Senior counsel contracts COVID, adjournment application refused…

…practice and procedure

In Kaplan v State of Victoria (No 7) [2022] FCA 1405 (22 November 2022), the Federal Court (Mortimer J) refused an application by the respondents to adjourn a trial because senior counsel for the respondents contracted COVID-19 and was unable to participate in the trial (at [28]).

The court considered that the respondents embellished the importance of senior counsel for two days of witness evidence in the particular circumstances of the hearing (at [9]-[10]).

The court took into account and relied on numerous factors in deciding the application, including (among others) the need for finality and the efficient and effective conduct of the hearing (at [11]-[12]).

The court also considered that it may be reasonable for parties in Victoria to plan for COVID-related issues after approximately three years of the COVID-19 pandemic, and to more promptly and effectively manage COVID risks.

In this respect, the court noted that there had been numerous solicitors who had tested positive for COVID. Further, that her Honour had indicated that senior counsel appeared unwell three days before the application for adjournment was foreshadowed by the respondents (at [1] and [26]).

Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email The full version of these judgments can be found at Numbers in square brackets refer to a paragraph number in the judgment.

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