Coronavirus jurisprudence: Civil law.

This page summarises key developments in civil disputes due to the coronavirus (COVID-19) pandemic.

The current circumstances under which retailers must operate during the COVID-19 pandemic may be sufficient, in part, to allow administrators to direct companies not to pay rent for two weeks and to vary the operation of the Corporations Act 2001 (Cth) so that administrators are not personally liable for such rental payments. Strawbridge (Administrator) in the Matter of CBCH Group Pty Ltd (Administrators Appointed) (No 2) [2020] FCA 472, [43][58]. Uncertainties in relation to the impact of the JobKeeper package and the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles During COVID-19 may justify an extension of the time during which administrators will not be personally liable for a company’s failure to make rental payments. Strawbridge (Administrator) in the Matter of CBCH Group Pty Ltd (Administrators Appointed) (No 3) [2020] FCA 555

Delays and logistical challenges in conducting the administration of companies caused by government measures to suppress the COVID-19 virus, such as physical distancing regulation, may require the courts to exercise powers under the Corporations Act to allow for required processes to be conducted electronically. For example, creditor and committee of inspection meetings may need to be held exclusively via audiovisual link. Re Vocus Group Ltd [2021] NSWSC 630, [20]–[21]. The pandemic may also justify an extension of time for administrators to give notice under s 443B of the Corporations Act, or liquidators to seek voidable transaction orders under s 558FF(1), because public institutions such as the courts must do all they can to facilitate the continuation of the economy. Eagle, in the Matter of Techfront Australia Pty Limited (administrators appointed) [2020] FCA 542, [4]–[7], [28]; Re Freshwater Bay Investments Pty Ltd (in liq) [2021] FCA 608, [17]–[22], [27]. 

A condition for granting relief against the forfeiture of a commercial lease may require reinstatement of a bank guarantee even though the lessors might be impeded from calling upon it during the period of legislative and regulatory changes operating to deal with the COVID-19 pandemic (the ‘COVID-19 Regime’). However, in the present economic climate, it may not be fair to require the guarantee’s immediate replacement where the effect of calling on the guarantee is to leave the lessee in credit in relation to future rental payments Sneakerboy Retail Pty Ltd v Georges Properties Pty Ltd [2020] NSWSC 996. [115]–[116]. It is also an issue of concern that granting relief against forfeiture will immediately subject the parties to the COVID-19 Regime, which, in addition to foreseen impacts such as the amount and timing of rental payments, will likely have unforeseen effects, and in those circumstances the court should not simply publish its reasons and be done. It is proper for it to call upon ‘the parties to agree a suitable and efficient process for implementing the COVID-19 regime in a timely way’ Ibid [118]–[119].

A contract for the sale of a bar and lounge is not frustrated where the parties entered into it with full knowledge that progressive government restrictions on public gatherings in light of the COVID-19 pandemic had been imposed and must have foreseen there was a real likelihood that others might follow. Happy Lounge Pty Ltd v Choi & Lee Pty Ltd [2020] QDC 184. [35]. Nor will those regulations, making operation of the business illegal, support a claim for termination based on a contract term requiring operation of the business as a going concern until the date of settlement. Ibid [72]–[73].

The risks to the public health from COVID-19, even in their now mitigated form, presently outweigh the rights to freedom of speech and public assembly. Commissioner of Police (NSW) v Supple [2020] NSWSC 727, [41]; Commissioner of Police (NSW) v Gibson [2020] NSWSC 953.

The limitations of and restrictions on the human right to freedom of movement imposed by the Victorian curfew during the second wave of the pandemic were proportionate to the purpose of protecting public health and there were no other reasonably available means to achieve that purpose. Loielo v Giles [2020] VSC 722, [21], [248]–[253]. So too are the restrictions imposed on movement into Western Australia, the exercise of such power does not infringe s 92 of the Constitution. Palmer v Western Australia [2021] HCA 5.

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    Coronavirus and contracts

    This document provides a brief overview of the law in relation to the discharge of contracts in Victoria, considers common issues likely to arise due to the pandemic, and analyses the early jurisprudence in this area.
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Objections to known and reasonable actions proposed to be taken to facilitate a remote proceeding may be “unreasonable” and justify an award of costs under the Native Title Act 1993 (Cth) s 85A. Alvoen on Behalf of the Wakaman People #5 v Queensland (No 2) [2020] FCA 960, [20]–[25].

The Fair Work Commission is not empowered to deal with disputes about whether a particular employee is eligible for JobKeeper payments. Guerin v Horndale Pty Ltd [2020] FWC 3918. [28].

A doctor’s social media statements regarding the use of Vitamin C as a possible effective treatment for COVID-19 may, in part, support a temporary suspension of their registration by the Medical Board of Australia (Ellis v Medical Board of Australia (Review and Regulation) [2020] VCAT 862

Visitation

Given the COVID-19 pandemic, placing a 17-month-old child in out of home care may pose significant difficulties in arranging and supervising contact visits such that the mother/daughter bond is put at risk. This should not be done by compulsion of law except where the child’s ‘circumstances clearly demonstrate unacceptable risk to her best interests’. Secretary of the Department of Health and Human Services v The Children’s Court of Victoria  [2020] VSC 144, [33]–[36].

Online platforms such as Zoom, etc, are temporarily sufficient to enable meaningful visitation between a parent and child during the pandemic rather than placing children at risk. Banham v Banham [2020] FCCA 1201, [10]–[13]; Collingwood v Collingwood [2020] FamCA 390. However, one parent should not be able to use the circumstances of the pandemic to deny face to face visits between the other parent and their child. Xiu v Hodges [2020] FamCA 225, [79]. Nor should current circumstances be allowed to create a “blanket policy” that children should never leave their primary home – even to visit their other parent. Cheadle v Pointer [2020] FamCA 327, [48].

In making an interim supervision order for the care of a child where there is conflict between the parents who live some distance apart, so that the father cannot visit the child in the mother’s home, and the child’s wellbeing requires she not be exposed during the pandemic, special arrangements may have to made for visitation. Zeelan v Abney [2020] FCCA 884, [63]–[69], [73], [78]–[80].

Miscellaneous

The state of emergency and restrictions that are in place do not provide a general excuse for not complying with parenting orders. Mafton v Salmet (No. 2) [2020] FCCA 903, [31]. In considering whether there is an unacceptable risk that current parenting orders will not be complied with it is necessary to consider whether there are particular risks in the circumstances of the case, including whether the child or any of the relevant parties have immune-compromised systems, have come into contact with or been exposed to someone who is suspected of having the virus, or have breached the directive and requirements of social distancing. Mafton v Salmet (No. 2) [2020] FCCA 903, [32]–[33].

A significant decline in a parent’s finances as a result of the COVID-19 pandemic may constitute an exceptional circumstance which causes them hardship sufficient to justify setting aside a binding child support agreement. Martyn v Martyn [2020] FamCA 526, [71]. Moreover, given the absence of evidence as to the likely duration and impact of the virus on international commerce, the basis of a parent’s business, it cannot be determined if their finances will ever recover sufficiently, and so the obligation should be set aside rather than suspended for a period of time. Ibid [72].

The complications of COVID-19 and its detrimental impact upon the ability of parties to travel freely supports a cautious approach to relocation and an 11-month delay will enable them to better assess the extent of any harm to their child from international travel and will allow for any vaccine roll-out to be considered, assessed, and administered. Floros v Floros [2021] FamCA 13, [243]–[246], [253]–[256].

The existence of the pandemic does not in itself constitute an exceptional circumstance sufficient to enliven the court’s jurisdiction to discharge an order directing the return of a child to their place of habitual residence. Department of Communities and Justice v Kingsley (No 2) [2021] FamCA 308, [80]–[83].

The circumstances of the pandemic and an impaired individual’s inability to understand the need to self-isolate in order to protect themselves may justify allowing a guardian to make significant decisions regarding their residence and freedom of movement, access to the community, and further authorising police and ambulance services to follow the guardian’s directions regarding taking, holding, and returning the person to a specific place. UZX [2020] NSWCATGD 3GZK [2020] NSWCATGD 5.

​The additional functions granted to a guardian due to the impact of COVID-19 should be limited so that they are in effect self-extinguishing and cannot be exercised if an appropriate Public Health Order is not in force. The additional function is to be exercised as a last resort and only while a Public Health order is in force. GZK [2020] NSWCATGD 5.

The COVID-19 pandemic may be a factor weighing in favour of a decision to revoke the cancellation of a visa, due to the uncertain period of detention that a person may face until it subsides, as well as the potential difficulties they may face in maintaining a basic standard of living and re-establishing themselves in the community upon return. Medcalf v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 803CKQV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 927, [313]–[315]; Yu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1002, [118]–[119]. Similarly, the inevitability of further extensive delay as a result of the COVID-19 pandemic is relevant in determining whether there are compelling reasons for not applying the Schedule 3 requirement that an applicant apply for a spousal visa offshore. 1805730 (Migration) [2020] AATA 2957, [31]–[33].

The tribunal’s failure to address an identified risk of harm from COVID-19 in a person’s home country, in upholding the revocation of their visa, was a material jurisdictional error. Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58.

A fear of COVID-19 is not relevant to the assessment of whether an applicant is a person in respect of whom Australia has protection obligations under the Migration Act 1958 (Cth). 1701799 (Refugee) [2020] AATA 932, [46]. Nor, since it potentially affects all citizens of the world, would actually contracting COVID-19 constitute an ‘act of persecution by any person or authority’. For this same reason, neither does it pose a real risk that an applicant for a protection visa ‘will suffer significant harm due to the Covid19 pandemic as a necessary and foreseeable consequence of … being returned to [their native country]’. 1619513 (Refugee) [2020] AATA 1543, [33], [42]; 1613733 (Refugee) [2020] AATA 2220, [46].

A heightened risk of contracting COVID-19 while in immigration detention is relevant in considering whether to affirm a decision to refuse a bridging visa. In determining the weight this carries the Tribunal might consider age, specific health concerns and any specific heightened risk profile in respect of the detention facility in where the applicant is held. XMTQ v Minister for Home Affairs (Migration) [2020] AATA 986, [124]. Similarly, that heightened risk to a diabetic detainee over the age of 65 and in poor health may warrant injunctive relief requiring the Minister not hold them at the Melbourne Immigration Transit Accommodation Centre. BNL20 v Minister for Home Affairs [2020] FCA 1180.

An applicant who re-enrols in a course following an assessment of the situation and response to the pandemic in Australia versus that in their home country is not motivated by further study, but has instead offered a post-hoc justification for their decision to remain that is entitled to little weight in determining whether to grant a student visa. Arriyapperuma Ramanayake (Migration) [2020] AATA 3562, [33]–[36]. However, dire and violent circumstances resulting from the pandemic in an applicant’s home country may amount to exceptional circumstances sufficient for the grant of a visitor visa. Loaiza Esguerra (Migration) [2020] AATA 3593, [178]–[26].

A decision to delay enrolment in a course of study as the result of the COVID-19 pandemic is irrelevant in the face of regulations that require enrolment as a prerequisite to the granting of a student visa. Wu v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 108.

There has never been any legislation or order in force preventing someone from seeking new residential accommodation or precluding the execution of a writ of possession during the pandemic. Foundas v Arambatzis (No 4) [2020] NSWCA 100. However, it may be appropriate to stay execution of such a warrant for a period of 14 days after the lifting of stage 4 restrictions in Victoria. Nestor v Ripley [2020] FamCA 694. Similarly, while it may be appropriate to make a termination order, it may not be appropriate to also make a possession order during stage 4 restrictions which will greatly hamper the ability of the tenants to search for a new home. Servinis v Hartwick (Residential Tenancies) [2020] VCAT 1017, [40].

The provisions of Victorian emergency legislation prohibiting the termination of a residential tenancy agreement do not apply when the basis for the termination application is the landlord’s intention to occupy the premises on termination, not the tenant’s failure to comply with an obligation of the agreement. Parliament’s intention of protecting tenants during the pandemic does not mean that termination is a last resort. Koh v Thomas [2020] VCAT 591, [34]–[47].

It may not be reasonable and proportionate to make a termination order in a time of pandemic so that the landlords may maximise the value of their property for sale where the tenants are elderly, in ill health, would have to physically inspect a new residence, and are not financially able to start a new tenancy at this time. LKZ v BSL (Residential Tenancies) [2020] VCAT 909, [28]–[35].

A landlord may not rely on the failure to pay rent during the Emergency Period (29 March 2020 to 28 March 2021) for the purposes of obtaining a possession order as the protections of s 542 of the RTA, though now repealed, were extended by reg 14 into the Transition Period. Such arrears are payable, but not before the end of the Transition Period (25 October 2021). Markiewicz v Crnjac [2021] VSCA 290, [87]–[88], [99]–[100], [103]–[106], [115], [117]–[123].

Although the court does not make findings of fact on an interlocutory application, a prisoner’s evidence of the lack of appropriate hygiene in prison and the prison’s failure to obtain a risk assessment regarding the possibility of COVID-19’s entry and spread in the prison establishes a prima facie case that prison authorities have breached their duty of care towards him. The prisoner will not be released while internal applications for release are pending, but it is within the court’s power to preserve the subject matter of the litigation, eg, his life, and so adjourn his summons on the basis that a risk assessment be carried out and any recommendations made by it are implemented. Rowson v Secretary, Department of Justice and Community Safety [2020] VSC 236, [8]–[13], [92]–[102].