BERKELEY CHALLENGE PTY LTD v BLIGHT; TEMPO SERVICE PTY LTD v BLIGHT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and COLE JJA and ROLFE AJA 18 July 1996, 18 July 1996 [1996] NSWCA 45 UNCERTIFIED — unintelligible notes purporting to be a judgment set aside — duty of court to provide intelligible reasons for decisions. Cole JA This is an appeal by two employers against awards made against them in the Workers Compensation Court. The orders of the Court are to be found at 520 to 522 of the appeal book. Preceding those orders in the appeal book between p499 and p519 are a series of pages. The document at 499 commences "Draft Judgment" which is struck through. The concluding words at 519 in handwriting are the words "Draft Judgment to keep in file." The intervening pages are somebody's draft purporting to be the draft of Judge Manser. There are corrections of a typographical nature and a spelling nature. In addition to that, interspersed between p504 and p508, which apparently are consecutive, are three further pages, one typewritten and two handwritten which contain a series of figures. Those pages obviously do not in sequence explain what the trial judge was trying to explain, if they are in truth part of his ultimate decision. It may well be that they are to be in place of material which is struck out in the middle of p508 and struck out on p510, there being an intervening p509 which contains some different figures. The judgment, if it be a judgment, is not certified. This Court can have no assurance that what I shall describe as notes constitute the judgment of the Court below which were the basis upon which the orders to which I have referred at 520 and 522 were taken out I must say that in my judicial experience, indeed my experience at the Bar, I have never seen a document produced in this form which purports to be a judgment of a Court. The appellants have raised a series of matters concerning what they assert to be errors in the judgment as best it can be understood. It seem to me unnecessary and inappropriate for this Court to embark upon a hearing of those matters. In Soulemezis v Dudley Holdings Pty Ltd,! the President at 257 cited from the reasons of Jordan CJ in Carson v King where his Honour said: "Tt has long been established that it is the duty of a Court at first instance to which an appeal lies to a higher Court to make or cause to be made a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence and the decision arrived at but also the reasons for arriving at the decision. The duty is incumbent upon not only magistrates and the District Court but also upon this Court from which an appeal lies to the High Court and the Privy Council." 1. (1987) 10 NSWLR 247 2 UNREPORTED JUDGMENTS In my opinion in no way can it be said that the notes which are included in the appeal book properly and sufficiently lay before this Court the reasons which may have moved the Court below to apparently make the orders which it did. For my part I find the notes almost unintelligible. Parties to litigation are entitled to better than this. They are entitled to have exposed in a sensible fashion which is intelligible to an ordinary reader the reasons why it is that a decision in a given case is reached. That has not been done in this case. In those circumstances in my view the appeal should be upheld. The matter should be remitted for a re-hearing to the Workers Compensation Court. The orders dated 28 November 1995 in these matters should be set aside and the respondents should pay the appellant's costs of the appeal and if qualified have a certificate under the Suitor's Fund Act. Meagher JA I agree. Rolfe AJA I agree. I do so, however, with some regret because it is quite clear that the applicant, Mrs Blight, would appear to be entitled to a reasonably substantial award. The reason she is deprived of it, for the moment, is because the learned trial judge failed to perform, as I understand it, his basic judicial function of providing in a comprehensible and intelligible way his reasons, if indeed the document to which Cole JA has referred in fact reflects his reasons. Hence the valuable judicial time of the Workers Compensation Court and this Court, and the funds of the parties, have, to a substantial extent, been wasted. I agree with Cole JA. Appeal upheld. The matter should be remitted for a re-hearing to the Workers Compensation Court. The orders dated 28 November 1995 in these matters should be set aside and the respondents should pay the appellant's costs of the appeal and if qualified have a certificate under the Suitor's Fund Act. Counsel for the Appellant: J Poulos/ RF Wilkins Solicitors for the Appellant: Hickso Lakeman and Holcombe Counsel for the First Respondent: D Kennedy/ Walsh Solicitors for the First Respondent: Austen, Brown Thompson Counsel for the Second Respondent (plus appellant in 40807/95): JD Hislop Qc Solicitors for the Second Respondent: PW Turk