The Court of Appeal recently delivered its reasons for decision in the matter of JKC Australia LNG Pty Ltd (JKC) v CH2M Hill Companies Ltd (CH2M)1 relating to CH2M’s interim application for an order that the appeal hearing listed for 27 March 2020 be adjourned to a date to be fixed. The application was grounded on issues said to arise from the COVID-19 pandemic. JKC opposed the application.
The decision sets out the Court of Appeal’s reasoning for dismissing CH2M’s application, a copy of which can be located here.
As a result of the COVID-19 pandemic, on 18 March 2020 the Chief Justice of Western Australia issued a notice which informed the public of directions, effective immediately, as to conduct of hearings in the Court of Appeal. By this notice the Chief Justice announced that all appearances in person had been suspended and, unless otherwise ordered, hearings were to be conducted by telephone unless all counsel had access to video conferencing facilities (in which case video conferencing was able to be used).
By its application, CH2M sought an adjournment of the appeal hearing to a date to be fixed when parties and their counsel could appear in person.
CH2M submitted that a hearing by telephone would be ‘manifestly inadequate’, and a hearing by video-link would be ‘inadequate’, for the following reasons:
- CH2M would be disadvantaged if senior counsel could not see and ‘read’ the Court through non-verbal communications during submissions.
- CH2M is entitled to a ‘real’ hearing.
- CH2M was receiving instructions from various overseas and interstate locations which would pose a ‘significant difficulty’ in senior and junior counsel getting instructions during the hearing.
- Senior counsel for CH2M had contact with his son who had flown in from New York and was therefore limiting contact with non-family members and as such could not have junior counsel or instructing solicitors in the same room as him during the hearing.
- CH2M has a right to observe the hearing and communicate with its solicitors during the hearing.
- If the hearing resulted in an adverse outcome, CH2M was more likely to be aggrieved by the decision if it had not been able to participate in the hearing in a conventional way.
The Court of Appeal rejected CH2M’s submissions and found that:
- In the extraordinary circumstances presented by the COVID-19 pandemic, the arrangements provided for in the Chief Justice’s public notice of 18 March 2020 were a necessary but a proportionate alteration to the normal practice and procedure of the court consistent with the due administration of justice.
- Were the submissions of CH2M accepted, the court would be unable to conduct any court hearings for an inordinate period of time, which would be antithetical to the due administration of justice in the State of Western Australia and at odds with the achievement of the goals and objects of O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).
- The experience of the court had been that conduct of appeal hearings by telephone had been satisfactory.
- Appeal hearings involve a significant amount of pre-hearing preparation and result in a common set of appeal books which are before the court and counsel (including identification of authorities which may be referred to in the course of oral submissions).
- The oral appeal hearing proceeds from the starting point that the court has already read and considered the primary court’s reasons and the parties’ written materials.
- The proceedings involved discrete questions of contractual construction with no factual disputes and no suggestion of new evidence. The discrete questions had been clearly identified in the grounds of appeal and notice of contention. They had also been the subject of written submissions. In the circumstances, their Honours did not accept that there was a real risk that CH2M might be materially prejudiced in proceeding with an appeal hearing by telephone because of any difficulty in procuring timely instructions during the hearing.
- They were unable to perceive any real risk of practical injustice to CH2M in not being able to observe and participate in an appeal in real time.
- There was no real risk of prejudice if counsel and instructors cannot be co-located during a telephone hearing. It remains possible to communicate electronically.
- An adjournment would result in prejudice to JKC.
- If the hearing was vacated preparatory work undertaken by the Court and the parties may need to be re-undertaken.
- The hearing was originally intended to be listed for January or February however due to senior counsel for CH2M’s unavailable dates the hearing was listed for 27 March 2020.
Senior counsel for CH2M submitted that, if the Court was not minded to accept that an adjournment was appropriate, that JKC make its submissions on Friday, 27 March 2020 as intended following which the hearing be adjourned for CH2M to take instructions prior to its submissions the following Monday at the earliest.
Their Honours formed the view that, as they were available the following Monday morning, that they would dismiss the application for the adjournment but make orders in terms of CH2M’s alternative proposal.
This decision is an example of the Court’s confidence in the procedures it has put in place to conduct hearings during the COVID-19 pandemic.
Despite this, this case was particularly amenable to being conducted by way of telephone or video-link given the discrete issues being considered and the procedural guidelines of the Court of Appeal in general, such as common appeal books and assumed prior consideration of reasons for decision and hearing documents.
There may still be circumstances where the Court will accept an argument that conducting a hearing by telephone or video-link is not appropriate for a particular case.
If you have any questions in relation to this article or how these issues impact your particular circumstances, Cinzia Donald, Partner, and Jasmine Sims, Associate, in Lavan’s Litigation, Dispute Resolution team are able to assist you.