LAST WORD

plague;(n)any contagious disease that spreads rapidly and kills people;an unusually large number of insects or animals infesting a place and causing damage;a curse.

Our crazy dreadful 21^st Century times are not unknown in human history. The Bible’s Book of Exodus is replete with plagues sent against the Egyptians, poisoning of the waters of the River Nile with blood; a plague of frogs; a plague of gnats; a plague of flies and the plague of boils to name a few as punishment sent from God. In the early 1600s plague closed the playhouses in England including Shakepeare’s Globe Theatre. Shakespeare was no doubt drawing on his experience with the plague to write in Romeo and Juliet the dying Mercutio’s damning curse,” A Plague on both your Houses”. The 17^th Century diarist Samuel Pepys assiduously recorded the terror of the Great Plague of London in which nearly a quarter of the population of the city succumbed and died. Daniel Defoe’s Journal of the Plague Year, part history part novel similarly recorded such events. Last century the French novelist Albert Camus’s La Peste (The Plague), a novel set in the French Algerian town of Oran deals with how cholera affected the town’s inhabitants.  The Colombian author Gabriel Garcia Marquez’s Love in a Time of Cholera ambiguously deals with the leitmotif of disease to examine passion.

Part of plague is quarantine and with separation from the normal interactions of life, the artistic temperament is given time for thought and creativity.

Law firms have had their people working online from home and made good use of the audio-visual apps. The frontline of litigation, the hearing of cases has been far more problematic. Many trials, particularly criminal ones involving a jury have been adjourned for months, similarly many Local Court criminal matters. These facts have had a disproportionately deleterious effect on the criminal bar. Civil trials have sought to be continued where possible using the various and secure audio-visual platforms. These attempts to carry on have met with mixed technical results. Cases involving short disputes on the facts but questions of law needing to be argued have generally worked well in the virtual court room. Cases involving serious contests of fact requiring the cross-examination of witnesses at places removed from the lawyers and the real court room have been less technically successful. My personal experience and anecdotal comments from others has been that when such trials have run they have had difficult and sporadic connections, at times someone dropping out, audio for some for some periods lost and general delays. The hearing of cases in the virtual courtroom have started with optimism only to collapse and to be adjourned, with hours or days lost, spent in disarray.

Courts have issued directions for the conduct of online hearings but such aspirational protocols are only as good as the platforms, each person’s wifi connection and the ability of everyone in the virtual courtroom using their devices and doing so efficiently. In general older practitioners are not as internet savvy as their younger counterparts. I first worked in a law firm in Sydney’s King Street called Duggan and Doyle. I suspect in hindsight that little had changed in legal practice for fifty years previous to my commencement at the firm in 1977. Barristers’ briefs bound in pink ribbon, the typists using carbon paper for copies of correspondence, law reports noted up manually and the first barrister I had instructed (Dick Dillon)  had been admitted to the Bar in 1939 just before he went to war as a naval officer. In a computer /internet sense I have been playing catch up for years against my younger colleagues. Unlike them I learned to have my memorable authorities/precedents of cases typed onto pink index cards kept in boxes in my desk drawer. Whilst at the Bar former Federal Court judge Peter Gray kept his notable authorities handwritten in an exercise book which he took with him to court.

The titanic struggle between the new virtual court room versus the old ways was recently played out in the Federal Court. In a case, called Capic v Ford Motor Company of Australia Limited[2020] FCA 486  dealing with a class action concerning allegedly faulty gear boxes, set down for six weeks with up fifty witnesses and many documents, the Respondent sought an adjournment of the trial to be conducted virtually, based on seven grounds. Among the grounds for the adjournment were technological limitations, physical separation of legal teams, cross-examination of lay witnesses and document management. Justice Nye Perram(The Jerry Seinfeld of the Federal Court)  rejected the application for an adjournment. At paragraph [13] he stated ;

“13.Secondly, senior counsel for the Respondent raised with me the real difficulty of the practitioners not all being together in one place for the trial. It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel on the storm-tossed seas. The ability to do this where everyone is in their own home is certainly degraded. However, in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp. In the virtual hearings I have conducted I have communicated with my associates on an instant messaging platform which has worked well. There is the difficulty of document sharing over such a platform which I accept. Receiving whilst in full flight a WhatsApp message with a document attached is not the same experience as having one’s gown tugged and a piece of paper thrust into one’s hands. Again, whilst I think this is a poor situation in which to have to run a trial I do not think that it means the trial will be unfair or unjust.”

At paragraph [16] these gems came from his Honour,

“16. Fourthly, there are a number of issues said to be relevant to lay witnesses. In the case of witnesses who are remotely located in their homes (which I am assuming will be all of them) there are practical problems. For example, it will not be possible to see whether there is somebody in the (upstairs bed) room coaching the witness or suggesting answers out of earshot. My impression of that problem is that in this case it will not be acute. To begin with this is a class action about allegedly defective gear boxes, not a fraud trial. In addition, although some of the class members may have a motive to exaggerate how defective their vehicles are I doubt that in that process anyone will be able to help very much. Then there is the problem that the putative coacher will need to brave the health regulations and situate themselves in the same room off camera. Although there may be cases where a person desires to assist another person giving evidence so much that they are willing to risk life and limb to do so, I doubt that this is one of those cases.”

It will be interesting to see how this case runs over its allotted six weeks.

After the COVID 19 crisis ends one thing that will change will be the continued use of audio/visual conferencing on platforms like Zoom. Why troop across town, the state or the country for a meeting when you can link many participants online? I predict the nature of both solicitors’ offices and barristers’ chambers will change with more ‘hot desking’ and less traveling. Not good news for the CBD commercial leasing market and the travel industry. Also more directions hearings online and fewer held in court.

One of the many tragedies of the lockdown is the limitation in New South Wales of only ten persons allowed to attend a funeral. Two of my friends at the Bar have died during this time. Judge Robert Sorby of the District Court and John Henry Bryson of Second Floor Selborne Chambers. Bob Sorby had a fascinating varied career, first as a journalist, then working on Bob Hawke’s staff when he was Prime Minister, a solicitor at labour law firm, Geoffrey Edwards &Co, a barrister and ultimately a judge of the District Court. He told me that the highlight of his career was when he accompanied  Hawke when he visited President Ronald Reagan in the White House.

John Henry Bryson was journeyman barrister and ex-boxer. He had a natural affinity with his clients many of whom were battlers. Unfortunately,the Bar Association of New South Wales announced the death of the other John Bryson, John Purdy Bryson, QC a former judge of the Supreme Court. The two John Bryson’s have both been members of the Union, University and Schools Club. Two more different characters one could never meet. They were not close.

I look forward to the memorial services and wakes of both Sorby and Bryson when the lockdown ends.

Jeffrey Phillips,SC

State Chambers,

Sydney