FEDERAL COURT OF AUSTRALIA
Capic v Ford Motor Company of Australia Limited (Adjournment)  FCA 486
Table of Corrections
In paragraph 27, ‘2015’ has been replaced with ‘2020’.
DATE OF ORDER:
THE COURT ORDERS THAT:
2. In the conduct of the matter, the parties and their representatives comply with all relevant State and Territory health and public order regulations concerning COVID-19.
3. The matter be listed for a case management hearing on 20 April 2020 at 9.30 am.
4. The parties bear their own costs of the adjournment application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an application by the Respondent for an adjournment. The case is set down for six weeks commencing on 15 June 2020 and was commenced in 2016. It has had a tortured procedural history and has already been set down for trial twice. In light of the current COVID-19 emergency, the Respondent submits that the trial ought not to proceed on 15 June 2020 and should instead be listed later in the year, perhaps in October. This is because of the need to ensure a safe system of work for practitioners and witnesses, increasing restrictions on movement and gatherings, and the realistic limits of technology. The Applicant on the other hand submits that the technology is such that the trial can now realistically proceed.
2 Section 37M of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The requirement that proceedings be conducted according to law is inflexible but the exhortations to speed, thrift and efficiency are subject to the rider that this be achieved so far ‘as possible’.
3 The primary matter I take into account in the present situation is the health risk posed to practitioners, witnesses, court and transcript staff, and myself. There are two aspects to this risk; that of spreading the virus and that of contracting the virus. It is imperative that this Court’s orders not result in a situation where these risks are increased. At the moment movement is restricted in New South Wales and Victoria by measures under State law: Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made 30 March 2020 (‘NSW Order’) and Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment Order 2020 (NSW) made 3 April 2020 under s 7 of the Public Health Act 2010 (NSW); Stay at Home Directions (No 3) (Vic) made 7 April 2020 (‘Vic Direction’) under s 199(2)(a) of the Public Health and Wellbeing Act 2008 (Vic). Failure to comply with those measures is an offence in both States: Public Health Act 2010 (NSW) s 10; Public Health and Wellbeing Act 2008 (Cth) s 203. It is plain these must be observed and to the extent that there is any doubt about their application to persons engaged in litigation in federal jurisdiction, I direct the parties and the representatives at all times to comply with the relevant health and public order regulations.
4 In practice, this means that practitioners must work from home if they can and may attend the office only if they cannot do their work from home. Although workplaces appear to be exempt, State governments advise in favour of (and otherwise enforce) a density quotient of one person per four square metres: NSW Order cl 8(1)(c); Vic Direction cl 11(2).
5 I do not wish to see practitioners, witnesses or court staff working from their offices. On the other hand, it is apparent that public institutions such as the Court must do all they can to facilitate the continuation of the economy and essential services of government, including the administration of justice: see, eg, JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd  WASCA 38 at ; see also the Special Measures Information Note (SMIN-1) issued by this Court dated 31 March 2020.
6 The combination of those two considerations would suggest a mode of trial conducted over virtual platforms from participants’ homes. Having regard to events overseas and the relatively early stages this country may be in, a precautionary approach to what may happen by June 2020 points in the same direction. The question then is whether s 37M and considerations of fairness to the parties mean that a virtual solution—which is the only viable solution—is not feasible and that the trial must be postponed. Similar considerations may be seen at play in s 47C(3) of the Act.
7 It is clear that not every case can be heard in the fashion I have suggested in the previous paragraph. There will be many cases for which such a mode of trial will not be feasible. For example, I doubt that a fair trial can be had where an applicant does not speak in English and is in immigration detention.
8 The issues raised by the Respondent as to the difficulties which may be encountered if the trial proceeds are substantial. Those submissions can be categorised as concerning:
(1) technological limitations;
(2) physical separation of legal teams;
(3) expert witnesses;
(4) lay witnesses, and in particular cross-examination;
(5) document management;
(6) future issues; and
(7) trial length and expense.
9 It is useful to deal with these in turn.
10 First, the Respondent pointed to the problem of internet connections and other possible technological limitations, such as access to hardware and software. In a scenario where all participants in the trial process are at home there are going to be some with excellent internet connections and some with internet connections which are not so good. My experience with a six-day trial run on a virtual platform last month is that this is a problem. In that case, the taking of evidence from a witness in rural South Australia had to be abandoned and rescheduled to a time and place where a better internet connection could be found in central Adelaide. However, by and large the experience was that although intermittent internet connections were tiresome, they were not insurmountable.
11 In this case, we are two months out from the trial date and there is the possibility of putting together much superior technology solutions to the somewhat ad hoc arrangements this Court embraced early on. Another solution to any internet connection issues may be to pause the hearing until the connection improves. In any event, whilst accepting the inconvenience this problem gives rise to I do not think it is by itself a reason not to proceed. A certain fluidity in the order in which witnesses give their evidence is a known phenomenon in ordinary trial process. Witnesses are interposed, stood down and postponed for all sorts of practical reasons during large trials. Some of those reasons will have disappeared in the present situation—no one is going to be delayed by a cancelled flight anymore. Difficulties with the internet can, I think, be added to the list of reasons why witnesses get shuffled around.
12 The Respondent also pointed to the technology hiccoughs which are likely to be encountered along the way. There is no doubting this. People who are speaking will sometimes be frozen. Sometimes people will drop out altogether. My experience of the trial recently conducted on a virtual platform was that these problems were certainly present from time to time and were aggravating but that they were tolerable. It is possible, as the Respondent submits, that it may be that in time as more people are working from home the internet architecture will begin to fail. However, I do not think it has failed sufficiently yet (or at all) and it would be more sensible to confront that problem if and when it arises. Other Judges of this Court have similarly given practitioners latitude to raise issues concerning COVID-19 impacting their compliance with programming orders if and when they arise, and otherwise proceeding in the meantime: see, eg, Kemp v Westpac Banking Corporation  FCA 437.
13 Secondly, senior counsel for the Respondent raised with me the real difficulty of the practitioners not all being together in one place for the trial. It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel on the storm-tossed seas. The ability to do this where everyone is in their own home is certainly degraded. However, in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp. In the virtual hearings I have conducted I have communicated with my associates on an instant messaging platform which has worked well. There is the difficulty of document sharing over such a platform which I accept. Receiving whilst in full flight a WhatsApp message with a document attached is not the same experience as having one’s gown tugged and a piece of paper thrust into one’s hands. Again, whilst I think this is a poor situation in which to have to run a trial I do not think that it means the trial will be unfair or unjust.
14 Thirdly, the Respondent raised issues specific to the expert witnesses briefed in this matter. Counsel must understand this evidence in the lead up to the trial and there is no doubt in my mind that by far and away the best way to do that is by means of conferring with the witness in person. Sometimes this process can take days. I accept that doing this on a virtual platform will be slower, more tedious for all concerned and therefore more expensive. I do not, however, accept that it will result in a process which is unfair or unjust.
15 Additionally, the fact that the witnesses involved in the expert hot tubs are in different jurisdictions may make it difficult for them to confer to prepare a joint report or to give their evidence concurrently. I do not, however, see this problem as insurmountable. The experts can confer beforehand on virtual platforms. This will be tedious and far from satisfactory but it is not impossible. The time zone problem can be solved by the Court sitting at different times (which I have done in matters heard before the days of this pandemic involving witnesses who for whatever reason were unable to travel to the courtroom in which I was sitting). The idea of two witnesses being examined at the same time in a virtual platform is no doubt challenging but, again, I do not think that it cannot be attempted or that it will be unfair or unjust.
16 Fourthly, there are a number of issues said to be relevant to lay witnesses. In the case of witnesses who are remotely located in their homes (which I am assuming will be all of them) there are practical problems. For example, it will not be possible to see whether there is somebody in the (upstairs bed) room coaching the witness or suggesting answers out of earshot. My impression of that problem is that in this case it will not be acute. To begin with this is a class action about allegedly defective gear boxes, not a fraud trial. In addition, although some of the class members may have a motive to exaggerate how defective their vehicles are I doubt that in that process anyone will be able to help very much. Then there is the problem that the putative coacher will need to brave the health regulations and situate themselves in the same room off camera. Although there may be cases where a person desires to assist another person giving evidence so much that they are willing to risk life and limb to do so, I doubt that this is one of those cases.
17 A more serious aspect of this submission is the question of what to do with witnesses who do not have a computer or who do not adequately know how to use a computer. To some extent, it may be possible for other people in the household to assist but I do not discount that there might be cases where this is not possible. In those cases, there would be a real problem. My approach to that problem, however, would be to face it when it arrives in a tangible form. There may be many solutions in such a situation and I suspect that if the trial starts on 15 June 2020, this problem will have been encountered in many other virtual trials and a solution of some kind, perhaps not entirely satisfactory, will have been found.
18 There is the further logistical problem that at the moment the Applicant is proposing to call 50 witnesses to give varying evidence about the problems with their cars. There is a stand-off at the moment between the Applicant and the Respondent on this issue. The Respondent is asking which of the 50 witnesses the Applicant is actually going to call and the Applicant is asking which of them the Respondent requires for cross-examination. I will proceed on the basis that neither side will blink and that all 50 will be called. I do not see that this raises any special issues in the context of a virtual trial. The matter is listed for six weeks. In some cases, large numbers of witnesses are called. This may be one of them.
19 The Respondent then submitted that the cross-examination of witnesses over video-link is unacceptable. I accept the Respondent’s submission that there are many authorities in this Court which underscore the unsatisfactory nature of cross-examination by video-link: see, eg, Hanson-Young v Leyonhjelm (No 3)  FCA 645 at ; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3)  FCA 1306; 181 FCR 152 at 171 . However, those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams,Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different—and significant—is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.
20 Fifthly, the Respondent also submitted that this case will involve a large number of documents and that document management in a virtual courtroom will make that much more difficult. I do not accept this submission. Whilst I cannot speak for other Judges, I have been operating using a digital court book for some time now and the use of a virtual courtroom has had no impact on that aspect of the hearing. The problem of witness and cross-examination bundles is readily soluble with a service such as Dropbox. I have conducted a trial this way already. It is not ideal, but I do not think this result in an unfair or unjust trial. Further, the use of a third party operator may carry with it enhanced document management procedures.
21 Sixthly, there are future problems which were said to be likely to arise too. For example, one of the practitioners or witnesses may fall sick or may have to care for someone who is sick. Practitioners who have children will be under particular strain if trying to conduct a trial whilst supervising children. However, these problems may be addressed by being sensitive to them and allowance being made for them when they arise. I do not think they are insurmountable although they are challenging.
22 Seventhly, there is no doubt, as the Respondent correctly submits, that conducting this trial in a virtual environment will prolong the hearing and thereby increase its expense. I accept that the position of the Respondent at the moment is itself made more complex by the pandemic. I was told from the bar table that the Respondent has ceased making motor vehicles at the moment.
23 If I could be sure that the crisis would have passed by October I would not hesitate to adjourn all the trials in my docket (save urgent cases) and then begin a process of relisting my entire docket from October 2020. The effect of that would be a postponement of six months with all cases being reallocated thereafter. However, there is simply no guarantee that the situation will be any better in six months’ time. It may be that this is a state of affairs which persist for a year or so. 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.
24 I do not disregard Ford’s submission that the Applicant will not suffer any prejudice if the trial is adjourned but I think that she will in the sense I have just explained. To adjourn the trial because of the pandemic at this stage may be to adjourn it for an indeterminate period. The case has been pending for years and should be resolved if it can be. No doubt much of the delay which has happened to date lies at the feet of the Applicant. If the proceeding had been prosecuted more efficiently from the start the case would have been finished by now and the parties would not be in this situation. Even so, I do not think that it is wise to assume that adjourning the proceeding is going to cure the problem which has arisen.
25 Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory. I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.
26 I refuse the adjournment. In the circumstances, the application was entirely understandable and reasonable and I will make no order as to costs.
27 During the hearing machinery questions about what digital platform might be used were raised and how the question of expert evidence was to be approached. I understand from the affidavit of Mr Pagent, the solicitor for the Applicants, that their team has already made enquiries about virtual hearing facilities and service providers. I will direct the parties to confer about how the trial might be conducted and then to bring the matter back for a further case management hearing on Monday 20 April 2020 at 9.30 am when these issues can be more fully thrashed out.