Managing the rapid shift to remote litigation

• No in-person hearings.
• All hearings conducted by video-link.
• Where appropriate, the Court of Appeal will, by agreement, determine matters 'on the papers' through the filing of written submissions.

Common Law Division

• Trials that would have been heard by a jury will now proceed before a judge sitting alone, unless a judge adjourns the proceeding.
• Trials will be heard using remote telephone or videoconferencing facilities unless a judge directs otherwise. Regional circuit courts will follow the same approach. Parties will be asked to lodge electronic court books.
• Practice Court applications, interlocutory and case management hearings will be determined 'on the papers', unless a judge orders otherwise.
• Mediations will take place by Skype, telephone or videoconferencing.
• Staff will contact the parties in all matters listed until 14 April 2020.

For information about the Commercial Court, Criminal Division and managing Crimes Mental Impairment Applications, please see the links on the right.

Common Law division changes in response to COVID-19

Supreme Court changes in response to COVID-19

Managing Crimes Mental Impairment Applications during COVID-19

County Court

Common Law Division

• Any jury trials, or judge alone hearings of 3 days or more, will be adjourned.
• Cases that can be heard without a jury and with an estimated hearing length of two days or less will be allocated for hearing to a judge alone. The Court will determine whether any other hearing will proceed on a case-by-case basis.
• Cases which cannot proceed to hearing are likely to be listed for a Judicial Mediation.
• The County Court will pilot hearings by video link. Whether a remote video hearing is practicable will be determined on a case-by-case basis.
• Mediations can be conducted via video-conference.

Commercial Division

• No hearings in person during the transition period.
• Trials of 5 days or less will proceed on the listed trial date before a judge sitting alone with greater use of audio-visual links.
• Trials of longer than 5 days will be referred to Judicial Registrars to vacate and re-timetable.

All Court Divisions to conduct hearings remotely or electronically where possible.

For information about the Criminal Division and the management of Crimes Mental Impairment matters, electronic filing of documents, witnessing affidavits & certifying documents, service of documents and subpoena inspections, please see the links on the right.

New jury trials suspended from Monday 16 March

County Court divisional and list responses to COVID-19

County Court - Coronavirus update

• All Magistrates' Court venues remain open but a range of non-urgent matters have been adjourned.
• The Chief Magistrate has issued practice directions with immediate impact on listings and operations. To view these practice directions, please see the link on the right.
• Any bail and summons matters will be adjourned to a date to be fixed and no longer use the nominal date of 15 June 2020. Parties will be notified of new date and must attend. Any matters already adjourned to 15 June 2020 should expect to receive a new date by notice within 6 weeks of the current listing date.
• VOCAT will continue to process applications, will hold directions hearings by telephone and has adjourned listed hearings until 15 June 2020.

MCV Practice Direction 5 - Criminal Proceedings

MCV Practice Direction 6 - Family Violence Protection and Personal Safety

MCV Practice Direction 1 - Civil Jurisdiction

MCV Practice Direction 4 - Victims of Crime Assistance Tribunal

• No hearing which requires the physical attendance of any person will proceed.
• Only hearings which can be facilitated through technology, such as Inquest Findings, Summary Inquests, Directions Hearings and Mention Hearings, will proceed.
• Inquests will be adjourned to a date to be fixed, but not before 31 May 2020.

• Remains open and operational.
• Entry to Children's Courts restricted and will be permitted in accordance with the Notice.
• Court users (parents and Child Protection Practitioners) are not to appear in person but rather by audiovisual link or telephone where possible. Representatives still appear in person at Court where consent orders cannot be agreed for mentions, directions hearings and interim/final contests.
• All conciliation conferences are by telephone.

Children's Court - Practice Direction 1 (Family Division)

Children's Court - Practice Direction 2 (Criminal Division)

Children's Court - Practice Direction 3 (Intervention Order Applications)

Children's Court - Public Notice

• Closed to the public.
• No face-to-face hearings are scheduled and all non-critical matters up to and including 15 May 2020 will be adjourned for the foreseeable future.
• Holding daily telephone hearings in urgent Guardianship and Residential Tenancies matters and other case types as needed.
• Conducting urgent matters in the Review and Regulation List by online platform.
• Working on hearing more cases via phone and other technologies.

• Continuing operations.
• To the extent possible all documents to be filed electronically.
• Court will allow electronic signing of documents and accept unsworn affidavits.
• Court will contact practitioners for listings to be heard by telephone, remote technology (including MS Teams) or on the papers.
• The Court has produced a guide to virtual hearings.

Federal Court of Australia - Special measures in response to COVID-19

Federal Court of Australia - National practitioners/litigants guide to virtual hearings and Microsoft teams

• Registry will continue to receive and process new complaints on privacy and freedom of information.
• OVIC has recognised that COVID-19 may cause resourcing issues for public entities, and will consider extending timeframes for FOI disclosures.

Reflections on Supreme Court remote hearings

Remote settlement conferences and mediation

Remote hearings in the Supreme Court took place through 'WebEx' video conference software and it was up to each party whether barristers and instructing solicitors appeared from one or more locations. Appearing from the same location had the advantage of ease of communication between barristers and instructing solicitors, but increased the risk of either difficulty seeing the screen (if using a single device) or of technical issues such as feedback (if using separate devices). (Given current COVID-19 restrictions, consideration will need to be given as to whether it is appropriate to appear in the same location and, if so, the way in which this should be managed.)

Matters remain 'listed' with a specific courtroom. This allows parties to refer to that courtroom for the purposes of obtaining transcripts.

The Court commenced each hearing by inviting parties to join the WebEx conference. Any documents that parties intended to 'hand up' during the hearing were circulated by email beforehand.

Witness examination proceeded on WebEx, with the witness present in the courtroom. Solicitors working on the trial noted that the experience of witness examination and cross-examination was very different from the 'in person' experience of the typical court-room set up.

It is important to remember that, even if you are appearing in court via video conference software from your living room or home study, you are in court. Your clothing, demeanour, and interactions with parties and the court should be the same as if you were physically in the courtroom. We note that counsel were not required to be robed if robes were being shared, to minimise infection.

Finally, restrictions on recording proceedings apply equally to remote hearings. Under s 4A of the Court Security Act 1980 a person must not intentionally make a recording of a proceeding without the judge's direction or permission.

Conferences can take place over a variety of platforms to suit the needs of the parties and the dispute. For example, in one settlement conference, barristers initiated discussion over the phone, before continuing negotiations by email.

Solicitors involved in remote conferences noted the importance of planning a way to have private conversations, for example, by communicating on a different platform to the primary negotiations (for example, by mobile). It is recommended to use the mute function when any other person is talking.

Parties should also have a plan for how to circulate documents that will be referred to by all parties, and must ensure that documents are not inappropriately circulated.

As usual, where clients are not directly involved in the remote conference they should be contactable by telephone for any urgent instructions required.

Finally, it is important to remain patient and facilitative. Everyone is in unchartered waters.

Security

Always consider the information that is shared when you are using different platforms as there are varying levels of security.

Office of the Victorian Information Commissioner (OVIC), as the custodians of data security in the VPS, are strongly encouraging entities to use Microsoft Teams (where they have O365) rather than Zoom.

The Australian eSafety Commissioner, Julie Inman Granth, has encouraged users to read up on the terms and conditions of the technology services being offered in order to understand what kind of data is being collected about them and how it is being used, as well as the mechanism for reporting any abuse.

Zoom

Australia's eSafety Commissioner has published information about Zoom: E Safety Guide - Zoom

There have been concerns raised about Zoom's security from around the globe which are being regularly reported by the media. It is important to maintain awareness of the issues being raised about the various platforms.

The free version of Zoom is limited to 40-minute video-conferences (but only if the host is also using the free version).

Zoom allows you to have a joint session and also breakout rooms. It is possible to have > 1 screen in one virtual room, > 1 screen in another virtual room and another party (e.g. a mediator) able to "knock" and then enter either room.