Turning the Court system upside-down: A silver lining of the COVID-19 pandemic

In May 2020, deep in the belly of a pandemic and a lock-down, I ran a virtual trial via Microsoft Teams. Stakeholders in different states and territories participated virtually; some from their bedrooms, with pets and children lingering in the background. Even a few months earlier, the prospect of a multi-party, hard-fought litigated trial occurring “virtually” had been non-existent.

One silver lining of the COVID-19 pandemic is the profound and lasting impact it is likely to have on the Australian Court system, catapulting all stakeholders, willing or not, into the technological age.

Prior to COVID-19, whilst the Courts were receptive to technology, they were also somewhat shackled to in-person hearings and relying heavily on hard copy documents. Courts were also often reluctant to receive testimony remotely apart from in exceptional circumstances; for instance, if a witness was gravely unwell or lived far away. If credit was likely to be a significant issue, any such request was likely to be declined.

COVID-19 forced the Court system to go predominantly paperless and online in a matter of weeks. Courts and practitioners alike were forced to sink or swim. The pandemic also threw a spotlight on the practical realities and complexities of living and working from home (including accommodating care-giving responsibilities). For instance, during stage 4 restrictions, the Courts expressly recognised that many practitioners were operating with limited support and concurrent care obligations, and took the unusual step of publicly announcing that they would be sympathetic to requests for accommodations, such as being excused from wearing robes or for breaks due to care-giving responsibilities.

Litigating during a pandemic has been a bumpy road, forcing stakeholders to rapidly adapt to virtual engagement and hearings, and the practicalities of working from home. I, like many, have had professional engagements, at times frustratingly yet comically, crashed by cats, children and home deliveries and have learnt to leap, at times flat-footedly, from one virtual platform to another (think Teams, WebEx, Zoom and more). “My apologies, I was on mute” has become a routine part of the legal vernacular. Yet the wheels of justice have kept moving, and this short-term pain will see significant long-term gain.

The impact of COVID-19 has been transformative and will leave a profound legacy. In my view, the key lasting impacts are likely to be:

• increased use of technology, including embracing electronic hearings for certain matters (whether partially or wholly virtual);
• greater efficiency, largely driven by the Courts and practitioners embracing the use of new technologies, such as electronic hearings, virtual appearances and paperless hearings. Removing the need to travel and its associated expense is alone likely to drive considerable savings;
• greater flexibility to participants in the litigation process, and a recognition that technology can be accommodating to care-giving roles without compromising the efficient administration of justice.

I for one look forward to seeing the end of the pandemic, and a profoundly transformed legal system on the other side of it.

By Natasha Stojanovich, Partner, with many thanks to Solicitor, Simone Karmis for her input.