The case, reported in the current issue of the Building and Construction Law Journal, (BCL), Vol 36 No 2, concerned an application for adjournment of an appeal hearing on COVID-19-related grounds. The application was made in March this year, shortly after WA’s Chief Justice issued a public notice providing for the immediate suspension of in-person appearances at Court of Appeal hearings and for such hearings, criminal and civil, to be conducted by either telephone or video conferencing.

The adjournment application by the respondents submitted that a hearing by telephone or video link would be, respectively, “manifestly inadequate” and “inadequate”. Factors put forward in support of the application included that Senior Counsel would be at a significant disadvantage if not able to “read” non-verbal communications during the hearing, and that client representatives and instructing solicitors were located overseas and interstate, meaning counsel would be “materially prejudiced” if the hearing proceeded due substantially to the “significant difficulty in procuring timely instructions”.

Proceeding from first principles – evaluating “the interests of justice”, acknowledging the requirements for “procedural fairness” and that “justice must not only be done but be seen to be done” – the Court dismissed the adjournment application. Essentially, it found that technology had developed to such an extent that hearings could proceed properly:

“The Court’s experience is that, having regard to the other practices and procedures in the Court of Appeal, the conduct of an appeal hearing by telephone provides for comprehensive and considered dialogue and debate between bar and bench as to the issues raised by the appeal. It is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal hearing by video link is inadequate.”

Indeed, the Court held that in “the extraordinary circumstances presented by the COVID-19 pandemic” to not conform to the online hearing arrangements – “a necessary but proportionate alteration to the normal practice and procedure of the Court” – would result in it being unable to conduct any hearings for an indeterminate time. “That would be antithetical to the due administration of justice in the State of Western Australia.”