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COVID-19: A ground for an adjournment of civil proceedings?

The NSW Supreme Court recently considered whether the COVID-19 pandemic was a sufficient basis to adjourn a hearing.

In David Quince v Annabelle Quince and Anor [2020] NSWSC 326 the plaintiff made an application to vacate the hearing, which was listed to commence on 23 March 2020 for a number of days. One of the bases was the regime which the trial judge imposed upon the parties meant that the cross examination of the witnesses would be undertaken by video link, with the various parties in separate parts of Sydney. 

The proceedings related to a claim that transfers of shares purportedly executed by the plaintiff where a forgery. Due to the serious nature of the allegations, the plaintiff’s senior counsel informed the Court that he wished to be able to cross examine the defendant in a conventional setting on the basis that the defendant’s demeanour in answering those allegations were crucial in assessing her credit, and in properly assessing her denials. 

Sackar J concluded that unfairness may arise if the witnesses gave evidence by video link and vacated the hearing dates. 

This is a new regime in which litigants and lawyers find themselves in. If a claim is listed for hearing, lawyers should assess whether the matter should be delayed due to COVID-19 or whether it should proceed by using the available technology. NSW Courts have advised that services will continue to operate. However if there is a material disadvantage or unfairness that may occur to a party, a hearing date may be vacated. One of the difficulties is that litigants face an uncertain future as to when a new hearing date may be appointed. 

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