Do I still have to go to court during the pandemic?

April 1, 2020

Many people who are due to appear in Court in the coming weeks have been left wondering whether they still have to attend or how the restrictions on gathering might affect their case.

It’s important to be aware that the national directives that are announced by the Prime Minister don’t automatically amount to law in South Australia.  To become enforceable in this State the Police Commissioner must issue a direction as State Coordinator under the Emergency Management Act.  For example while on 24 March 2020 the Prime Minister announced restrictions on gatherings of more than 10 people, it was on Friday night at 7.30 pm that the Police Commissioner issued the Emergency Management (Gatherings) (COVID-19) Direction 2020 that came into effect at midnight that same night. 

Under these directions a ‘prohibited gathering’ is either a gathering of more than 10 people or where there isn’t compliance with the requirement that the total number of people present must not exceed one person for every four square metres.  There are various exceptions such as going to a supermarket or store, being in an office or on a construction site for their normal operation, going to school or to a health facility etc. and among those exceptions is included ‘gathering at a court or tribunal’.  So nothing in those directions prevents our Courts from continuing to operate provided that those in attendance uses their best endeavours to comply with the social distancing principles (which involve maintaining a space of at least 1.5 metre from others who are present) and that the density requirement of one person for every four square metres is observed. 

On the other hand, the more recent advice from National Cabinet that gatherings of two or more people should be restricted has not been adopted by the Commissioner, so that will not be enforced in South Australia at this stage.  All the same, everyone is encouraged to take on board the advice and to limit the number of people with whom they are gathering.

With that in mind the Courts and Tribunals have been taking steps to ensure that the core services that they provide will continue to operate.  So if you have a case that’s coming up in Court soon this is the current situation for the following types of cases as of 31 March 2020 (and of course this might change):

Criminal Cases in the Magistrates Court

The Courts will continue to hear cases involving people who have been arrested and refused bail by police, as well as those cases that are in the Family Violence list and the serious, or Major Indictable charges that are to be ultimately heard in the District or Supreme Court. 

Anyone who has received a summons to go to Court in the near future is expected to receive a new summons giving them a fresh date at a later time.  If you have received a summons or if you are expecting to receive one and you are unsure about your position speak to a criminal lawyer at Websters Lawyers who will be able to advise you on what you need to do.  That doesn’t mean that everyone has to wait longer to have their case heard.  If a person intends to plead guilty to a charge and want to get it over with as quickly as possible a written application can be made for a date and time to finalise the case. 

Cases that are set for trial are expected to still go ahead but they will be checked to see if there are compelling reasons for them to be put off. 

If the current situation doesn’t improve it is possible that cases will have to be moved to another new date.  By engaging a criminal lawyer to assist you we can maintain contact with the Court and ensure that you are kept up to date about what is happening with the case.

Criminal Cases in the District Court

The District Court will continue to hear;

  1. Trails by Judge alone listed in April and May 2020;
  2. Not Guilty Arraignments – these hearings will proceed on the date the accused is committed to appear. If a person is in custody they will appear via AVL;
  3. Second Direction Hearing Callovers listed in March and April;
  4. Special Directions Hearings;
  5. Guilty Plea Arraignments will proceed on the date the person charged is committed to appear;
  6. Sentencing; and 
  7. Bail applications

Importantly, First Directions Hearing Callovers listed in April will be cancelled. In addition if the current circumstances do not improve there is potential that the District Court will move matters to a later date. Engaging a lawyer who will maintain contact with the Court will ensure that you are kept up to date about what is happening with your case.

Family Law Cases in the Federal Circuit Court and Family Court

Attendance is still required but it is more than likely that this will be by telephone or video conference.  The Court will notify parties of how their cases are to proceed and it is expected that you won’t be required to physically attend the Court unless absolutely necessary.  Clients for whom Websters Lawyers are acting will be kept informed at all times about any changes involving their case.

For more basic hearings such as first return lists (that is, the first Court date), mentions, directions and interim hearings attendance at Court will generally be by telephone.  The Courts are attempting to allocate time slots for the telephone call and a change to the original Court time is likely to be made.  If you are represented your lawyer will receive notification from the Court as to when the hearing is likely to occur and be required to provide a contact number for the telephone hearing.  If you are self-represented the Court will email you directly.  It is important that if you do not receive an email or if you have not notified the Court of your email address you will need to get in touch with the Court Registry to give them you contact details.  Please check the relevant Court’s website for contact details. On the day of hearing the Court will telephone the number you or your lawyer provided to proceed with the case when it is ready, and this might not be at exactly the allocated time provided by the Court. 

The Courts are able to make consent orders if these are provided to the Court by email prior to the hearing. If you are represented your lawyer will do this for you.

At this time the Federal Circuit Court and Family Court are assessing the urgency of each case that has a Trial date in the next two months and will contact the parties if any changes are made.  If any Trials are moved to a later date the Court may order the parties to engage in private mediation. 

So it is only in urgent case that the Court will specifically notify you of the need to attend in person at Court and in those instances the social distancing and density limits still must be observed during the face-to-face Court hearings. Further protocols are also required to ensure every person’s safety and reduce the risk of infection.

Of course, the current directions of each of the Courts and Tribunals are likely to change in the future depending on whether there is a progression of the COVID-19 in South Australia.

The South Australian Employment Tribunal

The South Australian Employment Tribunal is continuing to hear Workers Compensation matters, however has put measures in place to ensure safe social distancing.  Until 9 April 2020, all Hearings (other than Trials) are to be conducted by telephone.  This means that you and your legal representatives are not required to physically attend the South Australian Employment Tribunal. 

The South Australian Employment Tribunal will contact the legal representative or the Worker directly (if the Worker is self-represented), however it is recommended that the parties try to resolve the case by consent prior to the Hearing.  This will only apply if the parties are seeking administrative orders such as an adjournment.  If consent orders can’t be agreed, the telephone Hearing will proceed and these can be handled by your lawyer provided that they are able to obtain instructions from you during the call if that’s required.

If your case has been listed for Trial, the South Australian Employment Tribunal will decide whether it can be decided on the papers only.  If this is not possible, for example, if one party is required to give evidence on the stand, then the Tribunal Member will exercise his or her discretion in determining whether the Trial can safely proceed. 

If you require any assistance in regards to your Workers Compensation claim, please don’t hesitate to contact our office.

 Civil Cases in the Magistrates Court

These claims are still being accepted and hearings are proceeding. Currently, all Directions Hearings are being conducted either by email or phone, with the Court using the contact details provided by parties. Any adjournments will be done by email and Records of Outcome will be provided by the Registry to confirm this. If any substantive orders are required to be made, the parties must send draft consent orders by email, prior to 4:30pm the day before the hearing. If consent orders cannot be agreed to, the parties will be required to attend by phone and must be contactable on their provided number for an hour from the scheduled hearing time. If a party cannot be contacted, they will considered to have not appeared. This direction also applies to ‘For Mention Only’ dates.

Matters listed for argument may still occur in person, with the Court requiring that parties practice social distancing guidelines of keeping at least 1.5metres between themselves and others. They may also opt to appear by telephone, on the same basis as Directions Hearings.

Conciliations must be held either by phone, or at an alternate venue outside of the Court Precinct. The parties must jointly email the Court within 24 hours following the conference of the outcome and whether further orders or a further hearing is required.

Trials are to proceed as normal, with parties expected to implement 1.5 metre social distancing guidelines. If documents are to be produced, that are fewer than 20 pages in total, they are to be emailed to the Registry (amcregistry@courts.sa.gov.au) the day prior to the hearing. If the total is greater than 20 pages, they are to be lodged in person at the registry, at least one day prior to the hearing, in triplicate.

Other than the above, all other matters within the Civil jurisdiction will proceed as normal. All persons present are required to adhere to social distancing guidelines and no documents are to be handed up in Court.

If You Have to Go to Court

Other than the above, all other matters within the Civil jurisdiction will proceed as normal. All persons present are required to adhere to social distancing guidelines and no documents are to be handed up in Court.

In general, if you are suffering from any fever or other flu-like symptoms, have travelled outside of Australia in the past 14 days and/or had direct contact with someone who has a confirmed or suspected diagnosis of COVID-19 within the last 14 days, you must inform the relevant Registry as soon as possible, so that they may determine how to handle the matter.

If you are required to attend Court and suffer from a condition that causes you particular vulnerability, or if you otherwise have general concern of infection, you should contact the Registry as soon as possible, and in any even no less than 24 hours from the time of your hearing, to see if alternate arrangements can be made.

If you are unsure how your matter is proceeding, whether you are required to attend court, or have concerns regarding starting a new case, it is important that you speak to one of our lawyers as soon as possible, who will be able to provide you with the advice you need.  You can speak to a specialist lawyer by calling 8231 1363 or request a call back by submitting an online Contact Form.

Websters Lawyers Remain Operating to Assist You at this Time.