MULVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, CLARKE and SHELLER JJA 26 May 1992, 16 June 1992 [1992] NSWCA 166 APPEAL FROM DISTRICT COURT — Correctness of Judge's findings Delivery of reasons for judgment. CORRECTNESS OF JUDGE'S FINDINGS — Findings based on evidence as to who was driving motor vehicle — Judge rejected plaintiff's evidence — Whether Judge based his decision upon his conclusion as to the credit or the character of the plaintiff — Held: No error in fact finding processes. DELIVERY OF REASONS FOR JUDGMENT — Judgment delivered Reasons for judgment given some days later — Error of law because reasons not given when judgment delivered — Effect of that error — Held: Not to require new trial (Mahoney and Clarke JJA, Sheller JA dissenting) — Proceeding returned to District Court for delivery of judgment and reasons together. Mahoney JA On 16 October 1984 the plaintiff suffered an injury. He claimed that the injury occurred whilst a third party, "Joe", was driving a truck of which he was in charge. On 14 March 1986 he sued the Government Insurance Office of New South Wales upon the ground that his injury arose out of the negligent use of the truck. On 23 November 1990, after a hearing of the plaintiff's claim, his Honour Judge Viney QC concluded that the plaintiff had not discharged the onus of proof that lay upon him and "found a verdict for the defendant on the primary issue of liability". Subsequently, on 12 December 1990, his Honour transmitted to the parties his reasons for what he had done. The plaintiff has appealed to this Court against the judgment which, it has been assumed, was entered for the defendant upon what had been done. The amended notice of appeal submits that there should be a retrial of the plaintiff's claim for a number of reasons. Those reasons are divided into two categories: I shall describe them as reasons going to merits and to procedure. The court has heard argument as to each of these categories of grounds in the notice of appeal. In order to deal with the arguments advanced it is necessary to refer to the facts. This may be done briefly. The plaintiff's case was that on 16 October 1984 he had, at the request of the real estate agent to whom he paid rent for his premises, been lopping trees and vines and taking the cuttings to the Bankstown Council tip at Milperra. He did this in his one ton truck. He said that - I shall refer to the summary in the learned judge's reasons for judgment - at about 2.30 pm he had a load to take to the tip. He stopped in Berala and parked outside a hotel. He went to a pie shop and bought a pie and a soft drink for lunch. He saw a man he knew only as "Joe" who was a friend of a friend named "Kevin". Joe was outside the hotel. The plaintiff invited him to come with him for a ride to the tip and he did so. The plaintiff backed the truck up to the rubbish area of the tip, lowered the tailgate and, from the back of the truck, began pushing the cuttings out. In order to remove the balance of the material he decided to move the truck forward a few feet. Then, as the judge recorded: 2 UNREPORTED JUDGMENTS "He called out to Joe, 'Can you drive?' Joe said 'Yes'. The plaintiff said, 'Drive it forward a few feet'. Joe said, 'Where's first gear?' The plaintiff showed him. Joe got into the driver's seat and drove forward. The plaintiff remained in the back of the truck. The plaintiff said that after a few feet Joe appeared to lose control, the vehicle shot forward at a speed the plaintiff estimated to be about 30 miles per hour. Ahead was a steep embankment beyond which was a sheer drop. The plaintiff was being thrown about in the back as the truck jolted over the rough ground. The plaintiff repeatedly called out to Joe to stop. Eventually with the embankment looming up, the plaintiff jumped over the side of the truck - its sides were about fifteen inches high. He landed on the ground with a 'crack' and pain in his right ankle. The truck stopped and began to roll back, eventually stopping because of the tailgate getting jammed in the dirt. The plaintiff said Joe came back and said he was sorry." The judge recorded that the plaintiff had said there were council employees at the tip and that "someone took photographs of the plaintiff as he waited for the ambulance". The plaintiff was taken in the ambulance to Bankstown Hospital. There is in the clinical notes of that hospital on the day of his admission the following: "The abovenamed patient attended the Accident and Emergency Centre of The Bankstown Hospital on 16 October 1984 at approximately 3.35 pm with a history of having been involved in a motor vehicle accident. Patient fell off the back of a garbage truck at the local tip, when he thought it was going out of control." The plaintiff's evidence was the only oral evidence called at the trial. The learned judge said that he was "not impressed with the plaintiff as a witness". He made allowance for illnesses from which the plaintiff was said to be suffering and then referred to matters which, I infer, assisted him in his assessment of the witness. The judge said that he had admitted he made "scant inquiries to locate 'Joe'", had spoken only once to "Kevin" and had been told that "Joe had left the district'. He did not know Kevin's last name or where he was. And he made no inquiries to locate the bulldozer driver at the tip or any other people at the tip on the day. There were discrepancies between the statement made by him to his solicitors and the evidence he gave at the trial. He had used a false name when using the tip but gave his correct name to the ambulance men and at the hospital. His Honour recorded that the plaintiff had conceded that he had received unemployment benefits over a period of years even though he had been working as a timber getter and otherwise. He had "netted about $700 per week during those three months from this job and still obtained the Unemployment Benefit. He did not complete any tax returns for his income at any time. He has no financial records. He is single, lives on his own and has no dependents". There was no report of the accident to the police and the records from the ambulance service were not produced. After referring to these matters the judge said: "As Ihave said I found the plaintiff an unimpressive witness. His past admitted dishonesty caused me to treat his evidence with considerable reservation and to seek some form of support for his story before I was prepared to act on it. There was no material whatever to corroborate that he received his injuries in the manner described." His Honour therefore "found myself unable to be satisfied on the balance of probabilities that the plaintiff suffered his injuries as the result of negligence for which the defendant would be liable". The reasons for judgment concluded: "Accordingly there was a verdict for the defendant'. WRJLVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahone? JA) 1. Merits: Were the grounds of appeal related to the merits of the matter the only grounds of appeal, I would dismiss the appeal. The central issue in the proceeding was whether, at the time when the injury occurred, the motor truck was being driven by a person other than the plaintiff. His Honour concluded, in my opinion correctly, that there was no corroboration of the plaintiff's claim that "Joe" or anyone else was driving the vehicle at that time. The only evidence which could be arguably relied on in this regard was the portion of the clinical notes of Bankstown Hospital recording that the plaintiff had said: "Patient fell off the back of a garbage truck at the local tip, when he thought it was going out of control". The learned judge said: "This is not corroboration of his evidence, but it could be said to be consistent with the claim that he was injured when he fell or jumped from a truck at the tip." His Honour, I think, meant by that that the note did not corroborate the essential matter in dispute, namely, whether "Joe" or some other person was driving the truck at the time: it referred only to the fact that the plaintiff had fallen off the back of the truck which he thought was going out of control. The learned judge was therefore correct in concluding, as I infer he did, that the plaintiff's claim that another person was driving the truck at the time depended solely upon his evidence. If that evidence was rejected, the proper conclusion was that the plaintiff's case failed. Mr Gormly for the plaintiff argued the various grounds in the notice of appeal directed to this issue. I intend no disrespect to the grounds formulated by him or the arguments which he advanced in not dealing with the various grounds individually. The learned judge reached his conclusion by reference both to the effect of the witnesses upon him in evidence and the matters to which, in his reasons for judgment, his Honour referred. Upon the principles referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167 I do not think it is appropriate or proper for this Court to put aside his Honour's conclusion as to the plaintiff's evidence. Mr Gormly submitted his Honour erred in his approach to the plaintiff's evidence in that the judge saw the matter turning upon the "uprightness or credit" of the witness rather than upon the accuracy of his evidence. He submitted that the task of a tribunal of fact is to determine "the truthfulness of the evidence", by which I infer he meant its accuracy, rather than "the character of the witness giving it". Mr Gormly cited in support of this submission: R v White (1922) 17 CrAppR 60 at 64; R v Golder (1961) 45 CrAppR 5 at 11; and R v Apostilides (1984) 154 CLR 563 at 576. It is, I think, not necessary to consider whether the judgments referred to support the precise terms of the proposition advanced. Nor is it necessary in the present appeal to pursue the concepts involved in this aspect of the fact finding process. The advantages which a trial judge has in determining issues of fact have been long recognised: see the cases collected in Chambers v Jobling (1986) 7 NSWLR 1 at 26-2; and have been more recently reiterated by the High Court. See Abalos v Australian Postal Commission; Dawson v Westpac Banking Corporation (1991) 65 ALJR 94. These advantages must be taken into account by an appellate court even on a rehearing and they restrict what, in the finding of fact, an appellate court may do. The restrictions imposed upon an appellate court in a rehearing of the facts of a proceeding are, as I have said elsewhere, a reason why it is necessary to ensure that, in the fact finding process, the trial judge has adopted procedures which are appropriate for the purpose. I do not mean by this that the fact finding process is to be over formalised or, a fortiori, that it is to be ritualised. 4 UNREPORTED JUDGMENTS The psychological processes whereby findings of fact are made are not single but various; and the method of recording, and in recording, checking or auditing what has been done, is a matter for which there is no single pattern to be imposed. I see no appealable error in what the learned judge did in this regard. I do not think that he relied simply on the fact that the plaintiff was a person who had, for example, dissembled in other things. He recorded the impression which, in evidence, the plaintiff gave in this respect: he described him as "unimpressive". He referred to matters which legitimately were to be taken into account in weighing the probabilities of the plaintiffs claim that "Joe" was driving the truck: he referred to corroborative evidence the absence of which he was plainly not satisfied had been satisfactorily explained. I see no error in what his Honour did. In my opinion, therefore, these grounds of appeal fail. Were they the only grounds relied upon, the appeal would be dismissed. 2. The Procedure: These grounds of appeal are based upon what the judge did in relation to the formal statement of his conclusions and of the making of his orders. It is accepted that, at the conclusion of the addresses on 23 November 1990, his Honour did what amounted to the finding of a verdict for the defendant. The learned judge did not then, in the terms that he used, purport to enter a judgment for the defendant. The transcript records the following: "HIS HONOUR: Before you get to damages Mr Gormly, I have formed the view that the plaintiff has not discharged his onus in this case and I propose to - GORMLY: Your Honour has formed that view. HIS HONOUR: Yes I have formed that view. So accordingly I propose to enter a verdict for the defendant. GORMLY: If the court pleases there's nothing further I can say. HIS HONOUR: That's why I didn't want you to go into the aspect of damages. I will give reasons in detail and I will let you know when they're available." On 12 December 1990 his Honour (I shall use a neutral term) published the reasons for what he had done in a document entitled "Reasons for Judgment". The evidence establishes that there are, on the District Court file, notes as follows: "23 November 1990 Coram: Viney QC DCJ Plaintiff Gormly, Defendant Crittle Verdict for the defendant, reasons to be published at a later date Signature of Judge 12 December 1990 Coram: Viney QC DCJ His Honour publishes his reasons Signature of Judge " In addition, there is affidavit evidence that "on or about Thursday, 12 December 1990, Mr JP Gormly, counsel who appeared for the plaintiff' indicated that he had received a copy of his Honour's Reasons for Judgment. They were received at counsel's chambers. It has not been established how a copy of the "Reasons for Judgment" was received by the defendant. There is no evidence whether, on 12 December 1990, the proceeding was listed in the District Court for hearing or whether his Honour formally published his Reasons for Judgment in court in the ordinary way. There is affidavit evidence that those representing the plaintiff had not previously received a notice of the delivery of the Reasons for Judgment and the argument has proceeded before this WRJLVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) Court upon the basis the parties were not notified that Reasons for Judgment would be published in court in the ordinary way. Counsel have conceded that no formal enquiries have been made to indicate whether the Reasons for Judgment were published in court on 12 December 1990. The parties are, I think, agreed that the question whether the reasons for judgment were published in court or merely by being sent to the parties will not be determinative of the matter and I shall, for purposes of dealing with the present submissions, assume this to be so. It has been submitted by Mr Gormly and accepted by Mr Barry for the defendant that on 23 November 1990 his Honour made a formal order which took the form of the finding of a verdict for the defendant. It is accepted that no reasons for judgment were then given. The reasons for judgment which were published on 12 December 1990 assume that the "verdict for the defendant" there referred to had previously been given. No argument was submitted as to the difference if any between verdict and judgment in the District Court proceeding: see the District Court Rules, Pt31 R15; and counsel indicated that it was assumed that the finding of a verdict in this way resulted in the formal entry of judgment for the defendant. I shall without so deciding assume this to be so. Mr Gormly submitted, in the main, two things: that what was done by the judge in this regard involved error; and that, because of that error, there must be a retrial of all issues. The argument before this Court has proceeded upon the basis that what the learned judge did involved error. The error arose because his Honour made his formal order on 23 November 1990 but did not give reasons then but only on 12 December 1990. It was submitted that the decision of this Court in Palmer v Clarke (1989) 19 NSWLR 158 determines this. It is to be accepted for the purposes of this appeal that Palmer v Clarke establishes that where an order is made by the District Court and reasons are given, not then, but subsequently, an error has occurred. But in order to understand the effect of that decision and its relevance in the present case it is, in my opinion, necessary to examine more closely what was there decided and, in particular, the reason why the court concluded that it was necessary that a new trial be ordered. Palmer v Clarke held that a District Court which made an order but, reasons being necessary, did not then give them, had fallen into error. It did this by reference to the judgment giving process and the provisions of the District Court Act and Rules. A court of unlimited jurisdiction may make orders taking effect instanter and may give reasons for the order subsequently. That is, of course, done not infrequently by this Court. No error is involved in it so doing. Indeed, after an order has been pronounced, it and the reasons (if any) then given for the making of it may be changed before the order is formalised by entry: reasons for the order may be changed and, indeed, the order itself may be varied or reversed: see generally Raiski v Bainton (Court of Appeal, 6 September 1991, not yet reported). The High Court has held itself able in special circumstances to change an order even after it has been perfected: see, eg, State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38. See generally Wentworth v Rogers (No 9) (1987) 8 NSWLR 388. However, in recent years the duties of a court in relation to the giving of reasons have been more closely examined. And, in order to understand what was decided in Palmer v Clarke it is relevant to consider, in relation to orders and the UNREPORTED JUDGMENTS giving of reasons for them, three things: where they are to be given, how they are to be given, and when they are to be given. (a) (b) Where: It has not been suggested that, questions of notice apart, there are particular requirements as to the place of delivery of a judgment of a court of unlimited jurisdiction. Prima facie, a judgment in a Supreme Court proceeding may be delivered at any place within New South Wales. However, difficulties arose in earlier times in relation to the delivery of judgments of, eg, the District Court. In earlier times, eg, under the District Courts Act 1912, there were in a sense a number of District Courts: under the present Act, there is for New South Wales one District Court. Difficulties arose in former times where a judge who had sat in a District Court at one place desired to give judgment in respect of the proceeding in another place and, in particular, in a place outside the district of the court in which he had heard the proceeding. The view was in general taken that judgments should be delivered within the relevant district: see generally Ex Darte Hall; Re Howie (1933) 50 WN (NSW) 30; District Courts Act 1912, s12. Subsequently provision was made to enable judgments to be given in an appropriate way at a place other than the place where the proceeding was heard and outside the relevant district: see, eg, Pt2A and Pt31 of the District Court Rules. That issue does not arise in the present case. How: Two issues arose in this regard. First, the view was held by some that the reasons for an order could or should be delivered only in open court and by the judge stating or reading the reasons at length. In England, the principle or practice appears to have been until recently that the giving of reasons required the statement or reading of them in terms by the judge in court. That view has now changed and in England the reasons for an order may be reduced to writing and handed down by the judge in open court: see Palmer v Clarke at 164, per Kirby P. In Australia, for many years it has been accepted that reasons are given appropriately if the judge in open court publishes reasons which he has reduced to writing. It is accepted in this Court that reasons may be published in this way for a judge by another or other members of the court. In the District Court, the matter has been dealt with by Rules of Court. By Pt31 R9 of the District Court it is provided: "Written Opinion 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." By Pt2A R6 and R7, provision is made for the delivery of "any judgment or decision" or the making of "any order" which the judge could lawfully make in court in chambers: R6. And provision is made in relation to reserved decisions: "Reserved decision 7. (1) Where in any proceedings a Judge reserves his judgment or his decision on any question of fact or law, he may: (a) give his judgment or decision: (i) in court at the proper place in relation to those proceedings; JOBNAME: No Job Name PAGE: 7 SESS: 1 OUTPUT: Thu Mar 6 17:19:21 2008 /reports/caseml]/case/urj/9201810 WRJLVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahoney JA) (ii) in court at any other place at which he is authorised by the Act or the rules to hear or dispose of those proceedings; or (iii) in chambers in accordance with r6; or (b) draw up in writing his judgment or decision, sign it and forward it to the registrar for that proper place. (2) Where a registrar receives a judgment or decision forwarded to him under subr(1)(b), he shall, after giving notice to the parties to the proceedings, read the judgment or decision at the place for which he is registrar at a convenient time specified in the notice, whether or not the Court is sitting at that place at that time. (3) A judgment or decision given by a Judge under subr(1)(a) or read by a registrar under subr(2) shall take effect on the day on which it is so given or read and shall be as valid as if given by the Judge at the hearing of the proceedings to which the judgment or decision relates." As at present advised, I am of the opinion that, apart from the District Court Rules, a judge of the District Court may properly give his reasons for an order made by him in writing and may do so in a conventional way, eg, by indicating the order made and publishing his written reasons for them at that time. It may be that the statutory provisions add nothing to the power of a District Court judge 14 in that regard. However, the tules do I think add to the law in relation to the manner in which orders may be made and reasons given for them. Subject to compliance with Pt2A R6, orders may be made in chambers and not in court. And, I think, the effect of Pt2A R7 is that both the making of the order and the giving of reasons may be carried into effect not merely by the judge but by, eg, the registrar subject to compliance with the provisions of R7. As I have indicated, it is not completely clear whether, in this case, the Reasons for Judgment were published in a court, in the judge's chambers, or merely by circulation. (c) When: It is this aspect of the judgment and the reasons which is immediately relevant in this appeal. The order was made on one day and the reasons given on another. In Palmer v Clarke it was held that for a District Court judge to do so constitutes an error. The basis of that conclusion requires consideration. Reference was made in the judgments in that case and in argument in the present case to the provisions of Pt31 R9 of the District Court Rules. But if and insofar as it was there relied on, that rule does not, I think, provide the basis, in terms of principle, for the decision in Palmer v Clarke. That rule makes provision for what is to be done where the court makes an order "and the opinion of the court is reduced to writing": the court may then without error make the order and deliver the written opinion as there stated. The rule does not deal with the case where, eg, a District Court judge makes an order, reserves his reasons, and subsequently gives those reasons, not in writing, but orally. It cannot, in my opinion, have been the purpose nor is it the effect of R9 to require that written reasons must be "then" delivered with the making of the order but that no similar provision is to apply in relation to oral reasons. R9 is, in my opinion, primarily directed to "how" questions and to JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Thu Mar 6 17:19:21 2008 /reports/caseml]/case/urj/9201810 UNREPORTED JUDGMENTS enabling a District Court judge to deliver reasons in writing by publication rather than by reading them at length. This, in my respectful opinion, was the basis of the decision in Palmer v Clarke or, at the least, of the views of Kirby P and Samuels JA. Kirby P, with whose judgment Samuels JA agreed, referred to the "continuous oral trial at common law" and the effect of this upon the "practice of the delivery of reasons for judgment". His Honour referred to these matters: at 164-5. His Honour referred to the legislation passed from time to time in this regard, to the need for "meticulous adherence to the requirement of the Act and the Rules in this important aspect of the conclusion of judicial proceedings", and to "the importance of fixing the time of the delivery of judgment and protecting parties' appeal rights": at 166. His Honour said that these were the reasons "why the delivery of the judgment, and of the reserved reasons which support it, must comply with the procedures provided in the Act and Rules". The submission made to the court had been that the judge was "obliged, so it was put, by the common law and by the District Court Rules to give" reasons "at the time of pronouncing his judgment": at 163-4. The judge had later, on 4 December 1987, given orally reasons for judgment extending over a number of pages of transcript. The view of the President was, I think, that those reasons could not be accepted as reasons for the judgment because they had been given long after the judgment had been pronounced. And, it appearing that they had been reduced to writing, at least as a "revised judgment": at 162F; they were not given in accordance with Pt31 R9. Accordingly, it is to be accepted for the purposes of the present appeal that Judge Viney QC erred in the same two separate respects: because reasons were not given at the time the order was made; and because the reasons given, being reduced into writing, were not given in accordance with Pt31 R9. This being the basis of the decision in Palmer v Clarke, it follows that there was error in the present case. But the question remains: what order should be made by this Court? In particular, it is necessary to consider whether that error requires the court to order a new trial of the facts relating to liability, notwithstanding that those facts would not otherwise be open to challenge by the plaintiff. As was said by Kirby P in Palmer v Clarke: at 164: "New trials have been called an evil and a deplorable result, to be avoided wherever possible: see, eg, Balenzuela v De Gail (1959) 101 CLR 226 at 233; Freeman v GJ Coles and Co Ltd (1967) 1 NSWR 297. They involve disappointment to the litigant successful at the first trial. They involve delay and cost to the litigants. They also involve considerable public expense and a repeated demand on the already stretched resources of the judiciary." See also per Priestley JA: at 174-5. If there be an error, the remedy given should, in my opinion, be confined to what is necessary to rectify that error. It is only if the effect of that error cannot be rectified without a new trial of all issues that a new trial should be ordered. It is therefore relevant to examine the nature of the error in the present case and whether there is power in this Court to rectify it without ordering a new trial. JOBNAME: No Job Name PAGE: 9 SESS: 1 OUTPUT: Thu Mar 6 17:19:21 2008 /reports/caseml]/case/urj/9201810 WRJLVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Mahone9 JA) The error here in question, viz, the giving of reasons some two weeks after the making of the order, does not render the order a nullity. It constitutes, within the terms of Pettitt v Dunkley (1971) 1 NSWLR 367, an error of law. That error has no direct relationship to matters touching the determination of the facts as to liability or the giving of a true decision in respect of them. It goes to the time at which order and reasons are to be pronounced. The rationale of the rule adopted in Palmer v Clarke in this regard lies not only in form but also in matters of substance. Kirby P and Samuels JA saw it to result from the tradition of "the oral trial". Functionally, reasons are necessary or at least relevant in order to enable a party to know why he has lost and what he must do to appeal: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 268, 278. It is difficult to frame a notice of appeal without having the reasons for judgment. This Court will no doubt ordinarily grant an extension of time in such circumstances but in principle the functional difficulties remain. But, in my respectful opinion, these considerations do not of themselves require a full retrial of the issues of fact in the proceeding. They have nothing to do with the correctness or otherwise of the facts found. In principle, I see no reason why, if it may do so, this Court should not return the proceeding to the learned judge for the purpose of his doing what should have been done, viz, make the order and deliver his reasons at the same time and, the reasons being in writing, in such a way as Palmer v Clarke has held is required by Pt31 R9. There is, in my opinion, power in this Court so to order. The present appeal is based upon s128(2A) of the District Court Act 1973. That provision authorises an appeal to the Supreme Court in an action such as the present. $128(3) provides: "128. (3) In an appeal under subs(1), subs(2) or subs(2A) the Supreme Court: (a) if it is of the opinion that an order for the dismissal of the action, or of the action so far as concerns any cause or causes of action on which the action is brought, should have been made at the trial - may make such an order; or (b) if it is of the opinion that upon the evidence any party is as a matter of (c) law entitled to a verdict in the action or upon any issue therein - may give (d) that verdict and may order that such judgment be entered as is appropriate to (e) that verdict; or (f) (c) may order that a new trial of the action or of any issue (g) therein be had, or may refuse to make such an order or give such a verdict." The appeal in this Court is governed by s75A of the SuPreme Court Act 1970. The appeal is "by way of rehearing": s75A(5); and the court "may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires": s75A(10). JOBNAME: No Job Name PAGE: 10 SESS: 1 OUTPUT: Thu Mar 6 17:19:21 2008 /reports/caseml]/case/urj/9201810 UNREPORTED JUDGMENTS In my opinion, there is no reason of substance why the court may not make an order or give a direction that the proceeding be returned to the District Court so that the judge may make the order and give the reasons for it together in the manner in which they should have been given. Such would be within s75A(10). That provision is a beneficial provision directed, no doubt, to expanding the powers of the court as an appellate court to ensure that remedies may be given which are appropriate to such errors as the court on a rehearing finds to have occurred. I do not think that any less ample construction of it should be adopted. To hold that, because of an error in the procedure in which the order and the reasons for it were made and delivered, the facts must be retried would be, in my opinion, to require that an error in procedure has the sanction or penalty of the retrial of matters having no functional relationship to the error. It is perhaps possible that the error may be rectified without returning the matter to the District Court. It may be, for example, that, insofar as it is necessary for the error to be rectified, that may be done by the order of the court and its reasons being treated by this Court as having been delivered in the ordinary course. But however that be, I am satisfied that it is open to this Court to return the matter to the District Court for the purpose and in the manner to which I have referred. However, Mr Gormly for the plaintiff has submitted that to do so would be inconsistent with the judgment of this Court in Palmer v Clarke. I do not think that that submission should be accepted. Again, it is necessary to examine what occurred in that case. It was accepted in Palmer v Clarke that the effect of the error there in question was not to render the judgment of the District Court a nullity. No reasons had been given when the order was made and therefore, as the court concluded, no reasons were effectively given. The failure to give reasons or adequate reasons is an error of law but not one which invalidates the judgment. And, in Palmer v Clarke, the fact that there was an infringement of Pt31 R9 was held to leave the judgment valid: at 172D. The respondent sought to avoid the effect of the error by treating it as a mere irregularity. Reference was made to s159 of the District Court Act which provides that failure to comply with a requirement of the Act or the Rules "shall be treated as an irregularity and shall not nullify the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings". Kirby P held that that provision was not applicable because, inter alia, the error was not one which would "nullify" the judgment: it was and remained a valid judgment. But there was pending also an appeal against the judgment on the merits: at 163G. It was, apparently, not seen as open to the court in that appeal to dispose of the appeal on the merits: at least, it did not do so. Therefore, having concluded that there was an error in what the judge did in relation to his reasons, there remained not merely the correction of that error but the disposal of the appeal on the merits. The court did not feel able to deal with the latter and so it remained to be dealt with. It could be dealt with only at trial level. In those circumstances, the court directed a retrial. WRJLVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke JA)I In the present case, the court has heard full argument on the merits and, for the reasons to which I have referred, that appeal should be dismissed. Therefore, in my opinion, the appeal remains as one in which the only extant objection to the existing order is the objection taken as to the reasons and how they were delivered. There is in such a case nothing to prevent the court dealing with the matter in the manner to which I have referred. In my opinion, the following orders should be made: 1. The plaintiff's appeal as to the merits should be dismissed. 2. The appeal as to the manner in which the reasons for the judgment were given should be upheld. 3. The verdict and judgment should be set aside. 4. The proceeding should be returned to the trial judge with a direction that he should, upon the evidence before him, make such order by way of verdict or judgment as is appropriate and should, when doing so, deliver his reasons for so doing. 5. The appellant should have the costs of the appeal. Clarke JA I agree with Mahoney JA that there is no substance in the appeal on the merits and that, nonetheless, the appeal should be upheld for procedural error. In his judgment Mahoney JA explains the reasons which led him to that conclusion and I agree generally with those reasons. The question which arises concerns the order which this court should make in the circumstance that a judgment not otherwise appealable is to be set aside for a procedural legal error which does not bear on the correctness of the reasons given in support of the judgment. Mahoney JA proposes that the court should return the proceedings to the trial judge with a direction that he should publish his reasons and judgment in accordance with the requirements of the District Court Act 1912 and the District Court Rules. This solution to the problem is, with respect, both convenient and sensible, avoiding as it does, the evil of a new trial of the action which has already been properly tried and decided. For this reason I would support the making of the orders proposed by Mahoney JA unless I am compelled by authority to put the parties to the expense and inconvenience of a retrial of the action. The authority which is said to compel that course is the decision of this Court in Palmer v Clarke (1989) 19 NSWLR 158 which was relied on by the appellant. I must say that during the argument I had formed the tentative view that this case did conclude the question in the appellant's favour. On reconsideration I have reached the contrary conclusion. In Palmer the appellants appealed against a decision of a District Court judge and, in their notice of appeal, asserted numerous judicial errors. At the hearing they raised the preliminary point that the trial judge had published his detailed reasons in support of his judgment some three months after he had announced his decision (the judge called it "verdict" but nothing relevantly turns on the use of that expression). In support of this point the appellants contended that (a) the short reasons given by his Honour on 3rd or 4th December when he announced his verdict were not adequate reasons. Accordingly the judge had failed to discharge his judicial duty of giving reasons. This was legal error (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247); (b) The publication of detailed reasons three months after the judge announced his verdict did not rectify the problem for the judge had been obliged by the terms of the District Court Act and Rules to publish his reasons at the same time as he announced his verdict. 12 UNREPORTED JUDGMENTS The court accepted both of these contentions. The respondents sought to avoid the consequences which might flow from the legal error on the ground that the failure to give reasons at the proper time constituted an irregularity which, they submitted, could be cured by the exercise of the discretionary powers appearing in $159(1)(b) of the District Court Act. This submission was rejected by the court and a new trial was ordered. Palmer accordingly stands as authority for the proposition that unless adequate reasons are given at the time judgment is announced that judgment is vitiated by legal error which error is not cured by the later publication of reasons. Further that s159 of the District Court Act does not enable an appellate court to make orders the effect of which is to rectify the legal error. The judgment under appeal is affected by the same legal error and cannot stand. The question which then arises is as to the terms of the order which the court should make. In Palmer the court ordered a new trial of the action and this is a remedy which is clearly open in this case. But the grant of a new trial is a discretionary remedy and because that was the order made in Palmer does not mean that in every case in which a District Court Judge delivers reasons some time after giving judgment this court must, on appeal, send the case back for a new trial. The conclusion that legal error has affected a judgment under appeal leads inevitably to another enquiry - What order should be made? In many cases it will follow, almost as of course, that a new trial will be ordered. This is what seems to have occurred in Palmer and the judgments do not record any submissions supporting the making of another order. Because, however, the grant of a new trial involves the exercise of a discretionary judgment it cannot be that because the discretion has been exercised in a particular way in one set of circumstances in which a particular legal error occurred it must necessarily be exercised in that way on every occasion on which the same error occurs irrespective of the particular circumstances. Accordingly, it is proper to consider whether in this case a new trial should be ordered or whether in the particular circumstances of the case another order is not more appropriate. Of course, the exercise of discretion must be based on sound principles and cannot be arbitrarily exercised. Nonetheless the court is not confined to making or refusing to make an order granting a new trial. The powers open to this court in the present case are to be found in s128 of the District Court Act 1973 and s75A(10) of the Supreme Court Act 1970 and extend to the making of any order or the giving of any direction which the nature of the case requires. (I should interpolate the observation that it was not suggested that this court was not empowered to exercise the powers set out in s75A in appeals from the District Court.) In consideration of what is an appropriate order to make it is not unimportant that, although the legal error which occurred should not be regarded as a mere technicality, there has not been shown any legal error in the reasoning process which led to the judgment under appeal. I appreciate that the reasons were given after the judge had, on one view, become functus officio but the fact remains that the applicant had a fair trial and the procedural error could not in my view have led, in the circumstances of this case, to a miscarriage of justice. It is established at common law, at least in the context of misdirection or wrongful admission or rejection of evidence, that an application for a new trial will not be granted if the legal error could not reasonably be supposed to have influenced the result or because as a matter of law the same result must have WRJLVENA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Sheller JAB ensued (Balenzuela v De Gail 101 CLR 226, esp at 233). The guiding principle is that a new trial will not be ordered except on substantial grounds and to redress a miscarriage of justice (Lakeman v Finlay 1959 (NSW) SR 5 esp at 9). In Freeman v G J Coles (1967) 1 NSWLR 297 the Chief Justice (with the concurrence of the other two judges) said: "What has to be looked at is the essential justice of the case and for the appellate court to see whether the error of the judge... really bore upon the ultimate result." These cases all concerned the question whether a new trial should be granted or refused but they apply with equal force when what is under consideration is the order which the court should make. That question was considered in the context of an appeal from a jury trial in Selman v Minogue 37 SR (NSW) 280 at 287 where a new trial was not ordered. Similarly in Wing Lee v D C Lew 1925 AC 819 the Privy Council upheld an order of the Supreme Court of Canada that "there should be a new trial as to damages and that that new trial should be conditioned by a provision that the original judgment should stand, unless the defendant submitted to a condition that no exception at the hearing should be based upon the fact that the plaintiff was dead" (at 82). In the course of the judgment of the Privy Council Lord Buckmaster said: "if the exercise of the discretion without control or limitation may produce what appears to be a manifest injustice it is well within the power of the court in exercising such right (to grant a new trial) to take steps to prevent that injustice should arise." In each of these cases the verdict under appeal was a jury verdict and the appellate courts had no power to substitute their own opinions. Nevertheless the courts were able to fashion orders to meet the essential justice of the case. In the circumstances of this case I would conclude that the essential justice of the case does not demand the grant of a new trial, which would involve a complete rehearing of the case. Accordingly, I agree with the orders proposed by Mahoney JA. Sheller JA In this matter I have had the benefit of reading the judgments prepared by Mahoney and Clarke JJA. Regretfully and respectfully I am unable to agree with their conclusion. In my opinion consistent with the decision of this Court in Palmer v Clarke (1989) 19 NSWLR 158 the appeal must be upheld and a new trial ordered. As Mahoney JA has pointed out it is accepted that, at the conclusion of the addresses on 23 November 1990, the trial judge did what amounted to the finding of a verdict for the defendant. He then said: "I will give reasons in detail and I will let you know when they are available". On 12 December 1990 there is a note, on the District Court file, signed by the judge "His Honour publishes his reasons". In Palmer v Clarke, in a judgment with which Samuels JA agreed, the President said at 163F that it was not necessary to resolve the appeal on the merits. "The appellants took a preliminary point which succeeds. It is enough to say that, at the point at which appellant's counsel was stopped from arguing the merits, I would not have been disposed to disturb the judgment in favour of the respondent on these grounds. It must, however, be disturbed for other considerations to which I now turn". Both the President and Priestley JA considered that a new trial must be ordered, 173D and G. The Court held that the 14 UNREPORTED JUDGMENTS reasons given by the trial judge some three months after the date upon which he ordered "a verdict" could not be accepted by the Court and the failure to give reasons or adequate reasons at the time of "verdict" treated as an irregularity under s159 of the District Court Act; 171-172. Implicit, if not explicit, in the decision is the proposition that reasons given by a trial judge in the District Court some appreciable time (ie not so short a time as could be overlooked as de minimis (169B)) after the date of "verdict" could not be taken into account in determining whether the trial judge had fulfilled his duty to state the reasons or grounds for the "verdict". Also, in my opinion, implicit in the decision in that case that there must be a new trial, is the proposition that the reasons, said not to be available to support the judgment as a proper exercise of the judicial process, were not available to support it in any other way. Were it otherwise I see no reason why the Court would not, before deciding what order should be made, have considered the reasons given belatedly by the trial judge and come to a conclusion on the merits. I do not think the Court regarded this as open. Indeed the President inclined to the view (172E) and Priestley JA was of the view (174B) that having pronounced his judgment and given such reasons as he did at that time, the trial judge was functus officio; (compare See v Lee (1899) 15 WN (NSW) 240 and Ex parte Sweeney (1927) 45 WN (NSW) 28). I do not think this Court, on appeal, can on the basis of reasons, which the trial judge had no authority to publish, dismiss the appeal on the merits. In my opinion the appeal should be allowed and a new trial ordered. The appellant should have the costs of the appeal. The costs of the first trial should abide the outcome of the second. ORDERS 1. Plaintiff's appeal as to the merits dismissed. 2. Plaintiff's appeal as to the manner in which the reasons for judgment were given allowed. 3. Verdict and judgment set aside. 4. Proceeding returned to the trial judge with a direction that he should, upon the evidence before him, make such order by way of verdict or judgment as is appropriate and should, when doing so, deliver his reasons for so doing. 5. Appellant to have the costs of the appeal. the first trial should abide the outcome of the second. Counsel for Appellant: JP Gormly Solicitors for Appellant: Turner Freeman Counsel for Respondent: CT Barry Solicitors for Respondent: GM Meadows, Solicitor for GIO