APPLICABLE PRINCIPLES
66 At the best of times, the mere fact that a trial judge necessarily reaches a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by an appellate court of the functions imposed upon it by statute. In particular cases, incontrovertible facts or uncontested testimony may demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings (Fox v Percy (2003) 197 ALR 201 at [28]).
67 Appellate judges have long given, as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible for an appellate court. On the other hand, for almost as long, appellate judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Fox v Percy at [30]). In any event, it is appropriate to have some doubt about the ability of judges, or anyone else, to tell truth from falsehood accurately on the basis of the appearance of witnesses. Such considerations should encourage trial judges and appellate judges to limit their reliance on the appearance of witnesses and to reach conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events (Fox v Percy at [31]).
68 Where there are relevant contemporaneous materials, such as file notes and correspondence, and there is significant delay between the hearing of evidence and the giving of reasons for conclusions, being reasons that do not advert to the contemporaneous materials and do not give specific reasoning for accepting or rejecting the evidence of particular witnesses, the conclusions reached should be given careful scrutiny and consideration by an appellate court where the findings are challenged on appeal.
69 Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] 1 WLR 1689 at [11]-[12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.
70 That advantage includes seeing the oral and documentary evidence unfold in a coherent manner, which cannot be replicated on appeal (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, 160 ALR 588 per Kirby J at [90]; Bartlem Pty Ltd v Cox Industries (Australia) Pty Ltd [2002] FCAFC 224, 55 IPR 449 at [87]). That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge failed to use or misused such an advantage. The mere fact of a long delay itself weakens a trial judge's advantage. Thus, delay must be taken into account when reviewing findings made by a trial judge after a significant delay from the time when the relevant evidence was given.
71 In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision.
72 In cases not affected by delay, an appellate court is entitled to assume that the mere failure to refer to evidence does not mean that it has been overlooked or that other forms of error have occurred. However, where there is significant delay, no favourable assumptions can be made. In such circumstances, it is up to the trial judge to put beyond question any suggestion that he or she has lost an understanding of the issues. Where there is significant delay, it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses (Hadid v Redpath [2001] NSWCA 416 at [34] and [53]).
73 Of course, where the trial judge, notwithstanding significant delay, demonstrates by his or her reasons that full consideration has been given to all of the evidence, the parties and the public may be satisfied that the delay has not affected the decision. More specifically, if the reasons demonstrate that the delay has not weakened the trial judge's advantage, confidence will be maintained in the decision. For example, it would be open to a trial judge to explain in the course of giving reasons that contemporaneous notes were made of impressions formed as evidence was given by witnesses of importance (see R v Maxwell (unreported, New South Wales Court of Criminal Appeal, Spigelman CJ, Sperling and Hidden JJ, 23 December 1998)).
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. As was recently said by the Western Australian Court of Appeal in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149, in the course of a valuable review of the significance of delay in the delivery of judgments:
'…a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial Judge and that he or she had been unable, in the end, to grapple adequately with the issues.' ([31]).
75 As mentioned above, almost seventeen months expired between the time when his Honour reserved judgment (16 October 2001) and 11 March 2003, the date upon which he delivered his first set of reasons and more than 21 months between the completion of evidence and the first set of reasons. The latter period was regarded as the most cogent by Hill J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1 at [17]. This delay was grossly inordinate. In Hadid v Redpath [2001] NSWCA 416 it was submitted that, at some point, the passing of time from the moment when judgment is reserved causes a delay to arise that alters the normal approach of an appellate court.
76 Counsel for the appellant described this type of delay as 'operative delay'. Although the Court of Appeal in Hadid did not have to decide whether the point on which the appeal succeeded in that matter was the result of delay, Heydon JA, at [33]-[38] set out the appellant's submissions in some detail, without any apparent disapproval. We think that the expression 'operative delay' is a useful one as a description of the type of delay which has the consequences (both for a primary judge and an appellate court), discussed in the relevant authorities referred to below.
77 The leading case in this area appears to be the decision of the English Court of Appeal in Goose v Wilson Sandford & Co (unreported, England and Wales Court of Appeal (Civil Division), Gibson, Brooke, Mummery LJ, 13 February 1998). The approach taken by the Court of Appeal in that matter has been adopted by the New South Wales Court of Criminal Appeal in R v Maxwell, was cited with apparent approval in Hadid v Redpath (at [29]) and more recently by Finkelstein J in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 1 at [53].
78 In Goose the delay was approximately 21 months. Their Lordships said this (at [113]):
'Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J. denied himself the opportunity of making this further check in any meaningful way.'
79 In R v Maxwell, the New South Wales Court of Criminal Appeal, having adopted the approach of the English Court of Appeal in Goose made the following observations (at [25]):
'Considerations such as these have informed this Court in its review of the reasons for judgment given by his Honour, specifically the statements made by his Honour in his judgment of a general assertive character, which in the normal course would be accepted as encompassing a detailed consideration of the evidence before him, have been treated by us with reserve. Indeed, a delay of the order of ten months is, of itself, such as to require a more comprehensive statement of the relevant evidence than would normally be required, in order to manifest, for the parties and the public, that the delay has not affected the decision.'
80 The delay in the present case went beyond the minimum period of 'operative delay'. In those circumstances, in his reasons for judgment his Honour was required to carry out a detailed consideration i.e. a more comprehensive statement of the relevant evidence (to use the words of the Court of Criminal Appeal in Maxwell) than would normally be required. The purpose of doing so would have been to demonstrate to all concerned that the delay had not affected his decision. This is not a case in which, sitting as an appellate court, it can be assumed that the mere failure to refer to evidence did not mean that it had been overlooked.
81 In the absence of some special circumstances, where his Honour rejected the evidence of the witness on grounds of lack of credit, one would expect him to explain how, despite the delay, he was well able to recollect the oral testimony. Also, as a general rule, if part of that rejection depended upon contemporary documents, or the lack of such contemporary documents, his Honour should in his reasons have gone to those documents and (in the latter case) stated with requisite satisfaction that there were no such contemporaneous documents. As the Court of Criminal Appeal said in Maxwell, at [46]:
'The Appellant had a right to expect that the arguments put on his behalf would be dealt with in such a way that he could be satisfied that they had been understood and, either accepted, or, if rejected, that the rejection was based on a clear and rational process of reasoning.'
82 Nothing turns on the fact that Maxwell was a criminal case. None of the authorities suggests that a different appellate approach applies in a civil case to that which should be adopted in a criminal appeal. In relation to the primary judge's rejection of the appellant's expert evidence about value, in so rejecting that evidence his Honour was obliged to provide what Bingham LJ described in Eckersley v Binnie (1988) 18 ConLR 1 at 77-78 as 'a coherent reasoned rebuttal' of a 'coherent reasoned opinion' unless that opinion could be discounted for other reasons. That observation was referred to by Henry LJ in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 381-2 where his Lordship said:
'…where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence…'
83 Nothing we have said should be taken to encourage over lengthy judgments in the usual case, the undesirability of which has been commented upon recently in Customs and Excise Commissioners v A [2003] 2 All ER 736 at 753-754 and Digi-Tech (Australia) Ltd v Brand [2004] NSWCA 58 at [287]-[290] (see also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 443; Mifsud v Campbell (1991) 21 NSWLR 725 per Samuels JA at 728; and Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]).