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William Collins
28 June, 2005  
A little lecture on open justice in the email age

Despite the expedition and efficiency the Victorian Court of Appeal frowns on delivery of judgments by email … There’s been plenty of distractions with the civil rape proceedings against Geoff Clark – including the Robert Richter defamation actions (settled) and Justice (Cab) Callaway’s footnote to his postscript


imageVictoria’s courts are still occupied by the fatal explosion at the Longford natural gas processing plant of Esso Australia on September 25, 1998.

Earlier this month, the Court of Appeal (Warren, Batt and Chernov) delivered its judgment in the company’s appeal against the decision of Fabulous Phil Cummins of the Supreme Court trial division sentencing the company for breaches of the Occupational Health and Safety Act 1985.

Importantly, this may well be a first appellate pronouncement on the pitfalls of courts handing down judgments electronically.

On November 3, 2004, there was a hearing at which the trial judge made findings about a compensation application and ordered Esso to pay one of the surviving victims (Mr Robertson) $100,000.

The transcript of that hearing was recorded on a page headed “Judgment” where the judge stated that he had not been able to complete his written reasons. He raised the matter with senior counsel for both parties who said that, as far as they were concerned, it was unnecessary for the judge to sit the following day to deliver his full reasons.

As a result, and as foreshadowed by him, the judge had his associate email his full judgment to the parties the following day. The detailed reasons were dated November 5, 2004 and the authenticated order showed the order to have been made on that date.

After referring to the discrepancy in the dates which created questions as whether the judge’s statements on November 3 were not in truth his reasons for judgment, the Court of Appeal issued this little stricture:

“It would have been better if his Honour, finding himself in difficulties, had on 3 November announced that, for reasons to be published thereafter, he made the orders in question (and, if desired, that they should bear a specified date later than that day). More important, however, is the fact that the full reasons were apparently transmitted by email to the parties. It must be clearly understood that the Supreme Court of Victoria, save in certain exceptional and well-known cases, sits in public for the hearing and determination of proceedings. That means that judgment is delivered in open court even if it be by the handing to the associate of the court’s written reasons and even though they may be available on the internet very soon thereafter. Members of the public are entitled to be present in court to hear judgment being given and to obtain a copy of the reasons. Other instances of the posting or emailing by judges of their written reasons have come to this court’s notice. Tribunals may be authorised to do that, but the practice should be entirely discountenanced for a court. The foregoing observations do not apply to the making of consent directions in busy managed lists. About any such practice we say nothing, though it might be possible for the judge to read out or hand down any such directions in open court.”

That’s it. No more judgments by email, thank you very much.

It’s all in the footnote

Exciting unforseen minutiae flow from the two civil actions for damages for alleged rape brought against former ATSIC Chairman Geoff Clark in the County Court of Victoria.

When, in a preliminary pleading application, County Court Judge John Hanlon struck out Clark’s defence that the claims were statute-barred, he included in his reasons a finding that, on the civil standard of proof, Clark had raped the plaintiffs.

imageThe judge’s decision was widely publicised and immediately after it was handed down the plaintiffs’ solicitor, Andrew Hale, was interviewed on ABC radio in Melbourne and made some remarks about the way Clark’s case was conducted in court by his legal team headed by Robert Richter QC.

These remarks were, in essence, repeated by the solicitor on the ABC’s Law Report program a few days later.

Richter and his instructing solicitor Mark Yorston settled a libel claim against the ABC and brought a separate libel claim against Hale. This latter claim led to some preliminary pleading skirmishing before Bongiorno J in the major torts list and was promising to be quite a fascinating stoush but, sadly, it also has been settled.

In a judgment handed down on May 12, 2005, a special five-member Court of Appeal (Warren, Winneke, Charles, Callaway and Eames) unanimously held that Judge Hanlon had erred in making the rape findings against Clark:

“It was extremely unfortunate that the judge chose to make the findings which he did, given that they had not been sought, no argument on the issue had been addressed to him or been invited by him from counsel, and no evidence had been led on the issue by the appellant, save for his sworn denial in his affidavit. In those circumstances the finding was both unjustified on the evidence before the judge and was unfair to the appellant.”

The Court of Appeal then divided 3:2, and very sharply at that, on the issue of the proper interpretaion of s.5(1A) of the Limitation of Actions Act (Vic) 1958. Chief Justice Warren dissented. Borrowing words from McHuge and Gummo in Byrne v Australian Airlines Ltd she said:

”... plumbing for legislative intention may be an ‘illusory quest’. As their Honours observed, ‘the task of the court … is to give effect to the will of the legislature but as it has been expressed in the law and by ascertaining the meaning of the terms of the law’. Just because ambiguity might be construed in a statute does not mean, as the appellant would have it, that courts should actively seek it out or impose their own meaning on words.”

Callaway JA also preferred the language of the statute to plumbing the depths of extraneous material.:

Postscript: I agree with the Chief Justice that it is wrong to substitute inferences drawn from extrinsic material for the words of the statute, all the more so when the inferences are uncertain and the statute is clear. The effect of doing so is to diminish the rule of law and tarnish the sovereignty of Parliament.”

”[D]iminish the rule of law and tarnish the sovereignty of Parliament”? Ignoring the footnote, this might be thought to be an unkind cut.

However, Cab Callaway’s footnotes are not to be overlooked: see eg R v Storey [1998] 1 VR 359 at 380 (fn 87). In case his Honour’s brethren felt slighted by his “Postscript”, they doubtless breathed a collective sigh of relief when they glanced down the page to the ameliorating tone of footnote [13]:

“I emphasize the word ‘effect’. I do not attribute an intention to do either of those things to the majority. It is their legal method I am criticising, not them.”

Thank God that’s sorted.