Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd
[2001] VSCA 167
•1 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 7828 of 1996
| FLETCHER CONSTRUCTION (ACN 054 067 284) | Appellant |
| v. | |
| LINES MACFARLANE & MARSHALL (ACN 006 398 376) | Respondent |
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JUDGES: | CHARLES, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 25 and 26 July 2001 | |
DATE OF JUDGMENT: | 1 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 167 | |
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Judgments – Reasons for judgment - Whether strict obligation to give reasons contemporaneously with pronouncement of judgment - Judge providing draft reasons when pronouncing judgment and final reasons five weeks later – Final reasons differ from draft reasons – Whether new trial should be ordered - Duty of judge to give reasons –– Amendment of reasons after publication - Whether Rule 59.04 imposes a requirement of contemporaneity – Whether judge functus officio after pronouncement of judgment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A.C. Archibald, Q.C. | Clayton Utz |
| For the Respondent | Mr P.N. Vickery, Q.C. Mr W.E. Alstergren | Elizabeth Solomon |
CHARLES, J.A.:
I have had the considerable advantage of reading the reasons for judgment prepared by Chernov, J.A. I agree that ground 1 of the appeal fails for the reasons given by his Honour, and that the remaining matters referred to this Court should be adjourned sine die to be brought on for hearing upon proper notice. I wish only to add the following comments.
It is, with respect, obviously undesirable that a judge should take the course followed in this case of pronouncing judgment, making available draft reasons to the parties at the time of judgment, and publishing final reasons for judgment some five weeks later. Only in the most unusual of circumstances would the delivery of draft reasons ever be acceptable. The delivery of reasons after judgment has been pronounced, however, is, as Chernov, J.A. has shown, a course which is followed on frequent occasions by the High Court and by superior courts at least in Victoria and New South Wales[1], and no doubt elsewhere, particularly when circumstances demand that judgment be pronounced immediately and when reasons have not been able to be finalised. The existence, and not uncommon pursuit, of such a practice makes it impossible to argue that error of law is shown when a superior court judge publishes reasons for decision other than immediately after judgment has been pronounced, or that the judge lacks jurisdiction to publish final reasons later. The decision of the New South Wales Court of Appeal in Palmer v. Clarke[2] does not, as Mahoney, J.A. said in Mulvena v. Government Insurance Office[3], decide more than that a District Court judge in New South Wales must comply strictly with the requirement of contemporaneity. Nor can it be said that in this case the period of five weeks, in what was a lengthy and obviously complex trial, was unduly excessive delay in the delivery of reasons.
[1]Mulvena v. Government Insurance Office of N.S.W., unreported, Court of Appeal of New South Wales, 16 June 1992 per Mahoney, J.A. at p.11.
[2](1989) 19 N.S.W.L.R. 158.
[3]At pp.10-11.
It would, with respect, have been much safer in the present case for the judge not to have pronounced judgment before giving final reasons. As we were told during argument, there was no particular circumstance of urgency which demanded the delivery of judgment at a time before the reasons had been completed. But if his Honour had merely pronounced judgment and delivered reasons in this complex and lengthy case five weeks thereafter, the practice already referred to, examples of which are given by Chernov, J.A. in [38], shows that the appellant could not have established any error in the procedure his Honour followed.
The appellant’s real case was, I think, that having received the judge’s reasons in draft at the time of judgment, the changes between the draft reasons – even though the appellant conceded, indeed argued, that those reasons have no legal standing – and the final version demonstrated that his Honour had moulded his reasons after judgment so that the reasons were made to accord with the judgment. In the main the changes between the draft and final reasons, numerous though they undoubtedly are, are of no substance and may be characterised as grammatical or, as the judge put it, mechanical. The appellant, however, identified three changes as being of real substance. But I agree with Chernov, J.A., for the reasons he gives, that these three matters were not changes of substance, or such as to show that the final reasons differed materially from the draft. It is therefore unnecessary to consider further what the consequence would have been if the changes had been of real substance.
CHERNOV, J.A.:
The appeal
This appeal is essentially concerned with whether a new trial should be ordered when reasons for judgment are not delivered contemporaneously with the pronouncement of judgment. On 9 August 2000 the trial judge pronounced judgment in favour of the respondent. He also gave a brief oral summary of his reasons and provided the parties with what he called his “draft” written reasons for
judgment. He did not, however, hand down his final reasons until some five weeks later, on 13 September 2000. The appellant claims that in failing to deliver reasons contemporaneously with pronouncing judgment the trial judge erred in law and that, in the circumstances, the judgment should be set aside and a new trial ordered.
Background to appeal
Before dealing with the appellant’s arguments in support of a new trial, it is necessary to set out the circumstances which led to this unusual situation.
The appellant, a major building contractor, was awarded the contract to design and construct the Men’s Metropolitan Prison at Laverton (“the prison”). By an agreement made on 24 May 1996 it sub-contracted to the respondent, a company which provides architectural services, the task of designing the prison for a lump sum fee of $1.6m. together with an allowance for the final commissioning phase of the works. It was a term of the agreement that the respondent would be paid according to the value of the services it had completed from time to time. During the course of the project a dispute arose between the parties as to the entitlement of the respondent to payment of its fees. One of the issues was the value of the work performed by the respondent and the extent to which it had completed it. Because of the appellant’s alleged failure to pay the respondent the fees it claimed were due to it, the respondent stopped all work on the project on 16 November 1996. The appellant contended that, as at that date, a substantial amount of architectural work was still required to be completed whereas the respondent claimed that it had been substantially finalised.
On 17 November 1996 the respondent filed a proceeding in the Supreme Court in which it claimed approximately $400,000 from the appellant in unpaid fees under the agreement. On 18 December 1996 the appellant served a notice of termination upon the respondent. The respondent, however, contended that it had brought the contract to an end well before then, namely, on 17 November 1996 when it stopped work on the project and had thereby accepted the appellant’s repudiatory conduct. In the circumstances, the appellant retained another architect to complete the remaining architectural services in respect of the construction of the prison and on 26 March 1997 counterclaimed against the respondent for the additional costs of the new architect and other alleged damages amounting to approximately $4.3m. The construction of the prison was completed in September 1997.
The trial, which occupied some 34 sitting days, commenced on 10 April 2000 and concluded on 29 June 2000 when his Honour reserved his decision. As his Honour explained in his reasons for judgment, the trial was conducted according to a “limited trial” procedure. Under this procedure, the parties had agreed to predetermined starting and finishing dates, to limited times for cross-examination of witnesses and opening and closing addresses of counsel. The evidence in chief and in reply was presented essentially through prepared witness statements and the relevant documents were compiled in an electronic court book. These procedures were conducive to shortening the trial but, as has been mentioned, it nevertheless lasted for 34 sitting days.
The matter was listed for judgment on 9 August 2000. Shortly after the matter was called, his Honour said:
“... I will distribute shortly some 160 pages of written decision. Unfortunately, I set myself a timetable I now find I cannot quite complete. The judgment that I am about to deliver to you will be labelled ‘draft’ but I propose to pronounce final judgment now. The reason for that is that I simply want to make sure that I haven’t split an infinitive or ended a sentence with a preposition or some other frightful assault on the English language.
I will now pronounce the judgment. There will [be] judgment for the plaintiff in the sum of $196,950. The counterclaim will be dismissed.”
His Honour then briefly explained why he had accepted certain evidence and rejected other evidence and stated shortly his reasons for his ultimate findings. The trial judge then handed to the parties the “draft” written reasons for judgment of 159 pages (528 paragraphs) which were not certified by the associate as is usually the case when reasons are published. The judge again explained that the written reasons were labelled “draft” because he had not been able to go through the final typing “to make sure that it accords with everything that I have done. I would think I can do that in the next couple of days and that will then certify the judgment, but you have now got your decision of the court.” His Honour enquired of the parties if his proposed course would cause any difficulties to them, but counsel did not suggest that it would. A little later, his Honour said that he wanted to ensure that the sub-titles and titles of the index accorded with the pages “in the judgment and to matters of that kind. ... These are just mechanical things, but I have worked fairly hard in the last few weeks to get this to you”. A little later still, his Honour said that the parties were free to take “this judgment away because the only thing that will happen to it is, as I say, should there be some terrible grammatical lapses, they will be fixed. ... But the rest of it stands.”
As I have said, his Honour published his final reasons on 13 September 2000, but before that occurred, the following steps were taken by the parties and the judge in relation to the proceeding:
(a)The appellant served its notice of appeal on the respondent on 22 August 2000. This step was taken towards the end of the period prescribed by Rule 64.03 of Chapter I of the Rules of the Supreme Court, given that judgment was pronounced on 9 August 2000 (and was authenticated on 15 August 2000 at the behest of the respondent).
(b)On 23 August 2000 the appellant paid the respondent the judgment sum of $196,950 (in exchange for a guarantee from a director of the respondent that the amount would be repaid should the appeal be successful).
(c)By summons dated 25 August 2000, the respondent applied to this Court to strike out the notice of appeal on the basis that the grounds were so general that the appeal was an abuse of process. On 1 September 2000, this Court dismissed the respondent’s summons and, inter alia, gave leave to the appellants to file and serve an amended notice of appeal within 28 days after the provision by the trial judge of his final reasons for judgment.
(d)On 4 September 2000, the trial judge heard argument on the question of interest and costs. The appellant submitted that it was not appropriate for his Honour to deal with these matters until after delivery of the final reasons for judgment. The judge explained that he had not yet completed the revision of his draft and re-stated that the final reasons would not alter the substance of what he had said in the draft written reasons. His Honour said:
“... final judgment merely ensures that I haven’t split any infinitives or other gross offences against the English language which would entertain the Court of Appeal for two or three days. As to matter of substance, there are no changes of substance perhaps except for ... an abbreviation [that was introduced].”
Counsel for the respondent then handed his Honour a copy of the appellant’s notice of appeal so that, to the extent he thought necessary, he could effectively deal with the grounds in his final reasons. In the end, however, after the appellant’s counsel objected to that course, his Honour decided that it would not be appropriate for him to consider the notice of appeal and he returned it to counsel. His Honour then adjourned the matter to 11 September 2000 when, he said, he would deliver final reasons for judgment. For reasons which are not relevant, the matter was further adjourned to 13 September 2000.
(e)On 13 September 2000, his Honour heard an application by the respondent to amend the judgment sum under the Slip Rule pursuant to Rule 36.07. It was the respondent’s case that the judgment sum should be increased by $23,792 to $220,742 due to an error in the calculation of the relevant sums by the respondent’s counsel. The trial judge concluded that the alleged error was not a “mere slip” and that, in the circumstances, the respondent was bound by the calculation which it had proffered to him as to the amount claimed in the litigation. Consequently, he dismissed the application and, by notice of appeal dated 27 September 2000, which was filed in this Court on 3 October 2000, the respondent sought to appeal against his Honour’s refusal to amend the judgment sum pursuant to the Slip Rule.
Between 8 and 13 November 2000, his Honour heard a number of applications made by the parties and in the result, he signed an order on 16 November 2000 to the following effect:
(a)The appellant pay the respondent’s costs of its claim and counterclaim on an indemnity basis.
(b)The appellant also pay the costs of a director of the respondent at the rate of $110 per hour for “investigating and instructing the [respondent’s] solicitors with respect to the proceeding from 1 September 1999”.
(c)There be a stay of the taxation and execution of the costs order, conditional upon the appellant’s undertaking to pay interest on any amount of costs ordered to be paid by it in the event that the appeal is unsuccessful. (This aspect of the order was subsequently varied by this Court on 11 December 2000, but it is not necessary to elaborate on this change.)
In accordance with the direction of this Court on 1 September 2000, the appellant filed in this Court, on 6 November 2000 a summons for directions dated 1 November 2000. The respondent also filed on 27 November 2000 summonses for direction in the principal appeal and in its cross-appeal. All these matters came before this Court constituted by two judges on 11 December 2000. So far as is relevant, their Honours ordered on that day that:
(a)ground 1 of the appellant’s Further Amended Notice Of Appeal (which asserts that the trial judge “failed to deliver a statement of reasons for his judgment”) be heard separately from the other grounds of appeal;
(b)there be referred to the Court hearing ground 1:
(i)the appellant’s application for leave to appeal against the costs order made by the trial judge;
(ii)the respondent’s summons for directions filed 27 November 2000 in respect of the appellant’s appeal;
(iii)the respondent’s application for leave to appeal against the dismissal of its Slip Rule application;
(iv)the respondent’s summons for directions in respect of its cross-appeal.
Accordingly, these matters came before us for hearing on 25 July 2001.
The appellant’s case
The appellant’s case in support of ground 1 can be summarised as follows:
(a)His Honour was under a duty to publish reasons for judgment before or immediately after pronouncing it on 9 August 2000 and his failure to do that constituted an error of law.
(b)Once judgment was pronounced, or at the latest when it was perfected on 15 August 2000, his Honour became functus officio in respect of matters the subject of the judgment and, therefore, he lacked jurisdiction to provide the final reasons on 13 September 2000.
(c)His Honour impermissibly reserved to himself the right to mould his reasons after judgment so that they accorded with it. Thus, it was said, the final reasons amounted to no more than unauthorised cogitations which had no legal effect.
(d)In any event, the period of delay of five weeks in providing reasons was unduly excessive and constituted legal error.
Given that his Honour so erred and since, from the perspective of the appellant, justice was not seen to have been done, the judgment should be set aside and a new trial ordered.
(a) Reasons must accompany judgment
I now turn to consider the first and the principal basis of the appellant’s case. Before I do so, however, it is convenient to mention that it was common ground between the parties that neither his Honour’s draft reasons nor his oral summary given on 9 August 2000 had status as a statement of reasons for his decision.
Mr. Archibald, who appeared with Mr. Hopkins for the appellant, submitted that the common law requires a judge to give reasons for the decision either before or immediately after pronouncing it subject to the delay in giving reasons being de minimis. It was further said that this requirement must be complied with strictly and that failure to do so results in the judge falling into error so that, in an appropriate case, the judgment must be set aside and a new trial ordered. The claim that judges are subject to such a strict obligation was sought to be supported on three bases. First, it was submitted that the bases for the requirement that judges give reasons for their decisions and the purposes which are sought to be achieved thereby, throw light on and underpin the rule that there be contemporaneity in the pronouncement of judgment and the giving of reasons. Secondly, it was claimed that the duty to give reasons contemporaneously with pronouncing judgment was recognised and applied in Palmer v. Clarke[4] and in De Iacovo v. Lacanale[5]. Thirdly, it was said that the requirement is reflected in Rule 59.04.
[4](1989) 19 N.S.W.L.R. 158.
[5][1957] V.R. 553.
I will now consider each of the three grounds on which the appellant relied for its principal contention.
Duty to give reasons and the timing of their publication
[6][1998] 3 V.R. 357 at 376 per Charles, J.A.
As I have said, Mr. Archibald argued that the rationale for requiring a judge to give reasons for judgment also gives rise to the strict duty to provide them contemporaneously with the judgment. It may be accepted that, ordinarily, a judge is obliged to give reasons for the decision on a substantive matter, particularly where failure to do so would frustrate or inhibit a right of appeal – Cropp v. Transport
Accident Commission[6]. See also, for example, Pettitt v. Dunkley[7]; Public Service Board of N.S.W. v. Osmond[8]; Soulemezis v. Dudley (Holdings) Pty. Ltd.[9]; Sun Alliance Insurance Ltd. v. Massoud[10]; Palmer and De Iacovo. Mr. Archibald submitted that the requirement that judges give reasoned decisions serves a number of purposes. For instance, as McHugh, J.A. noted in Soulemezis,[11] Lord MacMillan pointed out in The Writing of Judgments[12] that the main object of a reasoned judgment “is not only to do but to seem to do justice”. McHugh, J.A. went on to explain[13] that it has been recognised that the provision of reasons also serves at least three specific purposes, namely:
[7][1971] 1 N.S.W.L.R. 376 at 380-382 per Asprey, J.A. with whom Manning, J.A. agreed; 387-388 per Moffitt, J.A.
[8](1986) 159 C.L.R. 656 at 666-667 per Gibbs, C.J.
[9](1987) 10 N.S.W.L.R. 247 at 257-9 per Kirby, P, 268-274 per Mahoney, J.A., 277-281 McHugh, J.A.
[10][1989] V.R. 8 at 18-20 per Gray, J. (with whom Fullagar and Tadgell, JJ. agreed).
[11]10 N.S.W.L.R. at 279.
[12](1948) 26 The Can. Bar Review at 491.
[13]10 N.S.W.L.R. at 279.
(a)it enables the parties to appreciate both the extent to which their arguments have been understood and accepted and the basis of the judge’s decision;
(b)it furthers judicial accountability; and
(c)it enables practitioners, legislators and members of the public to ascertain the basis on which like cases will probably be decided in the future.[14]
In Beale v. GIO of N.S.W.[15], Meagher, J.A. added another purpose [16]:
(d)it enables an appeal court to determine whether the trial judge’s decision was or was not based on an error of law or some other appealable error.
[14]This reasoning was accepted by Gray, J. in Sun Alliance at 19.
[15](1997) 48 N.S.W.L.R. 430.
[16]At 441.
Mr. Archibald claimed that these purposes or reasons also give rise to a strict obligation to provide reasons at the same time as pronouncing judgment. In my view, however, this argument should be rejected. It is plain that these purposes or reasons do not give rise to an absolute duty to give reasoned judgments.[17] That being so, it seems to me that it cannot be sensibly said that these same purposes or reasons create an absolute duty of contemporaneity. It would be odd indeed if the one set of purposes or reasons were to give rise to an obligation to give reasons for judgment which is not absolute, yet create a strict obligation as to the timing of their provision. No basis for such a contention has been provided by the appellant and consequently, I would reject this aspect of its case.
[17]Perkins v The County Court of Victoria (2000) 2 V.R. 246 at 270-271 per Buchanan, J.A .
Palmer and De Iacovo
I now turn to the appellant’s submission that, in any event, the common law imposes a strict duty of contemporaneity and that this is recognised in the above cases. Dealing first with Palmer, the somewhat unusual circumstances of that case were these. In 1984 the respondent brought an action against the appellant to recover money it claimed was owing under a contract for the harvesting of grain crops. The appellants denied liability and cross-claimed against the respondent for loss suffered due to the allegedly incompetent performance of the agreed work by the respondent. The trial of this relatively straightforward action began before Moore, DCJ. on 4 April 1985. It continued with some interruptions over a period of eight sitting days and concluded on 26 June 1985. The judge gave counsel leave to file further submissions, the last of which was received by his Honour on 19 December 1985. The matter was not listed for judgment, however, until 3 December 1987. On that day, after some discussion with counsel, his Honour announced that there “will be a verdict for the plaintiff”. The trial judge then said that the reasons would be available by lunchtime that day but, as events turned out, they were not given as indicated. On the following day, 4 December 1987, the case was re-listed before his Honour who began to give oral reasons for judgment. After an introduction which took up two pages of transcript his Honour broke off and invited submissions regarding interest. He then formally stated that there “will be verdict for the plaintiff”, in a sum which he specified, with interest. His Honour then heard argument on the question of interest. He pronounced in the plaintiff’s favour a verdict for a specified amount of damages inclusive of interest. That part of his Honour’s decision occupied another two pages of transcript.
In March 1988 the judge published written reasons for judgment which covered another 20 pages or so. As Kirby, P. noted, on their face, these written reasons would have provided a formidable obstacle to the appellant’s success in the appeal. At the appeal, however, the appellant raised the preliminary point that his Honour had failed to give adequate reasons for his judgment and that, therefore, the judgment should be set aside and a new trial ordered. It seems from the judgment of the President that the appeal book was arranged so as to give the appearance of a continuous record of his Honour’s decision and reasons, beginning with the transcript of what the judge said on 3 December 1987 (two pages), followed by his Honour’s written reasons (which were in fact published in March 1988) and then by the two pages of transcript of what his Honour said on 4 December 1988.
The Court of Appeal concluded that:
· The District Court judge was under the obligation to give reasons contemporaneously with the decision and, therefore, his written reasons given some three months after pronouncement of judgment could not be regarded as valid reasons for his decision.
· The oral reasons which the trial judge purported to give on 4 December 1987 were not of sufficient standard to amount to adequate reasons for judgment.
· Hence, the trial judge failed in his obligation to give a reasoned decision.
· In the circumstances of the case, the judgment should be set aside and a new trial ordered.
It seems clear enough from the reasons for judgment of Kirby, P., with whom Samuels, J.A. agreed, that he considered[18] that the common law imposes on judges the obligation “to deliver their judgments and the reasons and opinions which support them in open court and at, or virtually immediately after, the time of the pronouncement of judgment”. Although his Honour did not cite authority for these views, he formulated them in the context of his recognition of the common law tradition of the oral trial and its effect on the practice of delivering reasons for judgment. In the course of that analysis, the learned President also reviewed the authorities dealing with the obligation of a judge to give reasoned decisions. His Honour said[19]:
“... courts have been at pains for a very long time to require that the opinions, reasons and judgments of judges of courts such as the District Court should either be stated in open court in the presence of the parties or, where in writing, should be provided very soon after the orders and judgments are pronounced.
This is not a blind adherence to legal history or to technical forms. It is insisted upon out of respect for our tradition of open justice and the public demonstration of its rational basis. It is observed in deference to the rights of unsuccessful parties to consider an appeal. It facilitates the performance by appellate courts of their functions, including in the grant of urgent relief. Such a step can be best considered with the benefit of the reasons for the judgment appealed from. It is the obligation of the common law.”
[18]At 172.
[19]At 173.
Kirby, P. considered[20] that the trial judge, being a judge of a subordinate court, had no inherent power to depart from the strict obligation to give reasons when pronouncing judgment that is imposed by the common law; he could only have been excused from complying with it by express legislation (which did not exist). Thus, the learned President concluded, the written reasons of Judge Moore, delivered some three months after the pronouncement of judgment, could not be taken to be valid reasons for his decision given on 4 December 1987. It seems that the President also considered[21] that another basis for rejecting the written reasons was that they were not delivered in accordance with the requirements of Pt.31 r.9 of
the District Court Rules[22], namely, at the time when judgment was pronounced. The rule did not permit the provision of written reasons some three months after pronouncement of judgment. Such reasons, said the President, could not be regarded as a “written opinion of the court” for the purposes of that rule.
[20]At 172.
[21]At 169.
[22]“Written opinion
9. Where the Court gives any judgment or makes any order and the opinion of the Court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to a specified officer of the Court or to the Chief Court Reporter for delivery to the parties.”
Kirby, P. then turned to the question whether the judge’s short oral reasons given on 4 December 1987 were of sufficient standard to be considered adequate reasons for the decision. For reasons which need not be examined here, his Honour concluded that they were not of sufficient standard and that, therefore, the trial judge had failed to comply with the obligation to provide reasoned judgment. The learned President took the view that, in the circumstances of the case, the judgment in question should be set aside and a new trial ordered.
Priestley, J.A. delivered a concurring judgment saying[23], inter alia, that a District Court judge was obliged to deliver reasons for the decision contemporaneously with pronouncing judgment. His Honour then highlighted the “practical necessities” that lie behind this formal requirement:
“One [necessity] is that the date when a judgment becomes enforceable must be unambiguous and immediately knowable to any interested person. Another is that the reasons for the judgment must be known at the time of the judgment. Amongst the reasons for this is the necessity, as it seems to me, for parties to know at once why their rights have been affected by a judgment in whatever way the judgment has affected those rights. Also, immediate appeals may sometimes have to be lodged. Also, it seems to me to be highly desirable to enable public confidence in the administration of justice to be maintained for the reasons for the affectation of rights to be known immediately [sic] the rights are affected.”
Priestley, J.A. concluded[24] that the appellant’s preliminary ground should succeed because the trial judge was functus officio after he pronounced judgment and, therefore, the only reasons that could be relevant were those of 4 December 1987 and they were of an inadequate standard. Hence, the trial judge had failed to comply with his duty to provide reasoned judgment and, in the circumstances, the judgment should be set aside and a new trial ordered.
[23]At 174.
[24]At 174.
Notwithstanding that in some passages of their judgments their Honours in Palmer spoke generally of the obligation of judges to give reasons at the same time as they pronounced judgments, they did not go beyond determining that a District Court judge in New South Wales must comply strictly with the requirement of contemporaneity. Their Honours were not called upon to consider, nor did they deal with, the question whether a judge of a superior court was under a like strict obligation. As I have said, what was before their Honours for resolution was whether the District Court judge had complied with the requirement to give reasons for his decision and in the course of determining that issue their Honours considered whether such a judge could properly give reasons for his decision some months after having pronounced it. The resolution of those issues does not bear on whether a superior court judge must give reasons when pronouncing judgment. That the decision in Palmer is so confined has been recognised in Mulvena v. Government Insurance Office of N.S.W.[25] and in Keski v. Government Insurance Office of N.S.W.[26].
[25]Unreported, Supreme Court of N.S.W. – Court of Appeal – 16 June 1992 (Mahoney, Clarke and Sheller, JJ.A.).
[26]Unreported, Supreme Court of N.S.W. – Court of Appeal – 17 November 1994 per Cole, J.A. at 4 with whom Handley and Sheller, JJ.A. agreed.
In any event, even if one assumes that the observations of Kirby, P. and Priestley, J.A. as to the need for relevant contemporaneity were intended to apply to all courts, it was only Priestley, J.A. who seemed to have regarded the requirement as being of absolute application. The other members of the court were not so unequivocal. The learned President, with whom Samuels, J.A. agreed, said[27] that the requirement in question was one of “judicial convention” but that in appropriate circumstances, a very short delay in the delivery or publication of judgment might occur “which could be overlooked as de minimis”[28]. Later in his reasons, his Honour said[29] that there may be circumstances where the reasons are given “very soon” after the pronouncement of judgment. That view is consistent with the practice of the courts to which I will refer later, including the High Court and this Court, that although ordinarily reasons are given when judgment is pronounced, where the justice of the situation requires it there may be an appreciable gap between the pronouncement of judgment and the delivery of reasons.
[27]At 169.
[28]Not surprisingly, his Honour found at 169 that the delay of over three months “certainly [did] not fall into that category”.
[29]At 173.
Consequently, Palmer does not support the applicant’s contention that his Honour in the present case was under a strict common law duty to deliver reasons contemporaneously with the pronouncement of judgment and that his failure to do so meant that he had committed an error of law.
Similarly, De Iacovo v. Lacanale, being the other authority on which Mr. Archibald relied for his principal contention, does not support his claim in this regard. In that case, Monahan, J. was concerned with appeals from the Fair Rents Board which was constituted by a magistrate who reduced the rents of certain premises without giving any reasons for that decision. In the course of his reasons, having analysed the obligation of a judicial officer to give a reasoned decision, his Honour said[30] that it was “eminently desirable that the Board’s reasons for its decision should be explicitly stated at the time of the determinations”. Monahan, J. considered[31] that the reasons for this requirement were aptly summarised in Broom’s Constitutional Law[32] in which the learned author observes:
“A public statement of reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science. ... A judgment once delivered becomes the property of the profession and of the public; it ought not, therefore, to be subsequently moulded in accordance with the vacillating opinions of the judge who first pronounced it.”
His Honour went on to say[33] that, in his view, this statement “has general application to all persons exercising judicial functions”. Mr. Archibald submitted that in saying this, his Honour was expressing the view that reasons must always be given at the same time as judgment is pronounced and not moulded thereafter to fit the judgment. In my view, however, this submission should be rejected because a fair reading of that passage in the context of the judgment does not support this contention. First, to say, as Broom does, that reasons must not be moulded after judgment is not the same as saying that, in every case, reasons must be given when judgment is pronounced. Secondly, his Honour’s observation was intended to embrace only the first part of Broom’s statement, namely, that part of it which relates, in effect, to the requirement to give reasoned judgments. This becomes apparent when regard is had to the context in which his Honour expressed that view. The judgment shows that immediately after stating this view his Honour said: “From time to time appellate courts have pointed out the difficulties which result from the fact that reasons have not been given for judicial pronouncements”. His Honour then proceeds to examine a number of cases on this issue. In the end, his Honour put the requirement that there be relevant contemporaneity no higher than that it was “eminently desirable” for such practice to be followed and, in most cases, that is clearly the case.[34]
[30]At 559.
[31]At 557-558.
[32]1st ed. 1866.
[33]At 558.
[34]Mr. Archibald was correct when he pointed out that De Iacovo was applied in a number of subsequent cases, but it was usually cited there in support of the principle that, ordinarily, judges were obliged to give reasoned judgments. See for example Harling (1997) 94 A.Crim.R. 437 at 443-444; Donges v. Ratcliffe [1975] 1 N.S.W.L.R. 501, at 506-507.
There are many reasons why it is “eminently desirable” that reasons be given at the same time as judgment is pronounced. They include the following. First, the parties are entitled to a decision which is based on the reasoning process of the judge which has been concluded by the time the decision is pronounced. The court should not reserve to itself the opportunity to mould reasons, after the pronouncement of judgment, so as to make them appear consistent with the decision. That is not to say, of course, that a judge cannot review the reasons after they have been published. I will mention that matter again at a later stage. Secondly, the unsuccessful party should be in a position to determine within the time constraints imposed by the Rules of Court, whether to appeal against the decision. From a realistic point of view, it can only do this if the reasons for the decision are made available to it when, or very shortly after, judgment is pronounced. There are other sound reasons based on policy and practical considerations which were mentioned by Kirby, P. and Priestley, J.A. in Palmer and to which I have referred which support the view that as a general rule, all judicial officers who are required to give reasoned judgments, should do so when pronouncing them. But it is another thing altogether to say, as the appellant contends, that a judge of a court of unlimited jurisdiction is under a strict duty to give reasons contemporaneously with the decision.
Thus, the two cases relied upon by Mr. Archibald do not support the existence of a common law rule that a judge of a superior court must give reasons contemporaneously with pronouncing judgment. Moreover, for reasons that I give later, it is my view that there is no such rule.
Rule 59.04 does not impose requirement of contemporaneity
At the outset of argument on this issue, it was submitted for the appellant that the duty to deliver reasons when pronouncing judgment is reflected in Rule 59.04 which is in the following terms:
“Where the Court gives any judgment or makes any order the reasons for which have been reduced to writing, it shall be sufficient to state the result orally without reasons, but the written reasons shall then and there be published by delivery to the Associate”.
It was contended by counsel that the rule makes plain that written reasons must be published “then and there”, namely, at the same time as judgment is pronounced. In the end, however, Mr. Archibald, rightly, I think, accepted that the rule was concerned with matters other than the timing of the delivery of written reasons. The purpose of the rule is not to provide for an obligation of contemporaneity, let alone a strict one. As is evident from its history and the context in which its predecessor was introduced, its purpose is altogether different. In essence, the purpose behind the rule is to enable judges of this Court to hand down written judgments without reading them in court, but at the same time preserve the right of interested members of the public to have access to the judgments.[35]
[35]A similar view was expressed by Mahoney, J.A. in Mulvena at 15 in respect of Pt.31 r.9 of the New South Wales District Court Rules which was considered in that case and in Palmer.
The present rule can be traced back to the insertion on 8 July 1953 of what became r.3 of O.LXXII of the 1957 rules. It was placed at the end of some miscellaneous “general” rules then contained in O.LXXII. It read (and substantially remained in this form until the 1986 rules came into effect):
“3.When a judgment or order is pronounced in any proceeding, either by the Full Court or by a single Judge, and the reasons of a Judge have been reduced to writing, it shall be sufficient to state orally the conclusion of the Judge without stating the reasons therefor, but his written reasons shall be then and there published by delivering the same to the Associate in open Court who shall allow the same to be perused by any party to the proceeding or his counsel or solicitor.’
The new rule reflected the change of practice as to giving judgment in this jurisdiction. The common law tradition had been that all proceedings, including the giving of judgment, were oral. In this State, perhaps following the practice of the High Court, judges came more and more to the practice of putting in writing their reserved judgments.[36] O.LXXII r.3 assumed that the court had the power to give a written judgment but placed two principal conditions on that being carried into effect. The first was that it was “sufficient” for the judge orally to state the “conclusion” without stating the reasons for it and, secondly, those written reasons had to be handed to the associate in open court, who in turn was obliged to make them available to the parties and their practitioners. The first requirement was probably intended merely to validate, so far as necessary, the practice of handing down written reasons at the time of giving judgment and to recognise the change from the former oral tradition.[37]
[36]The oral practice continued in England until the 1980’s when, after the Court of Appeal’s experience in Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No.2) [1982] Ch. 204, where the three members of the Court “took it in turn to read” (at 209) their joint judgment over four days on 27-31 July 1981, the practice was also changed in that jurisdiction.
[37]Some judges, however, interpreted the word “conclusion” as requiring the judge to give a summary of what appeared in the judgment itself. As can be seen from Re Miscamble’s Application [1966] V.R. 596, that practice was followed by McInerney, J., although very few, if any, other judges did likewise. In order to avoid any doubts, in the 1986 rules the word “conclusion” was amended to “result” in Rule 59.04.
In order to ensure that the judge’s written reasons were “open” to the parties and interested members of the public it was thought necessary to require that they should have access to those reasons, whether or not they chose to purchase them in due course. Thus the written reasons had to be delivered to the associate in open court, who in turn was under an obligation to allow them to be “perused” by the parties and practitioners and interested members of the public, although initially, it was not thought appropriate to allow them to be photocopied. It appears that, as time went by, this latter restriction was honoured more in the breach than in the observance.[38] The object of this aspect of the rule was to ensure that parties to litigation, their practitioners and relevant members of the public could read the written reasons without having to pay for the privilege of buying them. This procedure was merely seen as a condition of the change from the practice whereby reasons were orally given in court. It seems that it had nothing to do with any requirements as to when the judge should give judgment or otherwise as to how judgment should be given. The rule merely sought to lay down the conditions under which written reasons would be permitted to be given.
[38]Some judges, however, including McInerney, J. were strict as to the operation of the rule. For example, his Honour would not allow the reasons to be taken away by the parties or their practitioners and insisted that they read the reasons while he was sitting in court, although hearing some other case. Occasionally practitioners were permitted to read them in the associate’s room but never to take those reasons away with them.
When the rule came to be reconsidered in 1984 and 1985, the latter part of the second condition relating to allowing the reasons to be perused by the parties was thought to be superfluous and not related to current practice, for by then the written judgment was made available to the parties. Hence, its present form to which reference has already been made.[39]
[39]The history of the rule as it is set out above was confirmed by Ormiston, J.A. who was a member of the Supreme Court Rules Committee since 1978 and thus a member of it when it was reconsidered in 1984 and 1985.
That a rule such as Rule 59.04 is not concerned with imposing when written reasons are to be delivered, but is directed to how they are to be imparted, was also recognised by Mahoney, J.A. in Mulvena. His Honour was there concerned with the operation of the New South Wales District Court Rule to which I have referred – Pt.31 r.9 – and which is similar in terms to Rule 59.04. His Honour considered[40] that the rule did not operate to require relevant contemporaneity. Given that it spoke of written reasons, it could not have been the purpose nor was it the effect of the rule to require written reasons to be “then” delivered when making the order without making a like requirement in respect of oral reasons. His Honour was of the view that the rule was primarily directed at enabling the judge to deliver reasons in writing by publication rather than by reading them in open court.
[40]At 15.
There is no strict requirement for contemporaneity
I have mentioned earlier that, in my view, there is no common law requirement that a judge of this Court must give reasons contemporaneously with pronouncing judgment. That this is so has been recognised, for example, by Mahoney, J.A. in Mulvena where his Honour said[41] that a court of unlimited jurisdiction may make orders taking effect instanter and give reasons for the order subsequently. This view, of course, accords with practice. Judges are frequently requested to grant relief as a matter of urgency. Many such applications raise difficult issues and call for complex reasons for the decision to grant or refuse the remedy sought. If the court were to wait before making the appropriate orders in such applications until the reasons have been formulated to the point where they can be published, the delay may defeat the whole purpose of seeking the order in the first place. It is not uncommon, therefore, in appropriate cases, for judges to grant the relief sought and to deliver reasons for it later. That this is an accepted practice in civil and criminal cases is illustrated by reference to several randomly selected recent cases of the High Court and this Court which are set out below.
[41]At 11.
Date of judgment Date of Reasons Period between judgment and reasons Gipp v. R (1998) 194 C.L.R. 106 1.04.98 16.06.98 2 months and two weeks Australian Securities and Investment Commission v Edensor Nominees Pty. Ltd. [2001] HCA 1 30.08.00 8.02.01 5 months and 9 days Re Bryant; Ex parte Guarino [2001] HCA 5 (Hayne, J.) 31.01.01 14.02.01 2 weeks Sinanovic v. The Queen [2001] HCA 35 (Kirby, J.) 15.05.01 8.06.01 24 days Re Refugee Review Tribunal; Ex parte [2001] HCA 34 (Kirby, J.) 7.05.01 8.06.01 1 month and 1 day Re Sinanovic’s Application [2001] HCA 40 (Kirby, J.) 18.05.01 11.07.01 1 month and 3 weeks Re Martin’s Application [2001] HCA 41 (Kirby, J.) 28.05.01 11.07.01 1 month and 2 weeks Smith v. The Queen [2001] HCA 50 21.06.01 16.08.01 1 month and 3 weeks Re Senator Patterson; ex parte Taylor [2001] HCA 51 7.12.00 6.09.01 9 months D. P.P. v. Bulfin [1988] 4 V.R. 114 25.03.98 17.04.98 23 days R. v. Noonan [1998] VSCA 8 28.07.98 14.08.98 17 days R. v. Franks (1999) 105 A.Crim.R. 377 8.04.99 16.04.99 8 days R. v. Abebe [2000] 1 V.R. 429 26.04.00 18.08.00 3 months and 3 weeks
In speaking of the practice of delivering reasons at an appreciable time after pronouncement of judgment, Eichelbaum, C.J. said in Stratford v. Ministry of Transport[42]:
“Turning to the subject of delivery of judgment, although in common speech both are frequently referred to as the judgment or decision it is of course trite that there are two distinct aspects, the decision itself and the reasons for it. In the majority of cases, both are delivered (whether orally or in writing) on the same occasion. However, it is well established, as a matter of practice, that a Judge may announce the decision and defer the giving of reasons. Generally, it is a process Judges endeavour to avoid; the preferable course is that the decision is accompanied by the reasons for it. However, in the exigencies of judicial life, sometimes it is impossible to avoid separating the two, for example when in injunction proceedings or the like an immediate decision is required, or in the case of rulings during a jury trial when on occasion it may be necessary to proceed without delay.”
Similarly, Lord Diplock in AuPui-Kuen v. Attorney-General of Hong Kong[43] accepted the need, in certain circumstances, to allow a delay in the handing down of reasons for judgment. His Lordship, speaking for the Board, said[44]:
“Their Lordships appreciate that, particularly in criminal cases, it may be desirable, in order to avoid delay, that a court should announce its decision orally at the conclusion of the hearing and state that reasons for the decision will be rendered in writing later. This is a common practice in criminal appeals and an analogous procedure is often adopted by this Board.”
[42][1992] 1 N.Z.L.R. 486 at 488-489.
[43][1980] A.C. 351.
[44]At 356.
In my view, therefore, although courts recognise the desirability of judges of superior courts delivering reasons for their decisions contemporaneously with pronouncing them, there is no obligation on them to comply strictly with the requirement so that mere failure to do so would constitute error. Where the interests of justice require it, a court may properly pronounce judgment and give reasons for it later.
It seems that the position in New South Wales is that a District Court judge must give reasons for the decision when pronouncing judgment. Although the matter need not be decided for present purposes, I doubt if this position applies to a judge of a subordinate court in Victoria. If, as I have said, there is no absolute common law rule that requires a superior court judge to deliver reasons at the same time as pronouncing judgment, it is difficult to see how it can be said that such a rule operates in respect of judges of subordinate courts. For reasons given earlier, it is clear enough that in Victoria, a rule such as Rule 59.04 does not impose such a strict requirement. Moreover, that the common law does not impose such a duty on judicial officers of subordinate courts has been impliedly recognised by Monahan, J. in De Iacovo where his Honour, speaking of the requirement for contemporaneity in relation to a magistrate who constituted the Fair Rents Board, said it was “eminently desirable” that he should have given his reasons at the time of the determination. His Honour did not suggest, as I have said previously, that the magistrate’s obligation to do so was absolute. Had there been an absolute obligation to that effect, his Honour, no doubt, would have said that the magistrate erred in law in not adhering to it.
Consequently, as I have said, the appellant’s submission that his Honour erred in law because he did not publish his reasons when he pronounced judgment, must be rejected.
(b) His Honour not functus officio
I have already mentioned that Mr. Archibald also submitted that his Honour became functus officio on 9 August 2000 or when judgment was perfected on 15 August 2000 and, therefore, lacked jurisdiction to deliver reasons on 13 September 2000. Later in his argument, Mr. Archibald contended that he relied on the contention only as a supplementary submission. Be that as it may, in my view, the submission should not succeed. In support of the claim that his Honour was relevantly functus officio, the appellant relied on what Barwick, C.J. said in Bailey v. Marinoff[45]. In that case, the appellant had failed to comply with the self-executing order made by the Court of Appeal relating to the time for the service of the appeal books. By an order made after the expiration of the time limit, the Court of Appeal, on a motion by the appellant, ordered that the (late) filing and service of the appeal books be deemed sufficient compliance with the earlier order. On appeal to the High Court, it was held that, since the earlier judgment had been perfected, it could not be recalled by the court save to make a correction to it under the slip rule. The Chief Justice said that, once the order disposing of the proceeding has been perfected, that proceeding (subject to the slip rule or other relevant statutory provisions) was at an end and was, in its substance, beyond recall by the court. So here, once the judgment was pronounced on 9 August 2000 or perfected on 15 August 2000, the proceeding was at an end in the sense that the trial judge could not receive further evidence or submissions in relation to it or, subject to the slip rule, alter the judgment. What the Chief Justice said in Bailey does not mean, however, that his Honour in this case was functus officio in respect of the other functions pertaining to the proceeding such as determining the question of interest, costs and completing his reasons. This proposition is borne out by what Gaudron, J. said in FAI General Insurance Co. Ltd. v. Southern Cross Exploration NL[46], namely, that the court is not functus officio while there remains any function that may be performed by it in relation to the proceeding, even if it be only that of ensuring that the final order correctly records the court’s meaning.[47] Moreover, the cases to which I have referred in paragraph [38] above illustrate that the courts are not functus officio when they pronounce judgments in the sense that thereafter they lack jurisdiction to give reasons. Had that been the case, the reasons which were delivered an appreciable time after judgment in those cases would have been, according to the appellant’s case, of no legal effect. That has never been suggested. Further, in Anaconda Operations Pty. Ltd. v. Fluor Daniel Pty. Ltd.[48], although Brooking, J.A. (with whom Ormiston and Batt, JJ.A. agreed) doubted the wisdom of the trial judge giving “indicative reasons” (twelve paragraphs) at the time of granting the injunction and fifteen days later giving “formal” reasons (about five times the length of the earlier reasons), his Honour did not suggest that, upon making the order, the judge was functus officio and for that reason was precluded from providing the “formal” reasons.
[45](1971) 125 C.L.R. 529 at 530-531.
[46](1988) 165 C.L.R. 268 at 289.
[47]Brennan, J. said at 286 that “there is much force in the view expressed by Gaudron, J.”
[48][1999] VSCA 214.
At one stage it was also submitted for the appellant that Kirby, P. (with whom Samuels, J.A. agreed) in Palmer considered that the trial judge was functus officio once he gave his decision on 4 December 1987, but it is clear enough that on a fair reading of their reasons, neither Kirby, P. nor Samuels, J.A. so held. The learned President only said[49] that, on one view, it was arguable that the judge was functus officio on 4 December 1987. As I have said, it was only Priestley, J.A. who considered[50] that the trial judge in that case was functus officio after he had pronounced judgment.
[49]At 172.
[50]At 174.
Hence, the appellant’s argument that his Honour became relevantly functus officio on 9 August or 15 August 2000 must be rejected.
(c) His Honour did not reserve right to mould reasons
I now turn to Mr. Archibald’s submission that his Honour impermissibly reserved to himself the right to mould his reasons in order to make them appear consistent with the decision. Counsel contended that his Honour’s intention in that regard is apparent from:
· what his Honour said to the parties on 9 August 2000
· a comparison between the draft and final versions of the judgment
·the very large number of changes made by his Honour to the draft of 9 August 2000
·the present tense in which the terms of his Honour’s reasons of 13 September 2000 were formulated; they speak as at that date rather than being reasons which were held by his Honour on 9 August 2000
·the time taken to settle the reasons.
His Honour’s statements on 9 August 2000
I turn to the first matter referred to in the immediately preceding paragraph. In support of that contention, the appellant pointed to what his Honour said on 9 August 2000 and on 4 September 2000 to which I have referred in paras.[10] and [11(d)] above respectively. It is apparent, however, from a fair reading of those passages that the judge did not say that he reserved to himself the right to complete his reasons or to mould them so that they accorded with the judgment. What his Honour said was that he intended to finalise the form of his reasons for the decision and that, in doing so, he would make immaterial changes to the draft. In my view, there is nothing in what his Honour said on those days that implies that he proposed to contort his reasons so as to make them accord or “fit” his decision.
Changes between draft and final reasons
Mr. Archibald pointed to three changes that he said were effectively made by his Honour to the draft. He claimed that the changes were of substance and demonstrated that the judge reserved to himself the right to alter the draft as he wished. Counsel accepted that, although his Honour could have made some changes to the draft reasons had they been handed down, he could not have produced different reasons, at least not after judgment had been entered.
The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons - Smith v. Australia and New Zealand Banking Group Ltd.[51]; Sherpa v. Anderson[52]; Mulvena[53]; Re Harrison’s Shares Under a Settlement[54]. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer, L.J. in Bromley v. Bromley (No.2)[55], “put a different complexion on the issue in dispute”. In Nakhla v. McCarthy[56] Woodhouse, J.[57] said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v. Province of Nova Scotia[58], the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.
[51]Unreported, Supreme Court of N.S.W. – Court of Appeal – 21 November 1996 per Priestley, Sheller and Powell, JJ.A.
[52]Unreported, Supreme Court of N.S.W., 14 October 1993 per Young, J.
[53]At 11 per Mahoney, J.A.
[54][1955] Ch.260 at 284.
[55][1965] P111 at 114.
[56][1978] 1 N.Z.L.R. 291.
[57]At 296 for the Court of Appeal.
[58](1977) 23 N.S.R. 357 at 357-358.
An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v. Beesley[59]. In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published “Reasons for Decision” in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen, J. held[60] that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held[61] that, in the circumstances, the conviction could not stand. More recently, in Todorovic v. Moussa[62] leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, “I do not accept [X] as an accurate witness”. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X’s evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment.
[59](1992) 7 W.A.R. 88.
[60]At [92, 94-5].
[61]At 95.
[62]Unreported, Supreme Court of N.S.W. – Court of Appeal, 9 April 2001, Powell and Heydon, JJ.A. See the note on this decision in (2001) 75 A.L.J. 476.
It seems, however, that ordinarily, even after judgment has been entered, it is permissible to change the given reasons provided that in substance they do not become different reasons as a result of the changes and provided the alterations are made within a period that is not unduly long in all the circumstances. Thus, it is clear enough, for example, that a judge can alter the transcript of the reasons at any time to remove an error brought about by an administrative act which related to the compiling of the reasons - Nakhla[63]; Bromley[64]. In Bar-Mordecai v. Rotman[65] it was held that ex tempore reasons can be altered by a judge provided the substance of them is not changed, nor are the orders which they sustain. There is no reason in principle why a like position should not apply to written judgments that have been published. It is common practice for judges to make changes not only to reasons that have been given ex tempore, but also to written reasons and in the latter case to make changes to them between the time they are published and when they become the subject of an authorised report. For example, in Duke of Buccleuch v. Inland Revenue Commissioners[66] Lord Reid and Lord Guest did not question the correctness of the action of Sankey, J. in deleting in the version that was later published in the Law Reports[67] a paragraph of his reasons in Ellesmere (Earl of) v. Inland Revenue Commissioners, which had been published in the Law Times[68]. In fact, Lord Reid considered[69] that Sankey, J. was wise to have deleted that paragraph, given that his Honour must have had a reservation about its correctness.
[63]At 296 per Woodhouse, J. for the Court of Appeal.
[64]At 114 per Willmer, L.J. and 116 per Danckwerts, L.J.
[65][2000] N.S.W. C.A. 123 at [93]-[95] per Sheller, Stein and Giles, JJ.A. See also Kirby, J. “Ex Tempore Judgments – Reasons on the Run” (1995) 25 UWAL Rev.213 at 229-230.
[66][1967] 1 A.C. 506.
[67][1918] 2 K.B. 735.
[68](1918) 119 LT 568.
[69]At 527.
Mr. Archibald argued that a comparison between the two sets of reasons shows that his Honour made three changes which, it was said, were changes of substance and demonstrated that the final reasons were materially different from the draft.
The first change to which he pointed related to his Honour’s assessment of the amount of work that the respondent had completed at the date it ceased work. There was a significant discrepancy between the parties’ respective claims on that issue. The appellant contended that only approximately 73 per cent of the work required of the respondent was completed by it at the relevant date, whereas the respondent argued that it was only a little short of 99 per cent. His Honour said in para.370 of the draft that 93 per cent of the work had been completed at the relevant date. He explained in that paragraph that this conclusion was formed on the basis of his assessment of the evidence of the various witnesses on this issue, one of them being Mr. Grahame, an employee of the appellant whose view was that the respondent had completed approximately 95 per cent of its work by the relevant date. In the following three paragraphs his Honour dealt with evidence of the work that was completed by the substitute architect and it seems that he relied on that evidence to “cross check” his conclusion that the respondent had completed 93 per cent of the work at the relevant time. His Honour did say, however, that this evidence did not form the “basis” of his conclusion. In the final reasons, these paragraphs were not reproduced.
It was argued for the appellant that this change represents a fundamental alteration in his Honour’s reasoning in relation to this issue. It was claimed that, despite what his Honour said about his use of this material in the draft, it was clear that he had regard to it for the purposes of his reasoning process relating to this issue. The effect of deletion of these paragraphs from the final reasons, it was said, meant that the basis of the judge’s ultimate conclusion on this issue was substantially more narrow than that which underpinned his draft conclusion. Moreover, it was submitted for the appellant, by so deleting the three paragraphs his Honour’s conclusion on this issue in the final reasons was devoid of any or any substantial reasoning.
Whilst there may be merit in the appellant’s complaint that his Honour’s conclusion on this issue is ultimately held to be unsupported by appropriate reasons, such a matter goes to the merits of the appeal which are not before us. We are only concerned with ground 1 which attacks exclusively the circumstances in which his Honour pronounced judgment and delivered his reasons. More specifically, the question for present purposes is whether the deletion of the three paragraphs referred to earlier, demonstrates that his Honour's final reasons for the relevant conclusions are, in substance, different from any reasons he may have had on 9 August 2000. In my view, the deletion of the three paragraphs does not constitute the material change that is contended for by the appellant. In his reasons of 13 September 2000, his Honour said, as he did in his draft, that he relied on the assessment of the extent of the respondent’s work, as given by witnesses to whom he referred in para.366 of those reasons. I note also that there was evidence before his Honour which he seems to have accepted to the effect that the appellant had made an admission to the government that the design was 95 per cent complete at the relevant time. Hence, in my opinion, his Honour’s final reasons for the conclusion that the respondent had completed 93 per cent of the work at the relevant time were not so different from his reasons for that conclusion expressed in his draft as to amount to different reasons.
The second change which the appellant claimed was material related to his Honour’s conclusion as to how the respondent’s acceptance of the appellant’s repudiation of the agreement was communicated to the appellant. In his draft, his Honour concluded that the communication was made during a conversation between the parties, whereas in the final judgment, his Honour considered that the communication was made by correspondence. Moreover, it was said for the appellant, the change was not carried through in the subsequent paragraph of the final judgment. In my view, even if one were to characterise this change as significant, it does not alter materially the judge’s reasoning process or the conclusion on the important questions of repudiatory conduct and its acceptance. Moreover, even if there is now a discrepancy between two paragraphs on the issue of the manner or form in which the acceptance of repudiation was communicated, that is a matter more relevant to the substance of the appeal, than to demonstrating that his Honour moulded his reasons to accommodate his judgment.
The third change which is said by the appellant to be of substance relates to his Honour’s conclusion as to what conduct of the appellant amounted to a repudiation of the agreement. It was said that the breach consisted of the alleged failure by the appellant to pay to the respondent by the promised date the $96,000 which it had acknowledged was due to the respondent. In his draft, his Honour said that the breach was constituted by the appellant’s failure to pay the amount in question as promised in its letter to the respondent, whereas in the reasons of 13 September 2000, his Honour changed that passage to say that the relevant breach was caused by the appellant’s failure to pay the money as required by the agreement. Again, in my opinion, his Honour’s logic in the final reasons may be the subject of an attack in the course of the hearing of the remainder of the appeal, but the change is not so material as to warrant the conclusion that his Honour wrote his final reasons to justify his judgment.
Consequently, in my view, whether taken by themselves or together, the three changes identified by the appellant were not changes of substance which would demonstrate that his Honour moulded his reasons to make them accord with his decision. Nor do the changes show that his Honour had not concluded his reasons which gave rise to the judgment. To the extent that he altered some of the earlier reasons after 9 August 2000, the changes did not produce, in substance, different reasons for his decision.
Put another way, if his Honour had published his draft as his reasons for judgment and then altered them so as to produce the final reasons, that would not have been impermissible because as I have said, in substance, the changes would not have resulted in different reasons for the decision. I have explained earlier that, even after judgment has been entered, ordinarily a judge has the right to make changes to the reasons provided they do not, in substance, produce different reasons for the decision and provided they are made within a period that is not unduly long in all the circumstances. Here, his Honour effectively said that he reserved to himself the right to edit his draft and, for the reasons I have given, the changes that were made to it, although numerous, amounted to no more than that. Whether it was appropriate for the judge to give the draft reasons to the parties raises a different issue with which I will deal later.
For these reasons, I must reject this aspect of the appellant’s case.
Multiplicity of changes
Similarly, I cannot accept the appellant’s contention that the multiplicity of changes that were made to the draft demonstrates that his Honour had not concluded his reasoning process on 9 August 2000. It is true, as the appellant says, that his Honour made changes to almost every one of the 528 paragraphs of the draft and that many of the changes went beyond the mere corrections of grammar and language. Nevertheless, they do not establish that for which the appellant contends.
Present tense of final reasons
I now turn to the appellant’s claim that the tense in which the final reasons was written is an indication of the fact that it was not until then that his Honour concluded his reasoning in respect of his decision. In my view, his Honour’s use of the present tense in his final reasons does not demonstrate that for which the appellant argues. It seems to me that, in terms of the tense used by his Honour, what he did in the final reasons was to align his earlier reasons with the date on which the latter were published. That does not demonstrate, in my view, that his Honour was not of that mind on 9 August 2000. I note for completeness that the conclusions expressed by the judge at the end of his reasons on 13 September 2000 were the same as those given at the end of his draft.
Time taken to settle reasons
For the reasons that I give later, it is my opinion that the period of five weeks taken by his Honour to “settle” his reasons does not amount to a period of undue delay. Contrary to Mr. Archibald’s submissions, this delay does not show that his Honour had not completed his reasons for judgment by 9 August 2000.
Thus, I do not accept the appellant’s claim that his Honour had not concluded his reasons for the judgment when he pronounced it, but rather had moulded them in order to fit that decision.
(d) Delay not productive of material prejudice; new trial not warranted
Although, in the end, Mr. Archibald accepted that, in certain circumstances where the justice of the situation requires it, a court may pronounce judgment and give reasons for it later, he argued that the present was not such a case. Counsel submitted that there was no pressing need (or any other reason) for his Honour to have pronounced judgment before he had finalised his reasons. In any event, it was said for the appellant, the period of delay of five weeks in providing reasons was unduly excessive and that, from its perspective, the delay resulted in justice not being seen to be done. Hence, it was contended that the judgment should be set aside and a new trial ordered.
It is probably the case that there was no pressing or other like need for his Honour to have pronounced judgment before he had finalised his reasons. His Honour, no doubt, adopted that course because he believed it would assist the parties to plan or prepare for the next phase of the case and for any possible appeal.
It was common ground before his Honour that he would be unavailable to deal with this case for a considerable time after mid-September 2000. Consequently, his Honour set himself a timetable to conclude the relevant aspects of the case, including hearing and determining arguments on matters such as interest and costs, before that time. It is also apparent that, as his Honour said, he worked hard to keep to that timetable and to deliver judgment and give his reasons by 9 August 2000 but, as events turned out, he was unable to achieve that objective. Although by 9 August 2000 he had completed his reasons to the extent that they enabled him to conclude what should be the outcome of the case, he was unable to finalise their form. In those circumstances, his Honour was faced with a number of choices as to what course he should follow in terms of the timing of the pronouncement of judgment and the publication of the reasons. One such course was to withhold giving judgment until he had finalised his reasons (which his Honour then believed would involve, essentially, correcting grammar which would take a “couple of days”). Another was that he could have given judgment and published his reasons later. Thirdly, he could have given judgment and, at the same time, let the parties have his draft reasons which he believed would not require any change of substance and then deliver his final reasons later. Most probably in the belief that it would only take a very short time to put the draft reasons into proper form and that the provision of them would assist the parties, his Honour pursued the third option. In the course of doing so, it seems that he misjudged a number of matters.
First, as events turned out, it took his Honour a significantly longer period of time to “settle” the draft reasons than he had originally estimated. How his Honour formed the view that it would only take a “couple of days” or even a few days to do that, is not clear. It is apparent, however, that on 9 August 2000 his Honour intended to sit on 4 September 2000 to hear argument on costs and it was likely, therefore, that he considered that his final reasons would be made available to the parties well before then so that they could address any argument on the questions of interest and costs in the context of “certified” reasons for judgment.
Secondly, although well intended, it was inadvisable for his Honour to have given the parties his draft reasons for judgment. In Anaconda,[70] Brooking, J.A. (with whom Ormiston and Batt, JJ.A. agreed) made it clear that such a step, however well intended, is likely to create more difficulties than it will solve. His Honour said, by way of example, that in a given case there may be some suggested discrepancy or change in emphasis between the indicative and the formal reasons. In such a case, are “formal reasons” intended to replace or to be read in conjunction with the “indicative reasons”? A like reservation about such a practice was expressed by Eichelbaum, C.J. in Stratford.[71] In that case the appellant was charged with dangerous driving causing death. After a hearing, the trial judge gave an indication on 12 March 1991 of her reasons for her decision that the appellant should be convicted. Her Honour set out five reasons for reaching her conclusion and said that she would deliver full reasons later. On 26 April 1991 the judge delivered an 18-page “reserved judgment”. On appeal, Eichelbaum, C.J. noted that this situation was not simply one of giving a decision with the postponement of reasons. The trial judge gave at least an outline of the reasons making it clear that she was not going into evidential details. The Chief Justice expressed the view that such a course should not be encouraged or followed save in exceptional circumstances. His Honour recognised that, as a matter of logic, if it is permissible to give a bare decision and defer reasons, then it must be permissible to give the decision, state an outline of reasons, and record that full reasons will be delivered later. Nevertheless, the Chief Justice repeated that “this course should not be regarded as a desirable precedent”. His Honour noted that one of the difficulties that arose from the course followed by the trial judge was that, since there were two sets of reasons that were given by her, on appeal regard had to be had to both and obvious problems arose where there were apparent inconsistencies between them. In the present case, this very problem eventuated. Although the draft reasons had no status according to the parties, they nevertheless gave rise to arguments about whether the trial judge had concluded his reasons at the time he pronounced judgment, and to associated disputes which I have already canvassed. Many of them would have been avoided if his Honour had kept the draft reasons to himself.
[70]See para. [39] above.
[71]See para. [35] above.
Thirdly, there seems to have been no sound basis for his Honour to depart from the ordinary practice of giving reasons for judgment either before pronouncing it or immediately thereafter. If, as his Honour thought, the final reasons would be available shortly after 9 August 2000, there was no urgency to pronounce judgment on that day, given that he was not asked by the parties to do so and given that he had until mid-September to deal with matters such as interest and costs. As Eichelbaum, C.J. noted in Stratford[72], “[g]enerally, if the Judge is unable to furnish reasons immediately, unless there are strong reasons to the contrary it is better to defer giving the decision until the reasons can be stated too.”
[72]At 489.
Be that as it may, these errors obviously do not bear on the validity or the correctness of the judgment or on the judge’s findings. The appellant, however, claimed that the five week delay in providing reasons for judgment was unduly long and caused it prejudice and that, because from its perspective, justice was not seen to be done, the judgment should be set aside and a new trial ordered.
It is trite that the court’s jurisdiction to order a new trial is discretionary and should be granted almost as a last resort where that is the only means of redressing a clear miscarriage of justice: Dakhyl v. Labouchere[73]. See also McCann v. Parsons[74] and Palmer[75]. In my view, given the circumstances to which I refer below, no miscarriage of justice has arisen from his Honour’s actions in respect of the delivery of his reasons for judgment and consequently, it would be inappropriate to accede to the appellant’s claim for a new trial.
[73][1908] 2 K.B. 325 at 327 per Lord Loreburn, L.C.
[74](1954) 93 C.L.R. 418 at 430-431 per Dixon, C.J., Fullagar, Kitto and Taylor, JJ.
[75]At 165 per Kirby, P.
First, although the period of relevant delay was not short and was not explained in terms, it was nevertheless not unduly long, given the complexity of the case and the fact that the appellant’s position with respect to its appeal was protected by the order of this Court of 11 September 2000, to which I have referred earlier. Secondly, the appellant did not suffer any material prejudice from the delay. Any prejudice that it experienced from not being able to formulate finally the grounds of appeal during the period prescribed by the rules, was met wholly or at least substantially by the order of the Court to which I have just referred. It may also be accepted that some prejudice would have been suffered by it from being effectively required to undertake a lengthy and extensive comparison between the two sets of the judge’s reasons. But this task fell on both parties and in any event, the exercise was likely to have been of potential forensic advantage to the appellant in the sense that it was given the opportunity to explore whether any changes in his Honour’s reasons threw up an error or an arguable error which could be a basis for attacking the judgment.
Next, whilst it is understandable that the appellant took no objection to the course which his Honour pronounced on 9 August 2000 in respect of the delivery of his reasons, there is no material before us that shows that it complained of this to his Honour. Nor was there any complaint prior to the service of its notice of appeal, that it was prejudiced by reason of his Honour’s delay in handing down his final judgment. It seems that it was not until 4 September 2000 that the appellant first told his Honour that it would be inappropriate for him to deal with the question of interest and costs until his reasons for his decision had been handed down. Even then, the appellant did not say that it was prejudiced in its appeal process by reason of his Honour’s delay in producing his reasons. A party in the position of the appellant cannot sit by when, according to its case, the judge failed to comply with his obligations and raise it as a complaint only at the appellate level. Finally, it should be emphasised that the process adopted by his Honour as to the delivery of his reasons was transparent and, as I have said, neither party objected to it.
I mention for completeness that, notwithstanding the appellant’s reliance on Palmer on this issue, in my view, the case is of no assistance in resolving the matter now under consideration. The circumstances that prevailed in that case and which resulted in the Court of Appeal quashing that judgment and ordering a new trial were substantially different from those that prevail here.
Conclusion
For these reasons, I am of the view that ground 1 of the appeal must fail. It is apparent that the matters referred to in para.[13(b)] above cannot be dealt with properly until after the resolution of the whole appeal. Consequently, I would adjourn the relevant applications and summons sine die to be brought on for hearing,
if required, upon proper notice. I would suggest that, subject to any order to the contrary, these matters be brought on for hearing before the Court hearing the merits of the appeal.
VINCENT, J.A.:
I agree that ground 1 of the appeal must fail for the reasons advanced by Chernov, J.A.
I also agree with his proposal for the further conduct of this matter.
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