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Arrangements in the Federal Court during COVID-19

28 April 2020

#Dispute Resolution & Litigation, #COVID-19

Published by:

Melissa de Jongh

Arrangements in the Federal Court during COVID-19

Like almost all aspects of public life, the court system in Australia has been significantly impacted by COVID-19. The ordinary practices and procedures that we take for granted, including face-to-face hearings, are not possible in the current climate. As a result, the courts have had to come up with a number of special measures to enable the administration of justice to continue during the pandemic.

It is important for practitioners to keep an up-to-date awareness of these measures, particularly as they differ between courts and are likely to be subject to regular change. In this article, we focus on some of the key the special measures currently in place in the Federal Court of Australia. 

The Federal Court has published the following three notes setting out arrangements for the continued operation of the Court during the COVID-19 outbreak in Australia:

  • SMIN-1: Special Measures Information Note
  • SMIN-2: Admiralty and Maritime—Warrants for the arrest of ships
  • SMIN-3: Appeals and Full Court Hearings.

The three notes are available on the Practice Notes page of the Federal Court’s website here. The Court is also publishing regular updates in relation to its operation during the COVID-19 outbreak here.

We set out below some of the key measures that the Federal Court currently has in place.

SMIN-1: Special Measures Information note

Special arrangements are in place for the continued operation of the Federal Court, including the following:

  • registries remain open, but services are being provided remotely (by telephone and online), unless urgent circumstances exist
  • documents should be filed electronically, via the Court’s eLodgment system, to the extent possible
  • to facilitate electronic lodgement, the Court is temporarily allowing documents to be signed electronically
  • affidavits may be filed despite not being sworn or affirmed (on the understanding that, if required, they will be later sworn or affirmed when circumstances allow)
  • attendance at the registry to inspect subpoenaed documents will only be permitted if it is truly necessary for the conduct of the proceeding at the time
  • all current hearings before the Court (other than those with truly exceptional circumstances) are proceeding using remote access technology. The Court is currently using Microsoft Teams and telephone conferencing to hear matters.

SMIN-2: Admiralty and Maritime—Warrants for the arrest of ships

Special arrangements are in place in relation to warrants for the arrest of ships, including the following:

  • if a marshal is not able to effect an arrest in the usual way, an order may be sought that the Court waive compliance with r 43 of the Admiralty Rules 1988, under r 6A, and direct that service or execution of the warrant be effected by electronic communication to the master of the ship
  • if there is a risk that an arrested vessel harbours COVID-19, the vessel may need to remain under arrest for a protracted period of time for the purposes of quarantine or disinfection.

SMIN-3: Appeals and Full Court Hearings

Special arrangements are in place for the conduct and management of appeals and Full Court hearings, including the following:

  • all matters before the Full Court are to be conducted as electronic appeals, through the use of video or telephone conferencing
  • all appeal books and all other documents in the matter are to be filed electronically and should not be reproduced in hard-copy
  • parties must provide electronically an agreed List of Authorities and Legislation
  • where possible, all submissions and chronologies filed should include hyperlinks to the relevant document in the electronic version of the Appeal Book and List of Authorities.

Authors: Susan Goodman & Melissa de Jongh

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Melissa de Jongh

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