Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd

[2000] VSCA 158

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 7828 of 1996

FLETCHER CONSTRUCTIONS
AUSTRALIA LTD

Appellant/Respondent

v

LINES MACFARLANE & MARSHALL
PTY LTD

Respondent/Applicant

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APPLICATION ON SUMMONS

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JUDGES:	TADGELL and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2000
DATE OF ORDER:	1 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 158

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PRACTICE AND PROCEDURE – Reasons for judgment – Handed down as "draft" with intimation by judge that final corrected reasons would be provided "in the next couple of days" – Judgment orally pronounced.

APPEAL – Time for serving notice of appeal expired before final reasons provided by judge – Notice of appeal served within time but in unsatisfactory form – Whether judgment valid – Application by respondent to appeal that notice be struck out refused – Leave granted to appellant to amend notice of appeal after judge provides final reasons.  R.S.C. Ch. I, R.59.04.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W.J. Martin, Q.C. and Mr N.J. Hopkins	Clayton Utz
For the Respondent	Mr P.N. Vickery, Q.C. and Mr R.J. Manly	Elizabeth Solomon

TADGELL, J.A.: 

1. There is before the Court a summons filed by the respondent to an appeal, who was the plaintiff below, seeking an order that the notice of appeal served on the respondent by the appellant on 22 August this year be struck out on the grounds that it is not a notice of appeal which complies with r.64.02 or r.64.05(1) of the Rules of Court and is an abuse of process;  alternatively that it is oppressive and vexatious.

1. The appeal is brought against the judgment given by Nathan, J. on 9 August this year in favour of the plaintiff and dismissing a counter-claim.  On the same day his Honour adjourned the question of costs to the 4th of this month - next Monday. 

1. The defendant was the builder of the Port Phillip Prison complex and engaged the plaintiff, an architect, as consultant.  The plaintiff's claim was for fees alleged to be outstanding and the defendant counter-claimed for damages for breach of the consultancy agreement.

1. The trial began on 10 April this year and lasted the best part of three months.  It was, according to the judge's reasons for judgment, conducted according to what he called the "limited trial procedure".  To quote him: 

"By consent the parties agreed to predetermined starting and finishing dates.  The trial was conducted with the use of prepared witness statements, statements in reply and assistance from an electronic court book which was computerised in accordance with common court book numbers.  Sitting time was divided equally between the parties."

Having reserved his decision on 29 June this year, his Honour began on 9 August by saying: 

"... I will distribute shortly some 160 pages of written decision.  Unfortunately, I set myself a time- table I now find I cannot quite complete.  The judgment that I am about to deliver 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 judgment.  There will [be] judgment for the plaintiff in the sum of $196,950.  The counter-claim will be dismissed. 

Now I shall give you some notion of what is contained in the judgment."

His Honour proceeded to state orally by way of summary the gist of his findings.  Having done so, his Honour continued: 

"... I have now distributed my judgment.  I have marked it "Draft" because I want, as I say, just to ensure - I just have not been able to go through this final typing to make sure that it accords with everything I have done.  I would think I can do that in the next couple of days and I will then certify the judgment, but you have got your decision of the court."

His Honour reiterated that he was pronouncing judgment that day and then adjourned the matter, as I say, to 4 September for argument on costs.  The judgment was authenticated on 15 August but, as we have been told this morning - and it seems to be common ground - no final or authorised reasons have yet been provided, although the judge had indicated on 9 August, in effect, that the definitive version would be forthcoming "in the next couple of days".

1. The procedure that the judge adopted was, it must be said, unusual.  His Honour presumably adopted it with a view to serving the convenience of the parties.  It may be doubted, however, whether what has resulted has been entirely satisfactory to either of them.  The defendant, wishing to appeal, presumably waited for final or authorised reasons and, in the event, served the notice of appeal on 22 August (which was the last day permissible under the Rules) without them.  The notice bears the hallmarks of having been prepared in haste and without the care and consideration that its preparation merited.

1. Mr Martin, who appeared this morning with Mr Hopkins for the appellant, conceded that the notice requires amendment.  Quite apart from the prolegomena, the grounds of appeal are, as to many of them, not really grounds at all.  The starkest illustration of that is provided by ground 11, which asseverates simply that "The learned trial judge ought to have found in favour of FCA's [the appellant's] counter-claim". 

1. The grounds fall into two categories, of which the first is illustrated by ground 1, namely, that "The learned trial judge has not published finalised reasons for pronouncing judgment but only published reasons in draft". 

1. His Honour presumably relied upon r.59.04 of the Rules of Court, which provides that "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." 

1. There have been some decisions, particularly in New South Wales, which have interpreted a rule of that kind as requiring strict compliance.  I refer, for example, to Palmer v. Clarke[1], where Priestley, J.A. at p.174 indicated succinctly a number of reasons why a rule of that kind ought to be strictly complied with.  One was that the date when a judgment becomes enforceable must be unambiguous and, his Honour said, "immediately knowable to any interested person".  Another is that the reasons for the judgment must be known at the time of the judgment.

   [1](1989) 90 N.S.W.L.R.159.

1. Without necessarily endorsing in any blanket fashion the reasons that were expressed in Palmer v. Clarke, I would agree that in this case it was the right of the appellant to know, by the time any notice of appeal had to be served, exactly what the judge's reasons were for his decision against the appellant.  One can sympathise to some extent with the appellant's dilemma in waiting, as I have assumed, to the last minute, for the judge's final reasons and, not having received them, serving the very unsatisfactory notice of appeal that was served.

1. The unsatisfactoriness of the notice of appeal was something the respondent to the appeal had to contend with:  that was one thing.  But it was unsatisfactory also to the Court in being invited to hear such an ill-defined appeal.  I will not read the many unsatisfactory so-called grounds.  It is sufficient to say that, as to many of them, they are scarcely grounds at all.  At least it must be said that among the purposes of grounds of appeal are the narrowing of the issues in the appeal, the shortening of the hearing and to reduce costs by a statement in the notice of the findings of fact and the points of law which will be in issue on the appeal, and to state also the precise order which the Court of Appeal will be asked to make.  I refer without further elaboration to the reasons of Phillips, J.A. in State of Victoria v. Bacon[2], and particularly to those parts of his Honour's judgment which quote and adopt the judgment of Brandon, J. in Johnson v. Johnson[3].  His Lordship there referred to cases in which the evidence below was voluminous, when it was desirable that both the Court of Appeal and the advisers to the respondent to the appeal should know what points were taken with regard to the evidence, so that their attention might be concentrated on the relevant part of the evidence and not wasted on the irrelevant part.  Those remarks are of particular relevance in this case, since the evidence before Nathan, J. was, so it seems, especially voluminous.

   [2][1998] 4 V.R.269, at 285-290.

   [3][1969] 1 WLR 1044 at 1045-6.

1. Even if the respondent had not made this application, it would not have been surprising if this Court, of its own motion, had directed the appellant to re-formulate its grounds of appeal so as to provide some specificity, if for no other reason than to avoid the Court's being asked to trawl through thousands of pages of evidence with a view to distilling from it such errors as the appellant wanted to nominate. 

1. The unsatisfactoriness of the notice, however, does not, in my opinion, justify this Court's taking the action which the respondent, represented here this morning by Mr Vickery and Mr Manly, has sought.  It sought to have the notice of appeal struck out, although it was not clear from what it was that the Court was being asked to strike it, and also to dismiss the appeal on the ground that it was hopeless.  Quite apart from anything else, I think it could not be said by two judges sitting upon an application of the present kind that ground 1 was hopeless. 

1. Apart from that, the case of Muto v. Faul[4], indicates that it would be wrong to dismiss an appeal, without deciding the matter of the appeal simply because there has been some failure to comply with the requirements of the Rules.  It may be conceded that the requirements of Rule 64.05(1) with respect to the notice of appeal have not been complied with, but that is not of itself justification for dismissing the appeal without giving the appellant an opportunity to mend its hand, especially in the circumstances of this case, where the notice of appeal was drawn without the benefit of the judge's final reasons.

   [4][1980] V.R.26, at 30.

1. Mr Vickery submitted that the reasons handed down and labelled "Draft" should be taken to be in effect final reasons which complied with r.59.04.  It seems to me that one cannot today decide that that is necessarily so.  One will need to compare the reasons labelled "Draft" with those which are ultimately provided.  Perhaps no substantial departure will be made in the final reasons from the draft reasons.  If so, then ground 1 will have no substance to it and presumably will not be persisted in.  To say today, however, that ground 1 could not succeed is, as it seems to me, not possible.

1. I think that the application made by the respondent should not be acceded to.

1. The application on behalf of the appellant made today ore tenus, however, should be acceded to and leave to amend the notice of appeal should be granted.  When attention is given to the formulation of any amendment to the notice of appeal, I hope that attention will be directed to the matters that I have mentioned and that, in particular, the lessons referred to in the reasons of Phillips, J.A. to which I have referred will be heeded.

1. It is also desirable that in a case like this there should be directions given by the Court of Appeal for the conduct of an appeal of this kind, which will depend, it seems, on a close inspection of the evidence and a comparison with the reasons ultimately to be provided by the judge.

1. I would propose that the Court this morning make an order in accordance with the following minutes:

1.Leave to the appellant to file and serve an amended notice of appeal as it may be advised within 28 days after the provision by the trial judge of his final reasons for judgment.

2.Direct that the appellant, within 28 days of filing and serving any amended notice of appeal, file and serve a summons for directions as to the conduct of the appeal.

3.That the costs of this application be costs in the appeal.

BATT, J.A.: 

1. I agree, and I agree with the orders proposed. 

1. I only add that, in addition to attacking the notice of appeal for its deficiencies, the respondent to the appeal argued that, on the merits, the various grounds that might raise a point which in form is arguable could not succeed because the facts were so strongly against the appellant on those grounds.  In my view, a Court of two could not rule upon such arguments and prevent an appellant from challenging by way of appeal findings of fact made below.  They were arguments of a nature different from those which the Court of Appeal upheld in Burgess v. Stafford Hotel Ltd[5].

   [5][1990] 1 W.L.R.1215.

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