Excerpt from NSW Crown Solicitors Office on linkedin The decision in Kurraba Group Pty Ltd…
Off the record
Obtaining court transcripts can cost thousands of dollars for a single day of proceedings, but the documents can contain errors, missing text, and even wrong attribution, frustrating legal practitioners who say the flaws impede justice.
By the Specialist Reporting Team’s Heidi Davoren ABC News
Justice is being obstructed by inaccurate court transcripts — including some where potentially prejudicial comments by judges were missing, according to a slew of legal practitioners interviewed by the ABC.
The prohibitive cost of obtaining transcripts also meant some appeals were not even being considered, lawyers warned.
There are now calls for change, including the cancellation of a lucrative contract with the foreign company that provides the transcripts, and for the raw audio files to be provided to litigants as a matter of course.
The ABC spoke to nine legal practitioners for this story but four declined to go on the record — some saying they feared that speaking out could lead to reprisals from judges in ongoing or subsequent court cases.
Four practitioners said erroneous transcripts in cases they had worked on affected how their cases progressed.
Some said inappropriate or biased comments from the judge were missing from the transcript, making it impossible to lodge an appeal on those grounds.
Transcripts seen by the ABC attributed dialogue to the wrong person, named the wrong legal practitioners, contained an abundance of typographical errors, and one transcript had more than two hours of proceedings missing entirely.
The court later included the missing hours of dialogue, which totalled 29 pages, after a parent in the matter raised it with the judge’s associate.
According to the parent, more than one transcript in their case contained errors, forcing them to repeatedly raise it with the court, and ultimately, hindering their case.
Family law barrister Brian Kelly said in his 18 years of practice he had worked on several matters where he believed the court transcripts were wrong.
“There have been times I have reviewed transcripts I have ordered and found that they did not line up with my recollection or my notes,” he said.
“During an interim hearing some time ago the judge made comments that I felt demonstrated an error.
“I found that the relevant section [of the transcript] I required to base an appeal on was missing.
“Without going around the loop of having the transcript reviewed, for which the client had no funds … the appeal prospects dropped markedly.”
Mr Kelly said he decided not to make a formal complaint to the court or the Attorney General. Colleagues who experienced similar issues told him they were “hesitant to make a formal complaint because of retribution”.
“Colleagues have told me they’ve been aware of transcripts that haven’t lined up with what they thought was in there or what their notes have said, and they haven’t made any complaints either because often you have to worry about the repercussions on your client and also on the lawyers themselves,” he said.
“If a case is still ongoing and someone has challenged the veracity of a transcript and made a complaint about it, there might be repercussions in how that case continues.”
Former New South Wales Court of Appeals judge and chair of the Centre for Public Integrity, Anthony Whealy KC, said the issue threatened to undermine the administration of justice.
“If there’s an example of a judge deliberately arranging to omit material in some form of self-preservation, then I think I would describe it as an unpardonable breach. It’s totally contrary to the oath the judge takes and it’s absolutely contrary to every principle of judicial correctness, and to me, deplorable,” he said.
“If there are errors and omissions then the whole system is threatened and undermined and you could encounter a serious flaw in the administration of justice.”
‘I’m deeply troubled’
If the contents of a transcript are disputed, a request can be made to review it against the audio file, but recordings “are only available in exceptional circumstances”, according to the Federal Circuit and Family Court (FCFC) website.
The court uses a transcription company called VIQ Solutions — a prominent agency that provides services to hundreds of bodies around the world including media outlets, law enforcement, government agencies and insurance companies, according to its website.
VIQ Solutions also provides transcripts for the family court in the United Kingdom, where similar concerns have been raised regarding the quality and accuracy of transcripts.
UK family law barrister Charlotte Proudman said in order for justice to be done, and to address inaccuracies, courts must allow access to audio files of proceedings — not just written transcripts.
“It is absolutely imperative that transcripts and the audio of court hearings are made available to the parties in proceedings … and I do not think there is any legal justification for refusing parties having access to effectively their own data,” Dr Proudman said.
“To deny them the opportunity to receive that audio, I would say is hindering justice.
“I’m deeply troubled as to why audios are not provided. I mean, what is the purpose of refusing that request? It certainly doesn’t help any of the parties. It’s not protecting the parties. So, who is it protecting?”
The Australian Law Reform Commission (ALRC) highlighted the call for access to audio files as part of their 2021 report into judicial impartiality.
It stated, “stakeholders suggested that transcripts often do not pick up the subtle ways in which bias can manifest in the courtroom. For example, the transcript does not pick up facial expressions, long pauses, inflexion, or tone”.
Dr Proudman agreed, saying without the audio it was difficult for parties in a family law matter to prove if a judge had “crossed the line”.
“You need the audio in order to understand the tone as well as the volume, the way that it’s said. We know that things can be said in a very sarcastic way,” she said.
I had a case recently where a mother on the transcript was saying to the judge, ‘I just don’t think you understand coercive and controlling behaviour’ … and she said he was getting quite irate and his volume was raised … she said, ‘you’re not letting me finish, you’re cutting me off. I can see from your facial expression you’re not happy’.
“He was saying, ‘I’m not cutting you off, I’m not raising my voice’, so batted it back. So, without the audio there is no objective, neutral or impartial observer to be able to decide whether in fact he had crossed the line to a perception of bias.”
In a matter in the family court of Australia in 2020, the appeal court relied on the audio files in a case where the primary judge’s conduct was found to be “cruel, insulting, humiliating and rude”.
“Having listened to the audio version of the transcript we are struck by the stark difference in the primary judge’s tone and terms of address,” the appeal judges stated.
The appeal court found the conduct of the judge warranted a retrial on the grounds of apprehended bias “lest the integrity of the judicial system be undermined”.
Mr Whealy said while appeal courts relied almost entirely on transcripts, audio files allowed a better understanding of the “atmosphere” of the courtroom.
“The audio file will … give you a much better picture of the whole atmosphere of the courtroom, you know, was the judge shouting at one of the witnesses? What may appear on paper to be just a quite banal comment might sound very different when listened to in real life.”
Why is it so hard to access audio files?
Legal practitioners told the ABC the process of seeking a review of the transcript against the audio file was too complicated, too costly for litigants, and requests to access the audio files were rarely granted.
The ABC is aware of a case in which a self-represented parent requested that transcripts be reviewed due to alleged inaccuracies but was denied.
The parent claimed the judge had repeatedly yelled at and spoken over the top of them.
One of the transcripts showed the judge threatened to “strike out the proceedings” when the parent raised issues of procedural fairness in what was a complex and long-running case.
An ABC journalist in the court room on one of the days this matter was heard witnessed very tense interactions between the judge and the parent which included raised voices, interruptions, speaking over, and allegations of eye rolling.
During the course of the proceedings the parent applied for the judge’s recusal on the basis of bias but the application to have the case heard by another judge was refused.
“Transcripts are the backbone of accountability in any legal matter. They capture the truth of what occurred in court and are vital for ensuring fairness, especially in appeals and recusal applications,” the parent said.
“In my case, being denied access to both the transcripts and the audio recordings took away my ability as a self-represented litigant, to present my case effectively or fairly.“
“It denied me the ability to properly challenge judicial conduct. The weight of that injustice is something I carry every day, with no avenue for recourse and no means to restore what was lost both legally, and for myself and my child.”
Calls for judicial commission to ‘protect the courts’ reputation’
In 2021, the Australian Law Reform Commission recommended the establishment of a federal judicial commission as part of its report into “Judicial Impartiality and the Law on Bias”.
The commission would be an independent body that could examine complaints about the court system and the judiciary, similar to what already exists in some states and territories.
The federal attorney general agreed in principle to setting up the commission, but so far no action has been taken. The attorney general’s department told the ABC it “remains under consideration”.
That’s not good enough, according to Greens Senator David Shoebridge, who sits on the Legal and Constitutional Affairs Committee.
“It’s been three years now since the ALRC made the recommendation. Three years on and we haven’t even seen a consultation paper or a draft bill from the federal government. Pretty much every state and territory have a judicial commission,” he said.
“At the end of the day a judicial commission is not only good for members of the public or lawyers who have complaints, it’s good for judges too because matters get resolved, unmeritorious complaints get dealt with, and the courts are able to protect their reputation.”
Mr Whealy agreed.
“It’s not just a matter for the courts. It’s a matter for the community who are exposed to the processes of the courts and the administration of justice. Every member of the community wants to make sure that there are no miscarriages of justice occurring in the court system,” he said.
The price of justice
Atranscript for a single day of family court proceedings can set a parent back anywhere between $3,000 and $5,000 depending on the length of proceedings and deadline for turnaround.
The exorbitant cost has been a topic of contention for some time, with several government inquiries calling for change.
The Law Council of Australia highlighted the cost of transcripts as a barrier to justice in a 2018 report called the “Justice Project” — which included input from legal centres around the country.
“Exemption categories and court discretion to grant [fee] exemptions should also be reviewed and broadened in certain jurisdictions,” the report stated.
In 2021, the ALRC’s inquiry into “Judicial Impartiality and the Law on Bias” stated:
“Consideration should be given by courts to amendments to their rules and commercial arrangements that would enable greater — and more affordable — access to transcripts or recordings.”
The report also stated easier access to audio recordings should be considered, especially in cases where issues of bias had been raised.
Four years later, transcript fees are still “absolutely ludicrous”, according to Hayder Shkara, the director of Justice Family Lawyers — a national network of 12 legal practices.
He said the cost of court transcripts was “prohibitive”.
“It’s a complete monopoly, which is also very concerning. Why is it dominated by one company? It’s completely unfair,” he said.
Mr Shkara said the court needed to catch up with advances in technology which would allow for ease and speed of transcription as well as verification.
“You would think with the improvements of technology, the workflows, streamlining different things, AI for goodness sake, all of these things have come out in the last 10 years and there has not been a decrease in costs,” he said.
“These are everyday people [in court] who have low budgets.”
Mr Kelly agreed, saying the cost of transcripts was “scandalous”.
“How can [the cost] be justified? It locks people out of their appeal rights.
“I have advised many people that they shouldn’t proceed because they can’t afford to pay for the transcripts. It makes consideration of an appeal very difficult. So people have to accept a decision that they believe is wrong.”
VIQ Solutions Australia Pty Ltd is a private subsidiary of VIQ Solutions, which is a public company based in Ontario. The parent company made a gross profit of $US19.2 million in 2024.
Mr Shoebridge said the optics of a foreign entity making profits from Australian family court proceedings was concerning.
“When you privatise essential public services like transcriptions in courts you create a lot of awkward incentives because obviously if this is a company that has a contract with the courts they don’t want to get the courts offside.”
How are transcripts managed?
Transcripts are meant to be a true and correct record of court proceedings.
Any significant edits or changes to transcripts should occur with the knowledge and consent of all parties.
A spokesperson for the family court said: “All equipment used to record hearings is owned and managed by VIQ Solutions, and no court staff member has access to the equipment, nor do staff members or judicial officers directly edit or alter transcripts”.
Upon further questioning, the spokesperson later clarified that “court staff can correct typographical errors” in transcripts.
However, in documents obtained by the ABC under Freedom of Information (FOI) it was clear transcripts could be edited and altered at the discretion of judicial officers.
The court’s “Transcript Style Guide” states “a presiding judicial officer may direct that scandalous or otherwise objectionable remarks in a proceeding not be recorded in the transcript”.
The document also states that editing can occur to make the transcripts more “readable” including the removal of “matters of no substance to the case” as well as “administrative” matters.
Mr Kelly said it was important that judicial officers had the ability to edit transcripts, but it should be done in an open and transparent way.
“There are often scandalous things said [in court] and they should be removed [from the transcript]. But it’s the other things … perhaps comments made in court by other lawyers or the judge that are important in a transcript and they’re not there,”
he said.
“I recall times where a judge has said, ‘look I’ll have that removed from the transcript’ if something scandalous has been said. And that should happen…but it’s the controversial things where somebody is alleging something was or wasn’t there or is slightly different.”
The documents released to the ABC under FOI also revealed that transcripts were sent to the court in an editable word format and that audio files were accessible by judges, registrars, judges associates and “other authorised staff”.
Judges can retrieve and play back audio from the audio portal of any recorded proceeding from within 30 minutes of the dialogue being spoken.
The court can also request VIQ Solutions staff “reproduce a transcript that does not accurately reflect the underlying recording”.
The contract between VIQ Solutions and the court states that VIQ must provide access to their premises, records and information and that the court can copy relevant documentation.
All ownership of the recordings and the transcripts are held by the court “from the date of creation”, according to the contract.
Each month VIQ must provide the court with a quality report detailing any complaints made about the transcription service or audio recordings, the number of errors in transcripts and any instances where a non-authorised person has listened to a recording, according to the Statement of Requirements.
However, a court spokesperson told the ABC they could not provide any data about complaints associated with transcripts.
Documents released under FOI revealed the court set a target of no more than one error per 100 words and it conducted performance tracking on individual transcribers.
What about other jurisdictions?
In 2022, the Court of Appeal found a trial judge in a matter in the ACT Supreme Court unilaterally edited a transcript without the knowledge of the parties.
The court found the judge had, “listened to the audio recording … for the purpose of revising the trial transcript … without first inviting the parties’ submissions not only as to the revision, but as to the consequences of the revision”.
The appeal on the basis of apprehended bias was successful, but the judgment made no mention of consequences for the judge’s actions.
The ACT courts use a company called EPIQ Transcription Services to produce documents in that jurisdiction.
In May, a Federal Court judge raised concerns about the quality of transcripts in a matter between Ergon Energy Queensland and the Australian Energy Regulator.
Justice Cameron Moore stated:
“the preparation of this judgment has been hampered by the extremely poor quality of the transcript of the proceedings, which has not managed to record in any accurate way the exchanges in the course of oral submissions that elucidated the parties’ positions on construction.”
The Federal Court also uses VIQ Solutions. The Federal Court did not answer the ABC’s questions about how the transcript had become corrupted but a spokesperson said the court was working with VIQ Solutions to address “inefficiencies”.
“On this occasion, the transcript was not of an acceptable quality. We take all issues relating to transcript quality and delivery seriously,” a spokesperson said.
The ABC put detailed questions to VIQ Solutions about how the transcription service operated, what processes were in place to address errors and who had access to audio files and transcripts.
VIQ Solutions declined to comment.
The attorney general’s department said any issues were a matter for the courts.
“The federal courts are each responsible for their own operation and management, and for making rules of court. This includes responsibility for transcription services and associated contractual arrangements,” a spokesperson said.
Mr Whealy said it was the attorney general’s responsibility to address any concerns regarding the legal system.
“The attorney general, as the first law officer, has the obligation to face up to problems that are there and to help solve them with the cooperation of the courts,” he said.
“There’s been a call for many years now for there to be a federal judicial commission. We don’t have one and it defies description or any rational explanation as to why that should be so.”
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