COVID-19 has affected almost every part of our lives. Businesses have had to adapt quickly to change in environment, as have the legal profession and the Courts. Each court has approached the issue differently with varying levels of change to the operations; the particular details of each court can be found on their individual websites.

Are the Courts still operating?

Yes – however in most cases they are doing so remotely.

Timetabling and procedural hearings (such as directions hearing and mentions) are being held by video link or by telephone.

Court hearings including evidence given by witnesses are generally done by video link as well. Even though witnesses, clients and lawyers are in attendance by video link, it is expected that they will conduct themselves in the same manner as if they were in attendance in the courtroom.

Witnesses are still giving evidence under oath and the same penalties apply for contempt of Court and perjury.

Can I file a new case?

Yes.

Even prior to COVID-19, most Courts required new matters and Court documents to be filed online.

How do I swear an affidavit

Some Courts, such as the Supreme Court of Victoria, have allowed for the filing of unsworn affidavits on the condition that:

  • The affidavit explains that the affidavits cannot be sworn or affirmed because of COVID-19.
  • The affidavit still needs to be true and correct.
  • The affidavit needs to be sworn when possible.

How are documents served?

Service can be effected by placing the document down in the person’s presence whilst maintaining the required social distancing.

In cases where it is impractical for service to be effected, then parties can apply for substituted service.

Can I get an adjournment of my case?

We are seeing that the Courts are taking a practical view of adjournments. The Courts are reviewing each case individually and considering whether there would be a substantial prejudice to either party if the trial went ahead by video link, rather than in the traditional courtroom setting.

As with all applications for adjournments, there still needs to be a good reason for the adjournment.

The team at Madgwicks have quickly and easily adapted to the new Court processes and are well placed to run your litigation in the new environment.

About the Author

Catherine Ballantyne

Special Counsel
A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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