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Judges disagree over ‘juicy details’ · The Front

• 0:05
  Speaker 1: From The Australian. Here's what's on the front. I'm Claire Harvey.
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  Speaker 1: It's Tuesday, November twelve. Ancient Indigenous rockert could be painted
• 0:16
  Speaker 1: over to make it more visible. That's the startling proposal
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  Speaker 1: from some First Nations leaders at a Victorian rock climbing
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  Speaker 1: site that's become a battleground over tourism versus cultural heritage.
• 0:32
  Speaker 1: Australia's plans for a one billion dollar giant supercomputer are
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  Speaker 1: in doubt as Queensland's new government announces it's reviewing whether
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  Speaker 1: it still wants to go ahead. Those stories alive at
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  Speaker 1: the Australian dot Com dot a U right now. The
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  Speaker 1: most important court cases are full of juicy details and
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  Speaker 1: some of it shouldn't be in the public domain. That's
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  Speaker 1: the take from Federal Court Chief Justice Debruh Mortimer, and
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  Speaker 1: it's put her at odds with her own courts superstar
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  Speaker 1: Judge Michael Lee today. How much are we allowed to know?
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  Speaker 1: In a newsroom? There's an exciting part of the day
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  Speaker 1: when the court reporters come back from the cathedrals of
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  Speaker 1: justice to tell us what's been going on. At The Australian,
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  Speaker 1: our Legal affairs correspondent is Ellie Dudley. Ellie, there's been
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  Speaker 1: an amazing case going through the federal court of a
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  Speaker 1: Channel seven Spotlight employee taking legal action against the network.
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  Speaker 1: Tell me all about it.
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  Speaker 2: Yeah, so let me tell you, Claire, this has been
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  Speaker 2: an incredible case. It's all about Emilia saw who's a
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  Speaker 2: former employee at seven Spotlight.
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  Speaker 1: She is suing the network. Oh sorry, we can't bring
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  Speaker 1: you the juice on this. And Ellie, the big corporate
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  Speaker 1: scandal that's going on right now is Super Retail, this
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  Speaker 1: company that has run into trouble with several employees. Tell
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  Speaker 1: me what's going on there in the federal court.
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  Speaker 2: So that's an incredible case. You've got Super Retail, which
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  Speaker 2: is just this mammoth retail behemoth, and these allegations of
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  Speaker 2: sexual harassment that have come out.
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  Speaker 1: Oops, can't share that either. So Ellie, those are two
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  Speaker 1: cases that we would absolutely love to be talking about
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  Speaker 1: on the front today, but we can't. Why not?
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  Speaker 2: So in the federal court, Claire, there is this debate
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  Speaker 2: that appears to be going on about open justice and
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  Speaker 2: suppression orders, an order that comes from the court to
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  Speaker 2: suppress either key details or the names of witnesses or
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  Speaker 2: the names of parties or documents to prevent it from
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  Speaker 2: being published by the media and being spread more widely.
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  Speaker 1: If there's anything more interesting than a gritty court case,
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  Speaker 1: it's senior judges engaging in a very public difference of opinion.
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  Speaker 1: And that's what's happening in the Federal Court of Australia,
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  Speaker 1: where the court's superstar Judge Michael Lee and its boss,
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  Speaker 1: Chief Justice Deborah Mortimer are at odds about how much
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  Speaker 1: you get to hear about what's going on. There's a
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  Speaker 1: general principle in court reporting that you could wander into
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  Speaker 1: pretty much any court in the country, sit down at
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  Speaker 1: the back as a reporter and start taking notes about
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  Speaker 1: what's happening. Given that this is taking place on funded premises,
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  Speaker 1: with judges and sometimes counsel who are being funded by
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  Speaker 1: the taxpayer, that's not always the case anymore, is it.
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  Speaker 2: This is what the judges in the Federal Court appear
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  Speaker 2: to be grappling with at the moment, the Chief Justice
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  Speaker 2: of the Federal Court saying that open justice is not
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  Speaker 2: open slather. Open justice does not mean that every juicy
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  Speaker 2: detail should be available to the media and available to
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  Speaker 2: the public.
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  Speaker 1: More broadly, ell least breaking a story today about a
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  Speaker 1: speech given by Deborah Mortimer, the Chief Justice, in which
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  Speaker 1: she said, basically, back off. We've used a voice actor
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  Speaker 1: to bring you justice.
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  Speaker 3: Mortimer's words, media and community aspirations to obtain all the
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  Speaker 3: juicy details have never operated as some kind of open
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  Speaker 3: slaver on disclosure of information in court proceedings. Most of
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  Speaker 3: us who speak or write about the concept of open
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  Speaker 3: justice are either official participants in the justice system or
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  Speaker 3: observers of it. Thus, it is not our story of
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  Speaker 3: intimate physical violations, or our precarious mental health, or our
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  Speaker 3: gambling addiction which has led to our bankruptcy, nor our
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  Speaker 3: contractual arrangements designed to save our business which are at stake.
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  Speaker 3: We have no skin in the game.
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  Speaker 1: Mortimer said Judges and journalists should remember the law operates
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  Speaker 1: on the line lives of human beings, and that every
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  Speaker 1: time there's a juicy morsel of information, there's also a
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  Speaker 1: human being who might be personally affected. So let's go
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  Speaker 1: back to the genesis of this story. Why is Chief
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  Speaker 1: Justice Dibram Mortemar talking about this.
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  Speaker 2: We've been talking about open justice for decades and what
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  Speaker 2: open justice means. Does it mean that someone is just
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  Speaker 2: able to walk into a courtroom, sit up the back
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  Speaker 2: and watch what's happening. Or does it mean that, especially
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  Speaker 2: now in a digital age, that a reporter or a
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  Speaker 2: member of the public should be able to access every
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  Speaker 2: detail that's.
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  Speaker 1: Included in a case.
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  Speaker 2: The reason that it's so interesting to me as a
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  Speaker 2: legal affairs reporter is that it appears that the judges
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  Speaker 2: of the Federal Court have differing views on what open
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  Speaker 2: justice is. We've got Justice Michael Lee, who our listeners
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  Speaker 2: would be familiar with as the judge who presided over
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  Speaker 2: the Bruce Lherman defamation case against Network ten.
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  Speaker 1: Having escaped the lines dead, mister Lhermitt made the mistake
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  Speaker 1: of coming back for his head.
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  Speaker 2: He also presided over Heston Russell's defamation case against the ABC.
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  Speaker 1: There is not some sliding scale which means the greater
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  Speaker 1: the public interest in the matter, the greater the margin
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  Speaker 1: for error in what is published.
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  Speaker 4: Justice Michael Lee said he has no doubt investigative journalist
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  Speaker 4: Mark Willersey believed the publication of the stories was in
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  Speaker 4: the public interest, but that the belief was not reasonable
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  Speaker 4: in the circumstances. He's awarded mister Russell three hundred and
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  Speaker 4: ninety thousand dollars in damages, having previously ruled the stories
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  Speaker 4: conveyed defamatory imputations.
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  Speaker 2: He thinks that if a suppression order, if there's an
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  Speaker 2: application for a suppression order, the media should come in
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  Speaker 2: and fight it and fight for the details to be
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  Speaker 2: made public.
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  Speaker 1: In August, Justice Lee said at a women in Media
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  Speaker 1: conference that he was tired of corporations and other litigants
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  Speaker 1: who come to court asking for swinging confidentiality or suppression
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  Speaker 1: orders to prevent the publication of evidence. Justice Lee said
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  Speaker 1: one way the media could do better is ensuring that
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  Speaker 1: courts and judges are held to account out when it
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  Speaker 1: comes to suppression orders. He urged media organizations to engage barristers,
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  Speaker 1: and he acknowledged that can be expensive. He said, don't
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  Speaker 1: waste money on top silks, just use comparatively cheap junior
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  Speaker 1: barristers to argue against suppressions. Lee said part of the
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  Speaker 1: problem was that often both parties to a case agreed
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  Speaker 1: to a suppression, the lawyers for the plaintiff and the defendant.
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  Speaker 1: That means it's up to media organizations to fight. Listeners
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  Speaker 1: to the front would know that. During the matter of
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  Speaker 1: Bruce Laman versus Network ten and Lisa Wilkinson. There was
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  Speaker 1: a YouTube live stream every single day. The vast majority
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  Speaker 1: of those proceedings were live stream. There were a couple
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  Speaker 1: of moments when the court was closed and all the
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  Speaker 1: reporters had to gallop down there too to report on
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  Speaker 1: what was going on. Tell me about that instance when
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  Speaker 1: the court was closed. What it was.
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  Speaker 2: Yeah, So in that instance, it was closed because one
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  Speaker 2: of the witnesses, Fiona Brown, had incredibly fragile mental health.
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  Speaker 2: As I mentioned, Justice Lee was the one residing over
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  Speaker 2: that case, and he was very keen for every element
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  Speaker 2: of that case to be public. He uploaded documents and
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  Speaker 2: evidence all onto an online file that was accessible to
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  Speaker 2: journalists but also accessible to the general public as well,
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  Speaker 2: and he wanted the case live streamed. He wanted everybody
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  Speaker 2: to be able to see how this matter was playing out.
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  Speaker 2: Because it was a matter that was so firmly in
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  Speaker 2: the public interest. He closed the court I think, quite
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  Speaker 2: reluctantly when Fyoda Brown was giving evidence in order to protect.
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  Speaker 1: Her mental health. In that instance, it's really understandable that
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  Speaker 1: judges would want to protect the mental health of fragile
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  Speaker 1: witnesses and would want to prevent undue stress to people
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  Speaker 1: who are appearing before the court. But it's worth remembering
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  Speaker 1: that pretty much every matter that reaches court is the
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  Speaker 1: result of some kind of conflict. Right now, someone's always
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  Speaker 1: going to be upseit.
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  Speaker 2: Yeah, absolutely, And I think the thing to remember for
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  Speaker 2: judges is that embarrassment isn't a reason for something to
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  Speaker 2: be suppressed.
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  Speaker 1: Coming up, do we really want to see litigans tearing
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  Speaker 1: each other apart on live TV? Speaking of juicy cases,
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  Speaker 1: there's a ripper going down in the Magistrates Court in
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  Speaker 1: Melbourne and we've got it exclusively. It's all about a
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  Speaker 1: Victoria police advisor who's face court accused of impersonating a
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  Speaker 1: police officer, perjury and perverting the course of justice. Check
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  Speaker 1: it out at the Australian dot Com dot a U.
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  Speaker 1: In the United States, there's much more of a presumption
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  Speaker 1: towards openness than in Australian courts, and we know how
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  Speaker 1: that can go.
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  Speaker 3: This gets you your fifteen minutes of fame, objection, your honor?
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  Speaker 1: Are you manative? I could see the same thing by
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  Speaker 1: taking everard as a claim for you look argument that.
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  Speaker 1: In Australia, the closest we get is the Federal Court's
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  Speaker 1: YouTube live stream. The other thing that the judges can't
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  Speaker 1: really control is that those twenty thousand people who are
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  Speaker 1: watching a live stream can then go on Twitter or
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  Speaker 1: Instagram or Facebook and it's about their opinions. Say, I
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  Speaker 1: think so So was lying. I watched such and such
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  Speaker 1: as evidence and I think it's all a bunch of nonsense.
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  Speaker 2: What's the argument between somebody watching it on a YouTube
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  Speaker 2: live stream or somebody reading it in the media. You know,
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  Speaker 2: we're always going to be there for the big cases,
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  Speaker 2: reporting on them and putting up our articles as quickly
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  Speaker 2: or you know, in real time if we can. What's
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  Speaker 2: the difference between somebody reading one of those and spouting
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  Speaker 2: their opinion versus watching it on a live stream.
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  Speaker 1: I must say, having covered a lot of cookcases just
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  Speaker 1: like you, they are fabulously entertaining.
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  Speaker 2: Of course, our especially those that are live streamed. You know,
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  Speaker 2: we've got Moyer Deeming v. Jon Persuto, which has been
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  Speaker 2: live streamed, the Heston Russell Cases livestream. Obviously Lehmann as well,
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  Speaker 2: then incredibly entertaining. It's why my job is so fun.
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  Speaker 1: Okay, this is reminding me a little of the distinction
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  Speaker 1: between the public interest and what the public are interested in.
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  Speaker 2: Which is a funny line to walk at all times? Right,
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  Speaker 2: As a journalist, you think about that all the time.
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  Speaker 2: Is this story in the public interest or is this
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  Speaker 2: just something that people are going to love because it's
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  Speaker 2: got such sordid and juicy details. And I think that's
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  Speaker 2: something that Debrah Mortema is walking quite close to in
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  Speaker 2: this you know. She says that community curiosity has never
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  Speaker 2: prevailed in any absolute sense when it comes to open justice,
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  Speaker 2: but instead it needs to be balanced with what open
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  Speaker 2: justice actually means.
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  Speaker 1: Often there are seats set aside in courts for the media.
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  Speaker 1: It is clear that the press are allowed into courts.
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  Speaker 1: That is a basic rule, but I do feel that
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  Speaker 1: a lot of the time we're treated with contempt. I've
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  Speaker 1: found myself sitting on the floor a lot of times
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  Speaker 1: in court hearings. A good example is the Supreme Court
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  Speaker 1: trial of Christopher Michael Dawson, which we covered in such intensity.
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  Speaker 1: Journalists gathered three hours before the court opened to be
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  Speaker 1: able to get in and then still had to fight
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  Speaker 1: for seats. Many people didn't actually make it into that courtroom.
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  Speaker 1: What do you think?
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  Speaker 2: It's a balancing act, isn't it? Are we part of
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  Speaker 2: the system. No, But do we play a really fundamental
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  Speaker 2: role in justice being served? I think yes. I think
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  Speaker 2: that if we think that courts should be heard in public,
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  Speaker 2: then if we're the facilitator between something occurring in a
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  Speaker 2: court and the public finding out about it, then I
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  Speaker 2: think that the media plays an incredibly important role in
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  Speaker 2: those instances. How that relates to suppression orders and the
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  Speaker 2: individual circumstances of an individual case is probably another question,
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  Speaker 2: And the point that Deborah Mortemer makes is that each
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  Speaker 2: case needs to be handled differently depending on the circumstances
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  Speaker 2: that are before the judge.
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  Speaker 1: Ellie Dudley is the Australian's Legal affairs correspondent. Thanks for
• 12:39
  Speaker 1: joining us on the front. The Prime Minister and the
• 12:41
  Speaker 1: Governor General named a new Victoria Cross recipient yesterday, Private
• 12:46
  Speaker 1: Richard Norden, honored for his remarkable gallantry during the Vietnam War.
• 12:51
  Speaker 1: You can read all about his courage under fire right
• 12:55
  Speaker 1: now at the Australian dot Com dot u