JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd
[2020] WASCA 38
•30 MARCH 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JKC AUSTRALIA LNG PTY LTD -v- CH2M HILL COMPANIES LTD [2020] WASCA 38
CORAM: BUSS P
VAUGHAN JA
HEARD: 25 MARCH 2020
DELIVERED : 25 MARCH 2020
PUBLISHED : 30 MARCH 2020
FILE NO/S: CACV 70 of 2019
BETWEEN: JKC AUSTRALIA LNG PTY LTD
Appellant
AND
CH2M HILL COMPANIES LTD
First Respondent
UGL PTY LIMITED (FORMERLY KNOWN AS UGL LIMITED)
Second Respondent
GENERAL ELECTRIC COMPANY
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: QUINLAN CJ
File Number : CIV 2584 of 2018
Catchwords:
Practice and procedure - Application to adjourn appeal hearing - COVID‑19 pandemic resulting in appeal hearing by telephone or video‑link - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4A, r 4B
Supreme Court (Court of Appeal) Rules 2005 (WA), r 5(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S K Dharamananda SC, J Garas SC & R Collins |
| First Respondent | : | J Gleeson QC & P Thiagarajan |
| Second Respondent | : | J Gleeson QC & P Thiagarajan |
| Third Respondent | : | J Gleeson QC & P Thiagarajan |
Solicitors:
| Appellant | : | Clyde & Co (Perth Office) |
| First Respondent | : | Corrs Chambers Westgarth |
| Second Respondent | : | Corrs Chambers Westgarth |
| Third Respondent | : | Corrs Chambers Westgarth |
Case(s) referred to in decision(s):
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
REASONS OF THE COURT:
The respondents in this appeal applied by interim application dated 19 March 2020 for an order that the appeal hearing listed for 27 March 2020 be adjourned to a date to be fixed. The application was opposed. The adjournment application was heard on 25 March 2020. After hearing from senior counsel for the respondents we made orders dismissing the application for reasons to be delivered in due course. These are the reasons for the orders made on 25 March 2020.
The application was supported by affidavits of Callum Strike sworn 19 and 24 March 2020. Mr Strike is a solicitor employed by the firm acting for the respondents. In opposition to the application the appellant relied on an affidavit of Thomas Webb affirmed 23 March 2020. Mr Webb is a partner in the firm acting for the appellant.
In considering whether there should be an adjournment of an appeal hearing the court evaluates the interests of justice. In Snook v Registrar of Fines Enforcement Registry this court recently stated:
The court has an inherent power to grant or refuse an adjournment of proceedings. The power involves the exercise of a judicial discretion. The exercise of the discretion will be informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) and proper principles of case management as enunciated in AON Risk Services Australia Ltd v Australian National University. Insofar as the time of the court is a publicly funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion. The public interest in the efficient use of court resources is a relevant consideration in the exercise of the discretion to adjourn.[1]
[1] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [30].
Those observations, although made in the context of an appeal against refusal of an application to adjourn a hearing in the General Division of the Supreme Court, apply equally to an application to adjourn the hearing of an appeal in the Court of Appeal. By r 5(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the Court of Appeal Rules must be read with the Rules of the Supreme Court 1971 (WA).
The respondents' adjournment application was grounded on issues said to arise from the COVID-19 pandemic. As a result of the pandemic the Chief Justice of Western Australia issued a public notice on 18 March 2020 (the day before the respondents' application was filed). Among other things the notice informed the public of directions, effective immediately, as to the conduct of hearings in the Court of Appeal. Unless otherwise ordered, all appearances in person at appeal hearings were suspended. Appeal hearings, both criminal and civil, are to be conducted by telephone unless all counsel have access to video conferencing facilities (which may then be used). Those arrangements have been implemented from 19 March 2020.
The Court of Appeal has now heard a number of appeals and other applications by telephone. The experience of the court has been that the conduct of appeal hearings by telephone has been satisfactory. That is particularly so as matters before this court involve significant pre‑hearing preparation and result in a common set of appeal books which are before the court and counsel (including identification of authorities which may be referred to in the course of oral submissions). The papers already before the court include, in the white appeal book, an appellant's case and respondent's answer which develop in detail the parties' respective contentions on appeal. The oral hearing proceeds from the starting point that the court has already read and considered the reasons of the primary court and the parties' written materials.
It is necessary that we state that the court's experience is that the conduct of appeal hearings by telephone has been satisfactory as senior counsel for the respondents made the submission that an appeal hearing by telephone or video-link would be manifestly inadequate (as to telephone) or inadequate (as to video-link).[2] Senior counsel suggested that he (and thereby the respondents) would be at a significant disadvantage if he could not see and 'read' the court throughout the appeal hearing referring to the benefit of non-verbal communications.[3] Senior counsel for the respondents went as far as to say that the respondents were 'entitled' to have a normal hearing,[4] in pressing for an adjournment until such time as counsel for the parties could attend in person at an appeal hearing. We reject those submissions. Procedural fairness requires that a party be provided with an adequate opportunity to properly present its case. The court's experience is that, having regard to the other practices and procedures in the Court of Appeal, the conduct of an appeal hearing by telephone provides for comprehensive and considered dialogue and debate between bar and bench as to the issues raised by the appeal. It is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal hearing by video‑link is inadequate.
[2] Appeal ts 6.
[3] Appeal ts 6.
[4] Appeal ts 7, 11.
In the extraordinary circumstances presented by the COVID-19 pandemic the arrangements provided for in the public notice of 18 March 2020 are a necessary but proportionate alteration to the normal practice and procedure of the court consistent with the due administration of justice. Were the submission of senior counsel for the respondents to be accepted this court would be unable to conduct any court hearings for an indeterminate time. That would be antithetical to the due administration of justice in the State of Western Australia and at odds with achievement of the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).
In support of adjournment of the appeal hearing, Mr Strike deposed that:
1.The respondents have a number of client representatives, and other law firms, all of whom provide instructions to Corrs Chambers Westgarth as the firm of solicitors on the record in the appeal for the respondents. The client representatives and additional solicitors are located at various overseas and interstate locations.
2.Senior and junior counsel retained by the respondents are located in Melbourne.
3.He has been informed by senior and junior counsel and believes that, given the various locations and inability of the various client representatives and instructing lawyers to travel, counsel believe their conduct of the appeal will be 'materially prejudiced' if it proceeds on 27 March 2020. This is said to be due in substantial part to 'significant difficulty' in procuring timely instructions during a hearing on 27 March 2020.
We accept that the COVID-19 pandemic means that it is impracticable for client representatives, instructing lawyers and counsel to travel. However, senior and junior counsel for the respondents ordinarily reside in Melbourne and may appear and make submissions by telephone from Melbourne at the hearing on 27 March 2020. Alternatively, if arrangements can be made for both parties to appear by video-link, counsel for the respondents could appear and make submissions by video.
Two further matters were raised in Mr Strike's affidavits:
1.In the 19 March 2020 affidavit Mr Strike deposed that junior counsel had been tested for COVID-19 and was awaiting results. That can be put to one side. The 24 March 2020 affidavit discloses that the results were negative.
2.In the 24 March 2020 affidavit Mr Strike deposed that on 21 March 2020 senior counsel transported his son from Melbourne airport (the son having returned from New York). The son is observing a 14-day mandatory isolation period and senior counsel has been limiting all possible contact with non-family members. It is said that, as a result, senior counsel will not be able to have junior counsel or any instructors present with him if the hearing is not adjourned, and this will increase the prejudice.
The respondents' overarching submission as to the inadequacy of a telephone or video-link appeal hearing having already been answered, the affidavit evidence meant that the adjournment application was based on two matters. First, a suggested 'significant difficulty' in procuring timely instructions during the hearing. As developed by senior counsel for the respondents at the hearing of the adjournment application, this extended to a suggestion that client representatives should be entitled to observe the appeal hearing and communicate with counsel through their solicitors at the hearing.[5] The suggestion was made that unless a party was able to observe and participate in an appeal in a conventional way a party was likely to feel much more aggrieved in the event of an adverse outcome.[6] Second, an inability for senior counsel to have junior counsel or instructors present with him during the appeal hearing.
[5] Appeal ts 5.
[6] Appeal ts 5 - 6.
Those matters must be assessed in a context where the grounds of appeal raise discrete questions of contractual construction and the ground in the notice of contention raises a discrete issue in relation to the utility of granting the first proposed declaration. The questions are clearly identified in the grounds of appeal and the notice of contention. They have been the subject of detailed written submissions by the parties. There are no factual disputes. The hearing below was conducted on agreed facts and with agreed documents. There is no suggestion that there will be any new evidence on appeal. Also, senior counsel for the respondents was lead counsel for the respondents at the hearing before the primary judge. Senior counsel's name appears on the defence filed in the primary proceedings.
In those circumstances, we do not accept that there is a real risk that the respondents might be materially prejudiced in proceeding with the appeal hearing by telephone on 27 March 2020 because of any difficulty in procuring timely instructions during the hearing. We do not accept that there is a significant likelihood that such instructions will be required given the nature of the questions in the appeal and senior counsel's prior involvement in the matter. If, contrary to our expectation, such a matter was to arise, any such difficulty could be dealt with in a practical manner at the hearing or by allowing leave to file short supplementary submissions after the hearing. As will appear, however, we were prepared to accommodate the respondents in a different way.
The suggestion that, without being able to observe and participate in an appeal hearing in real-time, a party may feel aggrieved about an appeal outcome is something that we took into account. Justice must not only be done but be seen to be done. But in the circumstances of this appeal hearing, for the reasons already given, we were unable to perceive any real risk of practical injustice in proceeding with an appeal hearing by telephone.
For similar reasons we considered there was no real risk of material prejudice if, as suggested, senior counsel cannot be co-located with junior counsel and instructors during a telephone appeal hearing. We note that the issue did not prevent junior counsel appearing by telephone at the hearing of the adjournment application. While it is no doubt inconvenient that counsel are not co-located, it remains possible for counsel to communicate electronically. The accommodation we refer to below also ameliorates any risk of material prejudice in this respect.
We are conscious that the questions of contractual construction to be heard at the appeal are said to relate to a very large claim by the appellant against the respondents. Indeed, that was at the forefront of senior counsel's submissions before us in support of the adjournment application.[7] Mr Strike's first affidavit mentions a claim in the vicinity of $2.5 billion. Even so, it is for the respondents to demonstrate a proper basis to adjourn the appeal hearing. They have not done so. The size of the associated claim does not mean that the questions of contractual construction to be addressed at the appeal hearing cannot be properly presented by senior counsel for the respondents in the way envisaged without material prejudice to the respondents.
[7] Appeal ts 5 - 7.
Had we been persuaded that there was a real risk that the respondents would be materially prejudiced in their conduct of the appeal hearing, it would have been necessary to consider the countervailing factors against adjournment. There are at least three. First, prejudice to the appellant arising from a delay in the hearing. Such matters of prejudice are outlined at pars 17 to 19 of Mr Webb's affidavit. There is no evidence from the respondents that any of those matters of prejudice are incorrect or overstated. Second, inefficiencies in the use of this court's time. The inefficiencies are not just the loss of a hearing day. Preparatory work undertaken in anticipation of the hearing may need to be re-undertaken depending on the coram that is available for any adjourned hearing. Third, while of lesser weight, the appeal was originally to be listed in January or February 2020. Due to the unavailability of the respondents' counsel the matter was deferred to the March and April 2020 sittings.
For these reasons we ordered that the application to adjourn the 27 March 2020 hearing be dismissed.
Against the possibility that the adjournment application might be refused, senior counsel for the respondents requested that the court consider a bifurcated hearing which would, in counsel's submission, mitigate prejudice.[8] Senior counsel for the respondents suggested that:[9]
1.The appellant proceed with its oral submissions on Friday, 27 March 2020.
2.The hearing then be stood over (assuming the respondents were to be called on). This would enable senior counsel for the respondents to confer with junior counsel, instructing solicitors, and, to the extent necessary, client representatives.
3.The respondents then make their submissions at a time to be determined (being the following Monday at the earliest).
[8] Appeal ts 4, 10, 11.
[9] Appeal ts 10 - 11.
The court was able to accommodate this request because the members of the coram who are to hear the appeal are available on the morning of Monday, 30 March 2020. Accordingly, while dismissing the application for an adjournment, we informed the parties that the appellant would make its oral submissions on Friday, 27 March 2020 at 10.30 am. If the court needed to hear from the respondents, the respondents would make oral submissions at 9.00 am on Monday, 30 March 2020 with the appellant's reply to follow.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Research Orderly to the Honourable Justice Vaughan30 MARCH 2020
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