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.