Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 14)
[2013] VSC 37
•15 February 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 4788 of 2009
| CAROL ANN MATTHEWS | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS | Defendants |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2012 | |
DATE OF RULING: | 15 February 2013 | |
CASE MAY BE CITED AS: | Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 14) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 37 | |
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PRACTICE AND PROCEDURE – Class action – Dissemination of evidence adduced at trial – Whether to broadcast evidence at trial via internet live streaming – Large number of group members – Evidence available to group members and families for streaming – Principle of open justice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC and Mr L W L Armstrong | Maurice Blackburn Ltd |
| For SPI Electricity Pty Ltd | Mr J B R Beach QC and Mr D J Farrands | Herbert Smith Freehills |
| For USC | Ms E M Brimer | Holman Fenick Willan |
| For the State Parties | Mr P Zappia and Mr M D Rush | Norton Rose |
HIS HONOUR:
Introduction
The trial of this very large class action commences in approximately two weeks. There is considerable public interest in this case and it is estimated that about ten thousand group members are in the class - all of whom suffered losses in the Kilmore East/Kinglake fire. The question has arisen as to whether, to whom and to what extent, the evidence at trial should be broadcast. In particular, should audiovisual footage of the evidence be available to be viewed via “live streaming” over the internet.
The calamity of the Black Saturday bushfires affected all Victorians and particularly, those in the five shires between Kilmore East and Healesville: the Mitchell Shire, the Murrindindi Shire, the Nillumbik Shire, the City of Whittlesea, and the Shire of Yarra Ranges. Although a large courtroom is in the process of being built in the central legal precinct, it is clear that many interested group members will not be able to attend the trial.
Whilst there is agreement between the parties that both the opening and closing submissions of counsel should be live streamed to the public at large, there is disagreement regarding the transmission of the viva voce evidence of lay and expert witnesses.
Mrs Matthews and the group members want the whole trial broadcast to the public at large.
The defendants oppose this course. The CFA, DSE and Victoria Police defendants oppose the web streaming of the evidence but say that if the Court were to decide that the trial should be streamed, it should be only to group members and their families. SPI, the power company, takes a different stance. It says that only those lay witnesses who want their evidence broadcast should be the subject of live streaming. It does not oppose the broadcast of the evidence of expert witnesses. USC, the asset inspection company, opposes any form of transmission.
I have determined that it is appropriate to broadcast the trial via live streaming, however, access to that broadcast should be limited to group members and their immediate families. Of course, if a witness has a justifiable reason for not wanting his or her evidence broadcast then that wish will be considered. My reasons for taking this course are set out below.
The trial
The courtroom on Level 3 of the William Cooper Justice Centre in William Street, Melbourne, is large and has a significant public seating area. There are also adjacent rooms where the parties and members of the public may view a broadcast of the trial without being in the courtroom itself. Despite these facilities, there is insufficient space to accommodate even a fraction of the total number of group members.
As has been the case in previous trials of class actions arising out of the Black Saturday bushfires and other trials in this Court,[1] the opening and closing submissions will be available for live streaming to the public.
[1]The trials in Thomas v Powercor, Place v Powercor and the Great Southern Proceedings.
The filming of the trial will utilise cameras in the courtroom which are in-built, fixed and close to unnoticeable - most people would not be aware of their existence. Such cameras are used regularly in civil and criminal trials to record evidence or to transmit the evidence by audiovisual link or, on occasions, by live streaming. Television cameras will only be permitted for portions of the opening and closing submissions.
The principle of open justice and the broadcast of trials
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”.[2] The principle is multifaceted. Access to court proceedings increases public awareness and public confidence in the court and the administration of justice.[3]
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.[4]
[2] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, 259.
[3]See The Right Honourable Lord Neuberger of Abbotsbury, ‘Open Justice Unbound?’, (2011) 10 TJR, 259.
[4]Ibid 260.
The principle of open justice in this country is reinforced by the ratification of the International Covenant on Civil and Political Rights 1966. Article 14 provides that:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interests of private lives of parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.[5]
[5]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.
However, the application of this principle at times may produce a tension with the administration of justice. In January 2006, French J spoke extra-judicially of the tension between open courts and just courts. His Honour said regard must be had:
…to the need for courts to preserve the integrity of their essential function, the administration of justice in according to law and to the principle of open justice.[6]
[6]R S French ‘Radio and Television Broadcasting in the Magistrates Courts – is there a Future?’ Australian Magistrates Conference (10 January 2006) [2].
The case in favour of television and radio broadcasting of court proceedings and accessibility on the internet has been taken up by Associate Professor Daniel Stepniak. There are two planks (at least) to his contention that media access to an open court constitutes open justice:
(a)the reality that very few people enter a courtroom to personally observe the administration of justice in action;
(b)the fact that television and, one could add the internet, are major sources of information and publicity in contemporary society which have effectively been banned from the courts.[7]
[7]French, op cit [29]. See also Daniel Stepniak, Audio-Visual Coverage of Courts – A Comparative Analysis (Cambridge University Press, 2008).
French J noted that the central debate is not necessarily about open justice but “about the extent to which the broadcasting of proceedings may affect the essential function of the court”.[8] His Honour concluded by pointing to three issues which should be considered when questions of access by the electronic media to Australian courts arise:
1.Physical distraction to those involved in the proceedings – a concern much mitigated by much less obtrusive technology than in previous years.
2.The subtle and not so subtle effects of electronic media coverage upon participants in the court process particularly parties and witnesses whose willingness and ability to give their evidence and to make appropriate decisions is of vital importance to the integrity of the court process. While the open nature of the court proceedings means that there will always be questions of exposure and embarrassment in public, there is a power and immediacy surrounding electronic media coverage which, in the minds of some, may raise the risk of undue distraction and apprehension to an unacceptable level.
3.A cultural abhorrence of tabloid television journalism whose distorting effects may be the more powerful because of their access to visual and sound imagery. This is exacerbated by observation of high profile and probably quite atypical cases such as the OJ Simpson case in the US and their extensive discussion on such outlets as Fox Television. There is a legitimate concern incidental to what may be a purely cultural abhorrence and that is the desire to ensure that the dignity and authority of the courts of law and public confidence in them should not be lowered.[9]
[8]Ibid [12].
[9]Ibid [42].
Live streaming via the internet
Streaming media is a method by which data is delivered by an internet provider in a continuous stream to an end-user’s device (e.g. computer, iPad, web-enabled television). In this case, live streaming will occur when the real time video image of the trial is received on the device. Live streaming is similar to viewing a program live on television: the device’s embedded media player displays the video images as they are streamed and it cannot be re-wound or fast-forwarded. It is difficult but not impossible to record a live stream.
Survey of group members
In order to obtain an indication of the sentiments of the group members towards various options of broadcasting the trial, Maurice Blackburn, at my request, surveyed a sample of the group members.[10] The firm consulted 34 individuals including Mrs Matthews, the sample group members, and 29 random group members, including a community leader in the Kinglake area who was able to pass on sentiments of other group members. Although this survey is not necessarily reliable it is a useful indication of the feelings of some of the group members. The results of this survey show that although some had reservations about their own evidence being streamed, they agreed that it was for the benefit of the whole class that the evidence be live streamed.
[10]‘The survey”.
Submissions
I asked the parties for submissions (oral or written) as to their preferred options of a broadcast of the trial (including the option of not broadcasting). The submissions proceeded on the basis that if there was a broadcast then it would be by live streaming via the internet.
Mrs Matthews submits that subject to any issues that may arise, the entire trial should be available for live streaming to the public at large. She drew on the principle of open justice[11] and also:
[11]See above at [10 – [13].
· the enormity of the class size;
· the nature of the claim; and
· the geographic area in which many of the claimants reside;
submitting that access to this trial will be aided greatly by live streaming of the evidence.
The primary argument of each of the defendants in opposing this course relates to the pressure that broadcasting may have on witnesses and the quality of their evidence.
The preferred position of SPI is that no lay evidence be broadcast, unless a witness indicates that he or she wishes to have their evidence live streamed. Expert evidence may be broadcast. In oral submissions it was suggested that if there was to be a broadcast it could be to a local hall or community facility within the fire affected areas.
The State parties oppose any form of live streaming.
The State parties point to the emergency services personnel who attended the fire and the effect that live streaming may have on the quality of their evidence. They suggest that there is another tension with this category of witness – many will be giving evidence in support of the State parties’ defence by which they seek to defeat the claims of compensation sought by Mrs Matthews and the group members. For members of the Victoria Police, the CFA and the DSE who may continue to live and work in the affected communities (some of whom may also be members of the group) this tension will be heightened by the live streaming of evidence to the public.
The State parties have a fall back position. They submit that if the lay evidence be available for live streaming then it should be restricted to group members and their families. This could be carried out by requiring a user to enter a password on a website in order to access the live streaming.
USC flatly opposes any form of live streaming.
Considerations: Should the trial be broadcast outside the courtroom?
Although some lawyers may think otherwise, this Court is not the Supreme Court of Melbourne but the Supreme Court of Victoria. It is, as Chief Justice Warren has pointed out, a Court for all Victorians. As part of this function, trials are usually held at regional courts in close proximity to the event or events giving rise to the proceeding or to where the parties or witnesses reside. This essential practice has been applied to each of the four class action trials arising out of other bushfires on Black Saturday. In most cases the distance between the regional court and the affected fire area could be covered in a fairly short car trip with easy and free public parking.
There are over 10,000 group members, most of whom (I assume) live in the five municipalities affected by the Kilmore East/Kinglake fire. I also assume that many of them are very interested in this trial and its outcome.
Kilmore East (at the northern point of the fire affected area) is approximately 60 kilometres (as the crow flies) from the Melbourne central business district. Healesville (at the southern edge of the fire) is approximately 64 kilometres from Melbourne (as the crow flies). The train or train and bus trip from both Kilmore and Healesville takes between one to one and a half hours; by car, it may be slightly shorter depending on traffic. Those coming by car will then have to find a car park. From experience, this is not only a nightmare but a prohibitively expensive nightmare.
Many group members (such as the elderly, the infirm and the indigent) will not be able to travel into Melbourne CBD for a day or more. Then there are those who are working or care for children. They have no realistic prospect of attending the hearing.
Each of these factors are powerful reasons for permitting a broadcast of the trial. In particular, live streaming will enable those living in rural and semi-rural locations to have access to the trial - as have group members in other Black Saturday bushfire class action trials. Whilst not a perfect solution, it is consistent with the principle that wherever they live, all Victorians should have access to justice. I should now address the competing considerations.
I discount any issue of the cameras in court disturbing a witness. It is apparent from experience that the use of fixed, in-built cameras capable of transmitting the evidence in court does not cause any distraction to witnesses - indeed most, if not all, would not appreciate that their evidence was being video recorded. This form of recording is to be contrasted to the use of television cameras in court which are a real distraction.
I accept that live streaming with associated coverage to the public at large may (I emphasise may) inhibit the willingness and ability of witnesses to give their evidence, as argued by the defendants. However, this risk may be contained by limiting the manner in which the broadcast is disseminated outside the court – for instance, to a fixed spot or to group members only. In such a case, I doubt whether there is a risk of undue distraction or apprehension to such a level as to outweigh the benefits of transmitting the evidence to group members.
The transmission to a limited audience reduces (or indeed may eliminate) any concern that public confidence in the courts might be lowered if broadcast globally. Indeed to the contrary, the ability of group members to have access to the day-to-day running of the trial enhances, rather than detracts from, public confidence in the justice system – or at least one would hope so.
Ultimately, I think the administration of justice necessitates dissemination of the evidence outside the precincts of the courtroom. I see no reason to distinguish between lay and expert evidence - all the evidence should be broadcast.
The question then is which of the three options are appropriate.
Option 1: Streaming to the public generally
This option would give anyone access to a live stream of the evidence on the internet. I am not satisfied that this option is appropriate in this case. I have already mentioned some of the matters which militate against streaming to the public at large.
It is unarguable that there is considerable public interest in this case. But to some extent that public interest can be accommodated by the unrestricted live streaming of the opening and closing submissions and the media’s ability to report on the evidence. I note that the media will have access, on request, to the trial transcript.
I also bear in mind that the proceedings of the Victorian Bushfires Royal Commission were streamed live and that, to a limited extent, those interested persons other than group members have had the opportunity to see many of the witnesses as part of the Royal Commission process.
Option 2: Streaming to specific public venues
This option would allow the public to go to specific destinations to view the proceedings via live streaming or closed-circuit video. The logistics and workability of this option poses a significant problem: halls or community centres would need to be requisitioned. Who is to meet the cost? Are such facilities available at short notice? How will they be chosen? Some of the communities affected by this fire are still rebuilding and simply do not have the resources to provide an appropriate facility.
In the survey, Mrs Matthews and the group members see this option as undesirable, and I agree.
Option 3: Streaming to group members and their families
The third option is to allow live streaming to group members and their families only. Group members would be given the web address of a unique URL and be required to enter a password (allocated by the Court to Maurice Blackburn), allowing them to live stream the evidence.
I think it is fair to assume that most group members and their families would have access to a device that is capable of receiving a live stream of the trial. This option would give those who cannot make the journey to the Melbourne CBD (for any of the reasons I have identified) the opportunity to see, on an as-required basis, the evidence given in the trial. It eliminates the need for travel and permits a group member to watch the trial when he or she has the time to do so.
In the provision of this facility, I think it important to be realistic. The broadcast should not be confined to group members but should also be available to their families.
In my opinion, it is the preferred option.
Exclusion of the evidence of certain witnesses from live streaming
I will retain the discretion to prohibit a broadcast of the evidence of a particular witness. A witness who does not want his or her evidence streamed to the group members will need to make an application setting out the substantiative grounds as to why their evidence should not be made available to group members and their families. The default position is that the evidence will be broadcast unless a reasonable basis for prohibiting it is established.
Restriction upon witnesses to live streaming of the evidence
I assume that there will be an application by one of the parties for witnesses to remain outside the courtroom until their evidence is given. The standard practice of requiring witnesses to be excluded from the courtroom is based on the assumption that, notwithstanding a witness taking the oath or affirmation, he or she may be affected (consciously or subconsciously) by other evidence given in the trial.
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.
Conclusion
There should be dissemination of the evidence given in the trial by live streaming outside the courtroom.
I do not think it is appropriate for the evidence to be live streamed generally; rather, group members and their families should have access to the evidence by live streaming via the internet.
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