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Litigation & Dispute Resolution Practices & Procedures – COVID-19 Update

As the end of 2020 brought with it an easing of the State Government’s restrictions in response to the COVID-19 pandemic, Victorian Courts and Tribunals started to plan for their 2021 year.

So, what will this look like and how will disputes be managed and determined this year?

Victorian Courts and Tribunals

On 7 September 2020, a joint statement of the Victorian Courts and the Victorian Civil & Administrative Tribunal (VCAT) was released advising that each jurisdiction will continue to largely manage matters online. It was noted that physical attendance will be limited to urgent or priority matters but that the Courts and VCAT will carefully consider what changes can be practically made and when, as they monitor the Coronavirus pandemic.

Supreme Court

Whilst other criminal hearings such as plea hearings and bail applications were conducted online during 2020, criminal jury trials were suspended due to the large number of people required to be present in Court in each matter. Criminal jury trials have now recommenced with the Supreme Court hearing one matter in December and others scheduled for January onwards.

The Court has implemented a range of safety measures for all hearings conducted in-person including a change to the standard layout of where parties are seated in the courtroom.

Aside from criminal jury trials, the Court will otherwise continue to try and hear both criminal and civil matters electronically to reduce the number of people physically attending the Court. Practice Court Matters will by default be dealt with by a judge in chambers “on the papers” and Court of Appeal hearings will be conducted with all participants appearing remotely. Regional court work and circuit sittings will work with parties to hear matters remotely where possible.

County Court

Similarly, to the Supreme Court, the County Court has also resumed criminal jury trials with a range of measures in place. Currently the Court requires mask wearing by all trial participants (judges, court staff, jurors, counsel, practitioners, witnesses and any other persons permitted in the courtroom) including when speaking, save for a few limited circumstances.

Other matters in the Common Law and Commercial Divisions continue to be held electronically including judicial resolution conferences via Zoom. Measures such as being able to sign and witness affidavits electronically remain in place and the Court has also implemented a new electronic platform for the digitisation of the subpoena process including the submission of subpoena responses, objections, inspection requests and the inspection itself.

Magistrates’ Court

The Magistrates’ Court will continue to hear as many matters as possible electronically. During 2020, the Court established a triage recovery team to proactively facilitate matters electronically where possible and encourage pre-Court engagement with legal services and providers which will continue to assist with pending matters before the Court.

The Court has also launched a new web portal as part of its case management system which will enable the electronic filing of documents, viewing documents uploaded by the Court and other parties, notifications and an online payment system.

VCAT

All VCAT venues remain closed to the public and all hearings continue to be conducted electronically. Hearings are usually conducted via teleconference however, videoconferencing is available upon request.

Mediation and Alternative Dispute Resolution

With the Coronavirus pandemic, came the ability to hold mediations and other alternative dispute resolution processes via videoconferencing facilities such as Zoom, almost the same as if in person. A joint session would start the day followed by parties being split up into their own “break-out” rooms allowing for confidential discussions between counsel, legal practitioners and clients.

And it was clear there were many benefits. Parties that may otherwise have found the process daunting and stressful were comfortable in their home, being able to take meaningful breaks throughout the day to help fatigue and loss of focus.

Whilst face to face interaction can very often assist clients in achieving resolution with a disputing party, we expect that the ease of remote mediations will persuade parties to continue conducting them in this manner. Unless there is a clear benefit to parties being in the same venue, the barriers of location for clients, legal practitioners and barristers will no longer be an issue in the process of dispute resolution before or during court proceedings.

If you have any queries in relation to a dispute you might be considering, experiencing or at risk of experiencing, please do not hesitate to contact our Litigation & Dispute Resolution Team. Please contact Rosy Roberts, Principal or Meghan Warren, Principal on rroberts@burkelaweyers.com.au, mwarren@burkelawyers.com.au respectively, or by contacting our office on + 61 3 9822 8588.

Insight written by Rosy Roberts

Contacts

Meghan Warren

Principal

Meghan Warren

Principal
LL.B GAICD B.Bus (FinPlan)
Meghan is one of the few lawyers in Australia admitted in the State (Victoria) and Federal jurisdictions of Australia, and as an Attorney at Law to the New York State Bar in the United States.

Rosy Roberts

Principal

Rosy Roberts

Principal
LL.B (Hons) B.A GAICD
Rosy has extensive experience in Litigation & Alternative Dispute Resolution having represented clients in all Victorian State Courts and the High Court of Australia. She is also a VCAT appointed Administrator.

Anthony Burke

Consultant

Anthony Burke

Consultant
B.A LL.B DIP.FIN. MGT
Tony is an LIV accredited business law specialist and a VCAT appointed Administrator. In 2008 he was President of the Law Institute of Victoria and served for two years as a director of the Law...

Rohani Bixler

Special Counsel

Rohani Bixler

Special Counsel
LL.B (HONS) BA (PSYCH)
Rohani holds a Bachelor of Arts (Psychology) and a Bachelor of Laws (Honours) from Monash University, and has practiced exclusively in the areas of estate planning, deceased estate administration and estate litigation and disputes since...

Antonela Graso

Paralegal

Antonela Graso

Paralegal
Whilst completing her professional business and law tertiary qualifications, Antonela provides efficient and effective legal support services to our valued teams and clients.

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