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. If there be any doubt about that, Justice Rolfe made the position plain when he said that the reason the appeal had to be allowed was because the learned trial judge failed to perform his basic judicial function of providing, in a comprehensible and intelligible way, his reasons. Justice Rolfe went on to say: .. if, indeed, the document to which Justice Cole has referred in fact reflects his Teasons. Apparently the parties made arrangements for a rehearing of the case, following the granting of the appeal, at Broken Hill. The matter was called before Judge Bishop, who indicated to the parties that the Chief Judge, Mr Justice Campbell, desired to see the parties" representatives following the callover. In accordance with that request the parties went before Judge Campbell to be informed that there was a formal and final judgment of his Honour Judge Manser and that this had been included in the papers sent by the Compensation Court to 2 UNREPORTED JUDGMENTS the Court of Appeal before the appeal book had been printed. The certified copy of the judgment which, of course, is in an entirely different form to the one in the appeal book, has been tendered before me and is exhibit A and it will, for obvious reasons, remain with the papers. doubted that none of the parties had a judicial determination on the formal judgment and that, in my opinion, is the basic entitlement of each of them. Whether the end result will be the same or not is a matter with which, as I have earlier indicated, I should not engage myself. As it seems to me, the judgment of this court was based on a false premise that the document represented as the judgment of the court below in the appeal book was, in fact, the judgment of the court below. It is clear now that that document was not the formal judgment of the court below. The parties are entitled to a proper determination on that judgment and the demands of justice require that I set aside the judgment given on 18 July 1996 and direct that the appeal be heard again on the basis of the material in the appeal book, altered only insofar as it is necessary to substitute the formal judgment for the notes of judgment. Accordingly, I make orders (1) and (2). I direct that the appeal be listed for hearing in the next Compensation Court list, which will probably be early next year. I order that the existing stay will continue until the determination of the Court of Appeal hearing, or further order of this court. Each party is to pay her own and its own costs of this application. Costs of the first appeal to be at the discretion of the court rehearing the appeal. Orders accordingly. Counsel for the appellant (Berkeley): WAUSTRON Solicitors for the appellant (Berkeley): AUSTEN BROWN: THOMPSON Counsel for the appellant (Tempo): B FERRARI Solicitors for the appellant (Tempo): P W TURK Counsel for the respondent: D KENNEDY Solicitors for the respondent: HICKSON: LAKEMAN and HOLCOMBE