The Furies

It is 8pm. I have an unled hearing tomorrow morning at 10am. I am feeling very unwell and I am not sure if I will be well enough to attend tomorrow's hearing. What steps should I take, and when?

Now that most courts have begun a staged return to ‘in person’ hearings, you may be tempted to ‘soldier on’ like the good ol’ days, propelled by a hefty dose of Codral and the promise of an even heftier appearance fee. Resist that urge, dear Counsel. The Consolidated Guide tells us on the first page, in bold and capital letters, “do not attend a court or tribunal if you are feeling unwell and experiencing fever, cough, sore throat or shortness of breath”. So, assuming you have one of those symptoms, and not just that you have over-indulged at an all-you-can-eat-buffet,1 DO NOT ATTEND COURT!

Unless you can arrange your appearance promptly in some alternative and COVID-safe manner, you will likely have to seek an adjournment. Bar Rule 59 says you should immediately notify your opponent of the proposed adjournment and the grounds for the adjournment, and that you must try, with your opponent’s consent, to inform the court of that application promptly. The rules of court may also provide guidance. The application need not be made in person.

If your hearing is virtual, and unless you are on your way to the hospital or a morgue, expect to be pressed on. In that case, get out the Codral. Tricky issues arise where counsel comes down with pre-trial COVID-19 symptoms and where counsel had expected to appear from chambers or their solicitor’s offices. Those workplaces will bar your attendance and you may have to relocate your appearance to your home while you self-isolate. A short adjournment may be required to do this, in which case, see above.

Of course, it goes without saying that you must also get a COVID-19 test lest you become the next super spreader and plunge us all into Lockdown Mark II. I say this knowing that there are many things us New South Welshmen can do better than Victorians, but dwelling indoors, Gollum-like, and becoming increasingly pallid and agoraphobic, is not one of them.

“I agreed to participate in a mediation by video-link, but to be physically present at my solicitor’s firm to obtain instructions. As it is a large firm, I assumed we would meet in a decent size room to accommodate physical distancing. Instead, I was ushered into a tiny conference room – smaller than my chambers – and was seated cheek-by-jowl with six people for four hours. I gently raised my COVID-19 concerns with my instructing solicitors but was told that all other rooms had been booked and there was nothing they could do about it. I was very unhappy as, to quote Hamilton, the musical, “[they] arranged the meeting, [they] arranged the menu, the venue, the seating!” Did I do the right thing by staying, or ought I to have:

a. reported my solicitors to the NSW Health Minister; and/or

b. returned to chambers and conducted the mediation by video link?”

We applaud the productive use of your time in lockdown spent, apparently, memorising the lyrics to Hamilton. That is no mean feat. And quotes from it are certainly more welcome than quotes from other COVID-19 TV offerings like, say, Tiger King.

Further, we want to assure you that we hear your frustration. There have been many occasions, usually involving risks to our own mental health, where we have been tempted to invoke Bar Rule 822 on our solicitors. But is this the occasion?

No doubt, you have “practised the Law, [and] practically perfected it” so before you go calling The Hon Brad Hazzard, you may want to draw on those skills. A quick reading of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 suggests that a gathering at an office building is exempt from the four-square metre rule. Of course, the law firm owes a duty of care to you and its employees, but this fact may have been lost on the “young, scrappy, and hungry” graduate who was tasked with organising the rooms and so was “not throwing away [his/her] shot” by attempting to reorganise them.

The law firm clearly failed in its ethical duty to the community to ensure it was providing a COVID-19 safe workplace for employees and visitors to limit transmission risks generally. However, and we hate to say this to someone with such excellent taste in musicals, you also failed to exhibit personal responsibility. You could simply have asked about the room and seating when making arrangements with the solicitors. If, upon your inquiry, they confirmed that participants would be shoehorned into a room the size of a broom closet, you would be justified in declining, politely, to attend in person and, instead, offer to appear from your chambers. We suspect a prompt room shuffle would have resulted.

In future, if you feel uncomfortable asserting your right to a safe work environment, perhaps try doing it in a style which suits you. We suggest an American revolutionary costume and a beat box while rapping, “I [don’t] wanna be in the room where it happens”. And please send us a video of it to entertain us. Seriously, it is such a long wait until the release of Tiger King 2!


1 Assuming such things still exist.

2 Rule 82: A barrister whose client threatens the safety of any person may, notwithstanding rule 114, if the barrister believes on reasonable grounds that there is a risk to any person’s safety, advise the police or other appropriate authorities.