The trial judge who is due to hear the class action arising from the Kilmore/Kinglake fire of 7 February 2009 has had to determine who will be able to access an internet feed of the trial proceedings.  In his judgement in Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 14) [2013] VSC 37 (15 February 2013) Forrest J said:

The trial of this very large class action commences in approximately two weeks. There is considerable public interest in this case and it is estimated that about ten thousand group members are in the class – all of whom suffered losses in the Kilmore East/Kinglake fire. The question has arisen as to whether, to whom and to what extent, the evidence at trial should be broadcast. In particular, should audiovisual footage of the evidence be available to be viewed via “live streaming” over the internet.

The calamity of the Black Saturday bushfires affected all Victorians and particularly, those in the five shires between Kilmore East and Healesville: the Mitchell Shire, the Murrindindi Shire, the Nillumbik Shire, the City of Whittlesea, and the Shire of Yarra Ranges. Although a large courtroom is in the process of being built in the central legal precinct, it is clear that many interested group members will not be able to attend the trial.

The parties all took different views of what should be done; everyone agreed that opening and closing addresses by counsel should be streamed to the world at large but;

  • The plaintiff wanted everything, including all the witness testimony, broadcast to everyone;
  • The state defendants (CFA, DSE and Victoria Police) opposed web streaming but said if the court was going to allow it, only members of the class and their families;
  • SPI, the power company, said only expert testimony and the evidence of witnesses who gave consent should be streamed;
  • USC the asset inspection company thought no evidence should be streamed.

The Court determined that “the trial would be streamed over the internet but access to that broadcast should be limited to group members and their immediate families. Of course, if a witness has a justifiable reason for not wanting his or her evidence broadcast then that wish will be considered.”  In making that order the judge said that the material would be recorded using unobtrusive cameras already installed in the court room.  Television cameras wold only be allowed into the court room to record the opening and closing submissions of counsel.

The court was concerned to balance the need for open access to the courts with actual justice and concerns in the community about how the public may react to media broadcasts.  Courts are open and anyone can sit in on court proceedings but the size of the class in this case meant that the entire class, let alone members of the public, could not be accommodated in the public areas of the court.  Even those that wanted to attend would have a 1 hour plus train trip or drive and have to find parking near the Melbourne court room “From experience, this is not only a nightmare but a prohibitively expensive nightmare.”

The State defendants were concerned about the impact of broadcasting witness testimony would have on their members.

The State parties point to the emergency services personnel who attended the fire and the effect that live streaming may have on the quality of their evidence. They suggest that there is another tension with this category of witness – many will be giving evidence in support of the State parties’ defence by which they seek to defeat the claims of compensation sought by Mrs Matthews and the group members. For members of the Victoria Police, the CFA and the DSE who may continue to live and work in the affected communities (some of whom may also be members of the group) this tension will be heightened by the live streaming of evidence to the public.

His Honour took that into account and said:

I accept that live streaming with associated coverage to the public at large may (I emphasise may) inhibit the willingness and ability of witnesses to give their evidence, as argued by the defendants. However, this risk may be contained by limiting the manner in which the broadcast is disseminated outside the court – for instance, to a fixed spot or to group members only. In such a case, I doubt whether there is a risk of undue distraction or apprehension to such a level as to outweigh the benefits of transmitting the evidence to group members.

The judge did not see the need to broadcast the material to the world at large as the public’s interest would be met by the broadcast of opening and closing submissions and the media reporting on the trial.  The fact that the Royal Commission hearings had been streamed meant that anyone who had wanted to see the testimony of a particular witness may well have already had that opportunity.   The correct conclusion, in the judge’s view, was that “… the administration of justice necessitates dissemination of the evidence outside the precincts of the courtroom” and the appropriate way to do that was to stream the sessions but only to allow access to members of the class and their families.

Michael Eburn
21 February 2013.