Ground 1 - delay - consideration
62 In Tattsbet, the Full Court dealt with a similar complaint about delay in delivery of reasons for judgment. Jessup J, in considering the submission, said the following (Allsop CJ and White J agreeing) (at [131]-[134]):
131. The principles which inform the decision of an appellate court to hold that excessive delay in the delivery of judgment at first instance in the case concerned has rendered that judgment unsafe were discussed at length by the Full Court in Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17, 32-35 [66]-[83]. I would accept that, particularly where a transcript of the evidence at trial exists, mere delay need not justify a conclusion that the fact-finding process has miscarried. There are, however, additional circumstances which give rise to concern in the present case.
132. In Expectation, the Full Court said (at [74]):
The problem is not restricted to fading memory. A judge who comes to make an inordinately delayed decision will inevitably be subjected to great pressure to complete and publish the judgment. A conscientious judge could not but feel that pressure. It is almost inevitable that there will also be some form of external pressure - whether from the parties, the management of the Court, the press or parliamentarians. That pressure could well unconsciously affect the process of decision-making and the process of giving reasons for decision. The decision that is easiest to make and express will have great psychological attraction.
In the present case, I can see no sign that the primary Judge sought to take the easiest path to the resolution of the disputes that were before him. To the contrary: his Honour gave careful attention to the appellant's reasons for having taken adverse action against the respondent, notwithstanding that, on his findings, her case failed at an anterior stage. Nonetheless, the pressures to which the Full Court referred in Expectation appear to have been present here. The circumstances which surrounded the delivery of judgment bespeak an environment in which his Honour felt under considerable pressure to complete his reasons at the last minute.
133. Additionally, the omissions to which I have referred above, taken cumulatively, suggest that his Honour may not have given some issues in the case the attention which they deserved, notwithstanding the very long period during which he was reserved. Those arising under s 357 of the FW Act are an instance. His Honour's failure to make the findings of fact that would be necessary for a proper determination of so much of the respondent's case as relied on s 340(1)(a)(iii) and (b) of the FW Act are another. On the cross-appeal, our attention was also drawn to a number of minor errors - typographical and proofing errors, for example - in his Honour's reasons. While nothing would normally turn on such matters, in the circumstances of the present case it must be accepted that they provide some support for the respondent's second ground.
134. The critical finding with respect to the appellant's reason or reasons for taking adverse action turned substantially upon the credit which the primary Judge assigned to the evidence of Mr Fletton. Notwithstanding the existence of transcript, that finding was inevitably based upon his Honour's observation of Mr Fletton as a witness, and upon the advantage which a trial Judge conventionally has in such a setting. In my view, there is a real risk that his Honour compromised his ability to use that advantage in the determination of Mr Fletton's reasons for acting when he allowed such an inordinate period to elapse between the giving of the evidence and the making of the determination. When considered together with the matters referred to in paras 106-109 above, the result is that his Honour's disposition of the respondent's case under s 340(1)(a)(iii) and (b), linked to s 341(1)(b) and (c)(i), of the FW Act cannot stand.
(emphasis added)
63 Allsop CJ agreed with Jessup J, also observing (at [2]):
2. I wish only to add the following additional comments. First, the delay in the production of the decision was, with respect to the judge, unfortunate: over 20 months from final submissions. The practical realities of life as a judge may mean, sometimes, a degree of delay in decision-making. Pressure and volume of other judicial work, complexity and size of the particular decision-making task at hand, a lack, sometimes, of useful assistance from litigants or the profession, and illness or incapacity are but examples of reasons for delay. Some of the reasons may rest in point of fault; some in point of technique. The burdens on judges in a busy trial court can be enormous. Some reasons may be the responsibility of the Court itself, if too much work is given to a judicial officer without any, or adequate, time or facility to undertake reserved judgments. But systems must be made to cope. Whatever the cause of any particular delay (and there was no explanation available here), its consequences must be examined with an eye to the fair administration of justice. I agree with Jessup J that it has been demonstrated here that the delay affected, or can be seen as apparently affecting, the decision-making in question. Generally, some apparent operative effect of the delay is required for appellable error to be shown: Monie v Commonwealth (2005) 63 NSWLR 729 as discussed in MM Constructions (Aust) Pty Ltd v Port Stephens Council (2012) 191 LGERA 292 at [11]. The conclusion as to the true reason for Ms Morrow's termination was sparsely put. After such a long period, without any evidence in the judgment that the consideration and conclusion were made at a time reasonably proximate to the hearing, and without expressed careful consideration of all the evidence, the conclusion should be seen as flawed. It also had the effect of being, on its face in terms of expression, a contingent finding with the problems involved with such: Wade v Burns (1966) 115 CLR 537 at 555; and see Tarabay v Leite [2008] NSWCA 259 at [34]-[35].
(emphasis added)
White J agreed.
64 It is true to say, as the respondents do, that in this case the trial was not overly long, nor was the oral evidence particularly extensive or the issues particularly complex. Although, the transcript reveals there was a degree of disorder and confusion in the presentation of some of the evidence and factual submissions. The transcript was available to his Honour, as were the exhibits, including affidavits of each of the witnesses' evidence in chief and the expert report of Mr Tonkin, on which the primary judge relied.
65 But, a delay of over 22 months is extensive. Nonetheless, my assessment of the reasons is that they are carefully, systematically and logically recorded, notwithstanding that Mr Auguste points to some of his contentions that he says the primary judge did not specifically address. It is true, as the authorities point out, that the problem with the delay does not rest merely with memories fading, that is to say, in particular, the judicial memory. It is also the case, as the authorities emphasise, that delay in production of a judgment produces pressure to complete the judgment, especially in circumstances where there are inquiries made and estimates given as to likely dates of publication. But in the end, the critical question in taking into account all those factors, as discussed amply in the authorities referred to above, is whether there is operative delay. That is, whether the delay can be seen as being problematic in the sense of confidence being placed in the judgment. Examples of operative delay include dealing with issues on only a cursory basis or overlooking clearly critical evidence.
66 Mr Auguste says that there are clear indicators of these factors in the reasoning of the primary judge in the specific areas to which he points. In my view, one aspect must be recognised at the outset: unless there is some clear evidence that (as is very often the case) that a record was taken at the time of the trial or hearing as to the impression formed of a witness, having regard to the very busy schedule of most judges, bare credit findings based upon the impression formed of a witness would be the findings most vulnerable to attack on the basis of excessive delay. In Tattsbet, for example, the credit finding was critical to the result.
67 On proper analysis, in my view, none of the findings in this case fall into that category. But, if there is a finding that is close to a bare credit conclusion, it is the finding that the representation was not made. The primary judge gives a sound explanation as to why that conclusion was reached, not least of which was that the improbable account by Mr Auguste was not put to Mr Colasante in cross-examination. However, I would think that this particular finding, which goes close to a finding simply as to who was to be believed on that point, would be sufficiently vulnerable for the judgment to be unreliable when given almost 23 months later. Unlike Tattsbet, the judgment does not turn only on that finding. But that is not an end to the enquiry. The credit finding can be discarded in the analysis. If the reasoning does in truth reveal other difficulties of the nature discussed above, the judgment may also be vulnerable.
68 It is for that reason that the argument for Mr Auguste focusses on other suggested omissions. These must be examined.
69 While Mr Auguste has been critical of the acceptance of Mr Tonkin's evidence and the failure of the primary judge to advert to the points made in his cross-examination and listed above, it must also be noted that the acceptance of Mr Tonkin as a suitable expert occurred in circumstances where Mr Tonkin was the only available independent expert before the court. He had produced a written report with annexures, which was supplemented by oral evidence. He was, of course, produced for cross-examination and cross-examined. None of that cross-examination went to his credit, but did go to his expertise and his qualification to express the views he expressed. The suggestion that the evidence of Mr Anthony Shaw, who was not available for cross-examination other than by telephone (for which leave was not granted), should somehow be preferred to Mr Tonkin's independent expert evidence is entirely unsustainable.
70 Additionally, while Mr Auguste did not admit to having directed further works, he simply put Nikolyn to proof on that point. In respect of the latter point, his Honour wholly accepted the relevantly unchallenged evidence given by Mr Sialtsis. No submission was made on the appeal that Mr Sialtsis was relevantly challenged. That acceptance extended to the hours claimed for the work carried out. This was also unchallenged in cross-examination, notwithstanding that the respondents were put to proof. Further, as I have observed above, it is not necessarily the case that the primary judge took an uncritical view to the evidence of Mr Tonkin. In certain respects, in his Honour's analysis, he disagreed with some aspects of the evidence given by Mr Tonkin (see the primary reasons at [114]-[117]).
71 In relation to the stabilising work, Mr Auguste's argument was that the respondents were responsible for that work as it formed part of the installation of the type 'B' connection. There was no documentary support for that assertion and no independent expert evidence called to support the assertion by Mr Auguste. The only evidence was to the contrary. In particular, the evidence from Mr Wray confirmed that there was no detail on the Water Corporation drawing (DG16-3-11) or on the sketch by Baker Drafting Services that showed any work required to retain or stabilise the bank. In any event, as at 25 August 2010, without variations, a concrete headwall had been installed that conformed to the sketch by Baker Drafting Services. But as a result of erosion or damage, Mr Wray, without attributing blame to anyone, formed the view that 'retention works were required to stabilise the bank.' On the basis of this primarily documentary evidence, it was certainly open on objective analysis to conclude that the work then required was outside the scope of the contract.
72 As to the acceptance of Mr Colasante's evidence in relation to the matching quotes, the alleged statement was contained within the conversation (found not to have taken place) in which the representation (found not to have been made) was supposedly made. While Mr Auguste's evidence on this point was rejected and Mr Colasante's accepted, there was solid logical foundation for this conclusion. Specifically, the quote that Mr Colasante supposedly agreed to match was Mr Ballantynes' quote, which Mr Colasante had never seen or discussed. Moreover, as far as the evidence indicated, the quotes appeared to be for materially different works. In particular, the quote was for the installation of a 'precast headwall', not a type 'B' connection. Mr Colasante was aware that a modified type 'B' connection was required. Mr Ballantynes' quote excluded the digging of hard rock, whereas the Nikolyn contract did not exclude the digging of hard rock. The quote included works not included in the 17 March 2010 email and omitted other works set out in the 17 March 2010 email.
73 Mr Auguste has not asserted, nor in those circumstances could he assert, that the scope of work carried out by Nikolyn under the contract was that defined in Mr Ballantynes' quote. All of these matters make it implausible and totally illogical that Mr Colasante would have blindly agreed to match some other different quote which he had not seen or discussed.
74 In relation to the contended deficiency as to the timing of the invoices and quantum of the variations, such a complaint, like a number of others advanced by Mr Auguste, can only be advanced if other aspects of Mr Auguste's case, which failed, are now to be accepted. Mr Auguste had asserted that the claims made were for a total claim, whereas his Honour expressly found this not to be so (at [112]). Rather, his Honour accepted the evidence of Mr Sialtsis, which was 'largely unchallenged' as to the work done and the hours claimed, specifically because there were detailed records supporting those items (on which Mr Sialtsis was not challenged in cross-examination). The finding made by his Honour, which was entirely open, was that, although the initial description on the invoices had not been fulsome, on request of further information, detailed and sufficient particulars were supplied to Mr Auguste.
75 Turning, importantly, to the alleged representation, which was the primary basis of the claim. The process of his Honour's reasoning has been described above. Transparently, it is not reasoning based solely on the impression of the witnesses. It is to be noted:
(a) not once in extensive correspondence passing between the parties after they fell into dispute did Mr Auguste ever refer to or rely upon such a representation (see the primary reasons (at [41]); and
(b) Mr Auguste, himself, contended prior to proceedings that the reasonable time for the contract work to be completed was three months, with two further months for the variations. This is clearly inconsistent, not only with the implied term argument advanced for Mr Auguste, but also any assertion as to a representation in the conversation that was expressly denied and on which Mr Colasante was not cross-examined.
76 In any event, assuming the finding as to the representation is unsafe, the primary judge's reasoning I have discussed above concerning causation and reliance is entirely plausible. It will remain even if the representation finding is vulnerable. Moreover, manifestly unchallengeable is the primary judge's conclusion that there must have been a reasonable basis for making the representation because the work was actually carried out within a reasonable time (the reasonable time being the subject of a separate finding by his Honour).
77 All of this (incidentally), reveals the complexity of arguing a relatively modest building case in this manner. An arbitrator or adjudicator of building and construction disputes could have decided fairly quickly whether the additional work was within or without the scope and should have been charged. Nonetheless, his Honour did assess every aspect of the elaborate claims advanced, and, unsurprisingly, it took a long time to do so.
78 There can be no denying that there was delay in delivery of the judgment. But I am inclined to agree with the respondents' submission that there is no basis on which Mr Auguste can contend from the reasons that his Honour's conclusions were not based upon 'contemporary materials, objectively established facts and the apparent logic of events.' Indeed, that is exactly the approach his Honour took. Notwithstanding the delay, the reasons demonstrate that his Honour considered all of the evidence, such that it is clear that no delay had an operative effect on the conclusion reached to dismiss Mr Auguste's claim and allow the cross-claim.