Kamasaee v Commonwealth of Australia and Ors (No 9) (Live streaming ruling)
[2017] VSC 171
•7 April 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2014 06770
| MAJID KARAMI KAMASAEE | Plaintiff |
| v | |
| COMMONWEALTH OF AUSTRALIA & ORS (in accordance with the attached schedule) | Defendants & Third Parties |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 December 2016 |
DATE OF RULING: | 7 April 2017 |
CASE MAY BE CITED AS: | Kamasaee v Commonwealth of Australia & Ors (No 9) (Live streaming ruling) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 171 |
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PRACTICE AND PROCEDURE – Open justice principle – Dissemination of evidence – Class containing 1905 members located in many different countries – Live streaming of evidence appropriate to ensure that justice is done in the proceeding – Supreme Court Act 1986 s 33ZF – Civil Procedure Act 2010 s 49.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Curtain QC with Ms F Forsyth and Ms M Szydzik | Slater & Gordon |
| For the First Defendant | Mr C Blanden QC with Mr R Kumar | Australian Government Solicitor |
| For the Second Defendant | Mr G P Harris QC with Mr T P Warner | Foster Nicholson Jones |
| For the Third Defendant | Ms L M Nichols with Ms C M Pierce | Corrs Chambers Westgarth |
| For the First Third Party | Mr R H M Attiwill QC with Mr D B Bongiorno | Barry Nilsson Lawyers |
| For the Second Third Party | Mr R G Craig with Mr K Loxley | Herbert Smith Freehills |
HIS HONOUR:
The trial of the current proceeding is scheduled to commence in early May 2017. The estimated duration of the trial is six months. By summons dated 2 December 2016, the plaintiff seeks an order that the trial be live streamed. The application was heard by me on 14 December 2016. There was general agreement amongst the parties on that day that it may be prudent to rule upon the application closer to the trial date. I agreed with that proposed course. However, with the trial scheduled to commence in approximately one month, it is now appropriate to rule on the plaintiff’s application.
For the reasons set out below, I have concluded that an order should be made for live streaming of the trial. I do not propose, at this point in time, to impose any limitations upon the access of members of the public to the live streaming. Nor do I propose to excise from the live streaming the evidence of any witness. This is without prejudice to the right of any party to make further application during the trial to quarantine the evidence of a witness from live streaming.
Mr Kamasaee brings the current proceeding on his own behalf and on behalf of Negligence Group Members,[1] and False Imprisonment Group Members.[2] There are 1,905 group members. They are dispersed around the globe. As at September 2016 they were in the following locations:
[1]See Third Amended Statement of Claim dated 1 August 2016, [5].
[2]Ibid [5A].
(i) 856 group members resided at the Manus Regional Processing Centre (‘Centre’);
(ii) 103 group members resided elsewhere in PNG;
(iii) six group members resided in Nauru;
(iv) 54 group members were in immigration detention in Australia;
(v) 11 group members were in community detention in Australia;
(vi) one group member was in criminal detention in Australia;
(vii) 373 group members were residing in Australia pursuant to a residence determination or the granting of a bridging visa; and
(viii) 542 group members had been in the care of, or contact with, International Organisation for Migration (’IOM’) since leaving the Centre to return to their country of origin or a third country.[3]
[3]See Affidavit of Laura Winkler affirmed 3 November 2016, [18]–[32].
As regards those individuals who have left the Centre, it is not contentious that they have returned to a number of different countries. The third defendant’s amended defence and counterclaim pleads:
As at 3 November 2014 a total of 425 Transferees had completed the AVR [Assisted Voluntary Return] process with the assistance of IOM, travelling to the following countries:
Iran (322), Vietnam (15), Iraq (40), Lebanon (26), India (5), Bangladesh (4), Pakistan (3), Sri Lanka (2), Sudan (3), Egypt (2), Albania (1) and Jordan (1).[4]
[4]Third Defendant’s Second Amended Defence and Counterclaim dated 31 March 2017, [185A].
On 5 April 2017, I dismissed an application by the Commonwealth of Australia for a class closure order.[5] The effect of that order would have been to require group members to ‘opt in’ to the proceeding in order to benefit from any settlement at mediation, or participate in any further proceedings if the matter did not resolve at mediation. As noted in my judgment dismissing the application, I regarded the current application as bearing upon the merits of refraining from ordering class closure.[6] One of the arguments advanced in favour of class closure concerned the large proportion of group members who had left the Centre and returned to their country of origin or a third country. It was submitted that if an order was not made now requiring those group members to opt in, there was a real likelihood that, with the passage of time, contact details currently held in respect of those individuals would become obsolete.[7] In these circumstances, if the Court waited until the conclusion of the trial to require group members to opt in, it would be less likely that contact could be made with them. This argument has force. However, the live streaming order which I propose to make will assist in publicising the proceedings, and providing increased accessibility for group members who have returned to their country of origin or a third country, to follow the proceedings.
[5]See Kamasaee v Commonwealth [No 8] [2017] VSC 167.
[6]Ibid [42].
[7]Ibid [40].
All parties accept that the Court has the power to make a live streaming order pursuant to s 33ZF of the Supreme Court Act 1986 and/or s 49 of the Civil Procedure Act 2010.
Section 33ZF of the Supreme Court Act 1986 provides:
In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.
Section 49(1) of the Civil Procedure Act 2010 provides:
In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
The overarching purpose referred to in s 49(1) is that prescribed by s 7(1):
The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
It is appropriate, to ensure that justice is done in the proceeding, to make a live streaming order. The current proceeding is unusual in that a very significant proportion of group members are outside of Victoria and would have no prospect of attending the hearing in person. A live streaming order is therefore appropriate to provide group members with a means of following the proceedings.
Initially the Commonwealth’s position was one of blanket opposition to any form of live streaming order.[8] However, by the conclusion of proceedings on 14 December 2016, the Commonwealth’s position had altered. The Commonwealth consented to orders providing for live streaming to group members via a secure steam.[9] The Commonwealth sought to reserve the right to raise, on a case by case basis, any security related concerns in respect of disclosure of sensitive material.[10] The second defendant, G4S Australia Pty Ltd, did not oppose the orders sought by the plaintiff.[11] Nor did the first third party, International Health and Medical Services Pty Ltd.[12]
[8]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 14 December 2016) T70 LL22–28.
[9]Ibid T86 LL21–22.
[10]Ibid T86 LL22–25.
[11]Ibid T88 LL30–31.
[12]Ibid T112 LL20–21.
The third defendant, Broadspectrum (Australia) Pty Ltd (‘BRS’) proposed orders in the following terms:
a)live-streaming be available only to group members, the parties and their legal representatives;
b)the evidence of all Broadspectrum lay witnesses be excluded from the live-stream; alternatively the evidence of all Broadspectrum witnesses who continue to work at, or who regularly attend, the Manus Island or Nauru RPCs be excluded from the live-stream;
c)lay evidence be excluded from the live-stream where an order for “witnesses out” is granted in respect of the hearing of that evidence;
d)provision be made for the exclusion of lay evidence where the expected content of that evidence has the potential to jeopardise the safety and good order of the Manus Island and Nauru RPCs...[13]
[13]‘Third Defendant’s Outline of Submissions: Proposal for Live-Streaming of the Trial’ dated 12 December 2016, [2].
There is a high degree of public interest in the current proceeding. To date, the proceeding has attracted considerable media attention. Media coverage of the trial is likely to be extensive. Public interest in the proceeding extends well beyond the Victorian population. Absent a live streaming order, individuals residing outside of Victoria will be reliant upon media reports to follow the proceedings.
In Matthews v SPI Electricity Pty Ltd [Ruling No 14],[14] J Forrest J stated:
Open justice is a fundamental principle of common law. It is often expressed that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’. The principle is multifaceted. Access to court proceedings increases public awareness and public confidence in the court and the administration of justice:
The importance of open justice arises from the role it plays in supporting the rule of law. Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence in the courts and the law.[15]
[14](2013) 39 VR 287 (‘Matthews’).
[15]Ibid [10] (citations omitted).
The current proceedings are not a commission of inquiry into the merits of the Commonwealth’s offshore detention policy. However, the allegations which the plaintiff makes against the Commonwealth are serious. As the plaintiff contends in his written submissions:
(a)It is brought against the Commonwealth of Australia for, inter alia, acts alleged to constitute false imprisonment, including whereby it is alleged that the Commonwealth was aware that or aware of the risk that the detention was unlawful under PNG law.
(b)It is alleged not only that the Commonwealth’s negligence caused injury to the Plaintiff and group members, but that the Commonwealth did so knowing that those injuries were likely.
(c)It is also a case that alleges that the Commonwealth’s conduct was in breach of international conventions and involved a contumelious disregard of group members’ rights.[16]
[16]‘Plaintiff’s Outline of Argument – Trial Issues’ dated 7 December 2016, [4.2].
Needless to say, setting out the allegations against the Commonwealth in no way entails any endorsement of the merits thereof. However, the nature of the allegations against the Commonwealth reinforces the appropriateness of the Court making orders which facilitate public scrutiny of the proceedings. This will be best achieved by the streaming of the proceedings to the public at large.
In Matthews,[17] J Forrest J declined to make orders which would have streamed the proceeding to the public generally. One of the matters his Honour took into account in coming to this conclusion was the fact that the Victorian Bushfires Royal Commission was streamed live and that, to a limited extent, interested persons other than group members had the opportunity to see many of the witnesses as part of the Royal Commission process.[18] This is a point of distinction with the current proceeding. There has been no Royal Commission process relevant to the current proceeding.
[17](2013) 39 VR 287.
[18]Ibid [37].
In Matthews, J Forrest J accepted that live streaming to the public at large:
may (I emphasise may) inhibit the willingness and ability of witnesses to give their evidence.[19]
[19]Ibid [31].
The plaintiff submits that the appropriate course is for the Court to retain the discretion to prohibit the live broadcast of the evidence of a particular witness.[20] In Matthews,[21] J Forrest J held that evidence would be broadcast to group members unless a reasonable basis for prohibiting that broadcast was established.[22] The third defendant placed considerable weight upon what it contends would be the potential adverse consequences for BRS staff if there was live streaming of their evidence.[23]
[20]‘Plaintiff’s Outline of Argument – Trial Issues’ dated 7 December 2016, [5.2].
[21](2013) 39 VR 287.
[22]Ibid [44].
[23]‘Third Defendant’s Outline of Submissions: Proposal for Live-Streaming of the Trial’ dated 12 December 2016, [15]–[19].
Four of the lay witnesses BRS proposes to call currently work and reside at the Centre.[24] Two other witnesses have regular and close contact with residents.[25] Ms Ross deposes on information from Daron White, BRS’s General Manager, Immigration. Ms Ross deposes as to Mr White’s concern as to the effect on relationships between staff and residents at the Centre if there is a live streaming of adversarial proceedings.[26] In particular, Mr White is concerned regarding the potential for aggressive or hostile behaviour on the part of a minority of residents towards any BRS staff who give evidence at the trial against the interests of group members.[27]
[24]Affidavit of Anna Ross affirmed 12 December 2016, [13].
[25]Ibid.
[26]Ibid [6](e), [9].
[27]Ibid [12].
BRS submits:
it is appropriate that live-streaming be available only to group members, the parties and their legal representatives. It is also appropriate that the evidence of all of Broadspectrum’s lay witnesses be excluded from the live-stream; alternatively the evidence of all of Broadspectrum’s lay witnesses who continue to work at, or who regularly attend, the Manus Island or Nauru RPCs be excluded from the live-stream.[28]
[28]‘Third Defendant’s Outline of Submissions: Proposal for Live-Streaming of the Trial’ dated 12 December 2016, [19].
I do not consider that the matters deposed to by Ms Ross justify the restriction upon live streaming sought by BRS. First, it is highly likely that the trial will receive extensive media coverage, including media coverage accessible via the internet. Ms Ross deposes to concerns regarding possible aggressive behaviour of residents arising from the evidence of BRS witnesses which may be adverse to the interests of group members. Such risks would also arise from a potential adverse reaction by group members to media coverage accessed by the internet.
The trial is due to commence in mid-May 2017. Prior to any evidence being led on behalf of BRS, there is a substantial body of evidence to be led on behalf of the plaintiff and the first and second defendants. It is unlikely that any witnesses from BRS will give evidence before the second half of July. It is not possible to predict with certainty what the situation will be within the Centre at that time. There has been significant media coverage regarding the potential resettlement of a large number of residents to the United States of America. It is possible that the population of the Centre may be significantly reduced by the time any BRS lay witness is called to give evidence. Shortly stated, it is premature to be imposing restrictions on live streaming based on the potential for an adverse reaction to evidence given by BRS lay witnesses. This conclusion does not preclude BRS from re-agitating an application for restrictions to be placed on the live streaming of BRS witnesses closer to the point in time such evidence is due to be led.
BRS submitted that lay evidence should be excluded from live streaming where an order has been made for witnesses out. In Matthews,[29] J Forrest J stated in reference to the potential interaction between live streaming and an order for witnesses out:
The court, of course, has a discretion to make such an order. Applications for this form of order are routinely made in common law trials in this State and are invariably granted; although in recent years it has become common to confine such orders to lay witnesses so that expert witnesses may have access to the transcript of the evidence prior to giving evidence.
To give effect to such an order it will be necessary for it to be extended to include a prohibition on the viewing of the live stream by prospective witnesses (excluding expert witnesses) until their evidence is completed.
Once the order is made I will direct that the solicitors for each of the parties advise their witnesses of it and the consequences of breach.[30]
[29](2013) 39 VR 287.
[30]Ibid [46]–[48].
I accept there is potential for live streaming of proceedings to undermine the efficacy of an order for witnesses to be out of court. A witness subject to such an order could flout it by observing the proceedings by internet access. However, the risk of this occurring will be reduced if the direction is made requiring the solicitors for each of the parties to advise their witnesses of the order and the consequences of breach. In addition, I intend to be proactive at the outset of the proceedings in reinforcing with prospective witnesses the importance of compliance with any order for witnesses to be out of court. This will include expressly advising prospective witnesses that they are not to view any live stream of the proceedings until such time as they have concluded their evidence.
Mr Blanden QC, who appeared with Mr Kumar for the first defendant, submitted that there ‘…aren’t really any consequences of breach in a circumstance where none of the witnesses are in the jurisdiction’.[31] To focus solely on the potential difficulty in imposing penal sanctions ignores the significant practical consequence that the Court will be likely to place less weight on a witness’ evidence if he/she has been privy to the evidence of other witnesses via internet access.[32]
[31]Transcript of Proceedings, Kamasaee v Commonwealth of Australia (Supreme Court of Victoria, S CI 2014 06770, McDonald J, 14 December 2016) T85 LL19–21.
[32]Ibid LL22–25.
If lay evidence is excluded from live streaming where an order for witnesses out of court has been made in respect of that evidence, this would greatly reduce the amount of evidence to be live streamed. It could potentially have the effect that none of the evidence of the 55 lay witnesses to be called by the plaintiff would be live streamed and capable of being observed by other group members. Such an outcome would be antithetical to the principle of open justice.
I am satisfied that it is appropriate in order to ensure that justice is done in the proceeding that the proceeding be live streamed to the public at large. Considerations of open justice favour this course. So too does the desirability of maximising the ability of group members who are no longer at the Centre to follow the proceedings. I do not propose to place any restrictions, at this stage, upon the live streaming of evidence. This conclusion is without prejudice to the right of any party to re-agitate an application to impose restrictions during the course of the trial. I propose to make orders:
(ix) That the trial be live streamed;
(x) Any prospective lay witness is prohibited from viewing the live stream until he/she has completed giving evidence.
The plaintiff’s summons was opposed by the first and third defendants, and the second third party. As the plaintiff has been successful he is entitled to an order that the first and third defendants, and the second third party, pay his costs of and incidental to the application for the trial to be live streamed.
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SCHEDULE OF PARTIES
| No. S CI 2014 06770 | |
BETWEEN: | |
| MAJID KARAMI KAMASAEE | Plaintiff |
| - and - | |
| THE COMMONWEALTH OF AUSTRALIA | First named Defendant |
| G4S AUSTRALIA PTY LTD | Second named Defendant |
| BROADSPECTRUM (AUSTRALIA) PTY LTD INTERNATIONAL HEALTH AND MEDICAL | Third named Defendant First Third Party |
| WILSON PROTECTIVE SERVICES PNG LTD | Second Third Party |
0