While many aspects of commercial life have been brought to a halt or slowed by the practical and legal restrictions necessary to limit the spread of COVID-19, there will still be situations where a person needs to seek urgent court intervention. Making an urgent application to a court is difficult at the best of times, but even more trying under the present circumstances. This article discusses a number of matters to consider when preparing an urgent application to the courts during the COVID-19 pandemic.
Difficulties in obtaining evidence and finalising affidavits
Any applications to a court must be supported by material which provides the court with evidence in an admissible form of the facts the moving party relies on. The collection and preparation of evidence which meets the often quite technical standards for admissible evidence is usually the most time consuming aspect of preparation, and often the factor which limits the speed with which urgent applications can be made.
Parties will need to quickly determine whether the current movement restrictions and modified business practices in response to COVID-19 create any obstacles to obtaining necessary evidence. Things to consider include:
- Is evidence only in physical form or are there electronic copies that are easily accessible?
- If evidence is only in physical form, are you able to access those records? Do you have a plan for how you are going to access those documents (ensuring necessary health and safety measures)?
- Are there any changes to ordinary operations for forensic specialists or document management services providers which may affect the speed with which evidence can be obtained? Will usual processes take longer or require modification?
- Do witnesses have the necessary audio visual capabilities to enable a practitioner to go through the evidence with them or appear at an interlocutory hearing? Have you allowed for additional time in the event that there is a technical issue with the AV link? Have you thought about how to share and manage documents with the witness?
- If there are difficulties in obtaining primary evidence, can you use secondary sources? For example, under Federal and NSW law there are a number of ways in which evidence of the contents of a document can be proved. These include tendering:
- a copy, an extract or a summary of a document; or
- a transcript of the recording of someone reading out the contents of a document.
You should let your legal advisers know as soon as possible if evidence may not be able to obtained by the time an urgent application is to be brought before the Duty Judge or Registrar.
As noted above, if primary documents cannot be obtained, it may be possible to lead evidence in the form of an extract or summary, but it may also be necessary to have evidence of the difficulties faced in obtaining that evidence and the steps taken to try to overcome those difficulties to address any concerns about the weight to be given to truncated evidence of this sort. The Federal Court has held that when providing a summary, it must be a summary of the contents of the document, not a summary of the nature of the information contained in the document.
Ex parte applications
In the extreme circumstance where the opposing party cannot be reached in time to give notice of the urgent application, because their office has been closed and there is no alternative means of service, for instance, you may have to bring your application "ex parte" – in the absence of the opposing party.
The Court requires absolute candour from all parties who appear before it, especially when an ex parte application is made. This means that as the Court does not have the benefit of hearing from the opposing party, your lawyers will be obliged to ensure the Court is furnished with all the material facts, including those which you presume the opposing party would have raised in their defence. Although the Court may appreciate the constraints placed on litigants by measures requisite to counter the spread of COVID-19, these measures will not serve as an excuse for failure to exercise absolute candour.
Affidavits in support of urgent applications are often prepared by the solicitor on record, based on information provided by the client. As a form of sworn testimony, a witness must swear or affirm the truthfulness of the evidence in the presence of an appropriate person.
There may be circumstances where it would be difficult for the solicitor, or another deponent to swear, affirm or witness an affidavit, in light of COVID-19 restrictions. The High Court has issued a practice direction (No 3 of 2020) which states that if parties can demonstrate to the Registrar that it is impracticable to have an affidavit sworn or affirmed before a witness, the Registrar may accept the filing of the affidavit on the understanding that, if required, the affidavit will later be sworn or affirmed when circumstances allow. The Federal Court has published a practice note (SMIN-1) which provides for the filing of unsworn affidavits on terms similar to that of the High Court.
In NSW temporary legislation has been introduced allowing affidavits and other legal documents to be witnessed remotely via audio visual links such as Skype, WhatsApp, FaceTime and Zoom.
The Victorian Supreme Court has announced that it may accept the filing of unsworn affidavits on the basis that a paragraph is included in the affidavit stating it cannot be sworn or affirmed at the time of filing due to measures to minimise the spread of COVID-19, the witness has clearly instructed the deponent that this relaxation of formality does not diminish the need for them to satisfy themselves that the content of the affidavit is true and correct, parties are satisfied that the deponent is prepared to swear or affirm the affidavit in the form provided and the party filing the affidavit takes responsibility for ensuring it is formally sworn or affirmed and filed when circumstances allow.
We recommend that parties facing difficulties should first approach the court to see whether it will accept an unsworn affidavit on the basis set out in the High Court, Federal Court or Victorian Supreme Court practice note. Remote witnessing of affidavits should only be used as a last resort and a party must ensure that the court and other parties are made aware of the manner in which the affidavit was executed. It should be noted that even though unsworn affidavits may be accepted for filing with a court, leave may still be needed to rely on an unsworn affidavit at hearing.
Undertaking as to damages
If you are seeking urgent injunctive relief, you will need to give the usual undertaking as to damages as a condition of a court granting any such relief.
This is an undertaking by which you promise to compensate the opposing party for any damage suffered by reason of the injunction, in the event that you fail to prove your case at the final hearing (indicating the injunction should not have been granted). In certain circumstances, the court may even require the undertaking to extend to damage which might be suffered by a non-party.
Applicants must carefully consider the implications of the usual undertaking in the present environment. If businesses are already under strain because of the COVID-19 pandemic, an injunction may heighten the potential for damage resulting from an injunction. For example, the amount of potential damages may increase because businesses under financial stress tend to be sensitive to cashflow restrictions, or rapidly changing asset prices. For applicants, this is a risk that may weigh more heavily against the benefits of obtaining interim injunctive relief than under normal operating conditions.
For defendants, there may be a higher risk that the usual undertaking as to damages may be insufficient, or doubt may rise as to the value of the undertaking. Whether an undertaking as to damages is valuable may be material, and sometimes decisive, on where the balance of convenience lies for providing interlocutory relief.
In some circumstances, and potentially more so during the COVID-19 pandemic, an undertaking will need to be secured. Special circumstances may also exist in which an undertaking as to damages might not be required at all, but these cases have been identified as "extremely rare".
COVID-19 court processes
In line with current COVID-19 restrictions, all superior courts have put in place temporary alternatives, or modifications, to physical attendances at court. For example:
In the Federal Court:
- For existing proceedings, parties should telephone the Associate to the Docket Judge or the National Practice Area Duty Judge.
- Where existing proceedings are impacted by COVID-19, parties should contact the National Judicial Registrar by telephone on (03) 8600 3343 or email [email protected].
- Where proceedings have not yet commenced parties should contact the National Operations Registry by email to [email protected] or by telephone.
The urgent application will be heard by telephone or by remote access technology such as Microsoft teams.
In the NSW Supreme Court:
- For common law matters parties should telephone or email the Duty Registrar.
- For equity matters parties should email the relevant Duty Judge's Associate.
The urgent application will be heard by telephone or audio visual link. The Court has utilised technology such as Microsoft Teams, Webex and GoToMeeting.
Both Courts will only approve in person attendance in the most exceptional circumstances, and with prior authorisation of the Chief Justice.
It remains the case that a party who needs the urgent attention of the Court will be able to secure a hearing at short notice. However, the widespread use of audio-visual links to conduct such hearings is a new and developing practice. The audio-visual technology has so far shown itself to work remarkably well in most cases. However, hearings may take longer and the process of making documents available to the Court and other parties who are each in different locations can be fraught. It is all the more reason to ensure that you have a skilled and adaptable legal team supporting you in your application.