The impact of COVID-19 on Dust Diseases litigation

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By Sarah Woon, Associate and Elif Bardan, Lawyer

Fear not, litigation can be conducted remotely. Mills Oakley’s Melbourne Dust Disease team will attest to its success.

Precautionary measures to prevent the spread of COVID-19 have undoubtedly impacted all areas of legal practice. Court’s and law firms alike have been required to adapt to a changing climate, with remote directions hearings, mentions, eTrials and virtual mediations.

One such example being our Melbourne Dust Diseases team conducting the first completely electronic and remote eTrial via WebEx in the Supreme Court of Victoria. The trial was conducted by Stuart Eustice, Partner and Mark Beech, Senior Associate with each litigant having both Senior and Junior Counsel. The matter proceeded over the course of two days on 25 and 26 March 2020.

Practitioners and witnesses appeared via electronic devices including laptops, iPads and iPhones.  Court books were electronic, allowing the parties, witnesses and the Court to read documents simultaneously.

The proceeding involved two experienced litigants making it the perfect vehicle to test both the new technology and format. Overall, what was observed was an increase in efficiency.

There were some difficulties; most notably the introduction of exhibits or documents not already in the courtbook. This required emailing the relevant document to the parties and the court before showing the document to the witness.  It was accepted that a party was unlikely to have all documents in its courtbook that are or may become relevant during the course of evidence. There was also an unexpected difficulty with transcript – poor audio or video quality made it that much harder for the transcribers.

The pilot eTrial was ultimately an acceptable vehicle to complement the Court’s existing capability, showcasing the likely future of litigation and a credit to those involved who showed a willingness to readily adapt to the present challenges.

The Supreme Court has been embracing these changes, implementing electronic solutions for medical examinations, expert evidence and de bene esse hearings – all now truly non-contact solutions.

Even prior to the State Governments emergency legislation, the Court found workable solutions to having Affidavits or Answers to Interrogatories sworn in person; permitting them to be filed and served without execution on the undertaking that it be done as soon as practicable when lawfully permitted.

There is no doubt that COVID-19 has transformed the way in which we conduct our practices. The use of future technologies in this space to continue to deliver justice to terminally ill claimants is both promising and indeed exciting.

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