Courts, Confidences and Change in Challenging Circumstances
Quayside Chambers Oration, Perth Concert Hall
What is a court in the modern age? Does technology challenge or enhance accessibility and transoparency? How and when do we protect commercial and other confidences? And what can we learn from the catalyst of a pandemic?
Part 1 - the reverence for physical courts
The Court was beautiful. It had a soaring ceiling, pale plaster walls,and fittings of dark, ponderous timber; but, like all the court rooms in that grand old building, it was cramped, and awkward to move around in. The dock ran along the rear wall, and in it, behind a red velvet rope, sat Robert Farquharson in a glaring white shirt with a stiff collar and tie … though the room was packed with his supporters he looked scared, and small, and terribly lonely.
Jeremy Rapke QC, Acting Chief Crown Prosecutor … was a lean contained looking man with a clipped grey beard and a mouth that cut across his face on a severe slant, like that of someone who spent his days listening to bullshit … he spoke sparingly in a low courteous voice, as if his words were only the upper layer of some more crucial process that was going on inside his head. But his final submission that day, delivered in the same conversational tone, had flowed out of him in a scorching stream, elegant and devastating.
… [Justice Cummins] was reassuring to look at, not lofty or threatening; behind his high bench he would lean forward on his elbows and address the court with genial warmth.
… The jurors filed into the box and sat with hands folded looking around nervously, their shoulders were bowed as if their new duties were pressing them into their chairs. From now until the end of the trial, every time they entered the court, Farquharson would sprint to his feet in the dock and remain standing until they were seated - a protocol that seemed to say my fate is in your hands.
1 So Helen Garner describes the scene in her raw and evocative book with its epithet for the Supreme Court of Victoria - This House of Grief.[1]
2 That title and the description of wood-panelled walls with docks and velvet ropes perhaps aligns with how many people perceive the visuals and atmosphere of a courtroom to be - maybe add a crest behind the judge and some wigs and gowns.
3 These days the reality is somewhat removed.
4 In his 2019 book Online Courts and the Future of Justice,[2] Richard Susskind describes the reality of many physical courts as:
… harshly lit canteens of chrome and pale laminate, littered with screens and cables, carpeted in coarse tiles with insufficient adhesive, with walls painted in dirty off-white, and populated by lawyers and judges in unglamorous business apparel.
5 The reverence for physical courts remains strong for many. The court building has traditionally had a symbolic and architectural presence in a town: imposing, exuding authority and even majesty.[3]
6 In countries throughout the world this reverence remains. The tiered glass skyscraper that now houses the Paris law courts; the elevated glass cube that is the downtown Los Angeles United States Courthouse; the International Criminal Court in The Hague with its chequerboard façade, creating shifting patterns of light and shadow.
7 Closer to home, the High Court, an example of late modern brutalist architecture, was the product of a competition brief that called for a monumental building that acknowledged, but was clearly independent of the Australian Parliament. The location of the Court relative to the Australian Parliament was said to demonstrate the separation of judicial power from executive and legislative power.[4] And as with many modern court buildings, glass is used extensively, symbolising transparency and openness.
8 And even closer to home, the brief for the new Supreme Court, now the David Malcolm Justice Centre, was underpinned by the State's desired objective 'to provide a structure which appropriately symbolises the importance of the rule of law to our democratic community' and which appropriately reflects the significance of the Supreme Court and the Judiciary as the third branch of government.[5]
9 There has also been a move towards recognition of reconciliation over majesty. The design of the court complexes at, for example, Kalgoorlie and Kununurra involved Aboriginal collaboration and produced spatially distinct courthouses that attempted to introduce features relevant to the local indigenous communities.[6] The collaboration for Kununurra encouraged greater capacity for separation of groups, lines of sight to country, extensive use of windows and courtyards and incorporation of Aboriginal art and symbolism.
10 It is not just the exterior of a court that has been the subject of architectural analysis.
11 In their article published in the Alternative Law Journal last year, Civil Courts and COVID-19: Challenges and opportunities in Australia, McIntyre, Olijnyk and Pender cite Linda Mulcahy's authoritative 2011 work Legal Architecture: Justice, Due Process and the Place of Law. They cite Mulcahy's description of the environment in which legal proceedings are conducted as 'a physical expression of our relationship with the ideals of justice'.[7] They write:[8]
The courtroom layout reflects the relationship between the participants: the judge, lawyers, witnesses, jury, accused and the public. There are times when it is appropriate to stand, sit, speak and bow. There are special ways of passing physical items between different participants. The clothing of the judge,lawyers and court staff conveys information about their role and status. These formalities can serve to emphasise the principles of equality before the law and the impartiality of the judge.
None of this is an accident. The symbolism and formality of the physical aspects of courts combine to convey the solemnity of the legal process.
12 I should add that there are many learned authors who have written in this area, perhaps the most cited being Judith Resnik and Dennis Curtis. Their text Representing Justice: Invention, Controversy and Rights in City-States and Democratic Courtrooms[9] also published in 2011, is widely regarded as an authoritative work.
13 In the criminal justice context, there have been many studies that focus on the internal layout of the courtroom; whether conviction rates might be higher, for example, for an accused who is behind glass in a dock as against one who is seated at a table; the effect on a jury of an accused being surrounded by security officers or sitting with counsel, and so on.[10] So there are all kinds of design questions that arise, even within a courtroom layout.
14 The question then is what is lost when we move from the physical courtroom to online? Much has been made of perceived prejudice to open justice - of secret trials in virtual worlds, conducted from chambers.[11] But does the transition matter? And what is gained?
15 After all, a court is still a court, even if it is online.[12]
Part 2 - open justice in physical and online courts
16 Online hearings are by no means new in this State. Courts in Western Australia have been equipped for some years with video capacity for witnesses, counsel and judges to participate from interstate. Some courts in Australia have broadcast proceedings live, due to public interest in a case.[13] The Supreme Court of Western Australia has on occasion provided for streamed trials, notably the Marsh v Baxter trial.[14] Regardless of COVID-19, the use of technology has been increasing in recent years, but COVID-19 certainly provided the catalyst for immediate and dramatic change.
17 Many of the discussions around online hearings have been about matters such as prejudice to a judge's ability to assess credibility - an ability that is frequently subject to question in any event - and prejudice to the cross-examination process. Those are matters worthy of discussion but they are not the focus of this address, and in any event are very fact specific. What might work in one matter may not work in another.[15]
18 I will focus on open justice in the commercial context and how the courts and their procedures and systems facilitate that, both in the old world and the new. There are two reasons why I have chosen to focus on commercial courts. The first is to acknowledge the contribution that many of you who are present this evening, including the members of Quayside Chambers, make to the commercial fabric of the Western Australian profession and business community, particularly with respect to arbitration and civil litigation. The second reason is that criminal trials are their own special beast with particular issues around privacy, the identification of witnesses and jurors and the particular nature of some of the evidence being disclosed. What might be feasible in a commercial court simply may not be feasible in other contexts.
19 The risk of undermining open justice can only be addressed if some of its dimensions are first understood. For example, it must be acknowledged that open justice is not simply about access by the public and the media to what goes on in court. That is an important aspect of open justice, but the principle refers to so much more than that. The process of reasoning must be exposed. As Sir Frank Kitto described it, publicity provides a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing. It is an effective stimulant to judicial high performance.[16] It is a system that protects against the state dispensing arbitrary and summary forms of justice against its citizens in secret and outside the reach of the law.[17]
20 The aphorism that 'justice should not only be done but should be seen to be done', is widely attributed to Lord Chief Justice Hewart, from his Lordship's 1924 judgment in R v Sussex Justices Ex parte Macarthy.[18] Unfortunately it seems that was not the only memorable thing said by Lord Hewart in his time. In 1985 Lord Devlin famously said this of Lord Hewart:
Hewart … has been called the worst Chief Justice since Scroggs and Jefferies in the seventeenth century. I do not think that is quite fair. When one considers the enormous improvement in judicial standards between the seventeenth and twentieth centuries, I should say that, comparatively speaking, he was the worst Chief Justice ever.[19]
21 The requirement that judges should decide cases openly and in public, and assign reasons for their decision is essential to the proper administration of justice and to the preservation of public confidence in the courts. That requirement was described by Lord Shaw of Dunfermline in Scott v Scott,[20] but it is a pervasive axiom, referred to by historians, philosophers and judges and enshrined in one form or another in international human rights instruments such as the International Covenant on Civil and Political Rights.
22 In short, judges must function in public, subject only to certain exceptions, and their process of adjudication must be open to public scrutiny.[21] But what does it mean to function 'in public'?
23 Some of the indicia of open justice are obvious in a physical court.
24 The doors of the court are open. Members of the public are able to attend. Court lists are published. Anyone present can observe the evidence that is given. Judgments are published online and are now freely available. The use of medium neutral citations has removed the barrier for the public of expensive subscriptions to authorised reports. Orders are public. Data and statistics about the courts are published.
25 But in reality, though, is everything as public, open and accessible as it may seem? The modern day trial is a very complex creature. So much evidence in a commercial trial is documentary; source documents, emails, experts' reports and the like. It is generally tendered by way of a court book or affidavits, and, apart from the 20-odd documents that we all know are the only ones that are really relevant, there may be very little discussion in court about the actual evidence. Added to that, openings and closings are often done by written submissions.
26 That regime is a long way from the pre-word processor and pre-computer days of a trial court. To what extent can a person observing in court really have access to evidence or hear the arguments that are being put? To what extent can members of the public who do not live close to a city really access an open court? And what about matters determined on the papers? How does the public have access to that type of proceeding? There are two answers, neither of which is perfect.
27 The first answer, at least in theory, is provided by rules of court that permit public access to certain documents. In the Federal Court, r 2.32 permits anyone access to originating processes, pleadings, statements of agreed facts, order and judgments. There is no access to affidavits or submissions without an application for leave, although an application is generally dealt with at registrar level and requires completing a standard form. Occasionally the request will come to the docket judge, but not often. That system provides a check in a number of ways. There must be caution with access to affidavits. They might be filed but never read: unless they are read they are not in evidence and so there is no right of access, just as they would not be disclosed in a courtroom. Similarly, submissions might refer to evidence that ultimately was not read.
28 As to what it means to 'read' an affidavit, see Australian Securities and Investments Commission v Cassimatis.[22] More generally as to affidavit evidence, even if by way of refresher, I commend to you a very useful and practical paper written by the Hon Alan Robertson called, simply, Affidavit Evidence.[23]
29 That process of filling out a form in order to access documents is probably off-putting for many people. Our records suggest it does not happen very often. The potential for visibility in complex commercial trials is no doubt different to the reality, but provided there is an access regime in place that is simple to use, responded to promptly and not applied too strictly, it is difficult to make out an argument that open justice is compromised in such cases. Certainly the prima facie position in the Federal Court is that once an affidavit is read, then the public should have access to it on request.[24]
30 The second answer to disclosing what goes on in court is the role of the media. The media plays a crucial role in informing the public and letting the light in. The reality is that there is very rarely a queue outside a commercial court. There are exceptions. Defamation matters and high profile litigants seem to draw a crowd, but otherwise few members of the public seem to have the time or the inclination to attend courts in person.
31 The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public, and this is reflected in the common law and statutory right of a news publisher to be heard on applications for suppression or non-publication orders.[25]
32 Against that background what do we lose in terms of open justice by way of an online hearing? And remember we must not compare every online hearing to some idealised conventional court hearing in a large, light-infused, architecturally impressive room with attentive court officers and reliable video screens for the public viewing of documents. We know that many physical court hearings are not like that.
33 In theory, online courts should greatly increase information transparency - for many people it is far easier to watch online than to turn up in a physical court. Details are published in the daily Federal Court lists that explain how a member of the public can attend by telephone or video. Practitioners are also able to share links to their clients and solicitors involved in the matter. Whilst I have not kept statistics over the last 12 months, my sense is that I often have many more people observing an online hearing than would turn up in the courtroom. Sometimes I might have twenty or thirty people observing a relatively straight-forward online interlocutory hearing, and those are the types of applications where I am used to seeing no-one in court apart from a loyal team of lawyers.
34 I also wonder how often an online hearing has a valuable educative role - lawyers and students who would otherwise have no time or ability to attend are able to watch a hearing, even if only for a few minutes.
35 And those who participate online still have the same rights of access to court documents that I have already talked about.
36 There are the foibles of online hearings to which we have all needed to adapt - bandwidth issues, latency, the inevitable mute button issues, virtual back drops that break up and disappear - but those things are generally manageable, and no-one should think the less of anyone for having those sorts of technology issues. We all have to deal with those things (and there was some compensation offered this year by the contribution of the lawyer who is not a cat[26]).
37 We must also proceed down the online hearing path knowing that a section of the community does not have ready access to internet service or suitable devices. Special consideration must be given to access issues in some cases. Those difficulties must be weighed against the fact that significantly more people are likely to have access to an online hearing than a physical courtroom in any event.
38 So in terms of open justice, I am not sure that the online hearing has prejudiced the transparency of the standard commercial court hearing.
39 I should add that I do not think anyone is advocating a permanent wind back of hearings in a physical courtroom. There is much to be said for the humanity and dignity of human presence when it comes to dispensing justice. I do not think that any judge, already relatively isolated by the role, would endorse or prefer the idea of working remotely and working only online, without access to each other, without access to the theatre and enjoyment of the courtroom, and without the privilege of having parties attend before us. Certain matters, and I have in mind in particular native title matters, involve other considerations that would be compromised if hearings only proceeded online. The conciliatory and symbolic aspects of hearings on country would be severely undermined if such hearings were curtailed. But for smaller civil matters and case management, the efficiencies of online hearings are invaluable.
40 What is important is that we have options, and I think that if managed properly and with proper consultation with the parties, open justice is not compromised by those options.
41 The courts are not the only forum in which commercial disputes are resolved. Arbitrations have long provided a mechanism for the private resolution of certain types of commercial disputes, and there are other established methods of confidential dispute resolution. On the other hand, some matters of a commercial nature must be played out in the courts, many regulatory, corporate and insolvency matters amongst them. Perhaps, however, for commercial parties, the idea that members of the public or voyeuristic competitors can tune in online and observe their disputes being played out might be a cause for concern. There is an ease and certain anonymity to the online process which some parties might find unsettling. There is no doubt that there are issues to be resolved about the potential for dissemination of prejudicial information to the masses on the internet and the need to pre-empt such information sharing.[27] Those issues do not justify abandonment of attempts to limit such dissemination.
42 But to the extent that commercial parties have real privacy or confidentiality issues, the court system has always offered a level of protection, and it continues to do so, whether in a physical court or online.
43 And that leads to part 3 of this talk - when must the boundaries of open justice be modified to protect confidential information. After all, open justice does not trump all other considerations.
Part 3 - boundaries of open justice - confidentiality
44 There are many categories where public access to information is excluded, many recognised at common law and some by specific statutory provisions. Without attempting to provide an exhaustive list, these are some of the more commonly recognised exclusions:
(a) information that identifies children;
(b) information that identifies witnesses or informers in criminal proceedings, and where safety issues arise;[28]
(c) information that identifies victims of crime;
(d) information that identifies victims of extortion or blackmail;
(e) information that identifies persons still facing criminal trials, and so may prejudice their right to a fair trial;[29]
(f) unusual matters that reflect respect for human dignity where identifying features may be suppressed;[30]
(g) secret ingredients, processes or systems in intellectual property matters;[31]
(h) information that is commercially sensitive;[32]
(i) the terms of confidential settlement agreements; and
(j) the names of persons involved in proceedings following the grant or refusal of protection visas, where the person claims to fear persecution on return to their country of nationality.[33]
45 Focusing on the Court's commercial jurisdiction, the type of information that tends to be the subject of suppression applications is best described as commercially sensitive, and so I will spend some time on that category, with particular reference to the Federal Court's statutory regime, but noting that the principles are relatively similar across the courts and across jurisdictions.
46 Section 17 of the Federal Court of Australia Act gives statutory effect to the objective of open justice, providing that unless permitted by an Act to exercise jurisdiction in Chambers, the jurisdiction of the Court shall be exercised in open court.
47 Section 17 is expressly qualified by Part VAA of the Federal Court of Australia Act, which was introduced into the Federal Court of Australia Act ten years ago as part of a range of amendments across the High Court, Federal Court, Family Court and Federal Circuit Court, aimed at providing a harmonised approach to suppression and non-publication orders.[34] New South Wales also introduced similar laws at around that time.[35]
48 Section 37AE sets out the overarching principle that in deciding whether to make a suppression order, the Court must take into account that the primary objective of the administration of justice is to safeguard the public interest in open justice. Section 37AF then grants the power to the court to make an order that prohibits disclosure on permitted grounds, and that power extends to information that might reveal identity or certain evidence. However, s 37AG is key. It provides:
Grounds for making an order
(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
49 Section 37AJ provides that a suppression or non-publication order is made for a time specified in the order or the occurrence of a specified future event. So it is rare that an order would simply be made on an open-ended basis.[36]
50 It is important to note the repetition of 'necessary' in s 37AG: it is a high bar, and reflects the High Court's statement in Hogan v Australian Crime Commission to the effect that 'necessary' is a subjective jurisdictional fact.[37] It is insufficient that the making of an order appears convenient, reasonable or sensible, or to serve some notion of public interest.
51 It is worth recording other relevant principles:
(a) the threshold which an applicant must satisfy is high: the onus on the applicant to persuade the court to make the order has been described as 'a very heavy one';[38]
(b) there must be material before the court upon which it can reasonably conclude that it is necessary to make such an order;[39]
(c) mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice to found a suppression or non-publication order;[40] and
(d) once the court is satisfied that an order is necessary, it would be an error not to make it - there is no exercise of discretion or balancing exercise involved.[41]
52 The rationale for the suppression of commercially sensitive and confidential information is that disclosure of such information may result in members of the public losing confidence in the court, and the court's processes 'might open the way to abuse' by competitors or other persons.[42] It is not in the interests of the administration of justice that the proceedings 'become a vehicle for advantaging or prejudicing trade rivals'.[43]
53 Confidentiality agreements are common place in commercial agreements and there often appears to be an expectation that the court will rubber stamp an agreement by the parties that sensitive information or terms should be kept confidential. That might be reflected by a request for the court to be closed whilst certain evidence is given, but the usual course is that the court is requested to make an order that the content of an affidavit, and sometimes many affidavits,remain confidential and that there be no access to it other than by a party or the court. Often the parties have not considered how that information might be dealt with in a judgment.
54 There are four important matters to address when considering suppression orders (and I will use that term to embrace non-publication orders, as well).
55 The first is that the court well understands that when matters are instituted urgently it may be appropriate to make broad orders as an interim measure: it might be necessary to act quickly to ensure that information is not accessed or irreparable damage caused before the detail of orders can be addressed and resolved. However, the parties must remember to revisit the question of the scope of any suppression orders as soon as is practicable.
56 Second, it might be that the confidentiality term of a commercial agreement is too broad, purporting to classify all of its contents as confidential, when really that is not the case. The parties therefore come to the court knowing that there is potential for information that they have agreed is confidential to be disclosed. This was addressed by the NSW Court of Appeal in the early litigation between the Rinehart and Welker parties, where it was said that respect to party autonomy does not mean that everything associated with (in that case) a private arbitration wears a mantel of confidentiality: the fact that any arbitration was to be held in private was only one factor relevant to the question of whether the proceedings should be held in open court.[44] As the matter was explained succinctly by the Queensland Court of Appeal in Lake Vermont Marketing Pty Ltd v Coranar,[45] there must be a difference between the protection of commercially sensitive information and the protection of information which parties have agreed or expressed to be confidential, when the information objectively lacks that quality.
57 Confidentiality is also a matter that arises frequently in a practical sense in insolvency matters, particularly where contracts have been entered into during an insolvency regime entered into for the sale of business assets or the transfer of shares. The price offered and the identity of a purchaser may be particularly price sensitive. If the sale falls over, disclosure will reveal a floor price. Negotiations recommence on a different footing and it is creditors who are likely to be prejudiced by a reduced sale price. So it will not be difficult to persuade a court that some form of suppression pending resolution of a sale process is appropriate.
58 However, again, some caution is required. It is not uncommon for liquidators to seek to limit access to the whole of their affidavits; that may not be appropriate.
59 In the recent decision of Sheahan, in the matter of BCI Finances Pty Ltd,[46] Charlesworth J refused to make a suppression order as to the whole of a liquidator's affidavit, instead suppressing only one document, being a confidential settlement deed, and making a limited suppression order over the balance, in effect providing the liquidators with 28 days in which to justify why any other suppression orders were necessary.
60 Her Honour referred to the pragmatism of permitting an overarching suppression order, but did not consider it appropriate to make such an order in the circumstances of the case, remarking on the fact that the discretionary power to make a suppression order was only enlivened once the essential criteria were established. Her Honour also referred to the practical difficulty faced by third parties who ordinarily would be able to access affidavits that have been read and so form part of the evidence in a matter.
61 However, Black J in Re Octavier Administration Pty Ltd (in liq)[47] had taken a different approach, deciding that it would not serve the interests of justice to require a liquidator to expend time and money in that case identifying particular material within his affidavits that should be redacted, recognising that the task might be necessary in the event that an application is made by a person with sufficient interest for access to the materials. The issue was deferred, but not ignored. A similar approach has been adopted in other cases.[48]
62 At one level, the difference in approach is one of timing: the issue of redaction is simply deferred by the approach in Re Octavier, and access is not by that approach denied. However, counsel would be wise to consider the different approaches and be prepared to justify the type of order they may seek.
63 Third, a court is generally obliged to publish reasons. In the criminal sphere, there may well be occasions where it is right to suppress reasons as a whole, at least for a period. This occurs regularly where, for example, a trial remains pending; where there may be a re-trial ordered on appeal; where reasons may relate to bail or other pre-trial applications; or where it is impossible to adequately de-identify a victim or witness.
64 However, a scenario in the commercial sphere where an entire judgment is suppressed is less easily envisaged. Parties should proceed on the basis that a judgment will be published. Therefore, parties and counsel must give thought to how that might sensibly be done in circumstances where confidential information is involved. They must also bear in mind that ordinarily at least some reasons will be provided as to why a suppression order is made, if it is far-reaching.[49]
65 The courts have been emphatic that there remains a public interest in having access to the reasoning by which a court resolves a commercial dispute: see, for example Lake Vermont Marketing Pty Ltd where the Queensland Court of Appeal emphasised that it is relevant for the administration of justice that the public be made aware of the nature of the arguments that parties to a commercial contract might pursue in litigation.[50]
66 In Lake Vermont, the issue was whether clauses could be redacted in a way that permitted the judgment to still make sense. It was necessary that some clauses of the agreement be disclosed in the reasons. The Court declined to make the extensive redactions that were sought. However, the Court also took into account that there were other joint venture parties that were not parties to the litigation and who expected the parties to take steps to preserve confidentiality, and permitted redactions of parts of the joint venture agreements.
67 Fourth, what do counsel suggest should be done? Generally speaking, information that is truly sensitive is readily identifiable. The court is always open to counsel's suggestions as to how the redaction and suppression process might be given effect. In the case of a judgment, the court will often be prepared to release a copy of the judgment to the parties on the basis that it is embargoed from further publication or distribution, in order to provide the parties with an opportunity to make any application for redaction or suppression orders prior to general publication.[51]
68 That, you will be pleased to know, is the end of the substantive law section of the paper - I am afraid you were obliged to endure some case law for the sake of your CPD points. But as a matter of self-interest, I might add that there is no reluctance on the part of the court to consider an application for suppression orders in the context of a business or commercial dispute - there is an appreciation of the commercial sensitivities involved. However, some forethought is required to ensure that the threshold criteria are made out and that any orders and redactions are dealt with in a streamlined manner. Further, it is far easier to write a readable judgment by avoiding or disguising reference to sensitive information in the first place, rather than redacting reasons once they are completed. Any suggestions from counsel in advance as to particular matters that should not be disclosed will always be gratefully received.
Part 4 - open justice and public scrutiny of judges
69 And so I have talked about the principle that judges must function in public, whether in a physical court or online, and where that principle might be excluded in the commercial context. Now I turn to briefly discuss the role of reasons in the public scrutiny of the work of judges.
70 When I was appointed to the Supreme Court in 2016 one of my former partners at the law firm where I had worked said to me that I shouldn't waste time writing all those long judgments; that I should just make up my mind and 'ex temp it and be done with it', because nobody really reads judgments anyway. I will suppress his name.
71 In my experience, counsel for the successful party tends to read the judgment, even if no-one else does.
72 Lack of literary interest in judgments does not obviate the need to diligently prepare them. Written judgments fulfil three purposes. As described by Gleeson CJ:[52]
First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.
73 The High Court has commented on the connection between judgments and open justice on a number of occasions, and as recently as the date of this oration, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17.[53] Earlier, in Wainohu v New South Wales,[54] French CJ and Kiefel J noted that the centrality to the judicial function of a public explanation for reasons for final decisions and important interlocutory rulings has long been recognised, referring to Broom's Constitutional Law, published in 1866, and its reference to a judgment as the property of the profession and of the public.[55] Reasons are not only linked to the availability of rights of appeal but should be seen more broadly as an incident of the judicial process:[56]
The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.
74 It is also well established that a failure to deliver reasons, or adequate reasons, may ground an appeal.[57]
75 There must be room for efficiencies, however. There are many examples where short oral reasons are given, such as uncontroversial costs decisions, less complex interlocutory decisions and the like. Provided those oral reasons explain the decision, a party will generally be content with access to the transcript, if required, and there is no need to publish formal reasons.
76 The High Court has also provided guidance to an appellate court, so often presented with many grounds of appeal. In Boensch v Pascoe[58] the majority referred to the principle that an appellate court should confine itself to determining only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal before it, noting that principle is so much embedded in a common law system of adjudication that we have no name for it. In some other systems, it is known as 'judicial economy'. The High Court confirmed that although the appellate court is to consider whether to deal with all grounds of appeal, it does not follow that it must determine non-dispositive issues in appeals before them as the norm.
77Even allowing for such accepted efficiencies, the quality of a judgment must be such that it reveals reliable findings of fact and the application of the law, a writing task that is rarely as straightforward as it may seem, but is vital in ensuring that justice is seen to be done.
78And so to return to the beginning, and Mr Farquharson's apparent recognition in that House of Grief that his fate was in the hands of others. What we do as lawyers, counsel and judicial officers is all about the fate of others, and regardless of how a trial plays out - in a majestic physical courtroom or across strained bandwidth - that is the motivation that should drive us to do things as properly and as fairly as we can.
* I gratefully acknowledge the assistance of my research associate, Zak O'Neil.
[1] The complete epithet in Garner's book is 'this treasury of pain, this house of power and grief'. Garner quotes the words from the Hungarian poet, journalist and author Dezső Kosztolányi's 1934 novel, Kornél Esti, in which Esti reflects on a character, Pál, whose 'finest years had slipped by' in the police/court precinct that Esti described (additional extract from the translation by Bernard Adams, Kornél Esti (New Directions,2011) at 111): Helen Garner, This House of Grief: The Story of a Murder Trial (Text Publishing, 2014).
[2] Richard Susskind, Online Courts and the Future of Justice (Oxford University Press, 2019) at 57.
[3] For a comprehensive summary, see Western Australia Law Reform Commission, Review of the criminal and civil justice system: Project 92 (Consultation Paper, June 1999) Vol 2 at 1017, [5.2]. This consultation paper was prepared for the purpose of the overarching 1999 review of the civil and criminal justice system in Western Australia. The Law Reform Commission retained the services of architect Louise St John Kennedy and criminologist and sociologist David Tait for this part of the paper, headed 'Court Perspectives: Architecture, Psychology and Law Reform in Western Australia'; see also Susskind (n 2) at 208.
[4] 'The Building', High Court of Australia (Web Page) https://www.hcourt.gov.au/about/the-building external link.
[5] 'West Australian Supreme Court', Jackson Architecture (Web Page)
http://jacksonarchitecture.com.au/portfolio_page/west-australian-supreme-court/ external link.
[6] Thalia Anthony and Elizabeth Grant, 'Courthouse Design Principles To Dignify Spaces For Indigenous Users: Preliminary Observations' (2016) 8(1) International Journal for Court Administration 43 at 46-48.
[7] Joe McIntyre, Anna Olijnyk and Kieran Pender, Civil Courts and COVID-19: Challenges and opportunities in Australia (2019) 45(3) Alternative Law Journal 195.
[8] McInytre and Olijnyk (n 7) at 199.
[9] Judith Resnik and Dennis Curtis, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (Yale University Press, 2011).
[10] For example, see Davit Tait, 'Glass cages in the dock? Presenting the defendant to the jury' (2011) 86(2) Chicago-Kent Law Review 467; Meredith Rossner, et al. 'The Dock on Trial: Courtroom Design and the Presumption of Innocence' (2017) 44(3) Journal of Law and Society 317; Linda Mulcahy, 'Architects of Justice: The Politics of Courtroom Design' (2007) 16(3) Social & Legal Studies 383 at 388 (noting the rise of interest in interior courtroom design at the end of the 19thcentury, and different spaces to reflect the increased involvement of lawyers).
[11] 'Virtual courtrooms can also mean that many court operations are conducted out of the spotlight. Members of the public who do not have the technology to access virtual courtrooms lose the opportunity to observe proceedings altogether. It is also possible that without the physical courtroom to walk into, people might otherwise attend proceedings will not do so online': New South Wales Law Reform Commission, Open Justice: Court and tribunal information: access, disclosure and publication (Consultation Paper 22, December 2020) at 263, [12.15].
[12] For the purpose of s 47C(1) of the Federal Court of Australia Act 1976 (Cth), Justice Perram said in Quirk v Construction, Forestry, Maritime,Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664 at [9] '… the meaning of 'courtroom' within s 47C(1)(a) includes a courtroom which is located in a digital place'.
[13] For example, the hearing in Australian Olympic Committee Inc v Big Fights Inc [1999] FCA 1042; the hearing in Pell v R [2019] VSCA 186; and see examples referred to in the New South Wales Law Reform Commission Consultation Paper (n 11) at [12.20]-[12.25].
[14] Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377 (Kenneth Martin J); see the Hon Kenneth Martin, 'Open Justice in Western Australia' (2014) 88 Australian Law Journal 779.
[15]For an analysis of different approaches to online cross-examination during the early days of COVID, see Michael Legg, 'The COVID-19 pandemic, the Courts and online hearings: Maintaining open justice, procedural fairness and impartiality' (2021) 49 Federal Law Review (forthcoming) at 11.
[16] Cited in the Hon Murray Gleeson, 'Judging the Judges' in Hugh Dillon (Ed), Advocacy and Judging: Selected Papers of Murray Gleeson (The Federation Press, 2017) at 35.
[17] The Hon TF Bathurst AC, 'Something More, Something Less: the Contemporary Meaning of Open Justice', (Address to Communications and Media Law Association, 16 October 2019) at [8].
[18] R v Sussex Justices Ex parte Macarthy [1924]1 KB 256 at 259.
[19] Lord Patrick Devlin, Easing the Passing: the Trial of Dr John Bodkins Adams (The Bodley Head, London, 1985) cited by the Hon James Spigelman AC, then Chief Justice of NSW, 'The Principle of Open Justice: A Comparative Perspective' (Media Law Resource Centre Conference, London, 20 September 2005); the Hon James Spigelman has written extensively on the topic of open justice: see also Seen to be Done: The Principle of Open Justice (2000) 74 Australian Law Journal 290.
[20] Scott v Scott [1913] AC 417 at 472.
[21] See generally the Hon Murray Gleeson (n 16).
[22] Justice Edelman describes the origin of reading affidavits, noting that it was a practice adopted to compromise efficiency and open justice. When counsel announces that an affidavit is read, the judge will deem all the words in the affidavit to be treated as though they have been read aloud, permitting the efficient conduct of litigation: Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [8]-[11].
[23] The Hon Alan Robertson, former judge of the Federal Court of Australia: Alan Robertson, Affidavit Evidence (2014) 3 Federal Judicial Scholarship.
[24] Deputy Commissioner of Taxation v Shi (No 2) [2019] FCA 503 at [24] (Steward J).
[25] See, for example, s 37AH (2)(d) of the Federal Court of Australia Act 1976 (Cth).
[26] Guardian News, '"I'm not a cat": lawyer gets stuck on Zoom kitten filter during court case' (YouTube, 10 February 2021) 00.00.00-00.00.48 https://www.youtube.com/watch?v=lGOofzZOyl8 external link.
[27] See the summary relating to the Pell case and the breach of suppression orders by overseas media in the New South Wales Law Reform Commission Consultation Paper (n 11) at 274-278 [12.48]-[12.51]: and in the criminal context, see generally Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim[2012] NSWCCA 125; (2012) 83 NSWLR 52 at [78]; and R v Qaumi (No 16) [2016] NSWSC 319 at [33].
[28] John Fairfax Group Pty Ltd v Local Court of NSW (1991) 26 NSWLR 131 (pseudonym order upheld to protect from 'chilling effect' on future cases unless informers were protected).
[29] As reflected in the line of cases about post-charge coercive examinations by the Australian Crime Commission that culminated in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92.
[30] For example, the Administrative Appeals Tribunal made an order suppressing the name of the applicant and redacting various personal information in a matter regarding access to funding for specialised sexual therapy: National Disability Insurance Agency v WRMF [2020] FCAFC 79.
[31] Scott v Scott [1913] AC 417 at 437; an example where the Court was closed to protect such information was SGS Australia Pty Ltd v Australian Laboratory Services Pty Ltd (No 2) [2012] FCA 960 at [8]-[13] (Lander J).
[32] Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 133, 157-158; Australian Competition and Consumer Commission v Air New Zealand (No 3) [2012] FCA1430 at [18]-[21], [35]-[36] (Perram J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 at [11]-[14] (Greenwood J).
[33] Section 91X of the Migration Act 1958 (Cth) specifically constrains the duty of the Federal Court and Federal Circuit Court to publish reasons by providing that the person's name is not to be published.
[34] Implemented in the Federal Court by Schedule 2 of the Access to Justice (Federal Jurisdiction) Act 2012 (Cth).
[35] Court Suppression and Non-Publication Orders Act 2010 (NSW).
[36] For an example of a 20 year period see LHRC v Deputy Commissioner of Taxation (No 4) [2015] FCA 70 (Perry J) (LHRC (No 4)); Justice Anastassiou collected authorities where the Court made a suppression order 'until further order' in Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257 at [28]; see also Australian Competition and Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278 at [150] (Katzmann J).
[37] Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [29]-[32].
[38] Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at[8] (Edelman J).
[39] John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 (McHugh JA, Glass JA agreeing).
[40] Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 at [30] (Foster J).
[41] Hogan (n 37) at [33]; Air New Zealand (No 3) (n 32) at [21].
[42] Clime Capital Limited (n 36) at [17].
[43] Cement Australia Pty Ltd (No 2) (n 32) at [23]; affirmed by Katzmann J in Origin Energy Electricity Limited (n 36) at [148].
[44] The Court of Appeal referred in its reasons to the fact that Scott v Scott involved a failed attempt by the parties to have a matter heard in closed court 'by agreement': Rinehart v Welker [2011] NSWCA 401; (2011) 93 NSWLR 311 at [45]-[47].
[45] Lake Vermont Marketing Pty Ltd v Coranar (No 2) [2018] QCA 40.
[46] Sheahan, in the matter of BCI Finances Pty Ltd [2020] FCA 1411.
[47] Re Octavier Administration Pty Ltd (in liq) [2014] NSWSC 344 at [14]-[21].
[48] See decisions cited in Sheahan, in the matter of BCI Finances Pty Ltd (n 46) at [42]; see also Pascoe, in the matter of Brentwood Village Limited (in liq) [2014] FCA 1295.
[49] For example, LHRC v Deputy Commissioner of Taxation [2014] FCA 388 (Perry J).
[50] Lake Vermont Marketing Pty Ltd v Coranar (No 2) (n 45) at [11].
[51] Examples include Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145 at [323]; LHRC (No 4) (n 36); FAN19 v Australian Criminal Intelligence Commission (No 2) [2021] FCA 127; Robinson, in the matter of Reed Constructions Australia Pty Ltd (in liq) [2017] FCA594 (Gleeson J).
[52] The Hon Murray Gleeson, 'Judicial Accountability', (1995) 2 The Judicial Review 117 at 122, cited by Heydon J in AK v State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [89]: see also Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 278-279 (McHugh JA).
[53] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 at [14]; Grollo v Palmer (1995) 184 CLR 348 at 394 (Gummow J); AK v State of Western Australia (n 52) at [89] (Heydon J).
[54] Wainohu v New South Wales [2011] HCA 24;(2011) 243 CLR 181.
[55] Wainohu (n 54) at [54].
[56] Wainohu (n 54) at [58].
[57] For example, Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [61]; AAM17 (n 53) at [14].
[58] Boensch v Pascoe [2019] HCA 49 at [8].
