Civil Trials Bench Book — Procedure generally

Judgments and orders are dealt with in Pt 7 of the CPA and Pt 36 of the UCPR. Section 63 of the Supreme Court Act 1970 is also relevant. As to the meaning of judgments and orders, see Thomson Reuters at [r 36.0.40]; Salter v DPP (2009) 75 NSWLR 392.

The court is, at or after trial or otherwise as the nature of the case requires, to give such judgment or make such order as the nature of the case requires: CPA s 90(1).

In doing so the court must seek to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA s 56.

The court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters of controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided: SCA s 63.

At any stage of proceedings, the court may give such judgment, or make such order, as the nature of the case requires, whether or not a claim for relief extending to that judgment or order is included in any originating process or notice of motion: r 36.1.

The rule calls for the resolution of all matters in dispute between the parties and allows a determination in favour of a defendant’s claim even though a cross-claim has not been filed.

The position remains that, at least generally, the proceedings should be put in proper form before the matter is completed: Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446.

It may also be the case that particular relief should not be granted having regard to the way in which the case has been conducted.

A consent order, once authenticated or signed by a judge, formalises the terms of agreement between two parties and makes it binding. Generally a court will make consent orders, however, see Ritchie’s at [36.1A.2] for examples of situations in which such orders will be refused. Following Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361, r 36.1A was amended to clarify that the court must be satisfied that all relevant parties to the proceedings have been notified before giving a consent judgment or ordering that such a judgment be entered. The court should be independently satisfied it has jurisdiction to make the consent order, because jurisdiction cannot be conferred by consent.

It is desirable for a judge to determine all issues in question and, in particular, to make findings as to damages even when a claim fails on the issue of liability, at least where an appeal is reasonably possible: Nevin v B & R Enclosures [2004] NSWCA 339 at [74]–[75]. However, a further hearing as to damages should not be held where liability has been determined adversely to the plaintiff on the hearing of a separate issue: Di Pietro v Hamilton (unrep, 6/9/90, NSWCA).

It may, however, be advisable in certain circumstances to “grant liberty to apply” or “reserve the case for further consideration”. The reason for and affect of these orders is discussed in considerable detail in Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Campbell JA at [50]–[75].

Where there is a claim by a plaintiff and a cross-claim by a defendant the court may give judgment for a balance or in respect of each claim: CPA s 90(2). The same can be done in respect of several claims between plaintiffs, defendants and other parties: CPA s 90(2).

The dismissal of any proceedings, either generally or in relation to any cause of action, or of the whole or any part of a claim for relief in any proceedings does not, subject to the terms of any order for dismissal, prevent the plaintiff from bringing fresh proceedings or claiming the same relief in fresh proceedings: CPA s 91(1).

However if, following a determination on the merits in any proceedings, the court dismisses the proceedings, or any claim for relief of the proceedings, the plaintiff is not entitled to claim any relief in respect of the same cause of action in any subsequent proceedings commenced in any court: CPA s 91(2).

A judgment for possession of land takes the place of and has, subject to the UCPR, the same effect as a judgment for ejectment given under the procedure of the Supreme Court before 1 July 1972: see CPA s 92. See s 20 of the CPA as to the substitution of a claim for judgment for possession of land for an action in ejectment and the discussion in Ritchie’s [s 20.5]–[s 20.25] and Thomson Reuters [s 20.20]–[s 20.40].

As to judgments for the detention of goods, including the alternatives open to the court, see CPA s 93. As to the exercise of the discretion to order a specific restitution of goods, see Ritchie’s [s 93.5]–[s 93.15] and Thomson Reuters [s 93.40].

As to set off of judgments see “Set off and cross-claims” at [2-2000].

Section 95 of the CPA deals with the consequences of a judgment against one or more, but not all, persons having a joint liability. See Ritchie’s [s 95.5]–[s 95.25] and Thomson Reuters [s 95.20].

Traditionally judgments were delivered orally in open court: Palmer v Clarke (1989) 19 NSWLR 158 at 164. Rules 36.2 and 36.3 facilitate the delivery of judgments, particularly in the District Court and the Local Court, where the decision has not been an extempore one delivered orally at or following the hearing.

Where a court gives a 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: r 36.2(1). Usually after the statement of the judgment, order or decision is made the judicial officer says: “I publish my reasons”.

After the oral statement a written copy of the judgment, order or decision including the written 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 be delivered directly to the parties: r 36.2(2).

Reasons may be delivered at some time after delivery of judgment rather than, as Samuels JA said in Palmer v Clarke (1989) 19 NSWLR 158, at that time. While the words in r 36.2 “After a judgment” combined with … “must then be delivered” suggests that it is necessary for the reasons to be delivered with a degree of contemporality, the rule does not specify the limit of any timeframe that might be permissible. If a delay is de minimis and of no consequence, it would not be in breach of r 36.2. Each case depends on its particular circumstances: Irlam v Byrnes [2022] NSWCA 81 at [119]–[122].

Whilst the Supreme Court has an inherent power to make orders and give reasons later, whether oral or written (King Investment Solutions Pty Ltd v Hussain (2005) 64 NSWLR 441), the District Court and Local Court do not have that power and must comply with the relevant legislation: Palmer v Clarke at 165; Cumming v Tradebanc International Ltd [2002] NSWSC 70 at [38]–[58].

If a judicial officer reserves judgment or decision on any question, that judgment or decision may be given either in open court or in the absence of the public, or reduced to writing, signed and forwarded to the registrar at the venue for the proceedings: r 36.3(1). If the judgment or decision is given by the judicial officer, it may be at the venue of the proceedings or at any other place at which the judicial officer is authorised to hear or dispose of the proceedings. If a registrar receives a judgment so forwarded, the registrar must appoint a time for the decision or judgment to be read. The registrar must give at least 24 hours notice to the parties, in writing or otherwise, of the appointed time. At that time the judgment or decision must be read by another judicial officer or the registrar, whether or not the court is sitting at that time: r 36.3(2).

A judgment or decision so given or read takes effect at that time and is as valid as if given by the judicial officer at the hearing: r 36.3(3).

The procedure authorised by r 36.2 applies to a reserved judgment or decision: r 36.3(4).

As to the content of reasons for judgment, see Judicial Commission of NSW, Handbook for Judicial Officers, 2021, “Judicial method” — ; Ritchie’s [36.2.10]–[36.2.35]; Thomson Reuters [r 36.2.60].

The obligation to give adequate reasons is well established. The need for transparency in decision-making and what is required in any particular case is discussed in numerous authorities, including: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56], citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444. Concision in judgments is desirable, but not if it comes at the expense of failing to give adequate reasons: Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 at [24]. See also Rialto Sports Pty Ltd v Cancer Care Associates Pty Ltd [2022] NSWCA 146 at [59]–[64] (judge failed to consider material arguments and relevant evidence on substantial issues and judge’s reasons were patently insufficient in being “strikingly short” and failed to explain a preference for one expert’s evidence over another); The Nominal Defendant v Kostic [2007] NSWCA 14 (failure to provide adequate reasons regarding medical evidence); Whalan v Kogarah Municipal Council [2007] NSWCA 5 (judge’s reasons did not engage with the case presented by plaintiff). As to reasons for demeanour findings, see Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186. As to amendments or additions to ex tempore reasons, see Spencer v Bamber [2012] NSWCA 274.

Reasons, which may be short, are required for orders under s 10A of the Criminal Assets Recovery Act 1990: International Finance Trust Company v NSW Crime Commission [2008] NSWCA 291; Elfar v NSW Crime Commission [2009] NSWCA 348.

See commentary at [2-6600].

A judgment or order generally takes effect as of the date on which it is given or made, or, if the court orders that it not take effect until it is entered, as of the date on which it is entered: r 36.4(1).

However, if the court directs the payment of costs and the costs are to be assessed, the order takes effect as of the date when the relevant cost assessor’s certificate is filed: r 36.4(2).

Further, despite the above rules, the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by these subrules: r 36.4(3).

Although it is not entirely clear that r 36.4 applies in circumstances where the court has not expressly ordered that costs be assessed, the court in Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211 ordered that the costs judgment take effect earlier than the date when the costs assessor’s certificate is filed: at [27].

As to the discretion conferred by r 36.4(3), see Ritchie’s [36.4.7] and Thomson Reuters [r 36.4.60].

If a judgment or order requires a person to do an act within a specified time the court may, by order, require the person to do the act within another specified time: r 36.5(1). If a person is required to do the act forthwith, or forthwith on a specified event or the time in which it is to be done is not specified, the court may require the person to do the act within a specified time: r 36.5(2).

If no time is specified in a judgment or order for doing an act, it is not enforceable until that time is specified: Wyszynski v Bill [2005] NSWSC 110 at [45].

An arrest warrant issued by order of the court must be signed by the judicial officer or by a registrar: r 36.9.

Any judgment or order of the court is to be entered: r 36.11(1).

A judgment or order is taken to be entered, unless the court orders otherwise, when it is recorded in the court’s computerised court record system: r 36.11(2). To be effective, the record must set out the judgment or orders made: Mills v Futhem Pty Ltd (2011) 81 NSWLR 538 at [27].

If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered when a document embodying the judgment or order is signed and sealed by a judicial officer or a registrar or when the judgment or order is recorded in the court’s computerised court record system, whichever first occurs: r 36.11(2A).

As to the extended meaning of judgment or order for the purpose of this rule, see r 36.11(3).

As to the practice and procedure of the various courts, see Thomson Reuters [r 36.11.61]–[r 36.11.80].

For a detailed discussion of r 36.11 and related issues see: Mills v Futhem Pty Ltd (2011) 81 NSWLR 538. As to the effect of a judgment being entered, see Katter v Melhem (2015) 90 NSWLR 164 at [69]–[81].

A sealed copy of a judgment or order need not be served unless the UCPR expressly so requires or the court so directs: r 36.14.

A judgment is not enforceable by committal or sequestration unless a sealed copy is served personally on the person bound by the judgment (r 40.7(1)(a)) and, if relevant, within the appropriate time: r 40.7(1)(b). This rule does not apply to a committal or sequestration arising from a failure to comply with the requirements of a subpoena.

For circumstances in which it would be appropriate for the court to order such service, see Thomson Reuters [r 36.14.40]. Examples are where substituted service is ordered or a non-party is affected by an order.

Legislation

Rules

Further references