Practice Note CM 22

Video link hearing arrangements

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1. Introduction

1.1 This Practice Note^[1] provides guidance on practical arrangements for use of a video link in a hearing in the Federal Court. It should be read in conjunction with information published by the Court on its website at http://www.fedcourt.gov.au/online-services/videoconferencing-guide about video link standards, requirements, charges and administrative procedures and forms.

1.2 Section 47A to 47F of the Federal Court of Australia Act 1976 provide for testimony being given and appearances and submissions being made to the Court by video link from locations in Australia and overseas (other than from New Zealand) as well as conditions and procedures which must or may apply^[2]. Provision for testimony being given and appearances and submissions being made to the Court from New Zealand, as well as relevant conditions and procedures, are currently contained in section 24 to 29 of the Evidence and Procedure (New Zealand) Act 1994. That Act is to be repealed by the Trans –Tasman Proceedings Act 2010 (Trans-Tasman Act) and, from commencement of the Trans-Tasman Act but subject to savings provisions in the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Act 2010, similar provisions contained in sections 47 to 54 of the Trans-Tasman Act will come into operation.

1.3 The Court may make a direction or order in relation to taking evidence or receiving a submission by video link as it considers appropriate (item 26 subrule 5.04(3), Federal Court Rules 2011 [FCR 2011]) at any time on the application of a party or on its own initiative (rule 1.40 FCR 2011). Such a direction or order can be made in open court or in Chambers (rule 1.36 FCR 2011). For any hearing by video link from New Zealand:

(a) provisions of Order 69A of the Federal Court Rules as in force immediately before 1 August 2011 continue to apply if the hearing is conducted under the Evidence and Procedure (New Zealand) Act 1994; or

(b) provisions of Division 34.4 FCR 2011 apply if the hearing is conducted under the Trans-Tasman Act (see Division 34.5A FCR 2011 for the transitional arrangements for Division 34.4).

2. Equipment and Facilities

2.1 The Federal Court has installed in courtrooms in each of its District Registries equipment and facilities which enable video links to be made to courtrooms in District Registries in other States and Territories as well as to compatible equipment with appropriate communication line speed or bandwidth in locations both within Australia and overseas. In addition it has in most District Registries mobile units which can be used in courtrooms and other places where permanent installations are not in place.

2.2 A video link can be established between compatible sites. In some cases, an incompatible site can be linked through a gateway provided by an external service provider at an additional cost. If three or more sites are to be linked, a multipoint bridge booking is necessary, again through an external service provider and at an extra cost^[3]. Links to equipment using slower transmission speeds than used by the Court’s equipment can be made, but this will be with reduced picture and sound quality.

2.3 A document camera is available at all Federal Court sites. This technology can be used to transfer and view images between sites but is unsuitable for viewing documents. Facsimile resources are limited in some District Registries and may not be available to transmit documents during a video link.  Arrangements should be made for any documents which must be viewed by participants in any video link at different locations to be available to the relevant participants or at those sites in advance.

2.4 Information about the current technical standards of the Court’s equipment; compatibility requirements for equipment at an external site to which the Court may make a video link; other site requirements for such locations; known incompatibilities; video link charges and contact details in each District Registry for further information is available at http://www.fedcourt.gov.au/online-services/videoconferencing-guide on the Court’s website.

2.5 For the purposes of production of any transcript required, the Court normally requests its court reporting provider to record any video link hearing in the courtroom in which the judge, senior judge (for a Full Court) or registrar is sitting. A video recording can be made of the video link at a small extra cost.

2.6 Demand for access to the Court’s video link equipment and facilities is high. Any party contemplating the use of a video link should contact the District Registry in which the proceeding is being conducted (ie the ‘proper place’ as defined in the Dictionary of FCR 2011), as well as the District Registry (if known and different) where the judicial officer will be sitting for that hearing, to enquire about availability, seek a direction or order from the Court, make all necessary arrangements to book all equipment and facilities (including at any external sites) and organise attendance of all required parties or others at the earliest possible opportunity.

3. Court Direction or Order

3.1 A direction or order of the Court for testimony to be given by video link or for appearances or submissions to be made by video link must be obtained. Any proposal to seek such a direction or order should normally first be discussed with the other party or parties in the proceeding. In some circumstances, for example an urgent directions hearing or application for injunctive relief, this may not be possible or appropriate.

3.2 The use of a video link has obvious benefits when one or more of the participants in a hearing (e.g. judge, Full Court, registrar, lawyer or witness) are in different geographic locations. These can include saving of costs and reduction in travel and organisational time. Convenience alone is not sufficient and consideration must be given in every situation where it is proposed to use a video link to whether this will provide a just, timely, economic and efficient use of the Court’s and the parties resources and aid the resolution of the litigation.

3.3 Factors which may also need to be considered include the availability of equipment and facilities at the relevant locations; the quality of picture and sound depending on the available equipment and transmission speed or bandwidth; the nature of the facilities at each site; the inherent limitations of the video link arrangements overall for any particular purpose of the hearing (e.g. cross-examination of a critical and controversial witness and judicial assessment of the credit of such a witness); the extent of documentation which might need to be viewed; and time differences between the different locations.

3.4 If the video link hearing is to involve interpreting, consideration may also need to be given to the qualifications, training and experience of the interpreter in the context of the added difficulties and complexity of the use of a video link; the impact of any interpreting on the operation of a video link hearing; and the best location^[4] at which the interpreting can be provided.

3.5 Usually taking evidence from a foreign witness by video link requires his or her consent^[5]. This may be supported by legislation and laws in place in the country where the witness is to give his or her evidence^[6]. Complementary legislation^[7] has been enacted in Australia and New Zealand which enables courts in each country to take video link evidence from a witness in the other. In addition, the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention) provides a framework that may be used to facilitate the taking of evidence via video link in countries that have acceded to that Convention. However, prohibitions or restrictions may exist in some of these countries^[8]. If there is any doubt about this, information can be obtained by contacting:

Private International Law Section
Attorney-General’s Department
Robert Garran Offices
3-5 National Circuit
BARTON ACT 2600
Telephone +61 2 6141 3332
Fax +61 2 6141 5452
Email pil@ag.gov.au

3.6 Other than where a video link is required solely for the convenience of the Court, all expenses of a video link hearing will be met by the parties in the proportions agreed between them or determined by the Court. These include the Court’s charges for the set up and use of its equipment and facilities, any overseas transmission costs incured, cancellation and out-of-hours expenses; expenses of any external service provider required; and all expenses associated with the use of any external site. Subject to any other direction or order made in the proceeding, all video link hearing expenses incurred by a party are recoverable as a disbursement incurred in the proceedings for any relevant costs ordered to be paid.

3.7 The direction or order for video link testimony, appearance or submissions should be sought as early as possible in a manner appropriate to the circumstances and in accord with the FCR 2011^[9]. Adequate information should be available to the Court to enable it to assess whether the proposal is appropriate. In some circumstances this may need to be by affidavit but in others it may be appropriate for it to be provided by submissions in open court or even by letter, email or facsimile (particularly if the direction or order is with the consent of all parties or in situations of urgency). The Court may deal with any such application in Chambers or in open court.

4. Video Link Arrangements

4.1 Immediately after any direction or order is made, a completed Request for Videoconference must be lodged with the District Registry in which the proceeding is being conducted so that the Court’s equipment and facilities can be booked. If known and different, a copy should also be provided to the District Registry where the judicial officer will be sitting for that hearing. Full details of any external site to which a video link is to be made must be included in the request lodged, as well as any special requirements (e.g. that a video recording be made).

4.2 If services from an external service provider are required, for example for a gateway or a multipoint bridge, these must also be booked immediately after any direction or order is made^[10]. Details should be provided to the Court at the time of lodgement of the Request for Videoconference or as soon as possible afterwards.

4.3 If a link is to be made to an external site, whether in Australia or overseas, the external site will be required to connect to the relevant Federal Court site. The Court will provide to the party lodging the Request for Videoconference the relevant primary line number to enable that connection to be made. It will also be necessary for the party lodging that request to arrange for a test link to be conducted at a suitable time in advance of the hearing to confirm compatibility of equipment and facilities at all proposed sites. That party is also responsible for ensuring that appropriate personnel will be available at any external site during the hearing to supervise the operation of the video link so any technical difficulties can be addressed and for all equipment or other resources required to be available. For example, if a witness or interpreter will be required to swear an oath at the external site, a Bible or alternative (e.g. Koran) must be available.

4.4 Arrangements made for any external site to be used must include an adequate number of microphones for the speakers present there; adequate placement and control of the camera or cameras so all participants can be seen; and an adequate number of video monitors of sufficient size and placed so the participants at that site can see participants at other sites. Any external site must be of a sufficient size to comfortably and safely accommodate all participants and adequately furnished for the needs of the hearing. For example, if a person will need to refer to documentation during the hearing there must be conveniently located clear bench space of an adequate size to do so.

4.5 Parties should give early consideration and confer with each other and the Court on any special requirements and contingencies to deal with issues which may emerge late. For example, will use be made of a document camera and, if so, is one of adequate capacity available at the relevant site? What documents may be required to be referred to by participants? Is there a need to agree to a special document bundle for the purpose of the video link hearing? How and to whom should any documents for the hearing be sent in advance? What arrangements should be made in case additional documents must be referred to by participants and they become available or are only identified immediately before the hearing starts or during the hearing?

4.6 The party lodging the Request for Videoconferencing must ensure that all other parties are notified of the arrangements made and, in particular, all conference participants are aware of relevant details applicable to each of them, such as date, time, duration, venue and any other requirements or responsibilities.

5. Video Link Hearing

5.1 All participants must be at their respective site at least 15 minutes prior to the commencement of the video link so appearances and required details of other participants can be obtained and exchanged and the set-up of the video link completed. On arrival at any Court site, participants should check the listing boards for possible last minute court room changes.

5.2 The hearing will, as closely as possible, be conducted in accordance with the usual practice of the Court in open court. Some variations however are necessary to cater for limitations introduced by the technology being used and the changed environment created by that technology and the geographic separation of participants.

5.3 The judge, judges (if a Full Court) or registrar will not normally enter until all participating sites have been connected and participants at each are ready to proceed and have confirmed that they are able to see and hear all other sites. At the conclusion of a hearing the judge, judges or registrar will usually leave while all sites remain connected. The judge, senior judge (for a Full Court) or registrar will decide the procedures to be followed and may give directions about who is to control cameras and on camera and audio operation. Directions may also be necessary, for example, on seating arrangements to ensure all participants are in view.

5.4 At the commencement of a video link hearing the judge, senior judge or registrar may give or call for more detailed information than normal so that the Court may be satisfied that the hearing can properly proceed and that all participants understand what will occur and what they are required to do as well as the limitations of the technology and the adjustments to be made to cater for these.

5.5 If testimony is to be given, the judge or registrar may also explain the administration of the oath or affirmation, how evidence will be taken and who will be conducting examination and cross-examination.

5.6 Participants (including witnesses) need to be very mindful of the need to speak into the microphones when addressing the court, giving their testimony or otherwise participating in the hearing.

5.7 Even at the highest currently available transmission speeds and with the most modern equipment, there is a delay between video picture being seen and sound being heard. In addition, the quality of the picture received is affected by movement of the object before the camera. This becomes more marked at slower transmission speed and with older equipment. Allowances appropriate to the delay being experienced during a video link need to be made to avoid one participant talking over another. Participants should also try to reduce their body movements as much as possible.

5.8 Visual and audio quality can also be affected as a result of equipment or network failures or faults at any site or with a service provider (including the transmission provider) or by interference from environmental factors at any site or in transmission. This can lead to unexpected loss of connection to one or all sites or deterioration to an unaccepted level of picture or sound. These difficulties may be able to be quickly rectified but may require rescheduling of the continuation of the hearing. Participants should remain alert to any deterioration in picture and sound quality and inform the judge, Full Court or registrar immediately if this is impacting on their ability to participate fully.

5.9 Video link testimony of a witness will proceed as closely as possible to the practice adopted for a witness giving testimony in a courtroom. The witness must be able to see the lawyer or party asking questions during examination, cross-examination and re-examination, as well as any other person (e.g. judge, registrar, lawyer or party) making any statement about the witness’s evidence.

J L B ALLSOP
Chief Justice
4 June 2013

^[1] The development of this Practice Note was aided by the guidance on video conferencing published in England and Wales as Annex 3 to Part 32 of the English Civil Procedure Rules which in turn was based, in part, on a protocol of the Federal Court of Australia published in the 1990s but withdrawn in 2004.

^[2] In a proceeding under the Native Title Act 1993, the Court or a Judge must exercise the discretion under section 47B of the Federal Court of Australia Act 1976 to allow a person to appear before the Court or Judge, or make a submission to the Court of Judge, by way of video link if the Court or the Judge is satisfied that the conditions set out in section 47C of the Federal Court of Australia Act are met and it is not contrary to the interests of justice to do so (see subsection 82(3), Native Title Act).

^[3] Unless required for the convenience of the Court.