For everyone The law & you: Courts in the time of COVID

For well over a century, the courts precinct in Melbourne’s CBD has bustled with barristers rushing from Chambers to courts, black gowns flowing, with solicitors and clerks heaving trolley-loads of paper. These scenes ended abruptly in mid-March when, like so many areas of activity, the legal system became shuttered.

Courts and the legal profession are notoriously conventional, with gavels, gowns and wigs still standard features of the proceedings. To some extent, this air of tradition is a cultivated one, masking the fact that the vast majority of the legal world uses cutting-edge technology in ultra-modern offices. Large-scale litigation and transaction work has led to lawyers embracing technology that allows them to store, share, review and analyse sometimes millions of pages of documents on their PCs. 

In recent years, courts have also been adopting new technology to varying degrees. Filing in all courts (except the Magistrates Court) is done electronically. The Supreme Court, somewhat presciently, conducted its first e-Trial last year in an e-Court. The major innovation in that case was using an electronic court book – a database containing court documents and evidence in the trial. Courts have also had access to video-link facilities, which have been used very sparingly.

Courts and the legal profession have been grappling with how to adapt to life with COVID-19. All courts and tribunals have put in place protocols for conducting hearings using various forms of video-conferencing facilities. Somewhat maddeningly for barristers, different courts favour different platforms – the Federal Court and Federal Circuit Court are using Microsoft Teams; the Supreme Court of Victoria favours Zoom and Webex; while the Fair Work Commission has opted for Skype. Lawyers and courts are quickly getting to grips with the technology.

It has been difficult to meet with members and witnesses prior to a hearing in order to prepare them.

It is, therefore, technologically possible for the work of the courts to continue. Jury trials and proceedings in the Koori Court are the only types not being conducted for the time being. However, the mode of hearing is not ideal where there are many witnesses and where parties or witnesses have limited access to technology. 

In addition, while the basic aspects of communication can be achieved, there are subtle forms of behaviour and communication that cannot be communicated in a hearing by video-conference. In any hearing, it is important for an advocate to be able to read the body language of the presiding judge. In turn, a judge wants to be in a position to assess the credibility of a witness via, among other things, their demeanour.

A number of other compromises have also been necessary in preparing for hearings. It has been difficult to meet with members and witnesses prior to a hearing in order to prepare them. This is always best done face-to-face, as giving evidence in a hearing is a stressful experience at the best of times. 

The AEU has conducted one hearing in a substantive matter by video-conference using Microsoft Teams. The matter was a penalty hearing against an employer, Yooralla disability service, for contravening certain workplace laws. It was relatively straightforward and did not involve cross-examination of witnesses. However, it was not ideal.

Due to the limitations of hearings conducted by video-conference, it may be preferable to delay hearings. This has occurred in one AEU matter where the compromises would be too great for a matter of general importance to the TAFE sector. The AEU has a number of upcoming hearings where, no doubt, we will become more familiar with video-conferencing and less reliant on trolley-loads of paper.

If you need work-related legal advice contact the AEU first on 03 9417 2822.

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