Two justices of the New South Wales Court of Appeal in Fairall v Hobbs [2017] NSWCA 82 have expressed concerns about the course taken by a trial judge to orally deliver judgment in a case over some 4 days rather than to hand down written reasons.
The trial, which took place in the District Court of New South Wales, had concerned a “motor accident” case under the Motor Accidents Compensation Act 1999 (NSW). The plaintiff had been riding a horse along the side of a road when he had been thrown from the horse. He had claimed that the driving of a motor vehicle by the second defendant had caused the horse to buck and the plaintiff to suffer injury. The trial had taken 6 hearing days and, on the final day, the matter had been adjourned to a date, being some 11 days later, for delivery of judgment, with the judge directing the parties to arrange for agents to be present for the delivery of the judgment. Usually, such agents would be legal practitioners. When the matter resumed, the judge had taken 17 hours over some 4 days to orally deliver his reasons. As finally settled, the reasons were 138 pages long. The judge had given verdict and judgment for the plaintiff against the defendants for $339,242.40 and the defendants appealed to the Court of Appeal.
The Court of Appeal (McColl A/P, Leeming JA and Payne JA) unanimously allowed the appeal and set aside the orders of the trial judge. McColl A/P and Leeming JA took the opportunity to make a number of observations about the trial judge’s oral delivery of the judgment.
The key points made by McColl A/P (at [3]-[4]) were as follows:
- There was no explanation as to why the judge had orally delivered a judgment of such length, rather than, as was customary with a lengthy judgment, handing down written reasons.
- While not all members of the judiciary had access to the same resources and there were times when exigency could require oral delivery of quite extensive reasons, there was nothing on the face of the proceedings which indicated any such necessity.
- In the circumstances, it was difficult to justify the utilisation of judicial and court resources, the costs burden imposed on the parties and the time lost to the legal representatives present in court by the course taken by the judge.
- Four days for the oral delivery of a judgment could not be consistent with the overriding purpose expressed in s 56 of the Civil Procedure Act 2005 (NSW) of facilitating “quick and cheap” disposition of proceedings. Nor could this, in any event, be a useful deployment of judicial resources in a busy trial court.
Leeming JA’s observations (with which McColl A/P agreed) were, in substance, as follows (at [10]-[15]):
- Oral delivery of reasons occupying more than one day was, and is, extremely unusual, even in large and important cases.
- The judgment from which the appeal in this case was brought, although very important to the parties involved, did not fall into the category of being a large and important case, and, in addition, times had changed.
- It was difficult to see how the efficient disposal of the business of the court and the use of available judicial and administrative resources in an efficient way were promoted by the course that had been taken by the judge. There was a public cost because a courtroom, court officers and court reporters were made unavailable for the hearing of other cases. There was a private cost, borne by both parties but mostly by the losing party, of paying for legal representatives to attend over four days. And it was difficult to see how the course taken was consistent with the overriding purpose of facilitating the “just, quick and cheap” resolution of proceedings as required by the Civil Procedure Act.
- There were also non-monetary considerations to take into account. Litigation was stressful for the parties and the course taken by the judge might have increased that stress. For example, the plaintiff could not have known whether he had won or lost the case until the third day, and could not have known the extent of his damages until the fourth day. Similarly, it was not until the third day that the driver of the motor vehicle could have learned that the judge had not accepted much of her evidence.
- While there might have been reasons not known to the Court for the course taken by the judge, it appeared not to be an isolated course of action for the judge in question.
- The course taken by the judge raised the concern as to whether, having regard to the important right of judges to deliver reasons in the manner they considered as the most appropriate in accordance with their office, there might not be a different approach which accorded better with the requirements of the Civil Procedure Act and which better enhanced the administration of justice.
