Porter v Mulcahy and Co Accounting Services Pty Ltd (Ruling)

The case involves an application by the defendant, Mulcahy and Co Accounting Services Pty Ltd, to adjourn a civil trial scheduled to be heard in-person due to the ongoing COVID-19 pandemic. The plaintiff, Porter, opposed an adjournment and advocated for an audio-visual trial instead. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the trial could proceed in-person given the significant public health risks posed by the pandemic, and if not, whether an audio-visual trial was an acceptable alternative, or if the trial should be adjourned altogether.

The court considered the overarching purpose of civil litigation, which includes ensuring fair trials and protecting the health and safety of all participants. The judge found that holding an in-person trial was not permissible under the emergency power directions issued under the Public Health and Wellbeing Act 2008 (Vic), which were aimed at preventing the spread of COVID-19. The court also noted that an audio-visual trial was not a suitable alternative due to the impracticality of communication between the legal practitioner and the party, which could compromise the fairness of the proceedings. The judge concluded that the best course of action was to adjourn the trial until a time when it would be safer to proceed with an in-person hearing.

In light of these considerations, the court allowed the application to adjourn the trial. The judge referenced the decision in Rooney v AGL Energy Ltd (No 2) [2020] FCA 942, which held that in exceptional circumstances, such as a public health crisis, the court may exercise its discretion to adjourn a trial. The court also relied on sections 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) and relevant provisions of the Civil Procedure Act 2010 (Vic) to support its decision. The final order was that the trial be adjourned until further directions from the court.