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Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related policy and law reform, in Australia and internationally. No legal advice is offered or given.

A class action hearing ‘as inconvenient and tedious as this is going to be’ – COVID-19

Ford Motor Co has failed in having adjourned, for COVID-19 reasons, a class action hearing over its allegedly defective gear boxes. The hearing remains set down for a number of weeks starting in June; Ford had sought an adjournment to October 2020.

The reasons of Justice Perram for maintaining the June hearing date canvass a number of issues confronting the court, the lawyers and the parties in this particular case.

These reasons will be instructive in many other cases that come up for hearing during the current crisis restrictions.      

Justice Perram noted that the matter had been commenced in 2016, had a ‘tortured procedural history’ and had already been set down for trial twice.

He did ‘not wish to see practitioners, witnesses or court staff working from their offices. On the other hand, it is apparent that public institutions such as the Court must do all they can to facilitate the continuation of the economy and essential services of government, including the administration of justice …’.

The combination of those two considerations suggested a mode of trial conducted over virtual platforms from participants’ homes.

The Judge went through various potential problems raised by Ford.

1.The problem of internet connections and other possible technological limitations, such as access to hardware and software, including that ‘people who are speaking will sometimes be frozen. Sometimes people will drop out altogether. …’, problems which may be ‘aggravating’ but ‘tolerable’.

Judges have in other cases given practitioners latitude to raise issues concerning COVID-19 impacting their compliance with programming orders.

2.The difficulty of the practitioners not all being together in one place for the trial.

‘Receiving whilst in full flight a WhatsApp message with a document attached is not the same experience as having one’s gown tugged and a piece of paper thrust into one’s hands’

but that need not make the trial unfair.

3.As to expert witnesses, while a trial on a

‘virtual platform will be slower, more tedious for all concerned and therefore more expensive’

that also does not make the process unfair or unjust.

  1. As to concerns about the applicant’s 50 lay witnesses, as one example,

‘it will not be possible to see whether there is somebody in the (upstairs bed) room coaching the witness or suggesting answers out of earshot’.

But this is unlikely in a case about gear boxes, nor was a problem likely

‘that the putative coacher will need to brave the health regulations and situate themselves in the same room off camera … willing to risk life and limb ….’.

Difficulties in handling all the lay witnesses were ones on which ‘neither side will blink’ but they could be dealt with.

And while there are many authorities which underscore the unsatisfactory nature of cross-examination by video-link,

‘those statements were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex. My impression of those platforms has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different—and significant—is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness’.

5.As to the volume of documents, the Judge said he had been using a digital court book and a virtual courtroom for some time and documents could be managed.

6.Possible future problems of illness of the practitioners or witnesses, or of those who had to care for someone who fell sick, could be dealt with.

‘Practitioners who have children will be under particular strain if trying to conduct a trial whilst supervising children. However, these problems may be addressed by being sensitive to them and allowance being made for them when they arise. I do not think they are insurmountable although they are challenging’.

7.Conducting a virtual trial will prolong the hearing and thereby increase its expense and this was a factor. But as the Judge said:

‘If I could be sure that the crisis would have passed by October I would not hesitate to adjourn all the trials in my docket …

However, there is simply no guarantee that the situation will be any better in six months’ time. It may be that this is a state of affairs which persists for a year or so.

It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period. Nor is it healthy for the economy. A prolonged cessation of business will be very poor outcome. Those who can carry on should, in my view, do their best to carry on as inconvenient and tedious as this is going to be.

To adjourn the trial because of the pandemic at this stage may be to adjourn it for an indeterminate period. The case has been pending for years and should be resolved if it can be.

Under ordinary circumstances, I would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. But these are not ordinary circumstances and we have entered a period in which much that is around us is and is going to continue to be unsatisfactory.

I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try’.

Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486

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