Quirk v Construction, Forestry, Maritime, Mining and Energy Union

JUDGE: PERRAM J DATE OF ORDER: 26 MARCH 2020

1. Under s 17(4) of the Federal Court Act 1976 (Cth), other than by adopting the following procedure, the public is excluded from the hearing: If a member of the public wishes to observe the hearing they must contact the Associate to Perram J on + (02) 9230 8421 or 0408 673 988 or by email to associate.perramj@fedcourt.gov.au.
2. The matter be listed for hearing at 4.30 pm on 30 March 2020.
3. The Applicants provide written closing submissions of no more than 30 pages by 9 April 2020.
4. The Respondents provide written closing submissions of no more than 30 pages and their chronology by 30 April 2020.
5. The parties advise of an agreed date for closing submissions by 2 April 2020.
6. The parties provide agreed transcript corrections by way of marginal notation by 6pm on 1 April 2020.
7. Parties provide their position on what parts of the court book they would like tendered by 5.00 pm on 27 March 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 On 26 March 2020 I ordered that under s 17(4) of the Federal Court Act 1976 (Cth) ('the Act') that other than by adopting a specific publicly available procedure, the public was to be excluded from the hearing of this case. This order was made in the course of conducting the hearing by remote video conferencing without any person (including myself) being present in a physical courtroom. My reasons for making the s 17(4) order are as follows. 2 Section 17(1) of the Act requires that the jurisdiction of the Court be exercised in open court, but s 17(4) allows for the public to be excluded if the Court is satisfied that their presence would be contrary to the interests of justice. 3 Doing justice between the parties requires that this case be heard as soon as is reasonably possible and that it not be delayed indefinitely pending the end of the current pandemic. 4 Open justice is not absolute - a balance must be struck between the need for cases to be heard and determined, on the one hand, and the demands of open justice, on the other. 5 The Court has put in place the best practical arrangements that it has been able to at this point in time in the circumstances of the pandemic. These arrangements allow interested members of the public to witness the hearing by permitting them to be invited to observe the video conference hearing online. The members of the public have been notified of their entitlement to attend the hearing in that manner by the publication in the Court's daily list of a notice that any member of the public wishing to observe the video conference hearing should contact either of my Associates so that they may be sent an invitation to the video conference by means of a link. This procedure has, in fact, worked as at least one member of the public has observed the proceedings in this way. 6 Given the current COVID-19 pandemic, the physical attendance of members of the public to a physical courtroom poses obvious and significant health risks. In such circumstances, I am satisfied that it would be contrary to the interests of justice for the public to have access to or to observe the hearing other than in accordance with the arrangements which I have just described. The result of that - if a virtual hearing of this nature is considered not to be a hearing in open court - would be to have the hearing put off indefinitely. The public has an interest in the work of the Court continuing, as do the parties. Whilst arrangements for the observation of proceedings by the public are likely to be improved, the arrangements which have been able to be made in the time available are sufficient to warrant proceeding to a hearing with the order I have made under s 17(4). 7 It is worth noting that s 47C(1) of the Act provides that the Court must not exercise the power to allow testimony or submissions via video link (the definition of which covers a hearing involving video conferencing via the internet) unless it is satisfied that certain conditions are met. In particular, s 47C(1)(a) imposes the following condition: Conditions for use of video links, audio links or other appropriate means (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: (a) the courtroom or other place where the Court or the Judge is sitting is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom or place to see and hear the person (the remote person ) who is: (i) giving the testimony; or (ii) appearing; or (iii) making the submission; by way of video link; 8 Section 47C(1)(a) requires that the Court must be satisfied that the 'courtroom or other place' where the Court is sitting has the facilities to enable all eligible persons in the courtroom or place to see and hear the remote person. In my view, the expression 'courtroom' includes a digital courtroom, such as occurs where a hearing is conducted by video conferencing and all participants are remotely located. 9 'Courtroom' in s 47C(1)(a) should be read ejusdem generis with 'other place'. Consequently, a 'courtroom' must be a 'place'. As a matter of ordinary language, a 'place' is not limited only to a physical location but can also include a digital place: cf. expressions such as 'website', 'online location', 'online shop', 'leaving a website', 'landing on a website' or being 'present in a chatroom'. Thus, the meaning of 'courtroom' within s 47C(1)(a) includes a courtroom which is located in a digital place. 10 This construction is supported by s 17(1) of the Act which provides that court's jurisdiction is generally to be exercised in open court and s 17(4) which shows that 'open' in that sense means that the public can be present. The emphasis in s 17 on the right of the public to witness the Court's proceedings indicates that it is this, rather than any physical locality, which is the essential characteristic of a Court (together, of course, with the presence of a judge). Given that the video conferencing platform upon which this hearing is being conducted can be witnessed by any member of the public (using the procedure I previously discussed) this complies with that essential requirement. 11 For these reasons I am satisfied that a 'courtroom' includes a digital place and therefore that the condition in s 47C(1)(a) is met. 12 I have also made various programming orders in relation to this case. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

SCHEDULE OF PARTIES NSD 1344 of 2017 Respondents Fourth Respondent: JOHN SETKA Fifth Respondent: JOSEPH MCDONALD Sixth Respondent: ELIAS SPERNOVASILIS Seventh Respondent: SHAUN REARDON Eighth Respondent: DEAN HALL Ninth Respondent: JADE INGHAM Tenth Respondent: AARON CARTLEDGE Eleventh Respondent: MICK BUCHAN Twelfth Respondent: MICHAEL RAVBAR Seventeenth Respondent: NIGEL DAVIS Eighteenth Respondent ANDREW SUTHERLAND Nineteenth Respondent ROB KERA Twentieth Respondent DARREN GREENFIELD Twenty First Respondent JASON O'MARA Twenty Second Respondent KANE LOWTH Twenty Third Respondent MICHAEL GREENFIELD