Appearing Electronically? Well, Pick Up The Phone!

The difficulties with online Court appearances were evidenced in the recent decision of Judge Porter KC in Hygienic Travel Kit Pty Ltd v Commonwealth of Australia [2023] QDC 9, when his Honour said, inter alia, as follows:

Mr Jorgensen’s appearance on 3 February

[80] Before I make final orders on the application, I want to explain something that happened in court on 3 February. The court permitted Mr Jorgensen to attend by video link. He told me he was attending from a hotel in Savannah, Georgia. There is nothing wrong with that. We started at about 10. At about 11.20 Mr Jorgensen told me that his laptop was telling him he was running out of battery. I asked him if that happened, how long it would take to get himself up and running again. He said about 20 minutes. I told him to continue his submissions and if he dropped out I would adjourn for 20 minutes. I explained that after 20 minutes we would return and if he was not with us, I was just going to proceed.

[81] I took that view because the court provides an indulgence to a party attending by video link, particularly where it is a director purporting to run the affairs of a company from an overseas location. In addition, by that time Mr Jorgensen had spent over an hour making submissions on questions of leave which almost entirely covered the matters relevant to the want of prosecution application and because Mr Jorgensen had been given an opportunity by Judge Morzone, to make written submissions on the defendant’s application which he had not availed himself of. In all those circumstances I considered that the court had done enough to facilitate submissions by the plaintiff.

[82] I returned about 25 minutes later and Mr McKechnie began his submissions. We left the line open, of course. Mr Jorgensen joined us about 15 minutes or so later. Unfortunately, some time after he joined us, we lost sound. He could hear me, but I could not hear him. For some time thereafter we tried to get his sound to work and it was not able to be done. I then offered for us to try to call him from the court. That was not immediately possible, it turned out, because of an overseas calling block on the court’s telephones. I then suggested that we try a Chorus Call and again that did not work because of the overseas block.

[83] In the course of these discussions I said to Mr Jorgensen, ‘Well, this is not working, can you call me?’ and he shook his head vigorously. I could only take that to mean he either could not or would not call the court to participate in a case where he had been indulged by being permitted to attend remotely.

[84] I adjourned the court while the court officer and my Associate attempted to get the block lifted on the Court phone. After some time without success I returned to court. I was told that the Court officer was trying to lift the overseas block. I was not prepared to wait any longer to deal with the matter. However, soon after my return the Court Officer informed me that the overseas block on the phone in Court had been lifted. I adjourned again and the court officer sought to dial the number that we had been given by Mr Jorgensen. The bailiff explained to me that: I rang it once. It rang a couple of times and then it dropped out. The second time I rang, Your Honour, it rang as normal and I received a message saying the number you called does not have a voicemail set up, so it was as if it rang out to voicemail.

[85] For whatever reason, Mr Jorgensen did not answer the phone. For all those reasons I considered it appropriate to proceed to determine the substantive application in his absence. Order for dismissal

[86] In those circumstances, I order that the Commonwealth have leave under r 389 UCPR to bring the application filed 5 October 2022; that the proceedings be dismissed for want of prosecution; and I have already made an order about leave to appear which should be included in the orders made today.

[87] The Commonwealth has informed that they seek costs on the standard basis only. I order that the plaintiff pay the defendant’s costs of the application and the proceedings on a standard basis.

[88] Why do I feel that’s only the beginning?