HOOKER CORPORATION LTD v DARLING HARBOUR AUTHORITY HARRAH'S v DARLING HARBOUR AUTHORITY DARLING HARBOUR AUTHORITY v HOOKER CORPORATION LTD (No 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, MAHONEY and CLARKE JJA 17 November 1988 [1988] NSWCA 68 PRACTICE AND PROCEDURE — appeal — part heard — conclusions on certain questions stated by Court of Appeal at request of parties — whether appeal should proceed or matters be referred back to trial judge — trial judge states conclusions on factual issues — Court concludes appeal should continue before it, request by party to state reasons for order — whether reasons required — held: (1) Whether or not there was an obligation to state reasons, the matters leading to the Court's conclusion should be recorded: Housing Commissioner of New South Wales v Tatmar Pastoral Company Pty Limited [1983] 3 NSWLR 378, 386; Public Service Board of New South Wales vy Osmond (1985-6) 159 CLR 656, 663 applied; (2) In the absence of one of the judges in the part heard appeal the Court could be re-constituted: Cotogno v Lamb (1985) 3 NSWLR 221, 223 applied; and (3) In the circumstances of the case, the appeal being part heard and by way of re-hearing, it should continue before the Court of Appeal. SUPREME COURT ACT 1970, s75A. Kirby P, Mahoney and Clarke JJA This Court (constituted by Mahoney, Priestley and Clarke JJA) commenced the hearing of an appeal against the judgment given by Rogers J in this matter. The parties asked, and the Court agreed, that it should, in the course of the hearing of the appeal, determine certain questions in advance of other questions. Having heard argument extending over several days, the Court concluded that, in what had happened, there was a binding legal agreement between the Darling Harbour Authority and the two companies. In accordance with the agreed procedure, it informed the parties of its conclusion. See Hooker Corporation Limited v Darling Harbour Authority (Court of Appeal, 20 September 1988, unreported). Because that conclusion did not determine the appeal, it became necessary for the Court to consider what course should be followed in order that the appeal might be finally disposed of. And, as had originally been contemplated in that regard, it invited the parties to make submissions as to what should be done. The Government parties submitted, in general, that the Court should not complete the hearing of the appeal itself but should return 'the proceeding to Rogers J for the purpose of his Honour's determining questions of fact which, it was suggested, his Honour had not determined. The companies requested that the Court should continue with and determine the appeal. The matter was canvassed with the parties initially on an informal basis. One of the judges involved in the hearing of the appeal (Priestley JA) has at relevant times been overseas and has not been available to participate in such discussions. Subsequently, against the eventuality that it should be necessary for the Court to make a formal order, the Court sat constituted by Kirby P, Mahoney JA and 2 UNREPORTED JUDGMENTS Clarke JA. The parties consented to the reconstitution of the Court for this purpose. It conforms to the authority of the Court. See Cotogno v Lamb (1985) 3 NSWLR 221, 223. The question of the course to be followed was dealt with in discussion between the Court and the parties. The Government parties formulated some of the questions of fact which, they suggested, remained to be determined. Some of these, they suggested, involved that conclusions be drawn as to the credibility of witnesses and, it was suggested, this Court was not in a position to determine issues of credibility. Such issues should, it was suggested, be determined by the learned judge. The companies submitted that Rogers J had determined all, or substantially all, of the issues and facts in question. Reference was made to the portions of his judgment in which, in anticipation of a possibility such as has now eventuated, his Honour made findings or indicated his views in respect of what, as it was suggested, were the outstanding questions of fact. In the course of the discussion the reasons for and against the adoption of the alternative courses were canvassed from the Bench and from the Bar. In the end, after consideration, the Court informed the parties that it did not propose to depart from the ordinary course of hearing and determining the appeal. It indicated that arrangements would be made for an informal directions hearing for the purpose of dealing with matters involved in the hearing. The Solicitor General then asked the Court to state its reasons for the course which it had indicated. The reasons why the Court has followed the course it has are clear and were canvassed during the discussion. It is doubtful whether what happened involved the making of a formal order by the Court. But, insofar as it did, it was an order in respect of a procedural matter arising in the course of the hearing of an appeal. It would not ordinarily be appropriate for the Court to draw up and deliver formal reasons for what, in such circumstances, is done. See Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at 386; 58 ALJR 553; cf Public Service Board of New South Wales vy Osmond (1985-6) 159 CLR 656, 663. However, as the Solicitor General has asked that the Court do so, it is proper that what has occurred should be recorded. The hearing of the appeal by this Court had been only partially completed. Prima facie, it is the duty of the Court to complete the hearing of it. The hearing is, within the Supreme Court Act, a re-hearing and therefore the Court can, and should, make all such determinations of fact as are necessary for the determination of the appeal. See Supreme Court Act 1970, s75A(5); Warren v Coombes 142 CLR 531. It was submitted for the companies that the Court, having undertaken the hearing of an appeal, has no power to return the proceeding to the judge who determined the matter or, a fortiori, another judge, for the purpose of making further findings of fact. As at present advised, we are not satisfied that this submission is correct. The Court has, though on isolated occasions only, taken such a course. We are inclined, as at present advised, to the view that the Court has such a power. Without so deciding in this appeal, we shall assume that it may do so. However, we are not satisfied that in this case the Court should take that course. WRQOKER CORPORATION LTD v DARLING HARBOUR AUTHORITY HARRAH''S 3 DARLING HARBOUR AUTHORITY DARLING HARBOUR AUTHORITY v HOOKER CORPORATION LTD (No 2) (Kirby P, Mahoney and Clarke JJA) It was not suggested in the discussions which took place that the Court was obliged to take such a course. The matter was considered in terms of convenience and expediency. We are not satisfied that convenience or expediency warrant the return of the matter to the trial judge. What broadly is in issue is whether, on the assumption that there existed between the parties legal obligations of the kind which the Court has held to exist, there are reasons why the Government parties, or the relevant ones of them, are not liable to the companies. In the discussion, the Government parties advanced a number of reasons why this would be so and indicated reliance on them alternatively and cumulatively. It is possible that the appeal may be determined upon one or some only of these. And we are not satisfied that the appeal may not be determined upon the basis of such of these as may not involve the determination of contested issues of fact by this Court or the determination of such issues of fact as may involve, for example, aspects of credibility. Nor are we satisfied that, in respect of any substantial issue of fact likely to arise as a matter of importance in the hearing of the appeal, the Court does not have appropriate findings by Rogers J. Having considered what was said in discussion, we incline to the view that there will in this regard be no bar to this Court's effectively determining the appeal. In all the circumstances, we were, and remain, of the view that the appropriate course to be followed was for the Court to conclude what it had commenced. It is proper to add a further observation. It is, in our opinion, prima facie undesirable for a court, whose function on appeal is a re-hearing of the kind referred to in s75A, to involve the parties in further trial procedures. The problems of additional cost and delay are obvious. We are conscious of the difficulties which may arise in determining an issue of fact before a collegiate court. These problems are not unique to appeals: they arise in the exercise by this Court of its original jurisdiction in relation, for example, to the grant of prerogative relief. In our opinion, the Court should determine matters before it unless, in a real sense, it is not practicable for it to do so. However, in arriving at the conclusions which we have expressed, it is not necessary to rely separately upon what in this respect we have said. Should it at any time prove desirable to reconsider the application by the Government parties, the Court would, of course, do so. It was for these reasons that on 6 October 1988 the Court simply stood over the further proceedings in the Court for further directions by Mahoney JA on 11 October 1988. The Court indicated that the costs incurred in the return of the matter before the Court on three occasions be costs in the appeal.