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Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd

Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd

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Case Copied 1 October 2001 60 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7828 of 1996

FLETCHER CONSTRUCTION
AUSTRALIA LTD.

(ACN 054 067 284)

Appellant

LINES MACFARLANE & MARSHALL
PTY. LTD.

(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. Mr N.D. Hopkins	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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] VSCA 167
Decision Date: 1 October 2001

CaseChat Overview and Summary

The case of Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd involved a dispute between the two companies in relation to a construction contract. The matter was heard in the Supreme Court of New South Wales. The dispute centred on the obligation of a judge to provide reasons for a judgment and whether a new trial should be ordered if the reasons provided differ significantly from the draft reasons. The case raised significant questions about the timing and content of reasons for judgment, and the implications for parties involved in litigation.

The primary legal issues before the court were whether there is a strict obligation for a judge to provide reasons for judgment contemporaneously with the pronouncement of judgment, and whether a judge can amend reasons after publication. The case also considered whether Rule 59.04 of the Supreme Court Rules imposes a requirement of contemporaneity and whether a judge becomes functus officio after pronouncing judgment. The case hinged on the interpretation of the rules and case law governing the duty of a judge to provide reasons for judgment and the consequences of a failure to do so.

The court found that while there is a general expectation that reasons for judgment should be provided contemporaneously, the strictness of this obligation depends on the circumstances of each case. The court also held that a judge is not functus officio and may amend reasons after publication, provided that the amendment does not alter the outcome of the case. The court further found that Rule 59.04 does not impose a requirement of contemporaneity, but rather sets out the procedure for providing reasons. The court concluded that a new trial should not be ordered unless the differences between the draft and final reasons are significant and prejudicial to a party.

The final orders of the court were that the judge's failure to provide contemporaneous reasons did not warrant a new trial, and that the judge's amendment of reasons after publication was permissible. The court emphasised the importance of providing clear and timely reasons for judgment, but also recognised that there may be circumstances where a delay in providing reasons is justified. The case serves as a reminder to judges of their duty to provide reasons for judgment, and to parties of the importance of seeking clarification where necessary.

Orders