The Supreme Court of Queensland has done away with various procedural practices designed to manage the new requirements, particularly surrounding social distancing, imposed by the COVID-19 pandemic.   In short, the Protocol for Applications (Protocol) to the Supreme Court are to be heard in person unless leave has been granted by a Judge to appear by telephone or video-link.

The ‘Covid’ protocol

The Notice to legal practitioners in relation to the COVID-19 Pandemic dated 20 March 2020 highlights the Court’s initial response to the pandemic.   In short, this notice required practitioners, in respect of civil proceedings, to attempt to minimise the need for physical attendance in courtrooms by:

• using telephone or video link to make applications and call witnesses wherever possible;
• making applications on the papers where that is feasible;
• minimising the number of people attending court for any given matter;
• resolving issues to the greatest extent possible, to reduce the time for which any presence in Court is required;
• resolving matters wherever possible, particularly having regard to the difficulties which are likely to confront the conduct of litigation over the ensuing months.

The new protocol

As above, all applications will be heard in person except with leave of the Court.  An exception to this rule exists where a self-represented applicant for either bail or procedural directions pursuant to the Judicial Review Act 1991 (Qld) and directed to the Parole Board Queensland.   In those circumstances, the applicant may appear by video-link unless otherwise directed by the Court.   It should be noted that, per the Protocol for Applications to the Corporations Registrar, the Protocol will also apply to all matters that appear on the Corporations Registrar’s list, subject to various administrative adjustments.

The Courts have facilitated a process to allow an Applicant to appear for an application via video-link instead of in person.   Where the Applicant wishes to appear via video-link they must, by no later than 1.00pm on the day before the hearing, provide reasons for the application for leave to the Associate to the senior Judge listed in Applications for the relevant week.   That party also must have sought and attained the consent of the other party to the application before writing to the Judge’s Associate.   Notably, in circumstances where leave to appear via video-link is granted, all parties to the application must be ready to connect by the relevant video-link method at least ten (10) minutes prior to the appointed hearing time.

This protocol is consistent with rule 5 of the Uniform Civil Procedure Rules 1999 (Qld), which requires:

• Just and expeditious resolution of the real issues in civil proceedings at a minimum of expense;
• That the UCPRs be applied to avoid undue delay, expense and technicality;
• That parties impliedly undertake to proceed in an expeditious way; and
• Non-compliance with the UCPRs may lead to sanctions.

These principles have been referred to, directly or indirectly, as case-flow management principles.  The leading case in respect of these principles is Aon Risk Services Australia Limited v Australian National University [2009] HCA 27.   In this case the High Court placed a great emphasis on the importance and emphasis attributed to case-flow management considerations and the proper use of resources in the exercise of discretion to give leave.   It should be noted, Aon Risk considered whether leave should be granted to amend pleadings and of course did not relate to whether an applicant could appear via video-link or in person.   Nonetheless, the general principles enunciated have been relied upon in a broad range of procedural applications.   The High Court held at [98]:

“Of course, a just resolution of proceedings remains the paramount purpose of [r5], but what is a ‘just resolution’ is to be understood in light of the purpose and objectives stated.  Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings.”

When will leave to appear via video-link be granted?

A strong argument can be made that appearing via video-link is cost-effective, efficient and does not substantially impact on the Court’s ability to justly resolve the real issue in civil proceedings.

Nonetheless, the Courts are unlikely to grant leave on grounds that it is merely more convenient to appear via video-link than in person.   As much is reflected in Supreme and District Courts Notice to Legal Practitioners – Civil Proceedings, which emphasises the Court’s desire to have in person hearings return to the greatest extent possible.   It is more likely that an Applicant will be obliged to show hardship, serious inconvenience or expense or even that it is impossible or impracticable to appear in person for the application.   It will likely be at the discretion of the Judge to grant leave and it ought not be assumed that leave will be granted in most circumstances.  The Protocol seems to signal a return to the pre-Covid norms of civil litigation.

Links and further references

Related articles

The consequences of inaction in litigation in Queensland Courts
What is a strike out application?
What is a case management hearing?

Legislation

Judicial Review Act 1991 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

Cases

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Practice Directions, Notices and Protocols

Protocol for Applications
Protocol for Applications to the Corporations Registrar
Supreme and District Courts Notice to Legal Practitioners – Civil Proceedings

Further information

If you need advice on navigating the procedural requirements inherent to civil litigation, contact us for a confidential and obligation free and discussion:

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 (Preferred)
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

Disclaimer

This article contains general commentary only.   You should not rely on the commentary as legal advice.   Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.