Director, Kristy Nunn, recently published an article dealing with a (successful) application to vacate a Court hearing in NSW due to the Covid-19 pandemic. A similar application has recently been made in Victoria.
In the case Kristy reported on, the basis of the application to vacate was that there were credit issues to be determined; and that cross examination of witnesses should occur in a conventional setting rather than by video link. In the Victorian case, the basis for the application was that the defendant wished to serve additional accounting evidence (dealing with the plaintiff’s claim for loss of future profits), but that it was impracticable to obtain that evidence due to community restrictions imposed in response to the Covid-19 pandemic.
The plaintiff opposed the application, in part on the basis that the defendant had had ample time to investigate the issue and obtain any additional evidence it wished to rely on.
However the Court concluded that the critical documents needed by the defendant had only been made available in March 2020 (the trial was listed to commenced on 20 April 2020) and that the defendant reasonably required additional time to analyse them and, probably, for there to be a conclave of expert accounting witnesses before the trial commenced. A conclave could not occur in a “corona virus” environment. The trial date was therefore vacated.
In reaching the conclusion it did, the Court specifically noted that the impact of the pandemic was a specific basis upon which Courts should “extend some latitude to legal practitioners, litigants and witnesses in the circumstances of the unprecedented constraints on economic activity and freedom of movement that currently are in place…”. It would be unsurprising if similar reasoning is applied in NSW Courts, not only for applications to vacate trial dates; but also to extend the time for doing various steps to prepare for hearings: Seven Sisters Vineyard Pty Ltd v Konigs Pty Ltd  VSC 161.