Virtual courtrooms and the COVID-19 pandemic

Due to the outbreak of the coronavirus in March 2020, courts and tribunals Australia-wide were forced to convert to technology-aided, virtual court appearances for much of 2020 – and many of those courts and tribunals are, at the time of writing in June 2021, continuing to use videoconferencing and other remote technology to conduct hearings. In this article, we’ll discuss some of the virtual courtroom changes made in NSW courts and tribunals, focusing particularly on the Supreme Court of NSW.

Initial changes in the Supreme Court of NSW introduced in March 2020 included the Registrar’s lists being conducted, as much as possible, by online court or by telephone link, or by videolink for contentious matters. On 30 April 2020, the Supreme Court published The Virtual Courtroom – A Practitioner’s Fact Sheet, which says that ‘virtual courtrooms are still formal courtrooms’, meaning that ‘all usual court etiquette protocols, procedures and requirements apply.’ Some of the practical tips for appearing in a virtual courtroom listed in the Fact Sheet include ensuring that you have sufficient internet connection on your device, refraining from speaking over one another as much as possible and keeping your microphone on mute when not speaking to minimise background interference. In-person court appearances were limited to exceptional cases from 24 March 2020 in line with NSW Health advice.

In May 2020, the Supreme Court began preparing for more regular personal appearances again with increased health measures in the courtroom such as temperature checks for court users, hand sanitiser stations and increased cleaning and disinfecting. All individuals in the courtroom are expected to wear a mask, unless the person concerned is an active participant in the proceedings, such as the judge or a witness presenting evidence. Other COVID-19 requirements relate to the electronic delivery of documents including e-subpoenas and the online registry. Lower courts, such as Local and District Courts, have adopted a similar policy encouraging defendants and their legal representatives to enter pleas through the Online Registry.

On 12 February 2021 however, the court announced that masks were no longer required when attending Court or the registry, but recently, in May 2021, however this was once again overturned as the court published on their website that the May 2020 mask requirements again applied, following public health advice.

Notwithstanding these changes, many lists in the Supreme Court of NSW continue to operate entirely remotely. The Commercial List and the Technology and Construction List, for example, continue to operate with hearings as the exception rather than the rule, with parties encouraged to deal with procedural matters by consent ahead of time and for matters in dispute to be dealt with by written 1-page and 2-page position papers.

To help advocates navigate and understand the various and changing virtual court requirements, the NSW Bar Association published a COVID-19: Information for Attending Court guide that details the online procedures and announcements for each court and tribunal in NSW as well as federal bodies. The NSW Department of Communities & Justice similarly posted a general advice page on ‘courts, tribunals and jury service’, outlining the entry requirements for court users in NSW, being:

• that you do not have any flu-like symptoms;
• that you adhere to physical distancing whilst in the building at all times; and
• that you have not had contact with a diagnosed, suspected or confirmed case of COVID-19 in the last 14 days.

If you’re interested in learning more about how advocates are adapting their skills in digital forums, listen to Episode 13 of Hearsay with barrister Talitha Fishburn.