COVID-19 has had an impact on a number of businesses and institutions. Courts and Tribunals are still operating with some modifications to their general procedures. A recent case in the Australian Capital Territory (ACT) saw judicial consideration given to the effects of the virus in deciding an application to adjourn proceedings.
In Talent v Official Trustee in Bankruptcy (No 5) [2020] ACTSC 64, the applicant sought an adjournment of the proceedings on the basis of medical advice, specifically that they suffered from leukaemia which placed them at a greater risk if exposed to the virus. The application was supported by a letter from the applicant’s doctors stating they “strongly support [the applicant] self-isolating until further notice”. The application related to a proceeding regarding a claim relating to a property in which the applicant resided. The property formed part of a deceased estate.
A number of additional circumstances were considered including the age of the applicant’s solicitors, being 59 and 56; the medical conditions of the legal representatives including suffering from asthma, obesity; the respondent senior counsel being unable to travel by air and residing in Queensland resulting in the junior counsel having to conduct the matter.
Whilst the Respondent was appreciative of the health concerns of the applicant and their legal representatives, the adjournment was opposed on the basis that the proceedings could still be conducted via video link. The Respondent argued that it was pertinent to have the proceedings determined as soon as possible to give effect to the will of the deceased.
Elkaim J agreed that it was important to give effect to the will and that a good deal of the case could be conducted from a remote location. However, it was noted at [14] that it is important to give the litigants an opportunity to appear at court:
On the other hand, litigants have a right to appear in court to not only give evidence but also to observe the running of their case. This will involve providing instructions, sometimes very promptly. There is no doubt that many procedures within a litigated case can be effectively conducted through remote forms of communication. However, I think there can be an important distinction with a final hearing.
Elkaim J then moved to considering the practical consequences of the adjournment. The primary consideration was the impact the current climate had on property values. It was noted that property value was likely to be substantially reduced which would result in the true value of the property not being obtained if it were sold. A secondary consideration was the necessity of the applicant having to leave the residence if it were to be sold. Elkaim J noted that this would expose the applicant to a higher level of risk that may have a tragic result.
No specific prejudice aside from general delay could be identified as being suffered by the Respondent if the adjournment was granted. On that basis, Elkaim J was satisfied that the potential consequences balanced in favour of granting the adjournment. Elkaim J concluded noting that “We are living in an unprecedented and unpredictable atmosphere.”
From this case it is apparent that while the typical procedural principles will apply to an adjournment application, the ultimate decision will be coloured by the practical consequences of making any such order.
