"Place of justice or video village?"

A Paper presented at the Commonwealth Magistrates' and Judges' Association Conference, Cardiff, Wales, United Kingdom

Emerging from the Analogue Age - The 1990's

In the early 1990's, Australia's ultimate appellate court, the High Court of Australia, offered parties the option of a hearing of an application for special leave to appeal by video link. In the modem era, there are no appeals as of right from intermediate appellate courts to the High Court. A would-be appellant must first apply for and obtain special leave to appeal.^[2]

The alternative offered was, for its time, an innovative, even radical, development. When at the Bar, I participated in a few applications heard this way. Hitherto, such applications were heard in person, either in the High Court's principal seat in Canberra, in Sydney or in Melbourne on scheduled Fridays or during the Court's then annual sittings in other state capital cities.

Initially, the availability of audio-visual link technology dictated that practitioners traipse off to a specially equipped conference facility in the respective capital city, central business district premises of Australia's main telecommunications carrier, Telstra. It was furnished with a lectern facing the camera and tables for counsel and solicitors. It was linked to one of the courtrooms in Canberra, newly equipped with a video link. A separate room was set aside for counsel to robe. It did feel a little incongruous to be attired in wig and robe but the aim was to replicate an appearance in person.

By today's standards, the technology was crude. One had to be careful not to move around too much at the lectern, as this distorted the picture at the Canberra end (and vice versa). There were lags in the transmission of speech. Both bench and bar had to be conscious of these, lest they inadvertently talk over one another. This means of making an application was workable in the context of the strict time limits for the presentation of oral submissions but stilted.

In a country of vast distances, by United Kingdom and European standards, from its principal seat in the national capital, Canberra, the High Court's offering of this alternative was not just pioneering but probably did, at the margin, enhance access to justice by relieving parties from the cost of funding return air travel and accommodation for counsel and solicitors. To my recollection, there was a small public seating area in the Brisbane studio. The Canberra courtroom end was open to the public.

By the mid-1990's, with the opening of the Commonwealth Law Courts Building in Brisbane, the venue for video link special leave applications from Brisbane moved to a specially equipped courtroom in that building. The video and audio challenges presented by the then prevailing technology remained.

These challenges apart, those of us who participated in such hearings soon noticed another difference, a loss of intimacy between bar and bench and vice versa. There was not just a remoteness of distance; there was also a remoteness of association.

The experience of this remoteness, as well as the limitations of technology, soon led experienced counsel, myself included, to advise that, if the client could afford it, it was better to appear in person, rather than by video link, at the hearing of a special leave application. Given the strict time limits mentioned, the greater intimacy of direct contact and the better ability to read the bench made for better persuasive use of time than the video link, or so many of my peers and I thought.

The Digital Age in the Early 2000 's

I ceased practice at the Bar in 2007 when I was appointed to the Federal Court of Australia. At that stage, there were no hearings at intermediate appellate level, federal or state, conducted by video link. At that time, in the original jurisdiction of the superior courts, there was some use of video link for the reception of evidence from a witness resident either abroad or interstate and unable for some reason to attend at trial in person. In the Federal Court, the national nature of its jurisdiction also meant that it was more often than in the state courts that the respective counsel and solicitors had principal places of practice in different capital cities. For this reason, occasionally, case management hearings were conducted by video link but not often if any controversial interlocutory issue arose for resolution. The principal court buildings in the capital cities had at least one courtroom fitted out for the reception of such evidence. Screens were positioned to face the bench, the bar table and the public gallery.

A decade and a half on from the High Court's innovation in the early 1990's, video and audio technology had improved markedly but it was still necessary for the remote witness to go to a specially equipped facility to interface with the

Federal Court's courtroom system, rather than link in via a personal computer. And visual blurring and audio-lags remained, although to a lesser extent. As there was then no such thing as an electronic court file, careful advance preparation by instructing solicitors was necessary to ensure that there was a prepositioning of a copy of any affidavit the witness had made and an envelope containing documents which would be put to the witness in cross-examination. Usually, it was also necessary for the instructing solicitor to retain a local agent to manage document handling and generally supervise proceedings at the remote witness end. Because the testimony was broadcast in the courtroom, open justice was achieved by the ability of any member of the public to attend there in person.

There was then no general practice of broadcasting such proceedings. Even broadcasting via permitting the media to bring an external broadcast team into a courtroom was highly exceptional, confined to cases of singular public internet and then only permitted by but a handful of judges.

The Digital Age meets the COVID-19 Pandemic

A further decade and a half on, how very different is the present position in relation to remote hearing practices.

Necessity, so the proverb goes, is the mother of invention. So it proved in the delivery of justice in Australia with the disparate public health lockdowns and other associated restrictions between 2020 and 2022.

Apprehensions concerning the limits of Commonwealth legislative competence under Australia's federal constitution meant that the national government's public health restrictions governed the international border. The several states and self­ governing territories adopted disparate public health measures, taking into account advice from their own, jurisdictionally specific, public health officials, commercial and community impacts and political value judgements.

All courts faced a need to adopt in very short order measures which would continue to allow at least an irreducible minimum of civil and criminal cases, great and small, to be heard and determined in original and appellate jurisdictions. But for the national courts, the High Court of Australia, the Federal Court of Australia and the Federal Circuit and Family Court of Australia, each exercising a national jurisdiction, the disparate public health measures presented singular challenges.

During the pandemic period, the High Court moved swiftly to utilise audio-visual technology via personal computer based software platforms not just for special leave applications but also for the hearing and determination of appeals. These hearings were complemented by electronically filed court documents, outlines of submissions and lists of authorities. With the cessation of public health restrictions, the High Court has reverted to in-person hearings for the hearing and determination of appeals.

For the other federal courts, the position was much more challenging, because each regularly exercises both original and intermediate appellate jurisdiction. My Australian judicial appointment being to the Federal Court of Australia, I shall confine my observations to the experience of that court during the pandemic period.

The Federal Court moved in very short order to conduct both interlocutory and final hearings in the original jurisdiction and the hearing of appeals via Microsoft Teams software using personal computers. Depending on the severity of the lockdown or other public health restrictions, judges heard cases from their residence, chambers or a suitably equipped courtroom using a personal computer. A specially generated background screen displaying the Australian coat of arms was developed. The judge was linked remotely to counsel and solicitor and any self-represented person via a hearing invitation using this software and an internet connection. A hearing link was published in each day's law list allowing members of the public to be admitted from a "waiting room" as guests. Recording other than by the court's authorised recorder was not permitted.

There were all sorts of problems with this means of hearing cases, some of which persisted to a greater of lesser extent over the whole of the pandemic period.

The principal problem was sufficiency of bandwidth during periods of peak demand. In the Federal Court, it is usual to schedule case management hearings at 09:30 am with substantive hearings commencing at 10:15 am. Initially almost invariably but persistently occasionally during morning sitting periods for the whole of the pandemic-related public health measures period, there were system failures due to insufficiency of bandwidth. This was a lesser problem during the afternoon because of lesser demand. Considerable reserves of patience were needed by all concerned to understand and accept the limitations of technology. To do otherwise would have been antithetical to the administration of justice during this period.

Then there were the intrusions of human frailties and widely varying levels of IT savviness and support. These ranged from forgetting to tum on a PC camera or microphone, or forgetting to tum these off, to a lack of familiarity with opening PDF documents or navigating them. And that was just amongst the judges! Amongst the profession, remote hearings sometimes engendered a degree of casualization of attire. All parties, represented and otherwise, also experienced these frailties.

Access to justice issues emerged. The Bar and larger law firms were generally better resourced than smaller firms and all of these were generally better resourced than litigants in person. For some litigants in person, access to a personal computer with a reliable internet connection was problematic if it existed at all. In such cases, and in cases where there was persistent failure for one reason or another of an audio-visual link via Microsoft Teams, it was necessary to resort to a telephone conference. With the latter, I found that the lack of visual cues made the adoption of long ago learned military radio procedure the best way to avoid judge or party talking over one another with resultant tension and incoherence, just the same reasons which led to its employment by the military. So I instructed those appearing to say "Over" once they had finished speaking and adopted that same discipline myself. It worked. But it was suitable only for an emergency.

I conducted both case management and other interlocutory hearings and trials, some lengthy (2 weeks or more) via Microsoft Teams during the pandemic period. Because, as already mentioned, the court had employed audio-visual links from one interstate courtroom to another for some routine case management and interlocutory hearings, it was no great leap to use Microsoft Teams for this purpose.

However, trials were indeed a trial, especially if there was extensive oral evidence. They took longer. And they were more tiring both for bench and bar. That was not just my experience but, anecdotally, that of many ofmy colleagues on the Federal Court, of judges on the Federal Circuit and Family Court and in members of the practising profession with whom I spoke. Most of us put that down to the different sensation of having to concentrate on a screen for an extended period.

There were other limitations. Even at the best of audio-visual reception times, it was impossible to reproduce the intimacy of an in-person attendance in a courtroom. For bench, bar and witness, as well, I suppose, a guest observer admitted from the "waiting room", one's focus was linear, not panoramic. It was harder to read counsel and a witness, and, anecdotally, the reverse applied in relation to the bench. Different advocacy skills were required. Unlike in a courtroom, it was near impossible for counsel to tell whether a judge was making a note or had the desired document before him or her. The screen showed only head and shoulders. Counsel needed to make a suitable inquiry on these subjects during submissions or questions. They also needed to make sure that a PDF page number was used for documents, be they in affidavits, exhibits or cases or legislation. Some adapted better than others at this. And the same was true of judges.

Although the reception of oral evidence had always been rare, the other challenges mentioned with trials also attended the hearing of an appeal.

For the Federal Court, another challenge emerged in relation to the hearing of appeals. There is no separate, federal intermediate appellate court in Australia. Moreover, Full Courts, usually of three judges but exceptionally five judges, are rotationally constituted from amongst all of the members of the Court. Unlike our Canadian counterparts, the Federal Court of Canada, the Tax Court of Canada and the Federal Court of Appeal,judges of the Federal Court of Australia are not required to live in the national capital. Judges reside in the various capital cities, with the number resident in a given capital city depending on the volume of original jurisdiction filings in that place. Often such Full Courts will have at least one member resident in a different state to the other members of the Full Court. Sometimes a Full Court's membership comprises entirely of judges ordinarily resident in different states from the place where the appeal is being heard.

Urgent cases aside, appeals are usually heard during February, May, August and November, which are the months in which the Federal Court gives priority to the exercise of appellate jurisdiction. During these months and prior to the pandemic, Full Courts were constituted as mentioned in most capital cities. Thus it is usual for a judge of my court to travel interstate for up to a week or so during these appeal months to sit on a Full Court. Sometimes travel to more than one interstate capital occurs during these periods.

The disparate public health measures brought with them disparate restrictions on interstate travel. Moreover, the contingency always existed of a new travel restriction being announced either in a judge's home state or in a destination state with insufficient lead time for a judge undertaking duty interstate to return to his or her home state.

This position brought with it singular judicial administration challenges for the court's then Chief Justice, the Honourable James Allsop AC. Sometimes, I rather think, the extent of these challenges was not well understood by the profession or even, I must confess, by some judges, myself included. In some states, while there was a restriction on interstate travel, easing of internal public health restrictions meant that it was possible to resume in-person appearances in the state courts at both trial and intermediate appellate level. In contrast, for reasons already mentioned, in my court, it was usually necessary to conform to the most severe of the disparate restrictions, because of the greater phenomenon of interstate representation.

It was hard at times to see why, if all parties and practitioners were in the one state, replication of the position in the state courts could not occur. However, the Chief Justice had to ensure that, to the maximum extent possible, he retained a full establishment of judges and staff so as to maintain continuity and maximum capacity in the exercise of a national jurisdiction. As I observed to him towards the end of the pandemic period, just as Admiral Jellicoe was once described by Winston Churchill in respect of his command of the Royal Navy in the First World War as "the one man who could have lost the war in an afternoon", he was "the one man who could have lost the court in an afternoon".

During the pandemic period, most appeals were heard and determined by audio­ visual means using Microsoft Teams software on personal computers. During the most severe and pervasive periods of public health restrictions, this meant that counsel and the judges were at disparate locations, be they at home or in chambers. Even with some easing of restrictions, it was often the case that two judges would be on the bench in one location with the third remote from them and perhaps one counsel in person before one judge, another before the other judge(s) or linked remotely. Collegiate communication on the "virtual bench" during the hearing of an appeal was difficult, although not strictly impossible. The more tech-savvy judges used a separate chat line but even these confessed to the distraction occasioned by monitoring the main computer screen while at the same time checking for text messages. Socratic dialogue between bench and bar, so useful for identifying the principal issues and related submissions, was difficult. My view, and anecdotally that of my colleagues, is that this was because non-verbal cues, so readily apparent if counsel is present in person, were at best muted if not lost altogether. The temptation, often overwhelming, was just to let counsel present his or her oral submissions uninterrupted. Of course the best counsel still offered succinct, focused submissions but the loss of a ready means of directing attention on the real issues often meant that appeals took longer to hear.

Although recording was prohibited, a link was published in each daily law list allowing the public to link in and observe the hearing of an appeal.

ThePost-PandemicPresent

Now that the period of public health measures has passed, most trials and appeals are heard, as before the pandemic, in person. But some alternatives adopted during the pandemic period have persisted. I think there is a greater expectation by the practising profession that remote appearance means will be offered in respect of case management hearings and other interlocutory appearances than before the pandemic period. The extent to which this expectation is fulfilled or disappointed depends on the complexity of the interlocutory proceeding and, to some extent, on the preference of a particular judge.

My experience is that there is a qualitative difference in sensation, even with a first case management hearing, between an appearance in person and a remote appearance. To my perception, a robust highlighting of, and exchange concerning, the apparent strengths and weaknesses of a case is much more effective when such a hearing is conducted in person. Sometimes, a "hybrid" is offered, whereby a solicitor whose principal place of practice is interstate is connected remotely with counsel appearing in person. Where I permit such a "hybrid", it is always on terms that no adjournment to another day will be permitted to allow counsel to take instructions in circumstances where, had the solicitor been present in person, those instructions could have been obtained on the spot.

The use by solicitors of a town agent has, correspondingly, notably diminished.

Sometimes a request will be made for a client to observe interlocutory proceedings remotely. As with a remote attendance by a solicitor, I usually grant such a request but on terms that the proceeding will not be adjourned if the link becomes unavailable for one reason or another.

Where remote linkage is permitted, a link will also be published in the law list to allow others to observe remotely.

To offer a recent, post-pandemic trial example, last month I heard an application to set aside a sequestration order made by a registrar in a bankruptcy case. The petitioning creditor was a company headquartered in Brisbane. As it was entitled, it filed the creditor's petition in the Federal Court's Queensland District Registry.

The debtor resided with his wife in rural Victoria. His trustee in bankruptcy was based in Melbourne. The solicitors and counsel who acted for him on the review application were based in Adelaide in South Australia. Those acting for the petitioning creditor were based in Brisbane. The witnesses in the case were to be the debtor, his wife and the trustee. I could have heard the case in Brisbane, where I reside but that would have imposed travel costs on the witnesses. And the debtor's lawyers would either have had to travel to Brisbane at a cost greater than travel to Melbourne or be relatively disadvantaged by a remote appearance. I could, I suppose, just have transferred the case to the Victorian registry for hearing by a judge resident in Melbourne. It was a one day case. I knew I could offer a much earlier hearing date than would inevitably occur if a transfer were ordered. The transferred case would have had to be fitted in to existing commitments of my Victorian resident colleagues. So I travelled to Melbourne overnight and heard the case there, with appearances in person by the witnesses and their lawyers.

So doing resulted in a qualitatively superior hearing than a remote hearing. It was not without its disadvantages in terms of travel. But one disadvantage was just the inevitable result of the present disjunct between the Court having an electronic court file but witness boxes which are not equipped to access that file. To show a witness an affidavit or other document filed electronically it is still necessary to make a hard copy of that document for that purpose. At present, only in major cases and by special arrangement with a contract service provider is a fully electronic trial possible in the Federal Court. I found the intimacy of an in-person trial made for much easier assimilation of the content and credibility of each witness' evidence and a ready focusing of counsel by direct, spontaneous dialogue on the truly controversial issues. In the result, I was able to hear and determine the case in the day, flying back to Brisbane that evening. I doubt that this swiftness would have been possible via a remote hearing. Public access to the hearing was possible in the usual way via attendance in person.

In another case last month, the judicial review applicant lived in a provincial centre about two hour's drive north of Brisbane. It was necessary to conduct a first case management hearing. The applicant's medical condition was such that travel to Brisbane for that purpose would not have been possible. She had limited access to a computer and to the internet. She suggested appearing by telephone. Experience told me that such a mode of appearance was unlikely to prove a satisfactory way of exercising judicial power with a litigant in person. So I arranged to sit in a state courthouse about 15 minutes' drive away from where she lived, with the respondent government agency's solicitor travelling there for that purpose. The hearing was in public, with the date, time and place of hearing notified in the usual way in the daily law list. So anyone who wished to attend could attend. Offering such a hearing was exceptional for the Federal Court but dictated by the interests of justice.

Even before the pandemic period, there was a class of proceeding in both original and appellate jurisdictions where remote hearings were not infrequent. Under Australian migration law, those non-citizens in Australia without a valid visa (unlawful non-citizens) must be placed in immigration detention, pending removal from Australia. Sometimes the institution of a court proceeding will bring with it a bridging visa pending determination of that proceeding. But not always.

The availability of immigration detention facilities and the capacity of those facilities varies greatly from one state or territory in Australia to another. Further, as a matter of deliberate policy, the Australian government maintains one such facility on Christmas Island, an Australian external territory in the Indian Ocean.

There is always some pressure from those representing the Minister for the court to adopt a remote audio-visual means for the hearing of either original jurisdiction proceedings or appeals in cases involving a party in immigration detention. Each detention centre is equipped with an audio-visual link. The quality of these varies greatly.

Often such detainees are self-represented, because no legal aid is available for such cases. Usually, I agree to a request for a remote hearing in respect of case management hearings. But I am usually reluctant to adopt this means for substantive hearings. This is not just based on the uncertain quality of the available link; or even just on the additional challenge such linkage often presents if an interpreter is required.

An always influential factor is the greater rapport which an in-person hearing offers both to a person appearing in person and to the bench. Another always influential factor is that the facility from which the person appears in a detention centre remains for practical purposes under the control of the Minister and his servants or agents. This is in contrast to an in person appearance in which,judicial power having been invoked by a party, the Minister is obliged to produce the person in a courtroom under the control in law and in practice of the judicial branch. The qualitative difference is thus both pragmatic and jurisprudential.

The Federal Court has moved to a national approach for routine insolvency hearings, corporate or personal. These are conducted by registrars. On a given day, one registrar will conduct either a list of winding up applications or creditor's petitions (and related preliminary hearings) nationally with practitioners or parties appearing by remote audio-visual means. Cases filed in the various state or territory district registries are consolidated into a common national list for this purpose. Links are published in the daily law list to allow any member of the public to observe if so disposed. Anecdotally, for such routine proceedings, this mode of hearing is quite satisfactory.

Also last month, I chaired a Queensland Bar CPD session in which a highly experienced counsel based in Brisbane offered a truly enlightening presentation on corporate insolvency practice as he encountered it not just in my court or the Queensland Supreme Court but also in the New South Wales and Victorian Supreme Courts. Because, unlike personal insolvency where the jurisdiction is only vested in the two federal trial courts, corporate insolvency jurisdiction is concurrent with the State and Territory Supreme Courts, each of these courts has a corporate insolvency jurisdiction. Indeed, it became quite apparent from the CPD presentation that there is a degree of competition, if not by the courts themselves then by those who would invoke their jurisdiction, for corporate insolvency work. That is facilitated by the active use by these state Supreme Courts of remote audio-visual means even for the hearing of contested cases before judges. In tum, this has brought with it, as never before, opportunities for counsel and solicitors, remote from these courts, to appear before them. Anecdotally, and at least for short causes, such remote hearings work satisfactorily and are well-accepted by the profession.

Some of this competition is also fuelled by differences in court filing fees and registry practices. For example, the Victorian Supreme Court, which developed sophisticated remote hearing practices during Australia's most lengthy public health lockdown period, operates an electronic court file, offers remote hearings in its corporate insolvency list and charges a filing fee of $909.50 in respect of a winding up application. In contrast, the Queensland Supreme Court still has paper based filing, would ordinarily conduct a hearing of such an application in person and charges a filing fee of $3086.70. So, for a routine winding up, a solicitor or counsel can conduct the entire process remotely from Queensland, never leaving office or chambers, with the client being saved $2177.20. The Victorian Supreme

Court, so I learned as a result of this CPD session, has a busy, well-populated corporate insolvency list.

The phenomenon of remote hearings is already introducing a related competitive dynamic in the legal profession in Australia. It would not surprise me if that dynamic expanded to include the legal professions of other Commonwealth countries. There may well bring with it moves for reciprocal admissions. This phenomenon may well warrant separate consideration at a future conference.

Tribunal and Industrial Commission Remote Hearing Practices

Because the Federal Court exercises a judicial supervisory jurisdiction over them, I can offer some perspective on the remote hearing position with Australia's principal external merits review forum, the Administrative Appeals Tribunal (AAT) and Australia's principal industrial conciliation and arbitration forum, the Fair Work Commission (FWC).

In marked contrast to the years when I was in practice, the AAT conducts not just case management conferences but also many hearings by remote means. My home state, Queensland, is the most decentralised in Australia. More people live outside the capital city, Brisbane than live in it. Once the AAT regularly conducted hearings in person in Queensland via circuits to the major provincial centres. That is no longer the case. Such hearings are now conducted by remote means, via computer based software. Often, preliminary case management hearings and mediations are conducted just by telephone. In my respectful view, this has resulted in a discrimination as between the capital city resident and those elsewhere resident in the quality of hearing of a review application offered by the AAT. With respect, I rather think that quality has been sacrificed on the altar of economic expediency and perhaps also the convenience of AAT members.

The FWC conducts many, if not most, conciliation conferences by telephone. There is an obvious convenience about this. But when I see cases which have been through such conciliation later settle after coming to the Federal Court and then being subject to court-ordered attendance in-person mediation, I wonder whether that same result might have been earlier achieved if the parties had been required to attend in person before a member of the FWC.

Remote Hearings, the Human Condition and the Exercise of Sovereign Power

Undoubtedly, the revolution in the availability and cost of audio-visual technology has brought with it alternatives for the hearing and determination of cases great and small, in whole or in part, by courts and tribunals. Only a Luddite would eschew completely the use of such technology in respect of any exercise of judicial power. However, as the Honourable Justice Patrick Keane AC (later a judge of the High Court), speaking extra-curially once observed, "[i]n the traditional conception, the courts are an arm of government charged with the quelling of controversies ... the courts, in exercising the judicial power of the state, are not 'providing legal services'. The parties to litigation are not acting as consumers of legal services: they are being governed - whether they like it or not".^[3] For all but routine interlocutory proceedings, it is a longstanding feature of government, via the judicial branch, in Commonwealth countries that it is conducted in public. We long ago discarded the Star Chamber exercising judicial power in closed session as conducive to tyranny.

This means, I suggest, that any exercise of judicial power by remote means should carry with it the same right of public observation as if that exercise of power were conducted by a hearing in person.

This apart, executive convenience ought never in itself to provide occasion for the adoption of a remote means of hearing. And neither should judicial convenience. There is an enduring public interest in justice being seen to be delivered locally, but especially in relation to trials.

Further, it is always a mistake to assume that there is equal means of accessing attractive new technologies either to participate in a hearing by remote means or even to observe them by such means. This is a relevant consideration in relation to remote means of hearing in developed countries but, if my experience from also sitting in Papua New Guinea's Supreme Court is any guide, much more so in developing countries.

Finally and most importantly, the very act of having to attend court in person is qualitatively different in terms of the sensation of subjection to an exercise of what is an aspect of sovereign power to an attendance by a remote means.

One way of illustrating that is by analogy with another aspect of sovereign power. In theory, it would be possible for an Investiture to be conducted by video link with the person honoured being instructed at a given time by the Head of State or representative to open a pre-delivered box containing a national honour and pin it to his or her chest or place it around his or her neck. But the sensation would be very different, would it not? So too, would the sensation of attending this conference session remotely, as opposed to in person.

We humans are social animals. For as long as justice is delivered by humans for humans (and entities controlled by humans) in respect of human frailties great and small, there will always be a place for that to be done by direct human interaction, with that interaction being able if so desired to be observed by other humans.^{(C) J.A. Logan, 2023. Moral right of author asserted. Non-exclusive publication licence granted to the Commonwealth Magistrates' and Judges' Association.}