(1) The judgement in favour of the defendant is set aside.; (2) A new trial is ordered on all issues.; (3) The costs of the first trial are reserved for the trial judge in the new trial.; (4) The defendant is to pay the plaintiffs' costs of the appeal.
CATCHWORDS:
Significant delay by the trial judge in giving judgment - approach on appeal to findings by the trial judge.
Peter John MONIE Jennifer MONIE Samuel MONIE Appellants Commonwealth of Australia Respondent
FILE NUMBER(S):
CA 41246/2003
COUNSEL:
Mr D F Rofe QC/Mr A Tudehepe Appellant Mr R S McIlwaine SC/Mr B Skinner Respondent
SOLICITORS:
S.K. & Associates Appellant Australian Government Solicitor Respondent
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
20043/2001
LOWER COURTJUDICIAL OFFICER:
Dowd J
CA 41246/2003 SC 20043/2001
GILES JA BRYSON JA HUNT AJA
Thursday 7 April 2005
MONIE & ORS v COMMONWEALTH OF AUSTRALIA
Judgment
1 GILES JA: Subject to the following paragraphs, I agree with the reasons of Hunt AJA and with the orders he proposes.
2 His Honour describes at [43] the approach to be taken on appeal where there is delay in giving judgment, derived from cases the most recent of which is Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568. The approach is reflected in his Honour’s subsequent discussion of the reasons of Dowd J.
3 The thrust of the approach is that extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate. In Krivoshev & Anor v Royal Society for the Prevention of Cruelty to Animals NSW Inc & Ors [2005] NSWCA 78, in which judgment was delivered after the conclusion of argument in the present case, I questioned at [123]-[124] whether delay was more correctly explanatory of deficiency otherwise found in the decision-making or expression of the decision. Referring to Expectation Pty Ltd v PRD Realty Pty Ltd, I said -
“123. Their Honours referred at [75] – [76] to the passing of time “that alters the normal approach of an appellate court”, described as “operative delay”. Delay is of course undesirable, and is contrary to the public interest in…
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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AGLC
Monie v the Commonwealth [2005] NSWCA 25
Case
[2005] NSWCA 25
Decision Date
CaseChat Overview and Summary
In *Monie v the Commonwealth*, the plaintiffs appealed to the Court of Appeal of New South Wales against a judgment entered in favour of the defendant. The central issue on appeal concerned the significant delay by the trial judge in delivering judgment after the conclusion of the hearing.
The Court of Appeal was required to determine the appropriate approach to be taken on appeal when there has been a substantial delay in the delivery of a trial judge's reasons for judgment. Specifically, the court had to consider whether such a delay could vitiate the findings of fact made by the trial judge and, if so, what consequences should follow.
The Court of Appeal reasoned that a significant delay in delivering judgment could impair the reliability of the trial judge's findings of fact, as the judge's recollection of the evidence and the nuances of the case might be diminished. This principle led the court to conclude that the judgment in favour of the defendant should be set aside. Consequently, a new trial was ordered on all issues, with the costs of the first trial to be reserved for the judge presiding at the new trial. The defendant was ordered to pay the plaintiffs' costs of the appeal.
Orders
Orders of the court
(1) The judgement in favour of the defendant is set aside.; (2) A new trial is ordered on all issues.; (3) The costs of the first trial are reserved for the trial judge in the new trial.; (4) The defendant is to pay the plaintiffs' costs of the appeal.