In early March I was in Perth, Western Australia for what was meant to be the start of a three-week trip around the country. As the hours passed, it became increasingly apparent that the effects of COVID-19 were going to result in significant changes to society, both in Australia and the UK. And, so, I abandoned the holiday after a few days and headed home.
Having seen first-hand the initial steps taken to contain the virus in Perth, I was really interested to find out more about how lawyers there have dealt with Court closures and to compare their experiences to my own in Scotland. I spoke with Mike Hales, a Partner in Australian headquartered, international law firm Minter Ellison's Perth office, about his experience of virtual Court hearings. Mike is an experienced international litigator and arbitrator who has worked in both the UK and Australia. Here is what Mike had to say in reply to my questions:
What is your experience of virtual court rooms since the outbreak of COVID-19?
"I have not had a trial during the outbreak. I have had a few contested hearings by telephone and two mediations. Mediations are run by the courts here, using court officials as the mediators. The hearings have run smoothly but it is unsatisfactory not being in the same room as the rest of the team working on the hearing. Communication within the team can then only be by email or text and is more difficult. It is also unsatisfactory not being able to read the judge or the opponent, although I don't think this has really had an impact on the hearings that I have attended.
Today I had the choice of appearing by telephone or in person in our District Court. I thought I only had a small chance of getting the order that I wanted, and that this would reduce to just about zero if I was only present by phone. So, I went to the court (first time in a suit for quite a while!) and felt that we got a much better outcome and the decision to attend was a good one.
The two mediations have also run smoothly but they are not as effective because you can't read the body language."
Do you think this is going to result in a permanent change for the way your court system works in the future?
"I don't think so except where logistical issues justify it. Normally this arises when a party is interstate or in the far reaches of WA and we are already well used to using telephone or video to deal with this. I have heard that some judges prefer people attending in person. I also think that running a crowded list of directions hearings with a series of conference calls might be convenient for the lawyers at home in their slippers, but not for the court."
Do you have any top tips for those conducting advocacy in a virtual court?
"It is never great to interrupt your opponent, but it is even worse to do it in a hearing being conducted by telephone. I think the court welcomes lawyers who respect the process and quietly wait for their turn. There is also less room for emotion over the telephone so my tip would be to remain calm, patient and helpful throughout."