Is it a motor accident (even a blameless one) if you are injured when you are thrown off your horse on a country road when a car passes by? The answer is important if you want to claim on the statutory insurance scheme. Unfortunately, the Court of Appeal found that causation was not proved and the claim failed. However, that’s not the reason why I’m writing about Fairall v Hobbs [2017] NSWCA 82. The trial in that case went for 6 days in the District Court in Wagga before Judge Neilsen. That’s not unusual, but his Honour’s decision to give an oral judgment over 4 days did raise the eyebrows of McColl and Leeming JJA in the Court of Appeal.
Leeming JA often gives interesting historical backgrounds in his judgments. This was not an exception:
- Two centuries ago, all judgments were delivered orally. A century later, the tradition was in the process of being substantially eroded, but there were occasions when even extensive and important judgments were delivered orally. One example was Duncan v State of Queensland (1916) 22 CLR 556, a highly controversial decision on s 92 of the Constitution, argued over 12 days between 21 September and 9 October, with reasons delivered on 25 October 1916 occupying 83 pages of the Commonwealth Law Reports. Yet that judgment, and those in other large and important appeals …. was delivered in a single day.
- Oral delivery of reasons occupying more than one day was, and is, extremely unusual. Tito v Waddell (No 2) [1977] Ch 106, a decision of the first order of importance in private law and constitutional law, was argued before Megarry VC over 100 days in 1975 and 1976, and his Lordship delivered reasons occupying just over four days from Monday 29 November 1976 spilling into Friday 3 December 1976. Those reasons occupy 218 pages of the law reports, and are regularly cited today. It had been an exceptionally long trial, but even so delivering judgment over just over four days was exceptional. Until I encountered this appeal, I was unaware that there were modern counterparts.
- The judgment from which this appeal has been brought is extremely important to the litigants, but falls into an entirely different category from those mentioned above. And times have changed.
McColl JA took a more pragmatic approach:
- There is no explanation in either the transcript of the hearing, or the primary judge’s reasons, as to why his Honour delivered a judgment of such length while sitting in court, rather than, as is customary with a judgment of such length, handing down written reasons.
- I accept that not all members of the judiciary have access to the same resources and that, at times, exigency may require the delivery of quite extensive reasons in a court sitting. However, nothing on the face of these proceedings indicated any such necessity. It is difficult, with respect, in such circumstances, to justify the utilisation of judicial resources, court resources, let alone the costs burden imposed on the parties, and the time lost to the legal practitioners present in court by this exercise.
Justice Harrison’s all day oral judgment in the Chris (Teacher’s Pet) Dawson murder trial late last year is a bit different. Usually there is no judgment (apart from the jury announcing “guilty” or “not guilty”) in criminal matters. In any event getting 10 weeks of trial summarised into 5 hours was good going!
Creative commons acknowledgment for the photograph.
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