When will the Court adjourn proceedings if counsel contracts COVID-19?

In Kaplan v State of Victoria (No 7) [2022] FCA 1405 Justice Mortimer recently considered an application to adjourn the trial as senior counsel had tested positive for COVID-19 and became unavailable. The adjournment application was sought in the seventh and final week of the trial so that the senior counsel for the respondents could lead the evidence for the respondents’ final four witnesses at a later date.

The case is relevant because it establishes a framework for when COVID or other illness, if it impacts counsel, might cause the adjournment of a trial.

Balancing a number of competing considerations, Justice Mortimer ultimately refused the adjournment application.[1]

Her Honour, quoting Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 250, outlined that in considering an adjournment application in the context of section 37M and section 37N of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) the Court must consider:

important matters involving timeliness in the disposal of proceedings, and efficient use of the judicial and administrative resources available for the purposes of the Court.[2]

Section 37M provides that the overarching purpose of the civil practice and procedure provisions of the FCA Act is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.[3]

Her Honour outlined that the main factors applicable to the adjournment application were the detriment to other parties in the proceeding and the parties’ choices to date in the litigation regarding the claims to be made and how they are to be framed.[4] Her Honour made it clear that the application of the principles is always highly fact-dependent and that the overall consideration for the Court is what is in the interest of the administration of justice.[5]

Mortimer J agreed with the applicants’ submission that section 37N of the FCA Act envisages and provides for a process which might be less than perfect and less than ideal, however the trial process must still be fair to both parties.[6] Fairness is a relative concept depending on circumstances such as the resources of the parties in the Court, the conduct of the trial to the point it has reached and the courts objective assessment of the asserted prejudice.[7]

The respondents submitted that as their senior counsel had been involved in all aspects of the proceedings they would suffer prejudice if he was unable to lead the final four witnesses due to his illness.[8] Her Honour considered that the respondents had somewhat exaggerated the significance of senior counsel’s unavailability, outlining that the adjournment application concerned two days of witness evidence after 28 days of trial, in which four out of a total 25 lay witnesses for the respondents would be led. Her Honour considered the respondents’ two junior counsel were capable of leading witnesses and managing objections and closing the last of the evidence.[9]

Her Honour also took into consideration the resources of the parties, noting that the State of Victoria is a very well-resourced litigant, whereas the applicants were five individuals, who were all young men, and most were still studying.[10] Her Honour outlined that the costs capping order, which had the effect of limiting the applicants’ liability for an adverse costs order in exchange for capping the costs recoverable by the applicants if they succeeded, was an important factor in ensuring the trial was conducted as efficiently and effectively as possible.[11] When a trial is adjourned part-heard, there are significant legal resources needed to pick the matter back up, as opposed to the resources required where the trial runs continuously.[12] As such, the proposed adjournment would have likely increased the resources required in a way which would put the applicants at a significant resource disadvantage.

Justice Mortimer outlined that granting the adjournment would also put the Court at a significant disadvantage.[13] As fact-finder it is imperative that the Judge retain as comprehensive a working knowledge of the evidence as possible.[14] In a long trial, the ability to do this is compromised where there are gaps between tranches of the trial.

The principle of finality and certainty in litigation also favoured the respondents’ evidence closing in the scheduled final two days of the seven week trial.[15]

The final factor her Honour considered was that it is reasonable for parties in Victoria to anticipate and plan for COVID risks.[16] It was apparent the week preceding the adjournment application that senior counsel for the respondents was unwell.[17] Her Honour noted that the risk management processes in place may have been insufficient, and that COVID risks could have been managed differently and earlier, placing a small amount of weight on this consideration.[18]

Key Takeaways

Overall, whether or not an adjournment will be granted where counsel has COVID is highly fact-specific, and parties may have an obligation to manage COVID risks in situations where illness is reasonably foreseeable. An example of how the facts of each case impact upon the question of adjournment can be seen in the decision of Griffiths AJA in Khattar v Khattar [2022] NSWCA 237 in which the Court did vacate a two-day appeal due to counsel for the applicants being unavailable due to a COVID-19 illness.

[1] Kaplan v State of Victoria (No 7) [2022] FCA 1405 [28].

[2] Ibid [5].

[3] Federal Court of Australia Act 1976 (Cth) s 37M(1).

[4] Kaplan v State of Victoria (No 7) [2022] FCA 1405 [6].

[5] Ibid.

[6] Ibid [8].

[7] Ibid.

[8] Ibid [9].

[9] Ibid [22].

[10] Ibid [12].

[11] Ibid.

[12] Ibid [16].

[13] Ibid [17].

[14] Ibid.

[15] Ibid [11].

[16] Ibid [26].

[17] Ibid.

[18] Ibid.


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This information and contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.