In March 2020, the Federal Court of Australia issued a Special Measures in Response to COVID-19 Information Note which provides that all hearings before the Court will proceed using remote access technology, except in truly exceptional circumstances.
We have subsequently published two articles (available here and here) reporting on six recent decisions of the Federal Court concerning applications to adjourn virtual hearings. Our articles discuss the factors that the Court considers when deciding whether to adjourn a virtual hearing.1 In all six cases we have reported on, the Court indicated that it would endeavour to proceed with virtual hearings wherever possible, so long as to do so would not prejudice one or more parties. As these decisions show, technical challenges and difficulties associated with the giving of oral evidence via video-link are insufficient to adjourn a hearing; the Court expects parties to be flexible, and where possible, it will make accommodations to assist.
An adjournment of a virtual trial was allowed in just one of the six decisions we have previously reported on, in the case Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment)  FCA 539.
In this article, we comment on a second (this time unsuccessful) application made by Hytera Communications Corporation Ltd (Hytera) to continue to adjourn the virtual trial in those proceedings, in Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Second Adjournment)  FCA 987.
Recap – the first adjournment application: Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment)  FCA 539
In April 2020, Perram J allowed an application by Hytera to adjourn the hearing of its patent and copyright dispute with Motorola Solutions, Inc. (Motorola). The Court noted:
- seven of Hytera's witnesses could not attend the hearing due to international travel restrictions which prevented the witnesses from travelling to Australia from mainland China;
- Hytera's position that the witnesses could not be cross-examined by video-conferencing (without China's prior consent) whilst they resided in China as this was prohibited under the Civil Procedure Law of the People's Republic of China (1991); and
- there was insufficient time before the hearing to seek and obtain consent from China for those witnesses to give evidence by video-link in the proceeding, under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.
Motorola indicated that it did not seek to cross-examine the witnesses, but rather intended to rely on other evidence to dispute their testimony. Both parties accepted that to allow this would breach the rule in Browne v Dunn (1893) 6 R 67. This well-established rule of evidence requires a party seeking to rely on evidence that conflicts with that of an opposing witness to provide an opportunity to that witness to respond to the conflicting material. Justice Perram held that one or both parties would suffer prejudice if the trial proceeded without these witnesses and it was therefore appropriate to adjourn the hearing.
The second adjournment application: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Second Adjournment)  FCA 987
After the first adjournment decision, the possibility of Hytera's Chinese witnesses travelling to Hong Kong (or alternatively, and ultimately preferentially, to Macau) for cross examination by video-link appeared feasible, and on that basis, Perram J scheduled the hearing to resume on 27 July 2020.
However, 3.5 weeks before the rescheduled trial date, Hytera sought a further adjournment of the hearing. Hytera cited a number of difficulties that could arise, and hardships that witnesses would suffer should they be required to travel to Macau to give evidence, including that:
- there was no guarantee that business visas would be granted for entry into Macau;
- witnesses would be subjected to a minimum 14-day quarantine period upon their return to China, and those travelling through more than one province (by car) would have compounding quarantine periods of up to 35 days;
- one of the witnesses would need to take a five-hour flight to travel to Macau; and
- two of the six witnesses had indicated that they were unwilling to travel to Macau.
In refusing to grant the second adjournment, Perram J considered that it was not appropriate to adjourn the hearing until it was known which witnesses would be unavailable to travel to Macau, stating at  that:
[I]t would be safer to assess Hytera's submissions about this issue at trial in an environment of full information about actual problems rather than in the present environment of imperfect information about apprehended problems.
His Honour considered that four options would be available to Hytera with respect to each witness who does not travel to Macau:
- Hytera may choose to proceed without relying on the evidence of that witness;
- Should Hytera seek to rely on the witness' affidavit evidence, it may apply for dispensation from the requirement to ensure that the witness' evidence is available to be tested under cross-examination (and Hytera would be required to satisfy the Court that, at the least, it had taken all reasonable steps to secure the witness's travel to Macau);
- If option 2 fails, Hytera may seek to tender the affidavit as a hearsay document.2 This would require the witness to be considered 'available' within the meaning of the Evidence Act 1995 (Cth)3 and would similarly turn on whether Hytera had taken all reasonable steps to compel the witness to travel to Macau; or
- Should option 3 fail, Hytera may similarly seek to tender the evidence as a hearsay document4 on the basis that the witness is 'available' but that it would cause undue expense or undue delay or would not be reasonably practicable for the witness to travel to Macau to give evidence by video-link.
If any of Hytera's Chinese witnesses do not travel to Macau to give evidence and its initial prejudice argument fails, a further issue arises. The Federal Court Rules 2011 (Cth) provide that if a person does not attend to give evidence, their affidavit evidence cannot be adduced in lieu of their appearance.5 Hytera may seek dispensation from that requirement, however, Justice Perram considered that if dispensation were allowed, it would be appropriate to deny Hytera the opportunity to draw any significance from Motorola's inability to cross-examine those witnesses.6
There is a certain symmetry in requiring a party who has successfully applied to be relieved of the burden of having its witness cross-examined being, at the same time, required to surrender as the price for that indulgence, its procedural entitlement to comment on the failure of the opposing party to cross-examine the witness.7
His Honour subsequently made orders requiring Hytera to give notice, in the days leading up to trial, as to which witnesses would be available to be cross-examined from Macau. The trial commenced on the scheduled date of 27 July 2020, and (at the time of publication) is still ongoing.
Considerations involved in adjournment of virtual hearings
It is clear from this decision of Perram J that it is up to the parties to minimise any barriers to proceeding with virtual hearings. The Court will not delay the administration of justice where options may exist to allow a matter to proceed as scheduled. Perram J noted at  that:
There is a real risk in considering the availability of witnesses in light of the present pandemic in a prospective way (as one does on an adjournment application) that parties will seek to take advantage of the pandemic to secure adjournments which would not otherwise be available. In my view, it is much safer to deal with real world problems rather than apprehended concerns.
Whilst the Federal Court will endeavour to work around any issues that may otherwise require a hearing to be adjourned, the decision in Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Second Adjournment)  FCA 987 shows that the Court will not adjourn a hearing based on speculation of difficulties involved in matters such as travel, as opposed to actual, crystallised, difficulties.
Furthermore, the Court is unlikely to adjourn a hearing unless prejudice to one or more parties is likely.
1. The cases discussed are: (1) Australian Securities and Investments Commission v GetSwift Ltd  FCA 504; (2) Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment)  FCA 539; (3) Capic v Ford Motor Company of Australia Ltd  FCA 486; (4) Saunders on Behalf of the Bigambul People v State of Queensland  FCA 563; (5) Wharton on Behalf of the Kooma People v State of Queensland  FCA 574; (6) Desira v Airservices Australia  FCA 818.
2. under section 63 of the Evidence Act 1995 (Cth).
3. Part 2, clause 4 of the Dictionary.
4. under section 64 of the Evidence Act 1995 (Cth).
5. Federal Court Rules 2011 (Cth) r 29.09(3).
6. in accordance with Federal Court Rules 2011 (Cth) r 1.33.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.