To adjourn or not to adjourn: Courts say the show must go on!

By Scott Sharry, Luke Furness and Eliza Parer
30 Apr 2020

In any sort of crisis, parties understandably seek to put off court proceedings. Key witnesses may be taken away urgently, barristers may be unavailable, and teams may be spread across the world. COVID-19 provides a timely example. Though you might expect this crisis to be a good reason for a court to adjourn, a string of recent cases show courts requiring parties to press on.

The message from the courts is clear: have a good excuse to adjourn or get ready to proceed.

So what is a good excuse for adjournment and how can you manage the risk that your proceedings will continue?

Grounds for requesting an adjournment

The court decides whether or not to adjourn proceedings, even where all parties agree. The test is a broad one of "fairness" and any "prejudice" to the parties. While courts look at this on a case-by-case basis, here are some common reasons to seek an adjournment and what courts have said about them:

  • My lawyer / barrister is unavailable: may be sufficient where that would leave a party genuinely unrepresented and it would be unfair to proceed, particularly where, for example, the lawyer or barrister falls ill unexpectedly. Courts are less likely to adjourn where lawyers or barristers are simply on another case.
  • The witnesses are unavailable: often depends on the importance of the witness, their excuse for being unavailable, and whether it's the party's fault that the witness is unavailable. Being interstate or overseas may not be enough where witnesses can appear remotely.
  • I've only just briefed lawyers: generally not adequate except where there is some good reason for not briefing lawyers earlier and the adjournment is short.
  • Virtual trial technology won't work: Judges seem "pleasantly surprised" at how well the court's technology works so it won't be enough to blame the fear of a poor internet connection. You may need to show actual, technical issues coupled with other aggravating factors such as multiple parties, numerous witnesses that needed to be cross-examined.
  • Virtual trial technology isn't fair: Courts have generally not been accepting excuses of "I can't read the witness's / judge's reaction". You should show specifically how a virtual trial would be unfair in your particular case.

The general "COVID-19 ground" may not be enough

Courts are seeing many requests to delay proceedings for COVID-related reasons such as overseas witnesses, complaints about technology, and the remoteness of legal teams. While individual cases may provide good reasons to adjourn, the general "COVID excuse" will not be enough. As one judge said:

"there is simply no guarantee that the situation will be any better in six months’ time... It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period. Nor is it healthy for the economy. A prolonged cessation of business will be very poor outcome. Those who can carry on should, in my view, do their best to carry on as inconvenient and tedious as this is going to be." (Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486)

In other words, the show must go on.

How can I prepare for trial in a crisis?

c   Negotiate with the other parties. Agreeing a trial plan that you can present to the judge will receive a better response.

c   Be better prepared. The courts will expect a bipartisan approach to preparation where that is possible. Documents to be tendered, submissions and authorities should be prepared in advance and provided to your opponents and the court ahead of time.

c   Note the key deadlines that cannot be missed. While the court has a discretion to adjourn, not all timelines can be extended. Missing some deadlines can be fatal in proceedings.

c   Understand and use the technology. Even minor glitches can interrupt the flow and momentum of trial. Test the system with your legal team, the witnesses, and the Court Registry. Clayton Utz has a dedicated Forensic Technology Team with broad experience in the court's technology.

c   Understand the court guidance in times of systemic crisis. Courts may offer specific support, but don't assume that they will take a relaxed approach generally.

c   Comply with the court orders. Parties with a history of non-compliance are less likely to secure adjournments.

c   Avoid asking the court for an indefinite adjournment. Propose new dates and have a convincing plan for ensuring that those dates will work.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.