BERKELEY CHALLENGE PTY LTD v BLIGHT; TEMPO SERVICES PTY LTD v BLIGHT [1996] NSWCA 46

BERKELEY CHALLENGE PTY LTD v BLIGHT; TEMPO SERVICES PTY LTD v BLIGHT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 28 October 1996

[1996] NSWCA 46

APPEAL — LITIGANT ENTITLED TO JUDICIAL DETERMINATION OF AN APPEAL BASED ON FORMAL JUDGMENT OF COURT BELOW — TRIAL JUDGE'S DRAFT NOTES INCLUDED IN APPEAL BOOK — DECISION OF COURT OF APPEAL SET ASIDE

Clarke JA. There is an application before me, sitting as a single judge of appeal, to set aside a judgment of this court delivered on 18 July 1996, but not yet entered.

In normal circumstances an application of this nature would be returned before the Bench that delivered the judgment, but in the extraordinary circumstances of this case it is my opinion that it would be a waste of both time and money were I to adjourn the present application to be dealt with by that Bench. I have in mind, in saying that, that two members of that Bench are presently on leave and it may be because of that circumstance the application could not be heard by that Bench until next year.

The other matter which should be mentioned is that the substance of the claim is such that it does not seem to me inappropriate that I deal with it. I should add that I have expressly sought the attitude of both opponents, that is Berkeley Challenge Pty Ltd and Tempo Services Pty Ltd, to my hearing theIn due course the judges gave a judgment, allowing the appeal upon the ground that Judge Manser had not complied with his judicial obligation of providing proper reasons for his orders. As Justice Cole said:

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.

As it seems to me, those words explain his Honour's reasoning in upholding the appeal.