Droppert, Graham --- "President's page: Trial by ordeal or time for an eTrial?" [2020] PrecedentAULA 52; (2020) 160 Precedent 3

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TRIAL BY ORDEAL OR TIME FOR AN ETRIAL?

By Graham Droppert

Kiya. I write this page from the lands of the Wadjuk people of the Noongar nation. The Noongar nation comprises a number of language groups in South-West Australia. Noongar people have always cared for the land and welcomed visitors; in pre-European times, there were established cultural practices which acknowledged those who had custody of various parts of country and how to welcome others from nearby groups. Songlines and message sticks built a fabric of history, respect and sharing.

I pay my respects to the Elders past, present and emerging of all of the First Nations peoples of Australia.

The last few months have been a time of development in Australian legal practice. Some common themes exist across the states and territories but also some differences as we all learn to make the best of the ‘new normal’.

In most jurisdictions, there have been periods of heavily modified interactions with courts and tribunals. Trials were deferred, appearances were by telephone or video, and documents were filed almost exclusively via some version of ePortal. Some systems were more successful than others.

Generally, those major modifications around trials and appearances have been wound back, although it will be interesting to see if a review of the heavily restricted COVID-19 period leads to permanent changes in some processes.

For example, eTrials may become the rule rather than the exception. Even relatively routine personal injury directions hearings may go ‘tele’. If appropriate draft orders are circulated they can often be a five-minute appearance rather than requiring an hour out of the office. On the other hand, if substantive hearings have less oral advocacy, do we lose some of the integrity of the justice system? Can we apply the lessons of 2020 to make this system work better?

I encourage each of the ALA branches to engage with local law societies, law institutes and the courts when post-COVID-19 restriction reviews take place. We can add some real-world experience.

There has also been rapid change within our own offices. Initially, and still to some extent, the WFH phenomenon replaced the comfortable pattern of commuting, meeting clients and connecting in person with colleagues. The IT challenges of safely accessing files and the records and systems of our practices threw many into a spin for weeks. The logistics of taking instructions when your client had a briefcase full of documents they wanted to show you was not easy on Zoom or Teams.

Health and safety concerns when community transmission of COVID-19 was present (and it still is in some parts of Australia) were a primary focus as we sought to keep working.

Tensions between staff and colleagues who did not always apply the health standards fully probably arose. Clients sometimes did not want to come into our offices or insisted on coming in when it was not necessary.

I have seen a number of comprehensive protocols developed by firms and chambers to make their workplaces safe. I hope that those in decision-making positions consulted widely and listened to the concerns of those in our workplaces. Particular attention to the mental wellbeing of our colleagues is now more important than ever.

At the Sydney office of the ALA we had an almost 100 per cent WFH regime for an extended period. We now operate on a blended system. That the conference, seminar and webinar program has continued fully – as travel restrictions allow – is of great credit to the branch presidents and committees, but also to the ALA staff. That you are reading the fourth Precedent of the COVID-19 era also shows that the wheels have kept turning.

Finally, I welcome all new members. I am pleased that we continue to build our membership with colleagues who are passionate about serving those who need legal services and helping them to achieve justice. Thanks to all who have renewed their membership in a time when cashflow might be tight and demands on our commitments are high.

Graham Droppert is a barrister practising from Albert Wolff Chambers, Perth, specialising in personal injury and medical negligence. PHONE [phone] EMAIL [e-mail].