By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.
This is part 3 of our series on what will constitute valid grounds for an adjournment of a pending hearing, due to COVID-19 and the global coronavirus pandemic.
In Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64 the Plaintiff sought an adjournment of the trial hearing, arguing that he was an ‘at risk’ person because he suffered from leukaemia. Doctors had recommended that he remain isolated.
Submissions were made about the Plaintiff’s legal team being at risk, as well as the Defendant’s senior counsel withdrawing because she was at risk and could not fly down for the hearing. However, those matters were expressly not considered.
The court did consider that a lot of the hearing could be conducted from a remote location. However, on balance the Court granted the adjournment application, based on the Plaintiff’s right to observe the hearing and the need to provide prompt instructions. The Court drew a distinction between final hearings and other court procedures:
“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.”
The Court also noted that there was little benefit to the Defendant in her proceeding, as even if she was successful it would mean she would be entitled to sell the property the subject of the proceedings. The Judge remarked that “property values are likely to be substantially reduced” and if sold “before the current crisis runs its course, I doubt very much of its true value will be obtained.” The Judge also had regard to the fact that the loss of the Plaintiff’s home would mean “a good deal of movement” and “added risk of exposure to the virus.”
From part 1 and part 2 of this series, we learned that appealing to a global pandemic will not be enough on its own, but the loss of counsel may be sufficient to convince a court to grant an adjournment.
From this case we can draw the following conclusions:
- A court may be more likely to grant an adjournment of a final hearing (distinct from other hearings) if it hinders a party’s ability to observe and giving timely instructions; and
- It is important to point to the prejudice (or any lack of) caused by an adjournment, for example where a sale of a property is impacted by a temporary decline in the property market as well as posing risks to someone losing their residence.
Read the full judgment here: Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64
The NSW Bar Association has compiled this useful document on the courts’ procedures as a result of COVID-19 protective measures.
If you would like more information or advice in relation to insolvency, restructuring or debt recovery law, contact Andrew Hack at andrewh@matthewsfolbigg.com.au or a Principal of the Matthews Folbigg Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or jeffreyb@matthewsfolbigg.com.au
Stephen Mullette on (02) 9806 7459 or stephenm@matthewsfolbigg.com.au.
