In Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 (28 March 2025), the New South Wales Court of Appeal dealt with a civil case involving a District Court trial over eight days between 19 June 2023 and 27 August 2023, a reserving of the decision, the making of final orders on 9 May 2024 and the delivery of written reasons on 13 August 2024. It was held that the delay, while excessive and unsatisfactory, did not attract the need for a re-trial, but rather only a rectification of any error in the reasons. The court wrote:
Delay in delivering reasons
Palmer v Clarke
[36] The recent starting point for a consideration of the question of the consequences of a delay in delivering reasons for judgment is the decision of this Court in Palmer v Clarke (1989) 19 NSWLR 158 (Palmer). In that case, following a nine day hearing in the District Court that concluded on 26 June 1985, the trial judge reserved his decision. At that time, he gave the parties leave to file further written submissions that were not received until 19 December 1985. There was then a delay of almost two years until the matter was listed for judgment on 3 December 1987. On that day, his Honour announced his decision and indicated that reasons would be available the following day. On the following day, his Honour commenced giving oral reasons, but then stopped to ask for submissions on interest. It is unclear precisely what happened then. The transcript of the reasons gives the appearance that it was a continuous record, but in fact it was common ground that his Honour did not complete delivering oral reasons until sometime in March 1988, when he delivered reasons occupying a further 20 pages of transcript. On appeal, this Court concluded that in the circumstances it was necessary to set aside the judgment and order a new trial.
[37] In reaching that conclusion, Kirby P (with whom Samuels JA agreed) commenced by pointing out that the tradition at common law was for a continuous oral trial conducted before a jury. As his Honour explained (at 164):
This tradition of the continuous oral trial affected the common law and practice of the delivery of reasons for judgment. Until very recently such reasons, even of appellate courts, were in England read out in open court so that the litigants and citizens could hear them. In England, this practice has lately been modified to allow the delivery of written judgments. That change of procedure was adopted many decades earlier in the superior courts of Australia.
His Honour might have added that the practice is still followed in judge alone criminal trials in this State and when sentences are imposed.
[38] As his Honour pointed out, that practice, in so far as it applied to the District Court, had been modified to some extent by Pt 31, r 9 of the District Court Rules 1973 (NSW), which provided:
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.
[39] An equivalent provision was contained in the Supreme Court Rules 1970 (NSW): see Pt 40, r 2. A similar provision is now found in Uniform Civil Procedure Rules 1995 (NSW) (UCPR) r 36.2, which provides:
(1) If the court gives any judgment, or makes any order or decision, and its reasons for the judgment, order or decision are reduced to writing, it is sufficient for the court to state its judgment, order or decision orally, without stating the reasons.
(2) After a judgment, order or decision has been stated orally under subrule (1), a written copy of it, including the court’s reasons for it, must then be delivered to an associate, registrar or some other officer of the court for delivery to the parties or may instead be delivered directly to the parties.
[40] According to Kirby P, in the case of inferior courts of record (such as the District Court), absent a provision such as Pt 31, r 9, strict compliance with the requirements of the common law was necessary. His Honour referred to several decisions supporting that conclusion including Melville v Phillips (1899) 9 QLJ 114 (Melville), R v Casey; Ex parte Lodge (1887) 13 VLR 37 (R v Casey) and Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 91 WN (NSW) 34 [1970] 1 NSWR 617 (Ex parte Currie).
[41] In Melville, the Full Court of the Supreme Court of Queensland held that the requirement to deliver judgment in open court could only be dispensed with by statutory authority. Consequently, r 156 of the District Court Rules which permitted a judgment to be delivered by a registrar was ultra vires. It followed that a judgment delivered in accordance with the rule was a nullity, with the result that the Full Court had no jurisdiction to entertain an appeal from it. In a passage quoted by Kirby P (at 165), Griffith CJ explained the decision in these terms (at 116):
But pronouncing judgment upon a trial is a judicial proceeding — perhaps the most important part of the judicial proceeding — and I confess I do not see how a judge can pronounce judgment except in open court, unless under the authority of some statute. A statute was passed a year or two ago empowering absent members of the Full Court, in any case in which judgment is reserved, to send their judgment in writing, to be read by a brother judge in open court. In the absence of any statutory authority of that kind, I can see no authority for a judge to give judgment otherwise than in open court; and so it appears to have been decided in Victoria. If that is the correct view, judgment has not been pronounced in this case, and as the Full Court does not sit as an advisory court, to give opinions in cases in which judgments have not been pronounced, this appeal is premature, and we have no jurisdiction to entertain it.
[42] Similarly, in R v Casey, Higinbotham CJ, delivering the judgment of the Court, said (at 40):
We think that the decision or determination of the learned judge in this case ought to have been pronounced in court, and that as it was not so pronounced it was not a judgment at all, and the entry in the county court register book and all the proceedings founded upon it are void. There is nothing however to prevent the learned judge from delivering his judgment on a future day.
[43] In Ex parte Currie, one of three licensing court magistrates who sat on a hearing was ill and did not sit at the time judgment was delivered. He later died. This Court held that under the relevant legislation, the Full Bench of the Licensing Court could only be constituted by three members. Consequently, at the time it delivered judgment it was not validly constituted, with the result that its judgment was void. In reaching that conclusion, the Court (Herron CJ, Wallace P and Manning JA) drew a distinction between superior and inferior courts (at 447, 38, 620):
Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court … Such a tribunal is not invested with those powers which are commonly exercised by courts of supreme judicature such as the Supreme Court of this State or higher tribunals. Such powers have their origin in tradition and their procedures are often dictated by convention.
Commenting on this passage, Kirby P said (at 167):
These words are equally applicable to the District Court, which is another court of limited statutory jurisdiction and not a superior court of record.
[44] Against that background, Kirby P concluded that the announcement of the primary judge in that case on 3 December 1987 was not the pronouncement of a judgment. It was merely a foreshadowing of what the trial judge intended to do later: at 168. What happened the following day was the pronouncement of judgment but plainly did not satisfy the judicial duty to give reasons: at 170. The subsequent oral reasons given in March 1988 did satisfy the requirements to give reasons, but they did not satisfy “the common law duty which rests upon judges to deliver their judgment and the reasons and opinions which support them in open court and at, or virtually immediately after, the time of the pronouncement of judgment”. So much in fact seems to have been accepted by the parties. Instead, the respondent argued that the delay in delivering reasons could be excused as an irregularity under s 159(1) of the District Court Rules 1973 (NSW), which relevantly provided that a failure to comply with the Act or rules “shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings …”. Kirby P rejected that argument for two principal reasons. First, the pronouncement of judgment was “a most important step in the judicial process” that could only be excused by express legislation. Second, s 159(1) was not apt to cure the problem. The appellant had not asserted that the judgment was null and void. They simply asserted that the failure to provide reasons was an appealable error: at 172.
[45] Priestley JA reached the same conclusion but on the basis that the primary judge, having delivered his judgment and some reasons on 4 December 1987, was functus officio. The reasons delivered on 4 December 1987 were so inadequate that the primary judge had failed in his judicial duty, with the result that a retrial was necessary: at 174. Kirby P thought that that point was arguable but in view of the conclusions he had reached, considered that it was unnecessary to decide it: at 172.
Mulvena v Government Insurance Office of New South Wales
[46] Palmer was considered by this Court in Mulvena v Government Insurance Office of New South Wales (Court of Appeal (NSW), 16 June 1992, unrep) (Mulvena). In that case, the primary judge (Viney QC DCJ) at the conclusion of a trial on 23 November 1990 announced that he had “formed the view that the plaintiff had not discharged his onus in this case and I propose to … enter a verdict for the defendant”. That decision was recorded on the District Court file at the time. On 12 December 1990, the primary judge then published a document entitled “Reasons for Judgment”. It was unclear whether the matter had been listed for judgment at that time, although it was common ground that the outcome of the case did not turn on whether the document was delivered in open court or not.
[47] Mahoney JA, with whom Clarke JA although writing separately substantially agreed, took the view that the appeal on the merits should be dismissed but that there had been a procedural error for two reasons. One was that the reasons were not given at the time the order was made. The other was that the reasons that were given, which were reduced to writing, were not given in accordance with Pt 31, r 9 of the District Court Rules. That error was an error of law but not a jurisdictional one. It could be corrected by setting aside the verdict and judgment and returning the matter 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”.
[48] In reaching that conclusion, Mahoney JA drew a distinction between “[a] court of unlimited jurisdiction”, such as the Supreme Court, which “may make orders taking effect instanter and may give reasons for the order subsequently” and courts of limited jurisdiction. Palmer was concerned with courts of the latter type. Relevantly, it decided that a District Court judge was obliged by the common law and the District Court Rules to give reasons at the time of pronouncing judgment. Part 31, r 9 was of no assistance, since it was primarily concerned with how written reasons for judgment were to be given, not when they were to be given. However, in his Honour’s view, the decision in Palmer should not be understood as requiring a retrial on each occasion of a procedural error. Rather “the remedy given should … 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”. In the present case, the error could be rectified by the order proposed.
[49] Sheller JA dissented. In his opinion, Palmer could not be distinguished and therefore a new trial was necessary.
Irlam v Byrnes
[50] The issue was considered again by this Court in Irlam v Byrnes (2022) 108 NSWLR 285; [2022] NSWCA 81 (Irlam). Like Palmer and Mulvena, that case concerned an appeal from the District Court. The hearing at first instance took place over five days between 18 and 22 June 2018. The primary judge handed down his judgment on 18 December 2020. After giving brief reasons for his conclusions, his Honour said:
As a consequence of my findings, for reasons that are lengthy and that I will publish by which I do not intend presently to read but which will be sent to you on Monday [21 December], the orders that I make in these proceedings are as follows …
In fact, on 24 December, his Honour’s Associate forwarded an email to the parties attaching a judgment in standard form of 64 pages.
[51] Cavanagh J (with whom Simpson AJA and N Adams J agreed in substance) concluded that the issue was governed by UCPR r 36.2. That provision did not require reasons to be delivered simultaneously with the pronouncement of the orders. Some delay was permissible. What that delay was depended on the circumstances of the case: see [2] (Simpson AJA); [21] (N Adams J); [118]ff (Cavanagh J).
[52] In reaching that conclusion, Cavanagh J distinguished Palmer on the basis that that was decided by reference to Pt 31, r 9 of the District Court Act 1973, which was worded slightly differently from UCPR r 36.2 (the Court did not refer to Mulvena). Moreover, it was necessary to interpret UCPR r 36.2 in light of s 56(1) of the Civil Procedure Act 2005 (NSW) (the CPA), which requires the rules to be construed having regard to the overriding purpose of the CPA, which was to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The delay was short. It occurred at the end of term, when it was unlikely that the unsuccessful party would want to take immediate action based on the results. In addition, it was apparent from what the primary judge said on 18 December that the reasons had largely been prepared and the primary judge just needed a short time to finalise them.
Consideration
[53] The decision in Palmer is not directly relevant to the facts in this case. In Palmer, the issue was not whether the District Court could deliver written reasons for judgment some time after pronouncing judgment. Rather, the question was whether the court, having delivered some reasons at the time of announcing its decision, could several months later seek to supplement those reasons by delivering additional oral reasons. It is hardly surprising that the Court concluded that it could not. Although it was suggested both in Palmer and Mulvena that that conclusion depended on the particular status of the District Court, that does not appear to have been a critical factor. Ultimately, Kirby P’s conclusions rested on what was said to be the common law requirement to deliver reasons “at, or virtually immediately after, the time of the pronouncement of judgment”. Absent legislation, it is unclear why that requirement would not apply equally to the Supreme Court.
[54] On the facts in Palmer, there also appears to be considerable force in the proposition accepted by Priestley JA that, having delivered its decision and some reasons for it, the Court was functus officio. That also explains why it was appropriate in that case to order a retrial. If the Court was functus officio, the additional reasons were not delivered in connection with the proceedings. Consequently, they were irrelevant and had to be ignored. The reasons that were delivered were plainly inadequate. Accordingly, there was no alternative other than to order a retrial. The position, of course would be different where, as in this case, the judge specifically reserved the giving of reasons to a later date.
[55] We have some difficulty in accepting, now, the proposition that appears to have been accepted by Kirby P in Palmer that at common law the duty of a court is to deliver oral reasons at or immediately after the time it pronounces judgment, at least in civil cases. As Kirby P pointed out, at one time that duty may have existed as part of the oral tradition of the common law. But that oral tradition has been modified substantially at least in civil cases in the Supreme Court, District Court and Local Court. In most civil cases in those courts evidence in chief is given either by affidavit or witness statements. Judgment is frequently reserved. Normally, although the decision is announced in open court, the reasons for the decision are reduced to writing and are provided to the parties at the time judgment is pronounced. However, particularly in urgent matters it is not uncommon for the court to announce its decision and state that it will provide its reasons later. Often that occurs where a plaintiff seeks interlocutory relief. But it may also happen where urgent final relief is sought. In interlocutory matters and in ancillary matters, such as judgments in relation to questions of costs, it is not unusual for the matter to be dealt with on the papers. It would be surprising if the common law in relation to what was required of a judge when giving reasons had not adapted to these changes in practice.
[56] There are suggestions in both Palmer and Mulvena that the ability of a court to deliver reasons after delivering its decision rests on the relevant rules of court (now UCPR r 36.2) or can be explained as a power vested in superior courts of record. However, neither of those explanations is entirely satisfactory.
[57] Certainly, some decisions can be explained as applications of UCPR r 36.2 (or its predecessors). The decision in Irlam is an example. However, UCPR r 36.2 cannot provide a complete explanation of current practice. That rule only applies where the court gives judgment “and its reasons for judgment … are reduced to writing”. On its face, the rule contemplates that the reasons are reduced to writing at the time judgment is given. That was the interpretation given to the rule by Campbell J in King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 at [151] and this Court in Ejueyitsi v Western Sydney University [2023] NSWCA 126 at [47]–[50] (Griffiths AJA; Mitchelmore JA and Simpson AJA agreeing). On an ordinary reading of the rule, that interpretation must be correct. The rule applies not only to judgments but to “any order or decision”, an expression that plainly includes interlocutory decisions given in urgent cases. But in many of those, the reasons for the decision will not have been reduced to writing at the time the decision is announced and the relevant orders entered.
[58] It is also unclear why special rules apply to superior courts of record in this respect. An important feature of a superior court of record is that any order it makes even if it is outside jurisdiction is valid until it is set aside: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [32], [38] and [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). But in the present context it was accepted both in Palmer and Mulvena that the failure to give reasons at the time judgment was pronounced, or at a time that was otherwise permitted, was not a jurisdictional error. It was an error of law. It has been held that a failure of an inferior court to give adequate reasons is not generally, of itself, jurisdictional error: Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 (Ming) at [25]–[46] (Kirk JA, White and Mitchelmore JJA). Not every judicial decision requires the giving of reasons: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] (French CJ and Kiefel J with Heydon J agreeing at [147]). However, “[t]he centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”: ibid at [54]. If reasons are required, then the failure of a superior court to give adequate reasons may also be an appellable error, and one of law: see eg. Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [23]–[29] (Basten JA, Leeming JA agreeing at [413]).
[59] Why, then, the law should impose different obligations on the Supreme Court and District Court in this regard is unclear. Certain specialist tribunals established by legislation may be the subject of specific obligations to give reasons, and the failure to comply with those obligations may amount to a jurisdictional error. Although not concerned with the timing of judgments or the adequacy of reasons, the decision in Ex parte Currie referred to by Kirby P in Palmer is an example of a case where the delivery of judgment by a panel not constituted in accordance with the relevant legislation was a jurisdictional error. However, there is nothing in the District Court Rules 1973 (NSW) which imposes particular obligations on the District Court in relation to the timing or content of reasons. What those obligations are is left to the common law.
[60] If the timing of reasons (where required to be given), like the content of reasons, is a question for the common law, that raises the question what the common law requires in that regard. We do not think that the common law now is as strict as Kirby P suggested in Palmer, since it must accommodate the examples we have given. In our opinion, in general a court should not make final orders without giving reasons (where reasons are required) unless there is sufficient cause to take that course, for example because of urgency. If the giving of reasons is postponed, then the obligation must be an obligation to give reasons as soon as reasonably practicable after judgment is delivered. Whether a court has failed to comply with that obligation will depend on all relevant circumstances, including the nature of the issue to be decided, the length of the delay and the reasons for any delay.
[61] Stating the test in those terms is consistent with the decisions we have referred to. It is also consistent with the decision of the Victorian Court of Appeal in Fletcher Construction Australia Ltd v Lines MacFarlane and Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167, where Chernov JA (with whom Charles and Vincent JJA agreed) said (at [32]) that there was “no such rule” that required a judge of a superior court to give reasons contemporaneously with pronouncing judgment. At the same time, a requirement that reasons be given as soon as practicable after judgment is pronounced recognises the importance of the prompt delivery of reasons. As Kirby P said in Palmer (at 173), admittedly in justification of a stricter standard:
This is not a blind adherence to legal history or to technical forms. It is insisted upon out of respect for our tradition of open justice and the public demonstration of its rational basis. It is observed in deference to the rights of unsuccessful parties to consider an appeal. It facilitates the performance by appellate courts of their function, including in the grant of urgent relief. Such a step can be best considered with the benefit of the reasons for the judgment appealed from.
[62] There are well-recognised reasons why courts in general are required to give reasons for their decisions. Those include: a hallmark of judicial power is that it resolves disputes in a way that is reasoned; facilitating justice being seen to be done; enabling the parties to understand the basis for the decision so as to consider exercising any rights to appeal; and because formulating reasons is a discipline which promotes better decision-making (see Ming at [26]–[29]). As to the first and second of those points, a significant delay in giving reasons for final orders may undermine the perception that justice has been done. As to the third, the time for filing any appeal will commence running when final orders are made. It will be unfair to the losing party if the time for appeal is diminished or expires before they can make an informed assessment of the prospects of an appeal. As to the fourth, most judges will have experienced cases where they have reached a particular view on a point of fact or law after a hearing but then changed their minds upon further reflection when writing their judgment. The possibility of the judge changing their mind illustrates why final orders in general should not be made until reasons are formulated.
[63] Plainly, in this case the primary judge did not deliver the reasons for her decision as soon as practicable. By its nature, the case was one where it might have been expected that the reasons for judgment would be delivered immediately after the judgment was pronounced. That did not happen. The delay was lengthy. The only apparent reason for the delay was that her Honour was under some pressure to deliver a decision and chose to do so well in advance of finalising her written reasons. That is not a satisfactory reason for the delay. Indeed, the course adopted by her Honour made the position worse because the appeal period commenced to run, yet it was not possible for Mr Rock and Ms Rock to formulate grounds for an appeal.
[64] The question remains what follows from the primary judge’s error. In answering that question, it is not easy to reconcile the approaches taken in Palmer and Mulvena, although the different decisions can be explained on the basis that in Palmer the effect of the Court’s decision was that the reasons were wholly inadequate whereas in Mulvena they were not only adequate but correct. In any event, we agree with the approach taken in Mulvena that the remedy should be confined to what is necessary to rectify the error. That approach is consistent with the conclusion that the error is not a jurisdictional one. The parties should only be put to the cost and inconvenience of a retrial if that is the only way of rectifying the consequences of the error. In this case, it could not be argued that her Honour was functus officio. It was plain that her Honour intended to deliver reasons and that fact was recorded in the orders that her Honour made on 9 May 2024.
[65] In the present case, there is no reason to think that the delay in delivering reasons affected the contents of those reasons. As we will explain, there are some problems with her Honour’s reasons. But there is nothing about those problems that suggests her Honour’s orders might have been different if they had been delivered at the same time as her reasons. Her Honour did ultimately deliver detailed reasons for her decision and any error in the orders made is capable of being corrected by this Court exercising its powers under s 75A of the Supreme Court Rules 1970 (NSW). Because of the delay in delivering reasons, Mr Rock was unable initially to formulate grounds of appeal. However, that problem has been overcome by the filing of an amended notice of appeal once the reasons became available. The same is true of Ms Rock. Whilst her summons seeking leave to appeal was filed out of time, that point has not been taken by the respondent. The absence of reasons, and the need for Mr Rock to file an amended notice of appeal, may have caused some delay in the hearing of the appeal. But that delay is not great, and any delay that has occurred could hardly be addressed by ordering a retrial. Neither Mr Rock nor Ms Rock point to any other prejudice suffered as a consequence of the delay. Accordingly, in our opinion, no further orders are required to address the error arising from the primary judge’s delay in delivering reasons.
…
(emphasis added)
A link to the full decision is here.
