Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd [2001] VSCA 167

254. Although, in the end, Mr. Archibald accepted that, in certain circumstances where the justice of the situation requires it, a court may pronounce judgment and give reasons for it later, he argued that the present was not such a case. Counsel submitted that there was no pressing need (or any other reason) for his Honour to have pronounced judgment before he had finalised his reasons. In any event, it was said for the appellant, the period of delay of five weeks in providing reasons was unduly excessive and that, from its perspective, the delay resulted in justice not being seen to be done. Hence, it was contended that the judgment should be set aside and a new trial ordered.

257. It is probably the case that there was no pressing or other like need for his Honour to have pronounced judgment before he had finalised his reasons. His Honour, no doubt, adopted that course because he believed it would assist the parties to plan or prepare for the next phase of the case and for any possible appeal.

260. It was common ground before his Honour that he would be unavailable to deal with this case for a considerable time after mid-September 2000. Consequently, his Honour set himself a timetable to conclude the relevant aspects of the case, including hearing and determining arguments on matters such as interest and costs, before that time. It is also apparent that, as his Honour said, he worked hard to keep to that timetable and to deliver judgment and give his reasons by 9 August 2000 but, as events turned out, he was unable to achieve that objective. Although by 9 August 2000 he had completed his reasons to the extent that they enabled him to conclude what should be the outcome of the case, he was unable to finalise their form. In those circumstances, his Honour was faced with a number of choices as to what course he should follow in terms of the timing of the pronouncement of judgment and the publication of the reasons. One such course was to withhold giving judgment until he had finalised his reasons (which his Honour then believed would involve, essentially, correcting grammar which would take a "couple of days"). Another was that he could have given judgment and published his reasons later. Thirdly, he could have given judgment and, at the same time, let the parties have his draft reasons which he believed would not require any change of substance and then deliver his final reasons later. Most probably in the belief that it would only take a very short time to put the draft reasons into proper form and that the provision of them would assist the parties, his Honour pursued the third option. In the course of doing so, it seems that he misjudged a number of matters.

263. First, as events turned out, it took his Honour a significantly longer period of time to "settle" the draft reasons than he had originally estimated. How his Honour formed the view that it would only take a "couple of days" or even a few days to do that, is not clear. It is apparent, however, that on 9 August 2000 his Honour intended to sit on 4 September 2000 to hear argument on costs and it was likely, therefore, that he considered that his final reasons would be made available to the parties well before then so that they could address any argument on the questions of interest and costs in the context of "certified" reasons for judgment.

266. Secondly, although well intended, it was inadvisable for his Honour to have given the parties his draft reasons for judgment. In Anaconda,[70] Brooking, J.A. (with whom Ormiston and Batt, JJ.A. agreed) made it clear that such a step, however well intended, is likely to create more difficulties than it will solve. His Honour said, by way of example, that in a given case there may be some suggested discrepancy or change in emphasis between the indicative and the formal reasons. In such a case, are "formal reasons" intended to replace or to be read in conjunction with the "indicative reasons"? A like reservation about such a practice was expressed by Eichelbaum, C.J. in Stratford.[71] In that case the appellant was charged with dangerous driving causing death. After a hearing, the trial judge gave an indication on 12 March 1991 of her reasons for her decision that the appellant should be convicted. Her Honour set out five reasons for reaching her conclusion and said that she would deliver full reasons later. On 26 April 1991 the judge delivered an 18-page "reserved judgment". On appeal, Eichelbaum, C.J. noted that this situation was not simply one of giving a decision with the postponement of reasons. The trial judge gave at least an outline of the reasons making it clear that she was not going into evidential details. The Chief Justice expressed the view that such a course should not be encouraged or followed save in exceptional circumstances. His Honour recognised that, as a matter of logic, if it is permissible to give a bare decision and defer reasons, then it must be permissible to give the decision, state an outline of reasons, and record that full reasons will be delivered later. Nevertheless, the Chief Justice repeated that "this course should not be regarded as a desirable precedent". His Honour noted that one of the difficulties that arose from the course followed by the trial judge was that, since there were two sets of reasons that were given by her, on appeal regard had to be had to both and obvious problems arose where there were apparent inconsistencies between them. In the present case, this very problem eventuated. Although the draft reasons had no status according to the parties, they nevertheless gave rise to arguments about whether the trial judge had concluded his reasons at the time he pronounced judgment, and to associated disputes which I have already canvassed. Many of them would have been avoided if his Honour had kept the draft reasons to himself.

269. Thirdly, there seems to have been no sound basis for his Honour to depart from the ordinary practice of giving reasons for judgment either before pronouncing it or immediately thereafter. If, as his Honour thought, the final reasons would be available shortly after 9 August 2000, there was no urgency to pronounce judgment on that day, given that he was not asked by the parties to do so and given that he had until mid-September to deal with matters such as interest and costs. As Eichelbaum, C.J. noted in Stratford[72], "[g]enerally, if the Judge is unable to furnish reasons immediately, unless there are strong reasons to the contrary it is better to defer giving the decision until the reasons can be stated too."

272. Be that as it may, these errors obviously do not bear on the validity or the correctness of the judgment or on the judge's findings. The appellant, however, claimed that the five week delay in providing reasons for judgment was unduly long and caused it prejudice and that, because from its perspective, justice was not seen to be done, the judgment should be set aside and a new trial ordered.

275. It is trite that the court's jurisdiction to order a new trial is discretionary and should be granted almost as a last resort where that is the only means of redressing a clear miscarriage of justice: Dakhyl v. Labouchere[73]. See also McCann v. Parsons[74] and Palmer[75]. In my view, given the circumstances to which I refer below, no miscarriage of justice has arisen from his Honour's actions in respect of the delivery of his reasons for judgment and consequently, it would be inappropriate to accede to the appellant's claim for a new trial.

278. First, although the period of relevant delay was not short and was not explained in terms, it was nevertheless not unduly long, given the complexity of the case and the fact that the appellant's position with respect to its appeal was protected by the order of this Court of 11 September 2000, to which I have referred earlier. Secondly, the appellant did not suffer any material prejudice from the delay. Any prejudice that it experienced from not being able to formulate finally the grounds of appeal during the period prescribed by the rules, was met wholly or at least substantially by the order of the Court to which I have just referred. It may also be accepted that some prejudice would have been suffered by it from being effectively required to undertake a lengthy and extensive comparison between the two sets of the judge's reasons. But this task fell on both parties and in any event, the exercise was likely to have been of potential forensic advantage to the appellant in the sense that it was given the opportunity to explore whether any changes in his Honour's reasons threw up an error or an arguable error which could be a basis for attacking the judgment.

281. Next, whilst it is understandable that the appellant took no objection to the course which his Honour pronounced on 9 August 2000 in respect of the delivery of his reasons, there is no material before us that shows that it complained of this to his Honour. Nor was there any complaint prior to the service of its notice of appeal, that it was prejudiced by reason of his Honour's delay in handing down his final judgment. It seems that it was not until 4 September 2000 that the appellant first told his Honour that it would be inappropriate for him to deal with the question of interest and costs until his reasons for his decision had been handed down. Even then, the appellant did not say that it was prejudiced in its appeal process by reason of his Honour's delay in producing his reasons. A party in the position of the appellant cannot sit by when, according to its case, the judge failed to comply with his obligations and raise it as a complaint only at the appellate level. Finally, it should be emphasised that the process adopted by his Honour as to the delivery of his reasons was transparent and, as I have said, neither party objected to it.

284. I mention for completeness that, notwithstanding the appellant's reliance on Palmer on this issue, in my view, the case is of no assistance in resolving the matter now under consideration. The circumstances that prevailed in that case and which resulted in the Court of Appeal quashing that judgment and ordering a new trial were substantially different from those that prevail here.

288. For these reasons, I am of the view that ground 1 of the appeal must fail. It is apparent that the matters referred to in para.[13(b)] above cannot be dealt with properly until after the resolution of the whole appeal. Consequently, I would adjourn the relevant applications and summons sine die to be brought on for hearing,

if required, upon proper notice. I would suggest that, subject to any order to the contrary, these matters be brought on for hearing before the Court hearing the merits of the appeal.

293. I agree that ground 1 of the appeal must fail for the reasons advanced by Chernov, J.A.

296. I also agree with his proposal for the further conduct of this matter.

[1] Mulvena v. Government Insurance Office of N.S.W., unreported, Court of Appeal of New South Wales, 16 June 1992 per Mahoney, J.A. at p.11.

[2] (1989) 19 N.S.W.L.R. 158.

[4] (1989) 19 N.S.W.L.R. 158.

[5] [1957] VicRp 78; [1957] V.R. 553.

[6] [1998] 3 V.R. 357 at 376 per Charles, J.A.

[7] [1971] 1 N.S.W.L.R. 376 at 380-382 per Asprey, J.A. with whom Manning, J.A. agreed; 387-388 per Moffitt, J.A.

[8] (1986) 159 C.L.R. 656 at 666-667 per Gibbs, C.J.

[9] (1987) 10 N.S.W.L.R. 247 at 257-9 per Kirby, P, 268-274 per Mahoney, J.A., 277-281 McHugh, J.A.

[10] [1989] VicRp 2; [1989] V.R. 8 at 18-20 per Gray, J. (with whom Fullagar and Tadgell, JJ. agreed).

[12] (1948) 26 The Can. Bar Review at 491.

[14] This reasoning was accepted by Gray, J. in Sun Alliance at 19.

[15] (1997) 48 N.S.W.L.R. 430.

[17] Perkins v The County Court of Victoria [2000] VSCA 171; (2000) 2 V.R. 246 at 270-271 per Buchanan, J.A .

9. Where the Court gives any judgment or makes any order and the opinion of the Court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to a specified officer of the Court or to the Chief Court Reporter for delivery to the parties."

[25] Unreported, Supreme Court of N.S.W. - Court of Appeal - 16 June 1992 (Mahoney, Clarke and Sheller, JJ.A.).

[26] Unreported, Supreme Court of N.S.W. - Court of Appeal - 17 November 1994 per Cole, J.A. at 4 with whom Handley and Sheller, JJ.A. agreed.

[28] Not surprisingly, his Honour found at 169 that the delay of over three months "certainly [did] not fall into that category".

[34] Mr. Archibald was correct when he pointed out that De Iacovo was applied in a number of subsequent cases, but it was usually cited there in support of the principle that, ordinarily, judges were obliged to give reasoned judgments. See for example Harling (1997) 94 A.Crim.R. 437 at 443-444; Donges v. Ratcliffe [1975] 1 N.S.W.L.R. 501, at 506-507.

[35] A similar view was expressed by Mahoney, J.A. in Mulvena at 15 in respect of Pt.31 r.9 of the New South Wales District Court Rules which was considered in that case and in Palmer.

[36] The oral practice continued in England until the 1980's when, after the Court of Appeal's experience in Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No.2) [1982] Ch. 204, where the three members of the Court "took it in turn to read" (at 209) their joint judgment over four days on 27-31 July 1981, the practice was also changed in that jurisdiction.

[37] Some judges, however, interpreted the word "conclusion" as requiring the judge to give a summary of what appeared in the judgment itself. As can be seen from Re Miscamble's Application [1966] VicRp 81; [1966] V.R. 596, that practice was followed by McInerney, J., although very few, if any, other judges did likewise. In order to avoid any doubts, in the 1986 rules the word "conclusion" was amended to "result" in Rule 59.04.

[38] Some judges, however, including McInerney, J. were strict as to the operation of the rule. For example, his Honour would not allow the reasons to be taken away by the parties or their practitioners and insisted that they read the reasons while he was sitting in court, although hearing some other case. Occasionally practitioners were permitted to read them in the associate's room but never to take those reasons away with them.

[39] The history of the rule as it is set out above was confirmed by Ormiston, J.A. who was a member of the Supreme Court Rules Committee since 1978 and thus a member of it when it was reconsidered in 1984 and 1985.

[42] [1992] 1 N.Z.L.R. 486 at 488-489.

[43] [1980] A.C. 351.

[45] [1971] HCA 49; (1971) 125 C.L.R. 529 at 530-531.

[46] [1988] HCA 13; (1988) 165 C.L.R. 268 at 289.

[47] Brennan, J. said at 286 that "there is much force in the view expressed by Gaudron, J."

[48] [1999] VSCA 214.

[51] Unreported, Supreme Court of N.S.W. - Court of Appeal - 21 November 1996 per Priestley, Sheller and Powell, JJ.A.

[52] Unreported, Supreme Court of N.S.W., 14 October 1993 per Young, J.

[56] [1978] 1 N.Z.L.R. 291.

[58] (1977) 23 N.S.R. 357 at 357-358.

[59] (1992) 7 W.A.R. 88.

[62] Unreported, Supreme Court of N.S.W. - Court of Appeal, 9 April 2001, Powell and Heydon, JJ.A. See the note on this decision in (2001) 75 A.L.J. 476.

[63] At 296 per Woodhouse, J. for the Court of Appeal.

[64] At 114 per Willmer, L.J. and 116 per Danckwerts, L.J.

[65] [2000] N.S.W. C.A. 123 at [93]- [95] per Sheller, Stein and Giles, JJ.A. See also Kirby, J. "Ex Tempore Judgments - Reasons on the Run" (1995) 25 UWAL Rev.213 at 229-230.

[66] [1967] 1 A.C. 506.

[67] [1918] 2 K.B. 735.

[68] (1918) 119 LT 568.

[73] [1908] 2 K.B. 325 at 327 per Lord Loreburn, L.C.

[74] [1954] HCA 70; (1954) 93 C.L.R. 418 at 430-431 per Dixon, C.J., Fullagar, Kitto and Taylor, JJ.