These are extraordinary times. And since March 2020, State and Commonwealth governments have taken extraordinary measures to protect Australians – measures that seemed unthinkable before the COVID-19 pandemic. The extreme restrictions imposed on lives and businesses appear to have reduced the spread in Australia and could, therefore, be said to have been a great success. But there have been enormous costs and consequences from the action taken. 

The economic effect of what has happened will be profound, most obviously because of massive and unexpected suppression of demand and the vast disruption to economic activity. Many businesses’ longstanding operating models have been unable to function during the economic lockdown, at least not with anything like the efficiency they once did. Carefully thought-out plans have been indefinitely postponed or abandoned at short notice. In their place, new practices and processes have been urgently implemented without the sort of risk analysis that prudent businesses would normally apply.

All of this has vastly increased complexity, uncertainty and risk in the business environment. As restrictions ease, it is difficult to predict what will happen. But one thing is certain – the consequences of what we have all experienced will need to be worked through. And that process of working through will involve lawyers.

Most commercial contracting, and a good part of commercial law generally, deals with the allocation of risk. In the relatively stable conditions that have prevailed in Australia over the last 20 or more years, commercial risk has been addressed by processes, systems and laws that were relatively certain and manageable.

What has occurred recently is likely to change that.

Standard terms in contracts allocating risk will need to be applied to circumstances not contemplated by the parties that negotiated them. More broadly, commercial law itself will have to be adapted and developed to deal with novel situations. The scope of the crisis will call for measures that can resolve disputes and compensate entitled parties at scale. That may involve even more emphasis on class actions, new procedural arrangements, or alternative dispute resolution mechanisms capable of dealing with very large disputes, many plaintiffs and complex issues.

For the lawyers facing these challenges, two issues are likely to arise: resourcing and expertise. Small and mid-range firms particularly are likely to be pushed hard in the months ahead. As people come out of isolation, longstanding clients will face new and challenging problems. And these problems may well happen simultaneously, or in waves, as particular difficulties work their way through supply chains and emerge in specific industries or places. Faced with resourcing challenges, law firms should remember that the Victorian Bar provides a highly qualified, flexible workforce that can be drawn on as required.

In terms of expertise, many barristers are already involved in resolving the consequences of this crisis. There are familiar issues, particularly arising from liquidity problems. But there are also new issues specific to this crisis or new laws or regulations that have been introduced to respond to it. At a practical level, the physical process of litigating, mediating and negotiating has had to change and barristers have had to adapt quickly to this.

For those firms with clients seeking urgent advice on complex issues, the Victorian Bar can assist. Many of our members are at the leading edge of these developments and we operate a formal program of continuing legal education to ensure that lessons learned are shared between barristers. The Bar’s collegial atmosphere reinforces this by encouraging barristers to ask each other for help with novel problems freely. The learning is happening quickly at the Bar during the pandemic.

In the months ahead lawyers are likely to face very difficult challenges. Astute solicitors need to think outside of the box in resolving novel problems, and the Victorian Bar can assist with the load.

The Victorian Bar is an association of more than 2200 practising barristers who provide specialist advocacy services, transactional and strategic advice to achieve the best outcomes for their clients. 

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Victorian Bar, Level 5,
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205 William Street, Melbourne 3000

© The Victorian Bar 2020. The information above is produced for information purposes only and does not constitute legal advice and should not be relied upon as such. The Victorian Bar and the author do not guarantee, and accept no liability whatsoever arising from, or connected to, the accuracy, reliability, currency or completeness of any information. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.