Power to Reconstitute
31Even though Mr Bakarich has made no submissions that dispute the contention of the Bank that it is possible for final orders to be made concerning the appeal by the bench as presently constituted, we should satisfy ourselves that it is appropriate to make those orders.
32Section 45AA(1) Supreme Court Act 1970 provides:
"If an appeal is commenced before 3 or more Judges of Appeal and, before the appeal is determined, one or more of the Judges dies, resigns from office or otherwise becomes unable to continue as a member of the Court of Appeal for the purposes of the appeal, the hearing and determination of the appeal may be completed by the remaining Judges of Appeal so long as at least 2 Judges remain and the parties consent."
33It is the only statutory provision that governs the Court of Appeal reconstituting when a member of the Court who has commenced hearing an appeal becomes unable to continue to hear it. As two judges who delivered the 2007 Appeal Judgment do not remain, s 45AA(1) does not offer a mechanism to reconstitute the court in the present case. Thus, whether it is possible, and proper, for the Court as presently constituted to finalise the appeal that was largely decided by the 2007 Appeal Judgment, must depend upon principles of the general law.
First Instance Tribunals
34There is a significant line of authority concerning the circumstances in which it is permissible for one first-instance judge or tribunal to make a decision concerning proceedings that another judge or tribunal has commenced to hear, but has been unable to continue to hear. Even though the present case concerns reconstitution of an appellate court, the cases concerning reconstitution of first-instance tribunals can illuminate what, if any, limitations on reconstitution there are simply by virtue of being a court.
35Concerning reconstitution of first-instance tribunals, if a statute specifically required the same judges to be present during the whole of the proceedings, that provision must be complied with: Munday v Munday [1954] 2 All ER 667. Conversely, if a statute permitted substitution of one judicial officer by another in certain circumstances, if a case begun by one judge has become part-heard, a different judge can complete the case in the circumstances permitted by such a statute: Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464.
36Subject to those matters, whether it is permissible for another judge to complete the part-heard case, rather than starting the hearing afresh, can be influenced by whether the trial is civil or criminal: R v Southwark Crown Court [1993] 1 WLR 764. It can be influenced by whether the trial is before a judge sitting alone, a judge and jury, or some differently constituted form of tribunal. It can be influenced by whether there is a significant conflict in the evidence: Bolton v Bolton [1949] 2 All ER 908; Re British Reinforced Concrete Engineering Co's Application (1929) 45 TLR 186; Brennan v Brennan (1953) 89 CLR 129 at 136-137. It can be influenced by whether the reason why a judge who has embarked on hearing a case does not continue to hear it to its conclusion is because it is impossible for the judge to continue (whether through death, ceasing to hold office as a judge, or other causes such as incapacitating illness) or whether it is a matter of personal or administrative convenience. It can be influenced by the nature of the tasks that remain to be done when the first judge becomes unavailable.
37Notwithstanding the greater procedural strictness that usually applies in criminal trials, if the judicial officer before whom a criminal trial that resulted in a conviction has died, it is permissible for a sentence to be imposed by a different judicial officer who has been provided with the shorthand notes of the trial and heard submissions on sentence: R v Pepper [1921] 3 KB 167. That principle has been applied in Australian Securities and Investments Commission v Forge [2007] NSWSC 1489, when White J at [31] imposed civil penalties for contraventions of the Corporations Law on the basis of evidence that had been admitted before Foster AJ, when liability had been found by Foster AJ, and that finding had been upheld in the Court of Appeal and the High Court.
38If one judge decides contested questions of fact on the basis of evidence that had been heard by another judge, that has been held to be a circumstance warranting a new trial at least in situations where the parties do not consent: Bolton v Bolton; The Hopemount (1943) 75 LlLR 94; HMS Vanity (1946) 79 LlLR 594. One reason for that is that the appellate court, exercising its obligation to re-hear, can have no confidence in a credit-based finding made by a tribunal the members of which have not fully heard the evidence in question: Whittle v Whittle [1939] 1 All ER 374. However, in Whittle, Sir Boyd Merriman P declined at 376 to say that as a matter of law the court was bound to set aside a decision in which the decision-maker had not heard all the evidence that was given. Thus, notwithstanding the irregularity of a judge making findings of fact on the basis of evidence that he or she has not heard, if the appellate court can be confident about whether the result arrived at at first instance is correct or incorrect it can decline to order a new trial: Bolton v Bolton at 911; Brennan v Brennan. Similarly, it has been held that when a judge dies when part-heard in civil proceedings concerning which there is no real dispute as to issues of fact, it can be permissible for another judge to decide the issues on the basis of the shorthand notes, and with the parties' consent: Re British Reinforced Concrete Engineering Co's Application; Bagshaw v Scott [2005] FCA 104 at [35] per Bennett J. Even if there has been no explicit consent to a second judge continuing with the matter after the unavailability of the judge who had commenced it, acquiescence in the second judge continuing with the matter can deprive the party acquiescing of any right to complain about the procedure: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649 per Kirby P, 653 per Priestley JA (Glass JA agreeing).
39In Coleshill v Manchester Corporation [1928] 1 KB 776 a judge died before the evidence was completed in a jury trial of a civil action, and another judge presided over the remainder of the trial. The witnesses who had already given evidence were not recalled, and the replacement judge read the shorthand notes of their evidence. The trial resulted in a verdict for the plaintiff. On appeal, Scrutton LJ at 785-6 made the following inconclusive remarks:
"I can understand that in the unprecedented and painful circumstances it is unnecessary to take any objection to what happened, but I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner."
Neither of the other judges in the Court of Appeal (Atkin LJ and Eve J) commented on the procedure that had been followed. The order of the Court of Appeal was that the appeal be allowed and judgment entered for the defendants. That order would not have been possible if the first-instance proceedings had been irretrievably vitiated.
40In Brennan v Brennan a judge hearing contested divorce proceedings had died after the evidence was completed, but before he delivered judgment. At the request of the parties, another judge read the transcript. Some, but not all, of the witnesses were recalled before the second judge. Though the case involved contested questions of fact, the High Court (Williams ACJ, Webb and Kitto JJ) did not hold that the resulting decree nisi was one that should be set aside ex debito justitiae. Instead, their Honours declined to make an order for a new trial, and dealt with the appeal on its merits. A factor in their Honours deciding to take that course was that the parties had consented to the procedure adopted by the second judge. In several of the cases referred to at [38] above, the court had also referred to the fact that the parties had consented to another judge continuing with the case as though it was a matter relevant to whether the second judge should have completed the hearing. However, the consent of the parties could not have conferred validity on the proceedings, if it were inherently impossible for a trial begun by one judge to be completed by another.
41The explanation for this may well be that, although in Coleshill Scrutton LJ referred to whether the second judge had "jurisdiction" to continue to hear the case, that is probably not the most apposite term. The trial in Coleshill was held at the Manchester Assizes. After the Judicature Act 1873 a judge of assize was part of the High Court of Judicature (Archer, The Queens Courts, 2nd ed (1963) Penguin Books p 140). Thus a judge presiding at Assizes in 1928 was a judge of a superior court. Apart from limitations arising from the constitution (Kable v State of NSW [2012] NSWCA 243), an order of a superior court is valid until it is set aside: Cameron v Cole (1944) 68 CLR 571 at 590-591, Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158, and other cases referred to by Gaudron J in Re Macks at 184 [49], fn 80; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [11]. Further, if the party to whom a procedural law is addressed "chooses to disregard it, the normal outcome is that choice accrues to the other party either to do nothing, or to seek an appropriate order from the court" (Berowra Holdings at [14]). It is not as though any irregularity that there might be in the trial proceeding before the second judge makes it a nullity, at least when the trial is being held in a superior court.
42In Wentworth v Rogers (No 3) Cantor J had become ill and unable to continue after deciding a question concerning production of documents on subpoena. Maxwell J then decided how the costs of that application should be borne. On an application for leave to appeal from Maxwell J's decision, Kirby P said, at 646:
"It seems clear that when a judge dies, retires or otherwise loses office in the middle of proceedings, this eventuality will not be permitted to frustrate the completion of those proceedings."
43Similarly, Priestley JA (Glass JA agreeing) said at 653:
"The circumstance of the change of judge was made the subject of a submission that Maxwell J had no jurisdiction to make the orders which he did. I do not think this can be right. If a judge is unable through absence to make an order which needs to be made for some proceeding before the court to be completed there must be jurisdiction in the court enabling another judge to make the order."
44As Priestley JA observed, at 653:
"In England the only place where the matter is at all fully discussed appears to be in Sir Robert Megarry's A Second Miscellany-at-Law (1973) at 53-58."
Sir Robert began his account at 53 by saying: "Like all human endeavour, the judicial process is subject always to the paramount claims of death."
45In Smartec Capital Pty Ltd v Centro Properties Ltd [2011] NSWSC 495, Barrett J considered an application by a member of a company under s 247A(1) Corporations Act 2001 for an order to inspect certain of the documents of the company. In a reserved judgment he decided in principle what sorts of documents could be inspected, and on what terms. The judgment concluded, at [93]-[94]:
"Because I have now entered on long leave, it will be necessary for the final orders to be settled and made by another judge: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642.
The parties therefore have leave to approach the Corporations Judge for the time being for that purpose and for the determination of the costs of the proceedings."
46In due course White J made the orders relating to the application, and the costs order: Smartec Capital Pty Ltd v Centro (CPL) Ltd [2011] NSWSC 644. Debate before White J concerned the description of the documents of which inspection would be allowed. His Honour said, at [11]:
"This is the sort of question that is often debated when the court is asked to make orders to give effect to the reasons for decision. I think, consistently with Wentworth v Rogers (No 3) (1986) 6 NSWLR 642, that I can make such orders as appear to me to be appropriate to give effect to his Honour's reasons so as to advance the purpose that his Honour identified as the proper purpose that Smartec was pursuing."
47White J also made decisions concerning the identity of the people who should be permitted to inspect the documents ([12]) and the purpose for which the documents inspected could be used ([14]), as well as orders concerning the costs of (inter alia) the hearing before Barrett J.
48Similarly, in Lahoud v Lahoud [2006] NSWSC 126 Campbell J decided how costs should be borne concerning some proceedings the merits of which had been decided by Palmer J, who had gone on long leave.
49These cases concerning reconstitution of a first instance tribunal show that there are circumstances in which it could sometimes be irregular, to an extent justifying setting aside on appeal, for a first instance decision to be reached by one judge completing a proceeding that had been begun by another judge. Of the cases we have surveyed, the only authorities that bind us are Brennan v Brennan and (subject to leave to reargue being granted) Wentworth v Rogers (No 3), so we would not wish to say anything definitive about what would amount to such circumstances. However, what is of particular relevance for the present decision is that those cases also show that, except when there is a statutory prohibition on adopting such a course, it is not inherently impossible for one judge of a superior court to complete a legal proceeding that has been begun by another judge of that court. That conclusion can be drawn from both Brennan v Brennan and Wentworth v Rogers (No 3). There is no statutory prohibition on a reconstituted bench of this Court completing the appeal that was largely decided by the 2007 Appeal Judgment. Rather, whether we should complete the proceeding depends on whether there would be any procedural inappropriateness in us completing the task.
Appellate Courts
50Somewhat different considerations apply to reconstitution of an appellate court to those that apply concerning replacement of one first-instance judge by another. Except in the rare case where fresh evidence or further evidence has been received in the appellate court, there will be no possibility of the reconstituted court lacking an advantage that the original court had of seeing the witnesses.
51In Cotogno v Lamb (1985) 3 NSWLR 221 this Court considered a situation where a bench comprising Kirby P, Mahoney and McHugh JJA had heard and determined a preliminary matter about whether an appellant should be permitted to enlarge his grounds of appeal. After that judgment had been delivered, Mahoney JA was due to go on long leave. The hearing resumed before a bench comprising Kirby P, Glass and Samuels JJA. Their Honours held that there was power to reconstitute the Court to include a judge of appeal in substitution for Mahoney JA. They held, at 223:
"There is a long line of authority which stresses the importance of courts, once constituted to hear a matter, proceeding to hear all aspects of the matter to conclusion: see, for example, R v Marrington (1850) 1 SCR (NSW) (App) 11; 1 Legge 643; Ex parte Ryan (1864) 3 SCR (NSW) 221; Fulker v Fulker [1936] 3 All ER 636 and Munday v Munday [1954] 1 WLR 1078; [1954] 2 All ER 667. However, these cases deal with hearings at first instance where the court deciding the matter must have the advantage of hearing and seeing all of the witnesses. Such a consideration does not govern the hearing of appeals. The power to reconstitute an appellate court cannot be in doubt in the case where that is necessary after a judge dies, retires or is incapacitated in the midst of a hearing and before judgment is delivered. Otherwise, by reason of the statutory obligation to constitute the court with three or more judges (see Supreme Court Act 1970, s 43(1), the facility of appeal could be entirely frustrated. Similar considerations apply in circumstances where a judge takes extended leave, although internal arrangements of an administrative kind usually avoid difficulties such as have now arisen."
52Wyman v Paterson [1900] AC 271 at 273 notes that an appeal to the House of Lords was argued before three Law Lords, but when one of them died without leaving a written judgment it was argued a second time before the two surviving Law Lords, and additional Law Lords. The report does not say whether the course of re-arguing the case, rather than having one or more additional Law Lords read the appeal book and transcript of argument and then deciding whether they wished to hear additional argument, was adopted because it was felt necessary to do so, rather than prudent or convenient to do so. Nor does the report give any indication of whether the parties were invited to consent to any lesser course than full re-argument, or whether either party opposed anything less than full re-argument.
53In any event, the situation in Wyman, where the tribunal before which the case had originally been argued had not formed any collective decision, is quite different from that of the present case, where this Court in the 2007 judgment not only decided all the substantive questions involved in the appeal except those remitted for enquiry and delivered a unanimous judgment concerning them, but in the 2010 Re-opening Judgment declined to permit further argument on those questions.
54Orr v Holmes (1948) 76 CLR 632 arose when the Queensland Full Court had set aside a verdict, directed a new trial, but adjourned the question of costs. After that order had been made, one of the judges who had constituted the Full Court died, and the question of costs was dealt with by a differently constituted Full Court.
55Dixon J was the only judge in the High Court who considered the effect of the order for costs having been pronounced in those circumstances. He said, at 637-8:
"It is objected that it was not competent to a court not composed of the same judges to deal with the costs. The objection is mistaken.
An order had been pronounced upon the appeal or application for a new trial. The order which was drawn up included a specific provision adjourning or reserving the question of costs and so treating it as a distinct matter. The case is not one of the death of a judge before the hearing and determination of a proceeding are concluded by a court of which he is a necessary member. The order had disposed of the proceeding before the court and, as a matter of jurisdiction, the Supreme Court constituted as a Full Court in any manner might hear and determine the question of costs adjourned or reserved. No doubt as a matter of convenience the court would not be differently constituted to deal with costs that are adjourned or reserved, if it could be avoided. But that consideration does not affect jurisdiction."
56In C v Registrar, Court of Appeal [1995] NSWCA 67 a litigant had been found guilty of contempt of court. The court comprising Kirby P, Meagher and Powell JJA had imposed a particular penalty upon him. Later, that litigant moved the Court for relief from that penalty. At the time the motion seeking that relief came before the Court, Meagher JA was on long leave. The motion came before a court comprising Kirby P, Mahoney and Powell JJA. The Court said:
"We see no difficulty in the reconstitution of the Court. The present motion amounts to a fresh proceeding. The previous proceedings were concluded in this Court by the declarations that the claimant was guilty of the offences charged and the orders providing for his punishment. Those declarations and orders were the subject of an application to the High Court of Australia for special leave to appeal. However, that Court declined to provide such special leave. Accordingly, the orders of this Court, which had been perfected for the High Court proceedings, concluded the earlier hearings. Whilst retention of the same Bench would have been normal in a case of this kind, it was not essential. Neither party argued to the contrary."
57By the time that decision was given, the High Court had decided Witham v Holloway (1995) 183 CLR 525. Witham held that proceedings for contempt were criminal. Their Honours remarks would need to be read with that in mind.
58In R v Lewis (1988) 165 CLR 12, the High Court (Wilson, Brennan, Dawson, Toohey and Gaudron JJ) rejected an application by the Crown for special leave to appeal from a decision of the Court of Criminal Appeal of the Northern Territory, in which a conviction had been quashed and a verdict of acquittal entered. A court comprising three particular judges of the Court of Criminal Appeal had given directions concerning interlocutory steps to be taken in an application for leave to appeal. The application was heard by a bench comprising three judges, of whom one was different to the judges who had given the directions. The High Court did not regard that change of membership of the court as warranting special leave. Their Honours said, at 15:
"Of course, it is of fundamental importance that a court which enters upon the exercise of jurisdiction should see the matter through to finality. If through force of circumstances that cannot be done then the hearing must be commenced de novo unless there is some other more convenient arrangement which has the consent of all the parties and is not inimicable to the proper adjudication of the matter."
59However, there were several reasons why that principle did not warrant the grant of special leave. Their Honours said, at 15-16, that the occasion when directions were given was:
"... no more than a preliminary examination of the issues sought to be raised by the respondent in order to determine the manner in which the hearing should proceed. In short, it was no more than a directions hearing and concluded with the Court giving the necessary directions. It did not embark on a hearing of the merits of the application. This is borne out by the absence of any objection from either party when the proceedings resumed before a differently constituted Court on 1 July 1987. In any event, a perusal of the transcript of the entire proceedings fails to yield any cause for concern that the reconstitution of the Court was prejudicial in any way to either party, with the consequence that even if the hearing of the merits of the application was thought to have begun on [the day of the directions hearing] the point now taken by the Crown would not warrant the grant of special leave."
60Thus, the statement of principle that we have set out at [58] is obiter. Further, as the statement was made in the course of refusing the special leave application it is not a binding precedent: Collins v The Queen (1975) 133 CLR 120 at 122-3 per Barwick CJ, Stephen, Mason and Jacobs JJ; Attorney General (Cth) v Finch (No 2) (1984) 155 CLR 107 at 114-5 per Gibbs CJ, Mason, Wilson and Dawson JJ; North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 643 per McHugh J; Sir Anthony Mason, "The Use and Abuse of Precedent" (1988) 4 Australian Bar Review 93 at 96-98. Statements made in the course of dismissing a special leave application have, however, persuasive value: Algama v Minister for Immigration (2001) 115 FCR 253 at 265 per Whitlam and Katz JJ, French J agreeing; Bird v Colonial Sparkplug Pty Ltd (1942) 66 CLR 43 at 47 per Starke J; Ex parte Zietsch; re Craig (1944) 44 SR (NSW) 360 at 368 per Jordan CJ. In light of the other cases to which we have referred, in which reconstitution of an appellate bench has been permitted in a civil appeal, and the fact that greater procedural strictness is commonly required in criminal cases than in civil cases, we would not regard the remarks in R v Lewis as providing guidance outside the context of criminal appeals.
Decision
61All the substantive questions affecting ABI, Vitlern and Tony personally were decided by the 2007 Appeal Judgment. Thus, dismissing their appeal does not involve us in doing anything other than authorising a formal step. The remitting of the six questions, the answers to which were needed to decide whether relief should be granted to the estates of Allan and Mary, treated those questions, in the manner described by Dixon J in Orr v Holmes, as a distinct matter. There is no challenge to the correctness of the findings of Bryson AJ, and in the light of those findings it is quite clear what orders should be made to dispose of the appeal brought by Tony as executor of the estates of Mary and Allan. There was no evidence heard in the course of the hearing leading to the 2007 Appeal Judgment that is relevant to any determination we must now make. The occasion for the Court needing to consider whether it is possible to reconstitute is the total impossibility of the Court as originally constituted completing the hearing, by reason of the deaths of Santow JA and Hodgson JA.
62As was said in Cotogno v Lamb, the:
"... power to reconstitute an appellate court cannot be in doubt in the case where that is necessary after a judge dies... in the midst of the hearing before judgment is delivered otherwise, by reason of the statutory obligations constitute the court was three or more judges... the facility of appeal could be entirely frustrated".
63Once it is accepted that the Court as reconstituted has power to determine the appeal, the desirability of taking that course is overwhelming. The alternative would be to recommence the appeal before a newly constituted court. Because that course would re-agitate issues already determined, it should not be taken. Neither Mr Bakarich nor the Bank make any objection on the ground of lack of power, or procedural inappropriateness, to judges different to those who heard the 2007 appeal now completing the appeal. Accordingly this Court should complete the appeal by making orders to give effect to the matters determined by the 2007 Appeal Judgment and further findings of Bryson AJ.