Pandemic or Prejudice: FPA hearing vacated amid COVID-19 (ACT)

I sincerely hope this reaches my readers, followers, and passers-by in a situation where they are safe and well during this tumultuous time in the world!

For those in litigation, your practice is changing daily as we wait (and wait) for certainty (if it is ever arrives!); and those hearings aren’t going anywhere.. or are they?

Today, I read the brief judgement of Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64 regarding a Family Provision Matter where the hearing was set down to begin on 30 March 2020. The Applicant applied for the hearing to be vacated amid COVID-19 as they are considered high-risk as a result of their existing health conditions.

The repsondent executor was keen, however, to keep the matter moving so as to give effect to the Will and sell the estate property and did not want the hearing vacated and argued that matters could be addressed remotely.

Ultimately, the Court resolved to vacate the hearing and adjourn the matter until 31 May 2020.

In doing so, the Court said:

I am sympathetic to the position of both sides. It is correct that a good deal of the case can be conducted from a remote location. It is also appropriate that effect be given to the deceased’s will in a timely fashion.

On the other hand, litigants have a right to appear in court to not only give evidence but also to observe the running of their case. This will involve providing instructions, sometimes very promptly. There is no doubt that many procedures within a litigated case can be effectively conducted through remote forms of communication. However, I think there can be an important distinction with a final hearing.

Further, while a hearing which takes place next week will no doubt, if not successful on the applicant’s part, result in the residence being sold, one wonders what advantage that will be to the respondent in the current climate in which property values are likely to be substantially reduced. If the property were to be sold before the current crisis runs its course, I doubt very much of its true value will be obtained.

I also think I can take into account that if the property is sold the applicant will necessarily have to leave his residence. Therefore, he will be required to participate in a good deal of movement that will be associated with finding a new residence. The added risk of exposure to the virus may well have a particularly tragic result.

We are living in an unprecedented and unpredictable atmosphere. The potential consequences of me refusing the adjournment, in my view, outweigh any prejudice arising from the delayed sale of the property. Fairly, senior counsel for the applicant said she could not identify any specific prejudice (other than general delay) that would arise from the adjournment. I note my decision is made without reference to the personal attributes of the plaintiff’s legal team.

Paragraphs 13 to 17

Given the very nature of family provision claims require a “need” and, sometimes, that manifests itself in health and medical needs, this is not unsurprising.

You can read the brief reasons here.

Keep safe and well everyone.

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