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The COVID-19 Pandemic, the Courts and Online Hearings: Maintaining Open Justice, Procedural Fairness and Impartiality

Published online by Cambridge University Press:  01 January 2025

Michael Legg Open the ORCID record for Michael Legg [Opens in a new window]
Michael Legg*
Affiliation:
New South Wales Future of Law and Innovation in the Profession (FLIP) Research Stream, Faculty of Law and Justice, University of New South Wales (UNSW)
*
The author may be contacted at m.legg@unsw.edu.au.
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Abstract

The COVID-19 pandemic and the ensuing mandated health protections saw courts turn to communications technology as a means to be able to continue to function. However, courts are unique institutions that exercise judicial power in accordance with the rule of law. Even in a pandemic, courts need to function in a manner consistent with their institutional role and their essential characteristics. This article uses the unique circumstances brought about by the pandemic to consider how courts can embrace technology but maintain the core or essential requirements of a court. This article identifies three essential features of courts—open justice, procedural fairness and impartiality—and examines how this recent adoption of technology has maintained or challenged those essential features. This examination allows for an assessment of how the courts operated during the pandemic and also provides guidance for making design decisions about a technology-enabled future court.

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Articles
Information
Federal Law Review , Volume 49 , Issue 2 , June 2021 , pp. 161 - 184
Copyright
Copyright © 2021 The Author(s)

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Footnotes

The author would like to thank Professor George Williams, Dr Felicity Bell and the anonymous reviewers for their comments, and Anthony Song for his research assistance. This research was undertaken with the support of the Law Society of NSW.

References

1. Murray Gleeson, ‘The Judicial Method: Essentials and Inessentials’ (Speech, District and County Court Judges’ Conference, 25 June 2009) 6–7 <https://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/gleeson25jun09.pdf> (‘The Judicial Method’). See also K M Hayne, ‘The Australian Judicial System: Causes for Dissatisfaction’ (2018) 92(1) Australian Law Journal 32, 43 (arguing that the court must make changes to litigation to reduce cost and delay but subject to preserving that which is ‘essential to achieve a just outcome’ (emphasis in original)).

2. World Health Organization, ‘Statement on the Second Meeting of the International Health Regulations (2005) Emergency Committee Regarding the Outbreak of Novel Coronavirus (2019-nCoV)’ (Media Statement, 30 January 2020) <https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov)>.

3. Tedros Adhanom Ghebreyesus, ‘WHO Director-General’s Opening Remarks at the Mission Briefing on COVID-19—12 March 2020’ (Speech, 12 March 2020) <https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-mission-briefing-on-covid-19---12-march-2020>.

4. See, eg, Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made 30 March 2020 and Public Health (COVID-19 Restrictions on Gathering and Movement) Amendment Order 2020 (NSW) made 3 April 2020 under Public Health Act 2010 (NSW) s 7; Stay at Home Directions (No 3) (Vic) made 7 April 2020 under Public Health and Wellbeing Act 2008 (Vic) s 199(2)(a); Public Health (Declared Public Health Emergencies) Amendment Act 2020 (Qld) amending Public Health Act 2005 (Qld) s 323; COVID-19 Emergency Response Act 2020 (SA) assented to on 9 April 2020; Emergency Management Amendment (COVID-19 Response) Act 2020 (WA) assented to on 3 April 2020.

5. R (UNISON) v Lord Chancellor [2020] AC 869, 898 [74], quoting Magna Carta (UK) 58 Edw 1, c 29 (‘We will sell to no man, we will not deny or defer to any man either Justice or Right.’).

6. Sir Gerard Brennan, ‘The State of the Judicature’ (1998) 72(1) Australian Law Journal 33, 35.

7. Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1, 24 [39] (‘Graham’); Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 152–3 [43] (Gleeson CJ, Gummow, Kirby and Hayne JJ), 157 [56] (Gaudron J); R (UNISON) v Lord Chancellor (n 5) 896–7 [68].

8. R v IB [No 3] (2020) 352 FLR 103, 116 [91].

9. Michael Legg, ‘The COVID-19 Pandemic and Courts as Essential Services’ (2020) 94 Australian Law Journal 479.

10. See generally Australian Law Reform Commission, Technology—What It Means for Federal Dispute Resolution (Issues Paper No 23, 1998); Anne Wallace, ‘The Challenge of Information Technology in Australian Courts’ (1999) 9(1) Journal of Judicial Administration 8; Clifford Einstein, ‘Technology in the Court Room—2001—[Friend or Foe?]’ (Speech, 15 August 2001) <https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Assorted%20-%20A%20to%20K/einstein_index.pdf>; Ros Macdonald and Anne Wallace, ‘Review of the Extent of Courtroom Technology in Australia’ (2004) 12(3) William & Mary Bill of Rights Journal 649.

11. Geoff Lindsay, ‘The Civil Procedure Regime in New South Wales—A View from 2005’ in Miiko Kumar and Michael Legg (eds), Ten Years of the Civil Procedure Act 2005 (NSW) (Thomson Reuters, 2015) 30.

12. Liz Tay, ‘NSW Sees Value in Slow, Costly IT Projects’, itnews (online, 2 December 2010) <https://www.itnews.com.au/news/nsw-sees-value-in-slow-costly-it-projects-240450?eid=3&edate=20101202&eaddr=%23;EmailAddr%23;&utm_source=20101202_PM&utm_medium=newsletter&utm_campaign=daily_newsletter> (reporting that JusticeLink was completed in June 2010).

13. Chief Justice James Allsop, ‘Technology and the Future of the Courts’ (2019) 38(1) University of Queensland Law Journal 1, 4.

14. Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (Supreme Court of New South Wales, Giles CJ, 11 March 1997) 6 (‘Sunstate Airlines’). See also Anne Wallace, ‘“Virtual Justice in the Bush”: The Use of Court Technology in Remote and Regional Australia’ (2008) 19 Journal of Law, Information and Science 1.

15. Rohan Lulham et al, Court-Custody Audio Visual Links: Designing for Equitable Justice Experience in the Use of Court Custody Video Conferencing (Report, 1 September 2017) 9 <https://opus.lib.uts.edu.au/bitstream/10453/129329/1/DOC-AVL%20Project%20Report_ISBN-web.pdf>; Anne Wallace, Sharyn Roach Anleu and Kathy Mack, ‘Judicial Engagement and AV Links: Judicial Perceptions from Australian Courts’ (2019) 26(1) International Journal of the Legal Profession 51, 53.

16. ‘Videos’, Federal Court of Australia (Web Page) <https://www.fedcourt.gov.au/digital-law-library/videos>. The case was Australian Olympic Committee Inc v Big Fights Inc [1999] FCA 1042. See also ‘Webcasts and Podcasts’, Supreme Court of Victoria (Web Page) <https://www.supremecourt.vic.gov.au/about-the-court/webcasts-and-podcasts>.

17. New South Wales Justice Courts & Tribunal Services, Online Court User Guide (Guide Version 1.3, 23 January 2019). See also Supreme Court of NSW, Supreme Court—Online Court Protocol (Practice Note No SC Gen 12, 8 February 2007) (applying to matters in the Court of Criminal Appeal where either an Application for Extension of Time or a Notice of Appeal has been lodged, matters in the Common Law Division, and selected matters in the Equity Division, but does not apply to proceedings involving self-represented litigants).

18. Michael Pelly, ‘Internet Court Gets First Case’, Sydney Morning Herald (online, 1 April 2006) <https://www.smh.com.au/technology/internet-court-gets-first-case-20060401-gdna8y.html>.

19. See, eg, David Hammerschlag, Hammerschlag’s Commercial Court Handbook (LexisNexis, 2019) 8–9.

20. See, eg, Supreme Court of NSW, The Virtual Courtroom—Practitioner’s Fact Sheet (Fact Sheet Version 1, 23 March 2020).

21. Andrew Broadfoot QC (LinkedIn, 24 March 2020) (hearing before Perram J in Sydney with barristers in chambers in Melbourne and Sydney); Matthew Harvey QC (LinkedIn, 27 March 2020) (‘four separately represented groups of parties…using MS Teams’); Conversation with Chief Justice James Allsop and Wendy Harris QC (Darren Ferrari, Victorian Bar Webinar, 13 May 2020) <https://www.vicbar.com.au/news-events/publications/conversation-series>.

22. Supreme Court of Victoria, Virtual Hearings: Practitioner’s Fact Sheet (Fact Sheet, April 2020) <https://www.supremecourt.vic.gov.au/sites/default/files/2020-04/Virtual%20Hearings%20-%20Practitioners%20fact%20sheet_0.pdf>.

23. ‘Changes to Procedures Relating to the Commercial List, Technology & Construction List and Commercial Arbitration List’, Supreme Court of NSW (Web Page, 25 March 2020) <https://www.supremecourt.justice.nsw.gov.au/Pages/Oar_Mace_Admiralty.aspx>. See also Kemp v Westpac Banking Corporation [2020] FCA 437, [6]–[7] (‘Kemp’).

24. Supreme Court of NSW, ‘NSW Supreme Court Moves Towards Resuming Face-to-Face Hearings’ (Media Release, 20 May 2020). See also Tim Game, ‘Variations to Procedures in the Supreme Court’, NSW Bar Association—In Brief (Web Page, 9 April 2020) <https://nswbar.asn.au/the-bar-association/publications/inbrief/view/08b347d11316f1372f3414b4c40b9afd>.

25. Andrianakis v Uber Technologies (Ruling No 2) [2020] VSC 152, [20].

26. Robert French, ‘Perspectives on Court Annexed Alternative Dispute Resolution’ (Speech, Law Council of Australia—Multi-Door Symposium, 27 July 2009) 20 <https://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj27july09.pdf>.

27. Ibid 5. See also R (UNISON) v Lord Chancellor (n 5) 896–7.

28. R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1, 15 (Aickin J); Nicholas v The Queen (1998) 193 CLR 173, 219 [109] (McHugh J), 273–4 [237] (Hayne J); Palmer v Ayres (2017) 259 CLR 478, 496 [43] (Gageler J).

29. Fencott v Muller (1983) 152 CLR 570, 608 (Mason, Murphy, Brennan and Deane JJ). See also Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374 (Kitto J) (‘Tasmanian Breweries’).

30. Polyukhovich v Commonwealth (1991) 172 CLR 501, 703 (Gaudron J).

31. Ibid 607 (Deane J). See also Leeth v Commonwealth (1992) 174 CLR 455, 487 (Deane and Toohey JJ).

32. Harris v Caladine (1991) 172 CLR 84, 150. See also Re Nolan; Ex parte Young (1991) 172 CLR 460, 496.

33. Robert French, ‘Essential and Defining Characteristics of Courts in an Age of Institutional Change’ (Speech, Supreme and Federal Court Judges Conference, 21 January 2013) 2 <https://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj21jan13.pdf>. See also Chief Justice James Allsop, ‘Courts as (Living) Institutions and Workplaces’ (Speech, Joint Federal & Supreme Court Conference, 23 January 2019) <https://www.fedcourt.gov.au/__data/assets/pdf_file/0014/54500/Allsop-CJ-20190123.pdf>.

34. Another characteristic may be finality: Tasmanian Breweries (n 29) 374 (Kitto J).

35. John Fairfax Publications Pty Ltd v District Court (NSW) (2004) NSWLR 344, 352 [18]. See also Daubney v Cooper (1829) 109 ER 438, 441; Dickason v Dickason (1913) 17 CLR 50, 51 (‘one of the normal attributes of a Court is publicity, that is, the admission of the public to attend the proceedings.’).

36. Marilyn Warren, ‘Open Justice in the Technological Age’ (2014) 40(1) Monash University Law Review 45, 46.

37. Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506, [20] (French CJ) (‘Hogan’); Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, [44]. See also Lord Atkinson’s statement in Scott v Scott [1913] AC 417, 463 that ‘in public trial is to [be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect’.

38. K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 520 [48] (French CJ) (‘K-Generation’); Lord Neuberger, ‘Open Justice Unbound?’ (2011) 10(3) The Judicial Review 259.

39. Enid Campbell and H P Lee, The Australian Judiciary (Cambridge University Press, 2001) 221.

40. Sir Harry Gibbs, ‘Judgment Writing’ (1993) 67 Australian Law Journal 494, 494.

41. Hogan (n 37) 531–2 [21] (French CJ). The exceptions include where it is necessary to secure the proper administration of justice in a particular case, such as to ensure procedural fairness. Legislation may also place restrictions on open justice: see, eg, Federal Court of Australia Act 1976 (Cth) ss 37AE–37AL (‘necessary to prevent prejudice to the proper administration of justice…the interests of the Commonwealth or a State or Territory in relation to national or international security…protect the safety of any person…avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature’).

42. Federal Court of Australia, Special Measures in Response to COVID-19 (SMIN-1), (Information Note, 31 March 2020) [9.3] <https://www.fedcourt.gov.au/__data/assets/pdf_file/0004/62374/SMIN-1-31-March-2020.pdf>. See also Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504, [41] (‘GetSwift’).

43. Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563, [62] (‘Saunders’); Quirk v Construction, Forestry, Maritime, Mining and Energy Union (Remote Video Conferencing) [2020] FCA 664.

44. Fisher (trustee for the Tramik Super Fund Trust) v Vocus Group Limited [No 2] [2020] FCA 579, [12].

45. Cantor v Audi Australia Pty Limited [No 5] [2020] FCA 637, [31] (‘Cantor’).

46. See, eg, Kemp (n 23).

47. Supreme Court of Victoria (n 22) 4. See also Supreme Court of Victoria, Supreme Court Changes in Response to COVID-19 (Media Release, 20 March 2020) <https://www.supremecourt.vic.gov.au/sites/default/files/2020-03/covid_response_-_media_release_-_supreme_court.pdf>.

48. Supreme Court of NSW, Virtual Courtroom Practitioner’s Fact Sheet (Fact Sheet, March 2020) 3 <https://www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/Fact%20Sheet%20-%20Practitioners.pdf>.

49. @LitigatorLegg (Michael Legg) (Twitter, 17 March 2020, 2.57pm AEDT) <https://twitter.com/litigatorlegg/status/1239762867642970117>.

50. See, eg, Matthews v SPI Electricity Pty Ltd [No 14] (2013) 39 VR 287; Jason Bosland and Judith Townend, ‘Open Justice, Transparency and the Media: Representing the Public Interest in the Physical and Virtual Courtroom’ (2018) 23(4) Communications Law 183, 190.

51. Sharon Rodrick, ‘Opportunities and Challenges for Open Justice in Light of the Changing Nature of Judicial Proceedings’ (2017) 26(2) Journal of Judicial Administration 76, 94.

52. The Public Law Project, The Coronavirus Bill 2020: Public Law Project Briefing for House of Commons Second Reading (Briefing, 28 May 2020) [11] <https://publiclawproject.org.uk/wp-content/uploads/2020/03/Public-Law-Project-Coronavirus-Bill-2020-Briefing_-1.pdf>.

53. Supreme Court of NSW (n 48) 3.

54. Judiciary of England and Wales, Civil Justice in England and Wales Protocol for Remote Hearings (Protocol, 20 March 2020) [8] <https://www.judiciary.uk/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf>.

55. Joint Technology Committee, Strategic Issues to Consider When Starting Virtual Hearings (Bulletin Report, 7 April 2020) 3 <https://www.ncjfcj.org/wp-content/uploads/2020/04/COSA-NSCSC-and-NACM-JTC-Response-Bulletin-Strategic-Issues-to-Consider-When-Starting-Virtual-Hearings-.pdf>.

56. Ibid.

57. See, eg, News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 259 [35] (‘the making of an order restraining, restricting, or postponing the reporting of a court proceeding or any part of a court proceeding is exceptional and, in general, will be made only where it is necessary to preserve the integrity of the court process, to ensure that the process can function properly, or to protect privacy or confidentiality of very limited kinds.’ (emphasis added)).

58. K-Generation (n 38) 520 [48] (French CJ).

59. International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 354 [54] (French CJ) (‘International Finance Trust’); HT v The Queen [2019] HCA 40, [17] (Kiefel CJ, Bell and Keane JJ), [64] (Gordon J).

60. International Finance Trust (n 59) 379 [141]. See also Al Rawi v Security Service [2012] 1 AC 531, [12] (‘Al Rawi’) (‘trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance.’).

61. Stead v State Government Insurance Commission (1986) 161 CLR 141.

62. Lee v The Queen (1998) 195 CLR 594, 602 [32] (‘Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.’). See also Al Rawi (n 60), [13] (‘Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses.’).

63. Chief Justice James Spigelman, ‘Access to Justice and Access to Lawyers’ (Speech, 35th Australian Legal Convention, 24 March 2007) 129. <https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Spigelman/spigelman_speeches_2007.pdf>; ‘The objective of attaining fair outcomes arrived at by fair procedures does not require identical conduct in every conceivable kind of case’: Gleeson, ‘The Judicial Method’ (n 1) 7; Michael Legg, ‘Reconciling the Goals of Minimising Cost and Delay with the Principle of a Fair Trial in the Australian Civil Justice System’ (2014) 33(2) Civil Justice Quarterly 157, 173–4 (‘Reconciling the Goals of Minimising Cost and Delay with the Principle of a Fair Trial in the Australian Civil Justice System’).

64. Tom Bingham, The Rule of Law (Penguin Books, 2011) 90.

65. Re A (Children) (Remote Hearings) [2020] EWCA Civ 583, [9].

66. Hamod v State of New South Wales [2011] NSWCA 375, [309] (‘Courts have an overriding duty to ensure that a trial is fair…In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented’); SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445, 450 [24], 456 [53]–[55], 456 [59]–[60].

67. Legg, ‘Reconciling the Goals of Minimising Cost and Delay with the Principle of a Fair Trial in the Australian Civil Justice System’ (n 63); Saunders (n 43) [58]–[59]; Australian Securities and Investments Commission v Rio Tinto Limited [2020] FCA 1721, [46]–[47] (‘Rio Tinto’).

68. Bernard Cairns, Australian Civil Procedure (Thomson Reuters, 11th ed, 2016) 62 [2.40], 606–8 [14.40].

69. Kenneth Arenson and Mirko Bagaric, Criminal Processes and Investigative Procedures: Victoria and Commonwealth (LexisNexis, 4th ed, 2019) 380.

70. See, eg, ‘Guidelines for Common Law Duty List Matters’, Supreme Court of NSW (Web Page, 27 March 2020) <https://www.supremecourt.justice.nsw.gov.au/Documents/Home%20Page/Announcements/CL_Duty_Judge_procedure_20200327.pdf>; ‘Protocol for the Commercial List, Technology & Construction List and Commercial Arbitration List’, Supreme Court of NSW (Web Page, 25 March 2020) <https://www.supremecourt.justice.nsw.gov.au/Pages/coronavirus_covid19_announcement.aspx>.

71. Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 (‘Capic’).

72. GetSwift (n 42).

73. Capic (n 71) [6]; the overarching purpose is set out in Federal Court of Australia Act 1976 (Cth) s 37M(1) and specifies the need to ‘facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible’.

74. Ibid.

75. GetSwift (n 42) [7].

76. Ibid [9].

77. Courts are generally required to engage in fact-finding: Graham (n 7) 22 [30]. See also Robert P Burns, ‘The Distinctiveness of Trial Narrative’ in Antony Duff et al (eds), The Trial on Trial Volume 1: Truth and Due Process (Hart Publishing, 2004) 157; ‘[M]aintenance of the rule of law is dependent on the ability of our system to generate reliable findings of fact’: Justice Stephen Gageler, ‘Truth and Justice, and Sheep’ (2018) 46(3) Australian Bar Review 205, 207.

78. Federal Court of Australia Act 1976 (Cth) s 47A(1).

79. Sunstate Airlines (n 14). See also Australian Competition and Consumer Commission v World Netsafe Pty Ltd (2002) 119 FCR 303, 3 [7] (‘World Netsafe’).

80. R v Yates [2002] NSWCCA 520, [218]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2007] FCA 1502, [7]; Campaign Master (UK) Ltd v Forty Two International Pty Ltd [No 3] (2009) 181 FCR 152, 25 [78]. Cf Bayer AG v Minister for Health (1988) 96 FLR 50, 116; R v Ngo (2001) 124 A Crim R 151, 154.

81. Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1, 5 [28]. See also World Netsafe (n 79) 3 [7]; Moyette Pty Ltd v Foundation Healthcare Ltd [2003] FCA 116, [10].

82. R v Goldman (2004) 148 A Crim R 40, 45 (‘Goldman’).

83. The challenge was expressed as ‘there would be a denial of procedural fairness if a witness, whose evidence was central to the case in question and whose credit was in issue, was required to give evidence by video-link for some hours and in circumstances in which there was a break in transmission during that evidence’: McDonald v Commissioner of Taxation (2000) 44 ATR 266, 231 [18].

84. Ibid [22], quoting B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95, 107. See below section VII.

85. R v Ngo (2003) 57 NSWLR 55, 69.

86. Ibid 70.

87. Ibid 69.

88. Ibid 65–8, 71; Goldman (n 82), 49; Mills v Hendriksen (2008) 184 A Crim R 212, 238 [169].

89. Capic (n 71) [19]. See also Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd (2020) 147 ACSR 521, 530–1 [47]–[50]; Universal Music Publishing Pty Ltd v Palmer [2020] FCA 1472, [32].

90. GetSwift (n 42) [33].

91. Australian Securities and Investments Commission v Wilson (2020) 146 ACSR 149 (‘Wilson’).

92. Quince v Quince [2020] NSWSC 326 (‘Quince’).

93. Wilson (n 91) 150 [1]–[4], 157 [39].

94. Ibid 151–2 [9]–[15].

95. Ibid 154–5 [26]–[29].

96. Ibid 157 [37].

97. Ibid 157 [38].

98. Ibid [40].

99. Quince (n 92) [7].

100. Ibid [19].

101. Ibid [20].

102. Ibid [17], [20].

103. See also Cantor (n 45) [31] (‘Each case will have to be considered on its merits. However, there will be cases where proceeding other than in the Courtroom in the conventional way may work a serious injustice on one or more of the parties.’); Ascot Vale Self Storage Centre Pty Ltd v Nom De Plume Nominees Pty Ltd [2020] VSC 242, [19].

104. Brian MacKenna, ‘Discretion’ (1974) 9(1) The Irish Jurist 1, 10 (‘I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is it the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground, perhaps from shyness or a natural timidity?’); Sir Patrick Devlin, The Judge (Oxford University Press, 1979) 63.

105. Fox v Percy (2003) 214 CLR 118, 126–9 [25]–[26], [30]–[31]. See also Pell v The Queen [2020] HCA 12, [49].

106. Linda Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Routledge, 2011) 177 citing Judy Radul, ‘What Was Behind Me Now Faces Me—Performance, Staging, and Technology in the Court of Law’ (2 May 2007) Eurozine <https://www.eurozine.com/what-was-behind-me-now-faces-me/>.

107. Michael Legg, ‘Electronically Stored Information and Social Media: Implications for Discovery and Evidence’ in Michael Legg (ed), The Future of Dispute Resolution (LexisNexis, 2013) 61.

108. Wayne Martin, ‘Improving Access to Justice Through the Procedures, Structures & Administration of the Courts’ (Speech, Australian Lawyers Alliance Western Australian State Conference, 21 August 2009) 10 <https://www.supremecourt.wa.gov.au/_files/Aust_Lawyers_Alliance_WA_State_Conference_20090821.pdf>.

109. See Quince (n 92) [8]; Wilson (n 91) [27]–[28]. See also Rio Tinto (n 67) [54] (granting an adjournment based on a number of reasons including that ‘the evidence to be met by [the defendants] includes statements attributed to them by lay witnesses that are not recorded in documents’ and will require timely instructions from the defendants who are based in different time zones). The significance of oral testimony when documentary evidence is lacking has historical precursors as shown by the debate over whether a witness’ examination in chief may be replaced by an affidavit or witness statement or should proceed viva voce: Michael Legg, Case Management and Complex Civil Litigation (Federation Press, 2011) 202.

110. Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539, [2] (‘Motorola Solutions’). The restriction under Chinese Law in relation to the taking of evidence was thought to require the permission of China through official channels under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. This process was not able to be undertaken quickly. A similar scenario arose in Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732.

111. (1893) 6 R 67. Browne v Dunn is a rule of fairness designed to allow witnesses to confront any proposed challenges to their evidence, and to enable the fact finder to see and assess the reactions of witnesses to those challenges: MWJ v The Queen (2005) 222 ALR 436, [18] (Gleeson CJ and Heydon J), [38] (Gummow, Kirby and Callinan JJ).

112. Motorola Solutions (n 110) [16].

113. Ibid [8].

114. Goldsmith v Sandilands (2002) 190 ALR 370, 371 [2] (Gleeson CJ), 377–8 [31] (McHugh J).

115. Libke v The Queen (2007) 230 CLR 559, 597–605 [117]–[135] (Heydon J).

116. See, eg, Supreme Court of Victoria, ‘Virtual Hearings—Tips and Tricks for Practitioners’ (Web Page, April 2020) <https://www.supremecourt.vic.gov.au/law-and-practice/virtual-hearings/virtual-hearings-tips-and-tricks-for-practitioners>.

117. For example, Zoom incorporates a ‘raise hand’ feature to alert participants that a person wishes to make a contribution. However, it is designed to avoid people speaking over each other, while an objection needs to be more forceful and indicate that the witness should stop speaking. See Steven John, ‘How to Use the “Raise Hand” Feature in Zoom to Notify the Meeting Host That You’d Like to speak’, Business Insider (online, 18 March 2020) <https://www.businessinsider.com.au/how-to-raise-hand-in-zoom-2020-3>.

118. Capic (n 71) [13]; GetSwift (n 42) [17]. See also Nuffield Family Justice Observatory, Remote Hearings in the Family Justice System: A Rapid Consultation (Report, May 2020) 11 <https://www.nuffieldfjo.org.uk/app/nuffield/files-module/local/documents/nfjo_remote_hearings_20200507-2-.pdf>.

119. Giannarelli v Wraith (1988) 165 CLR 543, 555–6.

120. See Dyczynski v Gibson [2020] FCAFC 120, [219]–[220]; Rio Tinto (n 67) [52], [58].

121. See GetSwift (n 42) [30] (‘large litigation is prepared in teams’).

122. Capic (n 71) [13].

123. Ibid.

124. GetSwift (n 42) [29]; Saunders (n 43) [61]; Rio Tinto (n 67) [41]–[42], [55].

125. Supreme Court of Western Australia, Updated COVID-19 Public Notice Including Court of Appeal (Notice, 18 March 2020) 2 <https://www.supremecourt.wa.gov.au/_files/Speeches/2019/COVID-19UpdatedNotice(including%20Court%20of%20Appeal)18March2020.pdf>; Supreme Court of Victoria, Supreme Court Changes in Response to COVID-19 (n 47); Federal Court of Australia, Special Measures Information Note: Appeals and Full Court Hearings (SMIN-3) (Information Note, 7 April 2020) [2.2]–[2.3] <https://www.fedcourt.gov.au/law-and-practice/practice-documents/practice-notes/smin-3.pdf>.

126. JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 (‘JKC Australia’).

127. Ibid [7].

128. Ibid [7]–[8].

129. See Emma Rowden and Anne Wallace, ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2019) 28(5) Social & Legal Studies 698, 700.

130. JKC Australia (n 126) [11]–[21].

131. R v Macdonald; R v Edward Obeid; R v Moses Obeid [No 11] [2020] NSWSC 382.

132. Capic (n 71) [10].

133. Emma Rowden et al, Court of the Future Network, Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings (Research Report, 28 May 2017) <https://courtofthefuture.org/publications/gateways-to-justice-guidelines-for-remote-participation-in-court/>.

134. Sir Patrick Devlin, ‘Judges and Lawmakers’ (1976) 39(1) Modern Law Review 1, 4.

135. Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 117; Rebecca Ananian-Welsh and George Williams, ‘Judicial Independence from the Executive: A First-Principles Review of the Australian Cases’ (2014) 40(3) Monash University Law Review 593.

136. Henry Ballantine, Blackstone’s Commentaries (Blackstone Institute, 1915) 366, 471; Bingham (n 64) 51 (‘The job of judges is to apply the law, not to indulge their personal preferences.’).

137. Tamanaha (n 135) 122–5.

138. Murray Gleeson, ‘Who Do Judges Think They Are?’ (1998) 22 Criminal Law Journal 10, 11; Bingham (n 64) 92; Ananian-Welsh and Williams (n 135) 599–600.

139. David Malcolm, ‘Independence of the Judiciary in the Asia-Pacific Region’ (2004) 78(7) Australian Law Journal 458, 461; Bingham (n 64) 93.

140. Livesey v New South Wales Bar Association (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (‘Ebner’); British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283.

141. North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146, 162–3 [27]–[29] (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) approving what Gaudron J had said in Ebner (n 140) 363 [81].

142. Council of the Municipality of Burwood v Harvey (1995) 86 LGERA 389, 396 (Kirby J) citing Jones v National Coal Board [1957] 2 QB 55.

143. Emma Rowden and Anne Wallace, ‘Remote Judging: the Impact of Video Links on the Image and the Role of the Judge’ (2018) 14(4) International Journal of Law in Context 504, 514. Indeed Rowden and Wallace provide an example where the location of the camera in the courtroom had the effect of making the witness look down on the judge: at 515.

144. Ibid 508–9.

145. A Clinical Commissioning Group v AF [2020] EWCOP 16, [7] (‘Clinical Commissioning Group’) (There were 17 continuously active participants at the hearing and in addition 11 witnesses were heard. Further, two journalists observed the proceedings. The participants and witnesses were scattered all over the country from Northumberland to Cornwall, Sussex to Lancashire.).

146. Celia Kitzinger, ‘Remote Justice: A Family Perspective’, Transparency Project (Blog Post, 29 March 2020) <https://www.transparencyproject.org.uk/remote-justice-a-family-perspective/>.

147. Ibid.

148. Nye Perram, ‘Video Justice: Ten Years of Progress for Courts in Eight Weeks’, The Australian Financial Review (Sydney, 15 May 2020) 33.

149. See, eg, Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 45.

150. Judith Resnick, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374, 426–31.

151. Ibid 427 (‘prestige may ride on “efficient” management, as calculated by the speed and number of dispositions’.). See also Kitzinger (n 146) (‘At times there was what felt to us like an unseemly and self-congratulatory focus about being “the first” such case, about its “pioneering” role in remote justice.’).

152. GetSwift (n 42) [30] (Lee J) (‘unanticipated problems may become evident during the process of preparation, or there may be some deus ex machina event which means that the current decision will need to be revisited.’); Capic (n 71) [25] (Perram J) (‘I think we must try our best to make this trial work. If it becomes unworkable then it can be adjourned, but we must at least try.’).

153. See, eg, Kahil v The Queen [2020] NSWCCA 56.

154. JKC Australia (n 126) [15].

155. Emma Rowden, ‘Distributed Courts and Legitimacy: What Do We Lose When We Lose the Courthouse?’ (2018) 14(2) Law, Culture and the Humanities 263, 271 (‘Distributed Courts and Legitimacy’) (finding that participants in remote hearings saw it as ‘speeding up court processes’). These advantages do not necessarily materialise, with many courts and parties finding that online hearings take longer than face-to-face hearings: Perram (n 148) 33 (estimating an online trial as between 20 and 40 per cent slower and describing it as ‘like swimming in aspic’).

156. Carolyn McKay, The Pixelated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix (Routledge, 2018) 25.

157. Rowden et al (n 133).

158. Kitzinger (n 146) (referring to a concern that ‘views of other people’s domestic interiors’ could reinforce the impression that justice was administered by people with economic or class privilege).

159. This was well-illustrated by the sound of a toilet flushing during oral argument before the US Supreme Court: Fred Barbash, ‘Oyez. Oy Vey. Was That a Toilet Flush in the Middle of a Supreme Court Live-Streamed Hearing?’, The Washington Post (online, 7 May 2020) <https://www.washingtonpost.com/nation/2020/05/07/toilet-flush-supreme-court/>.

160. Mulcahy (n 106) 17; Rowden, ‘Distributed Courts and Legitimacy’ (n 155) 275. See also Court and Tribunal Design Guide (Her Majesty’s Courts and Tribunals Service, 2019) 12–13.

161. Mulcahy (n 106) 21, 163.

162. Ingrid Eagly, ‘Remote Adjudication in Immigration’ (2015) 109(4) Northwestern University Law Review 933, 979–80; Conversation with his Honour James Allsop, Chief Justice of the Federal Court of Australia (Wendy Harirs QC, Victorian Bar, 13 May 2020) <https://www.vicbar.com.au/news-events/publications/conversation-series>.

163. Justice MacDonald, The Remote Access Family Court, 23 March 2020, [2.1].

164. Kitzinger (n 146).

165. Clinical Commissioning Group (n 145) [9].

166. S E K Hulme, ‘Sir Owen Dixon’ in Susan Crennan and William Gummow (eds), Jesting Pilate and Other Papers and Addresses by the Rt Hon Sir Owen Dixon (Federation Press, 3rd ed, 2019) 41.

167. Ibid.

168. Chief Justice Allsop (n 13) 3. See also Michael Legg, ‘The Future of Dispute Resolution: Online ADR and Online Courts’ (2016) 27(4) Australasian Dispute Resolution Journal 227, 229 (explaining that courts are subject to greater restrictions than forms of ADR in seeking to move online because courts must act consistently with the essential requirements of judicial power, a requirement that does not apply to ADR).

169. The legal profession also needs to strike the same balance in dealing with change and technology: see Michael Legg and Felicity Bell, Artificial Intelligence and the Legal Profession (Hart Publishing, 2020) 9, 305.

170. See, eg, The Inns of Court College of Advocacy, Principles for Remote Advocacy (Practitioners’ Guide, 2020) 9–10.