contacted by email by the Associates to the JIC before the hearing and required to respond in relation to:

whether the parties are content for the application to be determined on the papers, and a proposed timetable for the provision of any affidavits or submissions necessary to facilitate that determination;
whether the parties request a hearing, including the type of hearing sought (by video conferencing software or in person), the provision of brief reasons explaining the need for a hearing;
where the application is to be determined at a hearing, an estimate of the duration of the hearing, the logistics of the hearing (including the access of the parties to appropriate software and devices), measures to ensure physical distancing for any hearing in person and a proposed timetable for the provision of any affidavits or submissions necessary to facilitate that determination.

A hearing will only be held if the JIC determines that the matter is not appropriate for determination on the papers. Hearings conducted via video conferencing software will be recorded. Any party wishing to request access to the recording for the purposes of obtaining transcript should email the Associate to the relevant Judge, copied to all parties.

Judicial Resolution Conferences

All Judicial Resolution Conferences will be conducted via video conferencing software, unless video conferencing software is inappropriate for some reason (e.g.: a self-represented litigant who does not have access to an appropriate device). If video conferencing software is inappropriate, the Judicial Resolution Conference will either be conducted by telephone conference or adjourned.

Non-binding Neutral Evaluation

Parties with listed trial dates which are vacated due to measures to minimise the spread of COVID-19 may be offered a Non-binding Neutral Evaluation via video conferencing software. These will be conducted by either a Judge or Judicial Registrar. An information sheet on Non-binding Neutral Evaluations is available on request to CommercialJR.Chambers@courts.vic.gov.au, and should shortly also be available on the County Court website.

The full list of divisional responses is here.

Today’s media release is available here.

Supreme Court

The Supreme Court is taking steps to minimise in person appearances, as announced in a suite of changes available here.

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.

Winding up applications

From 25 March 2020 all company winding-up applications will be heard via telephone.

Trials

Trials will be heard using remote telephone or videoconferencing facilities for parties, counsel and witnesses unless a judge directs otherwise. Where in-person appearances are necessary, listing times may be staggered to allow for social distancing.

Judgments

Judgments will be delivered without the parties’ attendance.

Mediations

Mediations in the Commercial Court and the Common Law Division will take place by Skype, telephone and videoconferencing.

Commercial Court staff will contact the parties in all matters listed until 14 April 2020.