The Reasons and Orders of 26 October 2011
97This Court has before it both the Court Reporting Services transcription of the reasons for judgment given and orders made on 26 October 2011, and the revised version of the reasons and orders that was issued on 3 November 2011. As Mr King submits that the differences between the reasons delivered extempore and the revised reasons are significant, it will be necessary for them both to be considered.
98In the extempore reasons, the judge found the following facts:
"Later on 16 June [the Respondents' solicitor] sent to Mr McKell by way of service, the orders of the Registrar made on 11 June and the notice of intention to apply for a foreclosure order dated 16 June 2010. On 18 June 2010, Mr McKell sent those documents by email to the plaintiff and to his then counsel who had represented him in the High Court of Australia 2 days before.
The proceedings in the High Court of Australia are unrelated to the issues in this litigation other than that they demonstrate that on 16 June 2010 the plaintiff was present in Canberra with his solicitor, Mr McKell, and his counsel, Mr King. I have no doubt that the plaintiff received and became aware of the order of the Registrar made on 17 June 2010 and the notice of intention to apply for a foreclosure order dated 16 June 2010 on 18 June following the email from Mr McKell. The email address of the plaintiff to which the documents were sent is the email address which at all times relevant to the issues in these proceedings has been the plaintiff's email address.
Not only were the documents served on 18 June by email but on 21 June, Mr McKell sent another email to the plaintiff and to his accountant attaching a further copy of the documents served by the defendants' solicitor on 17 June.
On 23 June, Mr McKell sent another email to the plaintiff relating to the foreclosure application. It is clear from the contents of that email that Mr McKell and the plaintiff were in consultation about the application by the defendants for a foreclosure order and the strategies which they should adopt in relation to it. It is also clear the Mr King of counsel was involved in some of those discussions.
On 30 June 2010, Mr McKell sent the copies of the Registrar's order made on 11 June and the notice of intention to apply for a foreclosure order to Mr Kramer who from that date commenced to act on behalf of the plaintiff. I should add that the evidence revealed that in 2010, Mr McKell acted [for] Mr Spencer in relation to 8 separate court proceedings."
99He concluded:
"I am satisfied that the defendants' notice of intention to apply for a foreclosure order actually came to the attention of the plaintiff. That first occurred on 18 June 2010.
For those reasons that is sufficient service in my view for the purposes of s 61(1)(d) [sic] of the Real Property Act."
100The judge went on to hold that:
"Insofar as it is necessary to consider whether substituted service pursuant to s 170 of the Conveyancing Act is an appropriate method by which service pursuant to s 61(1)(d) [sic] of the Real Property Act is effected, I am satisfied that it can be for the following reasons."
It is unnecessary to set out his Honour's reasons for reaching the conclusion at this stage.
Judgment Vitiated by Unjudicial Conduct or Apprehended Bias?
101Mr King submits that the entire judgment is vitiated by wrongful failure to grant an adjournment, by both actual and apprehended bias, by prejudgment, by reason that the judge "paid no or no sufficient regard to the pleadings and to the issues", and because findings were made disregarding the principle in Browne v Dunn (1893) 6 R 67.
102In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 the High Court held that when a judgment is appealed against on the ground of apprehended bias, and also on the basis of other discrete grounds of appeal, an appellate court should deal with the issue of bias first. Kirby and Crennan JJ at [117] (with whom Gummow ACJ agreed on this point at [3]) expressed the reason to taking this course as being:
"It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias."
103The attacks that Mr King makes on the judgment of the types that I have just mentioned go wider than apprehended bias, but they all aimed at contending that the decision is totally vitiated by unjudicial behaviour. It is consistent with the reasoning in Concrete Pty Ltd that they all be dealt with first, and only in the event that they fail should any other substantive and discrete questions be considered.
104The test for the existence of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
105In Johnson v Johnson at [13], their Honours also observed:
"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen (1994) 181 CLR 41 at 73, per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly (1989) 167 CLR 568 at 571 Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case' (See also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15; 32 ALR 47 at 53, per Murphy J). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."
106There is a conceptual difference between apprehended bias and actual bias. The difference emerges in the discussion by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [7] of what apprehended bias is not:
"The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror." (emphasis in original)
107The actual thought processes of the judge need only be enquired into in deciding whether a judge has been actuated by actual bias. Though there is this analytical difference, in the present case all the matters that the Appellant relies upon to establish actual bias are the same as those relied upon to establish apprehended bias. It is therefore convenient to discuss both allegations together.
108Any consideration of whether there is apprehended bias should be carried out bearing in mind the statement of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [8]:
"Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
See also Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [63].
109Nowhere in the Appellant's submissions is there any attempt to identify what it was that might have led Pembroke J to decide the case other than on its legal and factual merits. That is a sufficient reason why the challenges based on actual and apprehended bias fail. However, I will go on to consider, in their own terms, the arguments advanced for the Appellant.
Failure to Grant Adjournment
110The Appellant submits that the judge erred in failing to grant an adjournment "in view of the appellant's hospitalisation for 3 heart attacks and major surgery during the course of the hearings before his Honour so that the appellant could have an opportunity to be present at the hearing of his matter" (ground 8). As well, the Appellant submits that fixing the case at such short notice imposed a burden that was so unreasonable on the Appellant as to amount to an injustice and a miscarriage of justice.
111These contentions cannot be sustained. The case had been fixed in June 2011 for hearing before Black J in October 2011. The reason for it not proceeding before Black J is not attributable to either the Respondents, or the court. The evidence before Black J about the Appellant's medical condition was imprecise. No evidence of his medical condition was placed before Pembroke J, notwithstanding that the shortcomings of the medical evidence placed before Black J had been clearly exposed on 20 October 2011 (and in any event were apparent to Mr Kramer even before then). There is no legal requirement that a litigant have an opportunity to be physically present at the hearing of his litigation. Rather, the requirement is that he have a reasonable opportunity to present his case. The pre-trial preparation for the hearing before Black J had resulted in an exchange of affidavits that presented his case on the issues as then perceived. The issues raised by the Points of Claim included whether there had been actual receipt of the notice in question. The affidavits that the Appellant had filed dealt with some email correspondence, but said nothing about emails of 18 June 2010, 21 June 2010, 23 June 2010 or 30 June 2010, that I have mentioned at [61]-[66] above. From the time that those documents were produced to the Court, a matter of days before the hearing before Black J, it should have been apparent to the Appellant's legal advisers that it was likely that the Respondents would rely on them as proof of actual service. Once those documents were tendered before Black J, and their significance discussed, there was no room for the Appellant's legal advisers to doubt that the Respondents would rely on them.
112On 21 October the possibility of a very early hearing was discussed. The judge said, immediately before adjourning the matter in the midst of that day's proceedings, that once the Appellant's email address had become known "then you will be in a position to make a decision as to whether you take an earlier date without the need to wait for the recovery of Mr Spencer's health." At that hearing, Mr Kramer made no protest about whether two hours would be a sufficient hearing time, and made no submission about a hearing date the following Wednesday being inappropriate for any reason, after the judge had specifically enquired of Mr Waugh whether he would be available that day.
113No application for adjournment was made to Pembroke J on 26 October, even though at the start of that day's proceedings his Honour enquired if Mr Glissan had an application to make. As already mentioned, no evidence was before Pembroke J of the Appellant's medical condition, though it appears to have been common ground at the hearing on Friday, 21 October 2011 that the Appellant had been hospitalised. In light of the discussion concerning the issues in the case on Friday, 21 October 2011, there was no need for the Appellant to be present for cross-examination.
114Mr King submits that the reasons that led Black J to adjourn the hearing before him on 20 October 2011 were every bit as powerful on Wednesday, 26 October 2011, and should have led Pembroke J to adjourn the hearing.
115In my view, there were two relevant differences between the situation before Black J and the situation before Pembroke J. The first arises from it being at the hearing before Black J that the significance of the newly revealed documents which raised the possibility that the Notice of Intention to seek foreclosure had actually been sent to the Appellant became quite clear, if it had not previously been clear. If the evidence remained in the state it was in on 20 October 2011, there would be grounds for inferring that the terms of the Notice had come to the attention of the Appellant on, or shortly after, 17 June 2010.
116The basis for the inference is as follows. The email from Mr McKell of 18 June 2010 ([61] above) was addressed to Mr Peter King, and to the email address that Mr McKell said in cross-examination was the Appellant's email address on 18 June 2010, and the only email address of the Appellant of which Mr McKell was aware. The body of the email showed that the Appellant was an intended addressee. The correspondence that was attached to it was correspondence that was of particular relevance to the affairs of the Appellant. Further, the email of Mr McKell on 23 June 2010 ([65] above) was sent to the email address that Mr McKell had identified as being that of the Appellant, the body of the email showed that it was intended for the Appellant, and both the heading and the text of the email showed that it related to foreclosure proceedings. The text was written on a basis that assumed that the recipient would understand what was meant by "the foreclosure matter" and "the notice". These matters provide grounds for a strong inference, in the absence of any evidence to the contrary, that the emails of 18 June 2010 and 23 June 2010 were received by the Appellant. Such an inference arises not only as a matter of ordinary experience that emails usually reach their addressee, but also from s 161 Evidence Act 1995.
117The fact that there was now that extra evidence, and that it had the significance that was discussed in the course of the hearing before Black J, and in his reasons for judgment, cried out for the Appellant to make an affidavit proving, if such was the fact, that he had not received any of those emails. Such an affidavit could be quite brief. It is the type of affidavit that a competent solicitor could take instructions for, and draft or dictate, inside several hours. Alternatively, those matters cried out for cogent evidence to be provided that explained why the medical condition of the Appellant was such that he could not undertake the task of giving instructions for, and preparing such an affidavit. By the time of the hearing on 26 October 2011, a reasonable time in which to take those steps had elapsed.
118The second arises from the fact that an application for adjournment was made to Black J, but no such application was made to Pembroke J. Sometimes a judge might adjourn a hearing of his own motion if the judge needs to give his or her attention to some more urgent matter that has arisen. My consciousness of the limitations of my own imagination make me refrain from saying that it could never happen that circumstances would arise when a judge should adjourn a hearing of his own motion when all parties to litigation are represented by counsel before him, no one applies for an adjournment, and no emergency has arisen concerning a matter other than the one listed before the judge. However, such a situation must be extremely rare, if it ever arises.
119Further, whether an adjournment is granted is a discretionary matter concerning practice and procedure, capable of being challenged only on the grounds in House v R (1936) 55 CLR 499. No attempt was made in the present appeal to identify which of the possible grounds upon which House v R might be invoked should be applied here. I am unpersuaded that the judge was in error in not adjourning the case, or that his failure to adjourn it is indicative of either apprehended bias or actual bias.
Failure to Advert to Pleadings
120In the course of pre-trial preparation, Points of Claim and Points of Defence had been exchanged between the parties. Without going to the detail of those documents, it can be accepted that the primary judge did not decide all the issues that the documents raised. Mr King submits this is particularly important in light of some findings of White J and Tobias JA.
121At an early stage in the proceedings in which the judgment appealed from was ultimately given, White J considered whether the caveat that the Appellant had placed on the land should be extended. On 1 March 2011 he concluded, on the balance of convenience, that it should not be extended: Spencer v Bamber [2011] NSWSC 141. On the way to that conclusion his Honour accepted, at [27], that there was a serious question to be tried about whether the preconditions for the making of the foreclosure order were satisfied.
122Proceedings challenging that decision of White J were begun in this Court. In exercise of what I take to be this Court's jurisdiction to grant an interlocutory injunction pending the determination of appeal proceedings, Tobias JA restrained the Respondents for seven days from completing a contract that they had entered to sell part of Saarahnlee: Spencer v Bamber (Tobias JA, 7 March 2011, unreported and no medium neutral citation). Tobias JA at [9] said that he agreed with White J's view that there were serious questions to be tried.
123Those observations of White J and Tobias JA were made concerning the issues that were put before them. They were made at a time when it appeared that the only way in which a notice of intention to seek foreclosure could have been served on the appellant was if service pursuant to the Registrar's order was valid. They are not determinative of what the issues were by the time the matter came before Pembroke J on 26 October 2011. In light of the discussion that occurred on 21 October 2011, the primary judge was entitled to proceed on the basis that the issues were as Mr Kramer described them as being. Mr Kramer had accepted that the issue was whether there had been service, even though Mr Waugh had mentioned, contrary to his own client's interest, that the Points of Claim went wider than that.
124A related basis upon which "preconception" is alleged is articulated in [21] of the Appellant's written submissions:
" ... his Honour did not appreciate the nature of the issues: see the Amended POC and the issues in paragraphs 4-6 above. The judge in short erred in not reading and/or not referring to and/or in striking out substantial parts of the Appellants affidavit evidence and/or in applying a preconceived view of the case."
125The "substantial parts" of the affidavit evidence were never identified in submissions. Nor was any reason given why rejecting them was indicative of bias. This "preconceived view" amounted to nothing more than the judge accepting what Mr Kramer told him were the issues, and conducting the case accordingly. The judge was entitled to act on what Mr Kramer told him.
Erroneous Assumption of Hardship to Respondents?
126Another basis upon which the judgment is attacked is that on 21 October 2011 the primary judge "appears to have proceeded on the assumption that the erroneous assertions in Mrs Bamber's affidavit about hardship were correct." From the context in which that statement is made in the written submissions, it is apparent that the affidavit of Mrs Bamber being referred to is one made on 17 October 2011. That affidavit is not contained in the appeal papers. However, Black J in his judgment of 20 October 2011 at [6], had summarised that affidavit as showing:
"... that this matter has a long history and that Mr and Mrs Bamber are suffering extraordinary hardship (and I do not use that phrase lightly) arising from their loan made to Mr Spencer in 2003, the fact that loan has not been repaid, the subsequent events and the subsequent proceedings."
127The basis upon which Mr King submits that Mrs Bamber could not have been suffering hardship by reason of the failure to pay the debt was that it was a consequence of the foreclosure that the debt had ceased to be owing.
128I accept that the consequence of the foreclosure is that when it became effective the debt ceased to be repayable. However, that does not disprove any of the matters that Black J had drawn from the affidavit. For the Respondents to borrow money and on-lend it to the Appellant, and for the Appellant to fail to repay the loan on the due date and for more than three years thereafter, is quite capable of causing hardship to the Respondents, even if that loan later ceases to be repayable because of a foreclosure.
129But there is a more fundamental difficulty with this basis for attacking the judgment. No passage in the transcript that was taken on 21 October 2011 has been identified as demonstrating that his Honour proceeded on the assumption that he is alleged to have made. It was Black J who placed the matter in the Expedition List, and there is no appeal from his decision to do so. Once it was in the Expedition List, Pembroke J dealt with it on the basis that the decision had already been made that the matter should be dealt with as expeditiously as was practicable in the circumstances. There is no error in that, let alone a basis for a finding of actual or apprehended bias.
Prejudgment?
130Mr King submits that the judge's remark about "not a lot of merit", that I have set out at [91] above, is indicative of prejudgment of the case. That remark was made practically at the end of the proceedings on 21 October, and at a stage when it had been established that the only issue related to service. Questions of whether a document has been adequately served can often fairly be described as legal technical questions, rather than ones concerning the merits of the case. In Chapman v Larrescy [1978] 1 NSWLR 592 at 597, Helsham CJ in Eq described an argument, that he upheld, that the notice to complete that was in question in that case had not been served as an "unmeritorious but interesting argument". That is the sense in which Pembroke J was using "merit" in the present case, because he went on to say "there are legal issues that need to be determined and I will do so." Taken as a whole, I do not accept that this remark shows that his Honour had prejudged those legal issues.
Finding of Pattern to Delay
131In the extempore reasons for judgment the judge recited various events that had happened in the period of over three years between the Appellant's failure to repay the loan, and the Registrar-General issuing the foreclosure order. The primary judge then expressed the view that the proceedings before him were misconceived. He continued:
"In so far as the plaintiff complains about the order made by Registrar Walton, the proper course for him to take was to seek to have the order set aside or varied pursuant to Uniform Civil Procedure Rule 36.16(2)(d). Alternatively he could have sought a review of the Registrar's order under UCPR 49.19.
Insofar as the plaintiff is dissatisfied with the order for foreclosure made on 16 July, he could and should have sought orders pursuant to ss 121 and 222 of the Real Property Act. Section 121 provides that a person who is dissatisfied with a decision of the Registrar General to, among other things, order foreclosure of land, may apply to the Registrar General for a copy of the Registrar General's reasons for the decision. Section 122 provides that a person who is dissatisfied with a decision referred to in section 121(1) may apply to the Supreme Court for a review of the decision.
The plaintiff has not followed any of those courses but has instead sort [sic] the orders set out in the amended summons.
I mentioned these matters partly because they indicate that the proceedings are structurally misconceived but also because they indicate a persistent pattern of delay and obfuscation which the evidence reveals the plaintiff was determined to set out upon. In particular, I am satisfied that in late 2006, during a discussion with the first defendant about his failure to keep his commitment to the defendants, the plaintiff said to the first defendant during a conversation about the possibility of legal action, words to this effect, 'You can get fucked and I will fuck you around for 2 to 2 and a half years'."
132Mr King submits that the judge's finding about the conversation in late 2006 is indicative of prejudgment and bias on the part of the judge. Mr Bamber's evidence concerning that conversation is in paragraph 17 of his affidavit of 20 February 2011. That paragraph identifies the occasion for the conversation as being "at the end of 2006 when my wife and I were struggling to make the loan payments we had to make to St George, my wife and I met Spencer at the Royal Mail Hotel at Bungendore." Paragraph 18 of that affidavit was rejected, and does not appear in the appeal books. The Appellant's affidavit in reply deals with paragraphs 17 and 18 together. He said:
"Although we did not meet at Bungendore I did have a discussion there with the Defendants at the end of 2006. I deny being abusive towards the First Defendant and I would not have used the language he attributes to me in the presence of my mother, wife and my children."
133There is nothing in paragraph 17 of Mr Bamber's affidavit to suggest that the mother, wife or children of the Appellant were present at the meeting at the Bungendore hotel.
134However, even if the Appellant's affidavit is taken as a denial that he used the language that the judge quoted, compliance with the principle in Browne v Dunn does not always require an allegation to be put to a witness in the witness box. In particular, exchange of affidavits before trial can adequately give each side the opportunity to respond to allegations made concerning them: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [97] and cases there cited. Further, there is no rule of law requiring that evidence not challenged in cross-examination be accepted -a judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he or she accepted, or if it was inherently incredible; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507 per Samuels JA (Hutley and Priestley JJA agreeing); Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588; Sullman v Sullman [2002] NSWSC 169; [2002] DFC 95-248 at [304]-[306]; Caldwell v JA Neilson Investments Pty Ltd [2007] NSWCA 3; (2007) 14 ANZ Insurance Cases 61-724 at [96]; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 at [105].
135In the present case the objective history of the matter, including that the Appellant had taken proceedings in the Federal Court against the Respondents that were dismissed with an order that the appellant pay indemnity costs, entitled the judge to draw an inference that the Appellant had been seeking to delay. The words the judge quoted were indicative of such delay. I do not regard the judge making this finding as indicative of any prejudgment on his part. It is a judgment his Honour made, but not prejudgment of any of the issues that were before him for decision. it provides no basis for a conclusion that the judge was actuated by bias, or that there was apparent bias. In any event, whether the words the judge quoted were used is peripheral to the issues the judge was deciding.
Prompt Delivery of Judgment
136The Appellant's written submissions at [25] submits that the fact that judgment was delivered immediately upon the conclusion of the hearing "of itself revealed a certain attitude not just to the Appellant but to the issues in the case." There is nothing unusual in judgment being delivered extempore at the conclusion of a case that involves confined issues, particularly when the case is in the Expedition List. No conclusion of the type which the Appellant submits is available should be drawn from it.
Alterations to the Extempore Reasons
137The practice of the court when an extempore judgment is delivered is that the judge's words are transcribed or recorded as they are spoken, the transcription or recording is reduced to writing and provided to the judge as a draft judgment, and the judge then revises it for final publication. In Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 Beazley JA helpfully collected the principles about the limits within which a judge can correct the Court Reporting Service's draft of orally delivered reasons for judgment. Powell JA and Sperling J agreed with the statement of principle (though Sperling J differed from her Honour concerning its application to the facts of the instant case). Beazley JA said, at [41]-[47]:
"The appellant contends that his Honour's alteration to the written form of judgment was impermissible. It is a well accepted rule of judicial practice that reasons for decisions may be revised after the delivery of oral reasons. The basis for the practice and its parameters were discussed by Gleeson CJ extracurially in "Revising Transcripts of Summings-Up" (1997) 9 Judicial Officers' Bulletin 25 at 25:
'A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.'
Kirby J has also written on the topic. In his paper "Ex Tempore Judgments - Reasons on the Run" (1995) 25 University of Western Australia Law Review 213 at 229-230, his Honour stated:
'... First, it is always possible, and entirely proper, for a judicial officer to revise ex tempore reasons, even extensively, without altering their substance or the orders which they sustain. ...
Depending upon the rules of court which typically govern such matters, judicial officers in superior courts can make even more substantial corrections to ex tempore reasons, extending even to the correction of their orders if it is demonstrated that they have made a mistake or a slip, or if the orders do not properly reflect the reasons and have not been taken out. Except for the case of the summing up or direction to a jury, a wide latitude is given to judicial officers to refine their ex tempore reasons. Litigants will not be heard to complain about the modifications made between delivery and the release of the certified text. It is obviously essential for each judicial officer to be familiar with the rules of court governing the delivery of reasons. Such rules may contain particular requirements which limit the power of the judicial officer to alter the transcript or to deliver reasons on a date different from that on which the orders were made.' (footnotes omitted)
The rule of practice is usually referred to in the context of ex tempore judgments. However, I do not believe it to be so confined.
The matter has also been considered judicially. In Lam v Beesley (1992) 7 WAR 88 at 93-94, Owen J said:
'So far as concerns reasons given orally and later transcribed, the judicial officer has the right to edit the document and correct errors of grammar and style. The difficulty lies in determining the extent to which he or she can go beyond this and make changes of substance rather than of form.
In Bromley v Bromley (No 2) [1965] P 111, the Court of Appeal commented on this problem ... Willmer LJ said (at 114):
"... If there were ever a case in which it could be shown that, after delivering judgment and after the drawing up of the order, the judge had in substance rewritten his judgment, so as to put a completely different complexion on the issues in dispute, then I apprehend that this court would not be slow to censure any such behaviour on the part of the judge ..."
... Danckwerts LJ [said] at 116 ... :
"The general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well, but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant. After all, an ex tempore judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, so it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them." '
Owen J concluded (at 95) that if changes to a judgment were matters 'such as could lead to an appearance of altered substance' as opposed to matters of form, that was sufficient, in the context of a criminal trial, to render a conviction unsafe and unsatisfactory.
Lam v Beesley involved the reasons for judgment given by a magistrate in a summary criminal trial. In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact and not the higher test stated by Owen J in the case of a criminal trial.
In Bar-Mordecai v Rotman [2000] NSWCA 123 at [193], the Court considered the matter in relation to an ex tempore judgment, stating:
'It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.''
138This Court has referred to Todorovic in Schenck Australia Pty Ltd v Australian Coal Technology Pty Ltd [2006] NSWCA 211 at [29] and in Bell v Veigel [2008] NSWCA 36 at [221] per Mason P (Giles and Tobias JJA agreeing).
139In Todorovic at [53], Beazley JA also said:
"Where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke [[1989] 19 NSWLR 158] (at 170)."
140In Todorovic, a judgment as originally delivered orally had recorded that a Mr Fefelov had given evidence at the trial that corroborated evidence of the plaintiff about the manner in which the plaintiff had come to be injured. The written version of the reasons for judgment had added to it, at that point, a finding that the judge did not accept Mr Fefelov as an accurate witness. Beazley JA held that that was an alteration of substance, and thus the judgment should be considered as if that finding was not contained in it.
141Palmer v Clarke [1989] 19 NSWLR 158 at 170, provides an example of the principles stated by Beazley JA at [53] in Todorovic, though not itself a statement of the principle. However, I agree with her Honour's statement at [53] of the principle. A judge has a fundamental duty to provide reasons for the orders that he or she makes. It is permissible in a superior court for a judge to make orders, on the basis that reasons will be provided later: King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 at [156]-[159] and cases there cited. However, when a judge purports to give reasons at the same time as orders are pronounced, principles of open justice require that the judge's reasons should be taken to be in substance those that he or she is purporting to give at that time. Once the orders are pronounced, a right of appeal, or to seek leave to appeal, arises concerning them, and, subject to one qualification, that right can be given effect to only if the reasons are in substance those that the judge has given at the time of making the orders concerning which the right of appeal or to seek leave to appeal arises.
142The qualification I have just referred to is that in deciding what is an "impermissible alteration", one must not only consider whether an alteration is one of substance, but also Gleeson CJ's recognition that alteration is permissible "where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say". The circumstances in which a mistake or slip could justify corrections in draft reasons were elaborated on in Bell v Veigel at [220], where Mason P said:
"It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case."
143That remark reflects the basis upon which Sperling J had differed from the majority in the application of principles in Todorovic v Moussa. Sperling J recognised the possibility that the judge in that case might have already decided when he delivered the judgment that he rejected the credibility of the witness in question, and failure to mention it in his extempore reasons might have been a slip. Permitting a slip to be corrected is consistent with the function of reasons for judgment being to let the parties know why the judge is making the orders in question.
144When an appeal court sees the text of published reasons for judgment that differ from the court reporter's transcription of the reasons as delivered orally, it is sometimes possible to recognise some of the alterations as being stylistic or editorial. In the present case, the published judgment contained headings that identify the topic that the paragraphs following a heading deal with. There were no such headings in the extempore judgment. Addition of headings helps the comprehensibility of the judgment, but does not alter its substance. Similarly, [27] of the judgment appeared (apart from alteration of a few words) in the original draft judgment as a very long single paragraph, but the revised reasons break that text into ten lettered subparagraphs. Other additions make explicit what an attentive reader would probably realise was already implicit in the words used in the extempore judgment. For example, in the paragraph that is now [22] of the revised reasons, the judge had described in the oral reasons the plaintiff's contention as being "that in some way he has not received adequate notice and has been denied natural justice". The revised reasons insert the words "of the intention of the first and second defendants to apply for a foreclosure order" after the expression "adequate notice". All changes of this type are clearly permissible.
145However, not all of the alterations to the judgment are of this clearly permissible stylistic or editorial type. While I will discuss the alterations in more detail later in these reasons, I can say now that some of them are such as might possibly be the product of the judge making a slip in stating what was in his mind at the time, but it is more difficult to reach that conclusion concerning other alterations. In those circumstances, I will first approach the questions about whether the orders that the judge made on 26 October 2011 are legally justifiable in the way approved by [53] of Todorovic by considering only the reasons that are contained in the draft judgment.
146The Appellant submits that the alterations that the judge made to the reasons for judgment as delivered show that there was a failure to give adequate consideration to the issues that had to be addressed (transcript 17). Mr Glissan, who presented the argument on this point for the Appellant, relied on two decisions to support his argument. The first was Todorovic. It is clear from [53] of Beazley JA's judgment, that the trial judge's statement in Todorovic, that he did not accept Mr Fefelov as an accurate witness, had the consequence that the trial judge had not adequately considered the evidence. However, the omission of numerous paragraphs of her Honour's judgment from the report in the NSWLR has the consequence that the case as reported there does not make clear how that consequence arose. To find that out, one must look at the full text of her Honour's reasons.
147The appellant in Todorovic had sustained an injury on a building site of the respondents. In the District Court, a judgment was entered for the respondents, because the judge did not accept the evidence of the appellant and his witness, Mr Fefelov, about the circumstances in which the accident had occurred. In the portions of the judgment that were edited out of the NSWLR report between [21] and [40], her Honour discussed in detail topics upon which different accounts had been given by the appellant and Mr Fefelov on the one part, and the respondents, on the other. These related to whether Mr Fefelov had been at the site before the accident occurred or whether he had arrived at the site with the appellant, to who had telephoned for the ambulance that took the plaintiff away from the site (and in particular to whether there was a telephone installed at the building site) and to the condition of the appellant at the time he entered the ambulance. There was objective contemporaneous documentary evidence, in the form of a council building inspection report, and the records of the ambulance service relating to collecting the appellant, that bore upon the latter two questions. The trial judge had neither recounted nor analysed the difference between the accounts of the respective sides in the litigation. Nor had he considered how the probability of the account of the appellant and Mr Fefelov being true was affected by the contemporaneous documentary records. Her Honour held, at [36], that the trial judge's failure to refer to those matters was a failure to consider them. She categorised it in that way "because of the complete absence of any reference to them in the judgment". She concluded, at [40], that Mr Fefelov's evidence was of fundamental importance to the appellant's case, and although the trial judge had made cursory mention of it, he had not properly considered it. That "cursory mention" was, it seems, the trial judge's statement that he did not accept Mr Fefelov. It was only after reaching those conclusions that her Honour went on, at [41] ff, to consider the significance of the reasons having been changed after the judgment was delivered orally.
148At [52], her Honour explained why she regarded the addition to the draft reasons of the statement that the judge did not accept Mr Fefelov as an addition of substance:
"In the first place, it was a critical finding. The rejection of Mr Fefelov as a witness of truth was an essential underpinning of his Honour's finding against the appellant. Secondly, had that finding not been made, the appellant could have rightfully complained that his Honour had failed to adequately consider relevant evidence in the case, namely, that of his corroborative witness."
149It was in that context that her Honour proceeded to make the remarks in [53], which I will here quote in full:
"Where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke (at 170). Accordingly, the judgment should be considered as if that finding was not contained in it. The consequence is that his Honour's reference to Mr Fefelov's evidence went no further than saying he gave evidence which corroborated the appellant's evidence. I have already indicated what flows from that. His Honour failed to give it adequate consideration in its essential parts and/or failed to give adequate reasons for decision."
150When it is understood in that context, her Honour's conclusion that the trial judge in Todorovic had failed to give Mr Fefelov's evidence adequate consideration is not an automatic consequence of striking out the sentence that the judge later added to his judgment. Rather, it arises from what was left in the judgment once that striking out had occurred. It was because the judgment, with that finding of credit deleted, failed to consider and weigh important matters of evidence, that her Honour reached her conclusion.
151In the present case, if one ignores every addition made to the reasons for judgment after they were delivered orally, what remains is a set of reasons that considered the salient points of evidence that were relevant to the issues that the judge was deciding. Pembroke J's extempore judgment is not one that inadequately considers the evidence.
152The second case upon which Mr Glissan relied in support of his submission was Schenck v Australian Coal Technology. The order from which that appeal was brought was an order that had been made in the Commercial List requiring discovery of documents. The hearing at which that order was made was very short. Early in the hearing, counsel for the party resisting discovery handed the judge an affidavit of 37 pages, which gave reasons why that party contended that the application for discovery was oppressive. The judge gave leave for the affidavit to be filed in court and looked at it for a very short period of time. After brief argument, the judge indicated he would make the requested order for discovery, and stood the matter down to later in the day for the bringing in of short minutes. The entire proceedings in that hearing were recorded in two and a half pages of transcript. When short minutes of order were brought in that afternoon, the judge delivered an extempore judgment of just over six pages. The judgment as delivered orally made no mention of the affidavit that had been filed in court that morning. However, the revised reasons mentioned it, though only by a parenthetical allusion "(cf the affidavit of Mr Ammer of 4 October 2005)".
153Though Beazley JA (Santow and Tobias JJA agreeing) made mention at [29] of the extent to which extempore reasons could be revised, and referred to Todorovic, her Honour's decision did not turn upon the addition that had been made to the reasons as delivered. Rather, her Honour dealt with the case on the basis that the addition that had apparently been made to the draft reasons for judgment, remained. The nub of her Honour's reasons was, at [31] and [32]:
"In my opinion that reference by his Honour in the transcript does not give any indication that his Honour had fully appreciated the extent of the oppression that was claimed. Rather it is indicative of his Honour having had a quick look of the affidavit, having picked up one paragraph where reference was made to oppression in terms of time and money, but without having, in any way, properly assessed the burden on the case that was being advanced by the claimant before his Honour.
In my opinion his Honour failed to give proper consideration to the claimant's application that the discovery in the disputed categories was oppressive. It would have been impossible for him to do so in the short period of time in which he dealt with the matter. The affidavit of Mr Ammer of 4 October 2005 could not have been assessed in that period of time. It was clear from the transcript of the hearing before his Honour in the afternoon of 7 October 2005, that he had not had any further regard to that affidavit."
154The reasoning of the Court in Schenck thus provides no support to Mr Glissan's contention that in the present case the additions that were made to the reasons as delivered show that the judge failed to properly consider the evidence.
155Mr King also submits that the additions that were made to the extempore reasons are indicative of bias. Considering that submission will involve some detailed consideration of the additions that were made that are not of an editorial or stylistic kind.
Additions to Extempore Reasons - Validity of Registrar's Order and Order Nunc Pro Tunc
156The Points of Claim in the present case had raised an issue about whether, on the proper construction of s 61 Real Property Act, service of the Notice of Intention to Seek Foreclosure could be effected by obtaining an order for substituted service under s 170(1)(d) Conveyancing Act. No separate point was raised about whether, if s 61 permitted service of such a notice to be effected by service on someone other than the mortgagor, but in accordance with an order made pursuant to s 170(1)(d) Conveyancing Act, the Registrar had power to make such an order. Nor was any mention made at the hearing, or in the extempore reasons for judgment delivered on 26 October 2011, of there being any question about the Registrar's power to make such an order.
157However, the revised reasons for judgment included at the end about four pages of text on topics that bore no resemblance to anything in the extempore reasons for judgment. These extra portions opened at [29] by saying:
"By way of post-script I should note that the parties and the Registrar in Equity assumed that she had the power to make an order pursuant to Section 170(1)(d) of the Conveyancing Act. I am not convinced this is the case but if it is so, it is not fatal and may be cured."
158The primary judge went on, at [30]-[37], to consider whether the Registrar had such power. He concluded that the Registrar did not have power, but that the order was nonetheless valid by reason of s 121(4) Supreme Court Act 1970. Having reached that conclusion, the judge went on, at [38]-[39] of the revised reasons, to deal with another topic that had not been mentioned in the course of the pre-trial documentation, the hearing or the extempore reasons. The judge decided that it was appropriate for himself to make an order nunc pro tunc pursuant to s 170(1)(d) Conveyancing Act, to make clear that the service of the documents on Mr McKell on 17 June 2010 was pursuant to a valid order made under s 170(1)(d). The orders appearing at [41] of the revised reasons, contained such an order nunc pro tunc, namely:
"I direct, pursuant to Section 170(1)(d) of the Conveyancing Act, that service of notice by the first and second defendants of their intention to apply for a foreclosure order should be taken to have been validly effected by delivery to the plaintiff's then solicitor, Mr McKell on or about 17 June 2010."
159No such order had been pronounced in the course of the extempore reasons for judgment delivered in open court on 26 October 2011. However, through a process that is at present unexplained, the court's records record that the last occasion when orders were made in the present proceedings was on 26 October 2011, and that the text of the orders made on that day was identical with the orders appearing at the end of the revised reasons for judgment.
160The primary judge's discussion of whether the Registrar had power to make an order under s 170(1)(d), and whether the validity of the Registrar's order was saved by s 121(4) Supreme Court Act, and whether the judge himself should make an order nunc pro tunc validating the service, are clearly matters of substance that should not have been added to the reasons for judgment as delivered orally. However, the fact that the judge made those particular additions does not show that he failed to consider the issues that were argued before him adequately. Nor is it indicative of either actual or apprehended bias. It made no difference to the outcome of the case. The entire topic of the validity of the Registrar's order was not of decisive importance, when the judge had found that there was actual service of the notice. Further, when the additions to the judgment questioned an assumption that had been made in the hearing, about the Registrar having power to make an order under s 170, it was embarking on territory that, if anything, tended to be of assistance to the Appellant. When the additions went on to conclude that the order was valid by reason of s 121(4) Supreme Court Act they were doing nothing more than providing reasons for an assumption on which the case had originally been decided being correct. The making of the order nunc pro tunc did not alter that situation.
161However, the order nunc pro tunc was made without having been asked for. It was made without the Appellant having had any notice that the judge was proposing to make the order, and thus no opportunity to present any evidence or submissions concerning the appropriateness of making the order. For the order to be made in those circumstances, is a breach of the requirements of procedural fairness. That order must be set aside. The judge's view that there "could be no practical injustice" in making the order is an insufficient reason for overlooking the requirements of procedural fairness.
162In the present case it is possible to identify clearly what it is that has been affected by this particular denial of procedural fairness. It is the addition of the order, after the other orders in the case had been pronounced. That a denial of procedural fairness occurred in the judge's chambers, after the other orders had been pronounced, provides no reason for overturning the orders that were pronounced orally in court on 26 October.
Additions to Extempore Reasons - Service on 31 May 2010
163The judgment as delivered orally had recorded that the solicitors for the Respondents had sent a letter to Mr McKell on 31 May 2010 enclosing by way of service a Notice of Intention to Apply for Foreclosure order, and that that was based upon the fact that Mr McKell was the holder of a Power of Attorney from the Appellant. The revised reasons for judgment repeated the substance of those remarks, but then inserted, as [14]:
"There is nothing about the form or construction of the power of attorney that appears to have prevented it from operating in accordance with its intended purpose. By itself, the letter dated 31 May 2010 was probably sufficient service on the plaintiff of the notice of intention to apply for a foreclosure order. I am satisfied that it is likely that, even by that date, the intention of the first and second defendants to apply for a foreclosure order had come to the plaintiff's attention."
164The reasons for judgment as delivered orally had summarised Mr McKell's letter of 3 June 2010 ([55] above). The revised reasons preceded the summary of that letter by the opening words of [15]:
"Notwithstanding that he held a general power of attorney from the plaintiff, and had received the letter dated 31 May"
165The reasons delivered orally set out the judge's conclusion, which I have set out in the second paragraph quoted at [98] above, that on 18 June the Appellant became aware of the Registrar's orders of 11 June 2010 and the Notice dated 16 June 2010. The revised reasons added, at the end of [18]:
"In addition of course, Mr McKell continued to be the plaintiff's attorney. As I mentioned in paragraphs [13] and [14], the plaintiff had probably become aware of the intention of the first and second defendants to apply for a foreclosure order on or shortly after 31 May 2010."
166I have set out at [99] above the conclusion the judge reached about the Notice having actually come to the attention of the Appellant. In the revised reasons of 3 November, the sentence that had read "That first occurred on 18 June 2010" was amended to read, "That first occurred on 31 May 2010. It certainly occurred on 18 June 2010 and again on several subsequent occasions."
167Counsel for the Respondents had not put any argument to the primary judge submitting that the notice sent under cover of the letter of 31 May 2010 was adequately served because of Mr McKell holding the Power of Attorney. The form of the Power of Attorney ([43] above) is such that there must be very real doubt about whether it conferred any powers at all. The addition of these passages holding that there had been service on 31 May 2010 was an unjustified addition to the reasons for judgment.
168Mr King also submits that the finding that by 31 May 2010 it had come to the Appellant's attention that the Respondents intended to apply for a foreclosure order involved a breach of the principle in Browne v Dunn, and an overlooking of unchallenged evidence from the Appellant that Mr McKell had not been in contact with him while he was overseas. The evidence to which Mr King refers is the evidence I have mentioned at [45] above. I am not satisfied that that evidence deposes clearly to a lack of contact between the Appellant and Mr McKell during the entire time of the Appellant's absence overseas. The additions to the judgment relating to the intention of the Respondents to apply for a foreclosure order having come to the Appellant's attention on or shortly after 31 May 2010, do not say that he has actually received a copy of the document, rather than a second-hand account of the contents of the Notice. Even so, it would not have been justifiable for the judge to draw a conclusion that there was a passing on of information about that Notice without that having been put to Mr McKell in cross-examination.
169For both these reasons, the additions to the extempore reasons that related to there being an effective service of the Notice on 31 May 2010 should be treated as notionally removed from the judgment. When that happens, what remains is still an adequate considering of the evidence and of the issues that were debated before the judge. The fact that these alterations were made to the reasons after they were delivered does not justify a finding of actual or ostensible bias, or that there was in any other way an unjudicial process in making the orders that were pronounced in open court.
Additions to Extempore Reasons - Paras [25], [26] and [28]
170The revised reasons contained, at [25] and [26], text that had not appeared in the reasons as delivered orally:
"It should not be overlooked that the service with which Section 61 is concerned is not service of a writ or other originating process. The requirements for effective service of such a document have a long history and a different legal justification: Ainsworth v Redd (1990) 19 NSWLR 78 at 84 (Kirby A-CJ). A notice by a mortgagee of its intention to apply to the Registrar-General for a foreclosure order is not an originating process. While it has particular implications for the person whose property is to be foreclosed, it is of a quite different character to a document that founds the jurisdiction of the court. It is a step in the administrative process by which the Registrar-General may or may not exercise the powers given to him pursuant to Section 62 of the Real Property Act. Those powers are only exercisable when, among other things, there has been six months' default and the land has been offered for sale at a public auction. Additionally, the exercise of those powers is reviewable by the court pursuant to Section 122. There is every reason in principle why service of such a notice should be considered pragmatically.
Where, in relation to such a document, the method of service is not prescribed, then in my view any reasonable method should suffice if its effect is to fairly and directly bring the existence, nature and content of the document to the attention of the party required to be served. I see no basis for an implicit requirement for personal service - as if the notice were equivalent to a writ or originating process. A reasonable method of service includes, in my view, delivery to the party's attorney as well as service by email, including an email to the party from his own solicitor forwarding documents sent to him. The question in such a situation, as distinct from that which applies in relation to service of an originating process, is one of substance not form."
171The remarks in those paragraphs are, with one possible exception, an elaboration of the reasons why service under s 61 can occur through any means that results in the notice in question coming to the attention of the mortgagor. In the reasons given orally, the primary judge had clearly come to the view that any means that communicated a notice to a mortgagee was sufficient. The matters in [25] and [26] are articulations of features of the context in which such a notice comes to be served. They are the sorts of matters that could readily spring to mind in the course of concluding that there had been service of the Notice on 18 June 2010.
172The possible exception I mentioned earlier is the statement in [26] that a "reasonable method of service includes ... delivery to the party's attorney". If those words were intended to convey that delivery to an attorney would be sufficient service even if the attorney never passed the communication on to his principal, they would be going beyond the ambit of the argument that had occurred before the primary judge, and be an impermissible addition to the reasons. However, I doubt that that is the correct way of reading those words. The overall theme of the paragraph is that any process whereby the notice comes to be communicated to the mortgagee can be sufficient service. I would not conclude that [25] and [26] are impermissible additions, rather than statements of matters that were in the judge's mind at the time of delivering the extempore reasons.
173Most of [28] of the revised reasons did not appear in the reasons as delivered. The additions supported a conclusion that it was possible for an order under s 170 Conveyancing Act to be made concerning a notice required by s 61(2)(d) Real Property Act. The added portion was:
"No sound reason of practice and no sensible policy argument were put forward as a basis for such a limited reading of Section 170 of the Conveyancing Act. On its face, Section 170 applies to the notice requirement in Section 61(2)(d) of the Real Property Act. To limit its application, and to read Section 61, as if the notice requirement of the latter provision were not entitled to the beneficial effect of Section 170, would produce a result that is inconvenient. It is also, I think, unlikely. It may well be regarded as 'irrational, extraordinary or obscure'. In those circumstances, a more sensible construction should be preferred: Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320-321 (Mason and Wilson JJ). See also Turner v George Weston Foods Ltd [2007] NSWCA 67 at [58]-[60] per Campbell JA."
174These additions cover principles of statutory construction that judges use very frequently. I would not conclude that this addition was not an articulation of something that was present in the judge's mind at the time the extempore reasons were delivered.
175However, even if I am wrong, and the quoted parts of [25], [26] and [28] of the judge's reasons were not present to his mind at the time of delivering the extempore reasons, their consequent excision from the reasons for judgment would not show that the judge had dealt adequately with the issues and evidence before him. Nor would their addition show any bias, either actual or ostensible, concerning the orders made orally.
Additions to Extempore Reasons - Opening Words
176The revised reasons for judgment open with the following words that had not appeared in the judgment as delivered orally:
"The plaintiff is a well known litigant who spent many days in 2010 living and sleeping on top of a pole in protest against certain actions by the federal government. His dispute with the federal government is unrelated to the issues in this case but the pole is situated on land which he mortgaged to the first and second defendants."
177Mr King's written submissions submit that these remarks are "evidence of apparent contempt for the appellant and of actual bias founded on nothing else except rumour or populist newspaper talk. There is no evidence about any of these representations, which belittle the Appellant and are incorrect." Insofar as the submission is that there was no evidentiary basis for the remarks, it is incorrect. An affidavit of Ms Hagedoorn read before the primary judge stated:
"14. The Bambers proceeded to obtain a writ for possession in November 2009.
15. In about late November 2009 Mr Spencer commenced his hunger strike on a pole on the land, the subject of the writ of possession and also being the subject of these proceedings.
16. In January 2010 Mr Spencer ceased his hunger strike."
178An affidavit of Wayne Bamber that was read in the proceedings included:
"31. My wife and I obtained a writ of possession in November 2009.
32. Instead of preparing to vacate the property, in early December 2009 Spencer then went on a hunger strike and stayed up on a wind monitoring mast on the subject property for about 52 days."
179There was evidence before the judge of the Appellant being in dispute with a government. An affidavit of Deneva Bamber said:
"Peter commenced Federal Court proceedings to prevent Wayne and me from enforcing our mortgage until Peter's case for compensation against the government in relation to the Native Vegetation Act was determined."
180An affidavit of the Appellant that was read in the proceedings below said:
"These were proceedings in the Supreme Court ... against the Minister for the Environment and Climate Change, the Nature Conservation Trust of New South Wales ... and Another for, inter alia, unconscionable conduct His Honour Rothman J also said in his judgment, inter alia, '...The Federal; and State Governbments have entered into a scheme to improve the environment and, in so doing, improve the lot of other rural and other proprietors. Nevertheless, they have done so at the expense of Mr Spencer. While all members of society must accept that there will be restrictions on their activities for the 'greater good of society', when those restrictions prevent or prohibit a business activity ... society is asking Mr Spencer, and people in his position, to pay for its benefit, ... a person in Mr Spencer's position is effectively denied proper compensation for the restrictions imposed upon him by a scheme implemented for the public good." (punctuation and spelling as in original)
181That affidavit also said:
"Because I have also been involved in Federal Court proceeding against the Commonwealth of Australia I was not in any financial position to defend the Supreme Court proceedings ('the possession proceedings') brought by the Defendants against me in or about December, 2007.
...
I then resumed the Federal Court action in relation to the Just Terms Compensation Act ... in an attempt to raise the money to pay the Defendants."
182The evidence before the primary judge contained reference to the judgment of the High Court in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, which explained in some detail the nature of the dispute between the Appellant and the Commonwealth. Mr King's criticism of the sentences added at the beginning of the judgment should not be upheld.
Additions to Ex Tempore Reasons - Role of Mr McKell
183In the extempore reasons for judgment, the judge had referred to the orders that were obtained in the Common Law Proceedings on 20 July 2009, and continued "but it is clear that the plaintiff made it as difficult as he could to prevent the defendants achieving those orders." There followed a brief account of steps that the Appellant had taken both in the Supreme Court and in the Federal Court that delayed the ultimate determination of the Common Law Proceedings.
184In the revised reasons for judgment, the judge substituted "obtaining and implementing" for "achieving" in the sentence I have just quoted, and followed that sentence by: "He was aided and abetted by his then solicitor Mr McKell." The Appellant's supplementary written submissions, signed by Mr Glissan, submit this is "a very damaging finding of professional misconduct against Mr McKell, in language used to describe the commission of a criminal offence of being an accessory to the commission of a criminal offence."
185There appears to have been no dispute about Mr McKell having been the solicitor who acted for the Appellant in the various court proceedings that the judge listed, and that the existence of these proceedings had the effect of delaying resolution of the Common Law Proceedings.
186While it is true that "aiding and abetting" is language that is sometimes used in the context of aiding and abetting the commission of a crime, it is also used in the context of aiding and abetting the contravention of a standard imposed by the civil law (eg s 75(b)(1)(a) Competition and Consumer Act 2010 (Cth). In the present case, what Mr McKell is said to have "aided and abetted" is various litigious steps that did not contravene any law. But it should be recognised that the expression "aided and abetted" usually refers to assisting and encouraging an activity that is in some way not approved of. Even recognising that it is often a lawyer's task to assist a client in taking steps within the law whether or not the lawyer personally approves of those steps being taken, the sentence might be read by some as suggesting that Mr McKell had engaged in discreditable behaviour. The course of the proceedings and the lack of any attack on Mr McKell's conduct in cross-examination meant that the judge would not have been justified in making it a finding that was personally detrimental to Mr McKell. The sentence complained of is not a clear finding that is detrimental to Mr McKell, but it might be read as suggesting or alluding to conduct on his part that was in some way undesirable. For that reason, it would be better if it had not been added to the judgment.
187However, the fact that it was added does not reflect upon the correctness of the findings that the judge made in his oral reasons on 26 October 2011. It does not provide a reason why there should be a new trial in the present case.
Additions to Ex Tempore Reasons - Description of Part of Mr McKell's Evidence
188Yet another attack on the reasons for judgment arises from how the judge treated some evidence of Mr McKell concerning his communications with the Appellant. In the extempore reasons the judge had said:
"The plaintiff's application is based upon a contention that in some way he has not received adequate notice and has been denied natural justice. It will be clear from the facts which I have recited that there is really no factual basis for this contention. Mr McKell gave evidence and was cross-examined. He confirmed there was no other email address used by the plaintiff other than the one to which the emails to which I have referred were sent. He also confirmed that he communicated during 2010 with the plaintiff by mobile telephone and by email. He suggested in evidence which I regard as unsatisfactory, that there was a period of time when he was unable to communicate with the plaintiff during May or June but the evidence of the communications to which I have already referred all of which are included in exhibit 1, indicate that there were a number of relevant communications in June in the period of approximately 2 weeks following the making of the order by the Registrar on 11 June. There was also email communication on 22 April to which I have referred."
189That portion of the extempore reasons is the basis for [22] of the revised reasons. There are some changes of an editorial or stylistic nature between these portions of the extempore reasons and the revised reasons, but the change upon which the Appellant focuses is that the judge replaced the words "which I regard as unsatisfactory" with the words "which I have to say was vague and unsatisfactory".
190The evidence that the judge regarded as unsatisfactory, or vague and unsatisfactory, was not the totality of Mr McKell's evidence. It was the evidence relating to there having been a period of time when Mr McKell was unable to communicate with the Appellant during May or June of 2010. The evidence that was being referred to occurred in Mr McKell's cross-examination:
"Q. So that throughout 2010 you were in contact with him by telephone and by email, was that correct?
A. That's correct but it was one time when his email, his service provider was down and he was not receiving my correspondence.
Q. Do you recall when that was?
A. When he was overseas. I don't recall the period of time but, no I don't. I think it may have been May or June. I don't recall actually.
Q. But your recollection is that occurred whilst he was overseas?
A. That was the only time, yes.
HIS HONOUR
Q. I assume that was for a day or 2 at the most?
A. I was told subsequent by client it was for a period of several weeks.
Q. That sounds most unusual?
A. That is what I was told by my client."
191I would agree that the evidence was vague and unsatisfactory, because of its imprecision about the precise time period during which the communication difficulties occurred. I would not be willing to conclude that the addition of the description "vague" was outside the permissible bounds of correction of extempore reasons, as it is quite possible that it is making explicit something that was in the judge's mind at the time the extempore reasons were delivered.
192In any event, in itself the addition is not an addition of substance. On Mr McKell's evidence, the communication difficulties, whenever precisely they occurred, occurred whilst the Appellant was overseas. The emails from Mr McKell to the Appellant, which the judge concluded in the extempore reasons were part of the chain of communication by which the Appellant came to be served with the Notice, all bear dates after the Appellant's return from overseas.
Otherwise, New Trial Appropriate?
193Mr King alternatively submits that all the matters on which he relies as showing bias also show that the trial was an unfair trial, and for that reason there should be a new trial. The discussion of each of the matters relied on leads to the conclusion that, once the submissions concerning actual or ostensible basis are rejected, there is no independent basis on which one should conclude that the trial was unfair.