The Court v COVID-19
In response to the COVID-19 pandemic, like many other Courts, the NSW Land and Environment Court (LEC) has released a new policy. The ‘COVID-19 Pandemic Arrangements Policy’ (COVID-19 Policy), which commenced on 23 March 2020, provides alternative arrangements that seek to address some of the challenges presented by the new social distancing restrictions, whilst still aiming to ensure, where possible, matters before the Court are able to proceed in a procedurally fair and timely, yet safe manner.
Having regard to the COVID-19 Policy (which we note was introduced prior to the Government’s restrictions introduced on 29 March 2020 which specify that most indoor and outdoor non-essential gatherings are to be limited to 2 people) and the latest Government mandated social distancing restrictions, this article provides some insight into key challenges parties are facing.
Conciliation conferences and hearing dates postponed?
For the majority of Class 1 Development appeals and Class 3 compulsory acquisition matters that go before the LEC, on-site inspections are mandatory and take place at the beginning of conciliation conferences and hearings. During the on-site inspection, any oral objections from residents relating to the matter are heard at this time as well.
In light of the current social distancing requirements, the Court has been arranging call overs so that parties to those proceedings listed before the Court before September 2020, can consider whether allocated conciliation conferences or hearings can be conducted via telephone or other suitable arrangements are able to be made. If it is determined that the matter cannot proceed due to COVID-19 restrictions, the listing date will be vacated and the matter will be listed for further directions. Unsurprisingly, this is a cause for concern for many parties, particularly for those whose matters have been before the Court since as early 2019 and are still yet to be heard.
The possibility that such matters may be further adjourned begs the question for many, is an on-site inspection really necessary for all matters? Unsurprisingly, many parties are struggling to reach agreement on this question.
While some parties are confident alternative arrangements can be made (and should be made in an effort to preserve current hearing dates), others are less convinced. Although photographs and/or video footage of a site may suffice in certain cases, depending on the contentions in dispute between the parties, the utility of an on-site inspection cannot often be so easily done away with.
Noting that one of the Court’s key priorities is ensuring procedural fairness, if there is any chance of this being undermined, a matter is likely to be relisted for a later date when the COVID-19 restrictions are expected to be lifted.
Cross-examination… via telephone?
The COVID-19 Policy requires parties to consider whether cross-examination of any witness called by the other party is necessary, or whether the object of cross-examination could be achieved by other means, such as by providing further written evidence of another witness called by the party.
Parties have also been asked to consider whether any cross-examination that is necessary can be conducted by telephone.
While fruitful discussions may be had over the telephone in the context of conciliation conferences and mediations, the effectiveness and utility of cross-examination taking place over the phone in a contested hearing (particularly in the absence of video conferencing software) may be questioned. This will be entirely dependent on the number and nature of contentions in dispute and must be considered on a case by case basis. In most instances, we expect the impracticality of undertaking cross-examination over the phone will be another cause for more matters being relisted before the Court later in the year.
Less ‘reading the room’ and more ‘reading your phone/emails’
Noting that legal practitioners are no longer in a position where they can ‘read the room’ or look to their client for an instructive nod or shake of the head, having an alternative line of communication with a client during a telephone conciliation conference or hearing is beneficial for everyone involved.
If instructions can be sought in relation to all likely scenarios that may eventuate during the hearing of a matter, this will assist in ensuring the matter progresses as smoothly as possible.
Prior to COVID-19, parties would be able to discreetly whisper to one another or have break away discussions in conference rooms to discuss confidential matters and clarify instructions. For many matters before the Court this is no longer possible. Instead, instructions must be clarified either via email, text or using another phone. With this in mind, in the event that practitioners need to consult with their client or experts during the course of a conciliation conference or hearing, knowing where the “mute” button is located is likely to save many from confusion and embarrassment.
As always, preparedness and forward thinking is key.
Should you require advice or assistance in any planning and environment law related matters, the Planning and Environment team at McCullough Robertson is ready and available to assist you during this time.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.