Gibson v Director of Public Prosecutions (NSW) (No 2)

1. [1]

   BELL P: On 1 June 2020, Mr Scott Gibson (the Applicant) was convicted in the Local Court of New South Wales of seven offences of knowingly contravening a restriction in an apprehended violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the CDPV Act), and one offence of stalking or intimidation with intent to cause fear of physical or mental harm, contrary to s 13(1) of the CDPV Act.

2. [2]

   On 10 June 2020, the Applicant filed a Notice of Appeal in the District Court of New South Wales, challenging his convictions. The appeal was heard before Baly SC DCJ on 26 and 28 October 2020. The Applicant represented himself ably before her Honour.

3. [3]

   On 28 October 2020, her Honour upheld the appeal in relation to sequences 3, 4, 6, 8 and 10, and quashed the convictions for those charges. Her Honour dismissed the conviction appeal for sequences 1 and 7, and re-sentenced the Applicant in respect of those offences and sequence 9 (to which the Applicant had pleaded guilty), imposing a conditional release order for a term of 6 months.

4. [4]

   On 25 November 2020, the Applicant purported to lodge what he described as an “[a]ppeal under Section 5B of the Criminal Appeal Act 1912 (NSW) to the Criminal Court of Appeal” by an email to the Queanbeyan Local Court. It is not necessary to explore why this somewhat irregular course was taken but, as shall be seen, the Queanbeyan Local Court Registrar (the Registrar) sought to assist the Applicant and to facilitate the process he evidently sought to pursue. Thus, later on 25 November 2020, the Registrar responded to the Applicant in these terms:

5. [5]

   Later that same day, the Applicant acknowledged the Registrar’s assistance and resubmitted his “amended appeal” papers. The document accompanying the Applicant’s email was headed “Appeal under Section 5B of the Criminal Appeal Act 1912 (NSW) to the Criminal Court of Appeal”. It referenced sequences 1, 7 and 9 in respect of which the Applicant’s appeal had been unsuccessful in the District Court, and set out a statement of facts comprising some 19 paragraphs presumably purporting to state a case by reference to or in the context of which various questions of law were to be answered. Under the heading “Questions of Law”, some 12 purported questions of law were formulated.

6. [6]

   The Registrar informed the Applicant on the same day that he had “forwarded your document to Judge Baly’s Associate at Goulburn for consideration by the Judge”.

7. [7]

   On the following day, the Registrar emailed the Applicant in the following terms:

8. [8]

   The Applicant filed a Summons seeking to invoke the supervisory jurisdiction of this Court on 18 March 2021. That Summons was out of time, but the Director of Public Prosecutions (NSW) (the Director) did not oppose an extension of time and one should be granted.

9. [9]

   The decision identified in the Summons in respect of which judicial review was sought was that dismissing the Applicant’s appeal in respect of sequences 1, 7 and 9 and setting a 6 month conditional release order. The order sought in the Summons, however, was that:

10. [10]

    The ground for the application, as stated in the Summons, was as follows:

11. [11]

    There is a degree of conceptual confusion in the Summons seeking judicial review. No personal criticism is intended of the Applicant in that respect. He represented himself in this Court, as he had done below, with dignity and sincerity in what was obviously a difficult matter for him.

12. [12]

    Notwithstanding the degree of conceptual confusion in the Summons, it is tolerably clear from the terms of the order sought and the ground for review articulated that what in substance was being challenged was the “decision” (if in fact it was a decision – a matter discussed below and in the separate reasons of Basten JA) not to refer the 12 “Questions of Law” formulated by the Applicant to the Court of Criminal Appeal.

13. [13]

    The “Questions of Law” as formulated by the Applicant for referral to the Court of Criminal Appeal were as follows:

Was there a decision at all?

1. [14]

   No formal order was made dismissing or refusing the Applicant’s request to refer questions to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). That section provides that:

2. [15]

   Nor were any reasons published by Baly DCJ for declining the Applicant’s request. That may have been because of the somewhat irregular way in which the request was made, as has been recounted above, namely through the Registrar of the Queanbeyan Local Court.

3. [16]

   Ms Gleeson, who appeared for the Director before this Court, submitted that an inference could be drawn that the judge did make a decision to decline to submit questions of law to the Court of Criminal Appeal and that her Honour’s reasons for this were contained in the Registrar’s email of 26 November 2020, reproduced at [7] above.

4. [17]

   Ms Gleeson further submitted and indeed conceded that those “reasons”, insofar as they volunteered that the judge considered herself to be functus officio, involved a jurisdictional error, namely a failure to exercise jurisdiction or a mistake as to the extent of jurisdiction.

5. [18]

   The indirect and informal communication of “reasons”, being relayed in the manner they were, namely in the form of an email from the Registrar of the Queanbeyan Local Court, was not, with respect to her Honour, entirely satisfactory. True it is that the “application” to her Honour lacked formality and regularity. But even allowing for the irregular way in which the application was made, its formal disposition was at the very least desirable for a number of reasons.

6. [19]

   First, the Applicant had a statutory right pursuant to s 5B of the Criminal Appeal Act to request the referral of questions to the Court of Criminal Appeal, at least within 28 days of “the end of the appeal proceedings”. The judge was obliged to give consideration to that request and, in my opinion, to give at least short reasons for declining it. In one sense, this is what her Honour did albeit informally and indirectly through the Registrar. Even if, as Basten JA has suggested at [62], reasons for such a decision may not be required unless requested, when given, this should be done formally and, where possible, in open court.

7. [20]

   Secondly, when a decision is made, it is necessary that there be clarity as to when that occurs: see Ex parte Hall; Re Howie (1932) 50 WN (NSW) 30 at 31; Palmer v Clarke (1989) 19 NSWLR 158 at 174; and Nominal Defendant v Livaja [2011] NSWCA 121 at [20]-[21]. That is because, amongst other reasons, applicable time limits for appeals or judicial review run from the date of the making of relevant decision. Knowledge of such time periods is essential for all parties to the litigation.

8. [21]

   Thirdly, the parties are entitled to know that the reasons given for orders are the reasons of the judge who has heard the matter, and not some summary or paraphrase of those reasons by the administrative officer who may have passed them on, as the Registrar did in the present case cf Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119 at [99], quoted by Basten JA at [50].

9. [22]

   The application for judicial review in the present case was conducted on the basis that the relevant decision was one made by Baly DCJ, that her Honour declined to refer questions to the Court of Criminal Appeal, and that the decision was made on 26 November 2020 for the reasons stated in the Registrar’s email, as reproduced at [7] above. It is sufficient to consider the application for judicial review on that footing.

What was the decision and did it involve jurisdictional error?

1. [23]

   In Craig v The State of South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58, it was said that an:

2. [24]

   If the proper understanding of the “reasons”, as relayed to the Applicant by the Registrar, was that her Honour could not even entertain his “request”, to use the language of s 5B(2) of the Criminal Appeal Act, to refer questions to the Court of Criminal Appeal, because she had no power to do so, having already disposed of the appeal from the Local Court on 28 October 2020 and was functus officio in that sense, that would have been a jurisdictional error. This is because of the words “even though the appeal proceedings during which the question arose have been disposed of” in s 5B(2) of the Criminal Appeal Act, which make it plain that a request may be submitted to the District Court and acceded to after disposal of the appeal. Her Honour was not functus officio.

3. [25]

   Reading the Registrar’s email and her Honour’s reasons as contained in that email as a whole, however, it is not absolutely clear that the basis of the primary judge’s reasons was that her Honour was functus officio. In this regard, the Director may have been too generous in the concession made as to jurisdictional error (see [17] above). This is so for two reasons.

4. [26]

   First, the explanation in the first paragraph of the email to the effect that a judge has a discretion whether or not to refer questions to the Court of Criminal Appeal, and that that discretion need not be exercised favourably in the circumstances referred to, would have been irrelevant and otiose if the judge considered that she lacked power to refer the questions sought to be referred because she was functus officio. Secondly, the language of the last paragraph, namely that the judge had “declined to state a case in this matter” is consistent with her Honour considering whether or not to state a case and declining, in the exercise of her discretion, to do so. This language is not apt to convey a conclusion that a judge has no power either to accede to or to decline a request because he or she is functus officio.

5. [27]

   Ultimately, in my view it is not necessary to decide whether the Director’s concession was correctly made. If it was and if jurisdictional error is established, relief should nevertheless be withheld because the questions sought to be referred to the Court of Criminal Appeal were plainly not “questions of law”, as that expression has been considered in the context of the Criminal Appeal Act in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr). As Bathurst CJ and I observed at [109]:

6. [28]

   The questions propounded by the Applicant and sought to be referred to the Court of Criminal Appeal as set out at [13] above do not meet this description. They were for the most part either questions of fact, or questions of mixed fact and law. Proposed questions 6 and 12 reflect a grievance that the Applicant no doubt sincerely felt, but they are not questions of law that properly arose in the course of the proceedings below.

7. [29]

   Any jurisdictional error may thus be regarded as “immaterial”: see MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [27]-[39]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3.

8. [30]

   Alternatively, relief should be withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility: see Charara v The Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 at [62]-[63]; Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [6]-[8]; and Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [33]. That is to say, were the decision quashed and the matter remitted for determination in accordance with law, the form of the questions propounded by the Applicant and sought to be referred was such that the Court could be confident that they would not be referred because they were not in truth questions of law.

9. [31]

   If the Director’s concession as to jurisdictional error was not well made, and the proper interpretation of the “reasons” was that her Honour declined in the exercise of her discretion to accede to the Applicant’s request that questions be referred to the Court of Criminal Appeal, this would not have been a jurisdictional error which would engage this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). This would be so even if the judge committed some error in her analysis as to whether or not the questions involved questions of law.

10. [32]

    To this extent, I have reservations as to the correctness of an aspect of the recent decision in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83, where it was held that the District Court judge committed jurisdictional error by not referring a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act on the basis that he considered it was a question of mixed fact and law. His Honour may or may not have erred in his characterisation of the question sought to be referred, but it is strongly to be doubted that this was a “jurisdictional error”. An error of law made within jurisdiction is not a jurisdictional error: see, for example, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales (2014) 242 IR 338; [2014] NSWCA 116 at [76]; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [54]; see also Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42], where Basten JA (with whom Bathurst CJ and Beazley P agreed) observed that:

11. [33]

    Furthermore, s 5B of the Criminal Appeal Act operates to permit questions of law to be referred. It does not exist for the purpose of the correction of errors of law made by a District Court judge hearing an appeal from the Local Court: see Orr at [105]. As Basten JA said in Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162 at [47]:

Conclusion

1. [34]

   It follows from the above that, whether or not the decision not to refer the questions of law involved jurisdictional error, the Applicant’s Summons should be dismissed.

2. [35]

   If there was jurisdictional error, it was not material; alternatively, any relief should be withheld on the basis of a lack of utility. If there was no jurisdictional error, there is no proper basis for this Court to interfere with the decision.

3. [36]

   The Director sought an award of costs. Although this was opposed by the Applicant by reference to his personal circumstances, there is no principled basis for departure from the usual rule, as enshrined in UCPR r 42.1, that they should follow the event.

4. [37]

   Accordingly, the Court should, in my opinion, make the following orders:

   1. (1)

      Extend the time for the filing of the Summons.

   2. (2)

      Summons dismissed with costs.

5. [38]

   BASTEN JA: The applicant, Scott Gibson, sought judicial review of a decision by a District Court judge to refuse his request for the submission of certain questions to the Court of Criminal Appeal. I agree with the President that the application must be dismissed with costs. I also agree with his reasons for those orders and do not repeat either the background or the dispositive reasoning. However, I would supplement that reasoning with the following analysis.

Nature of power of District Court judge

1. [39]

   The history of s 5B of the Criminal Appeal Act 1912 (NSW) was set out in Forrest v Director of Public Prosecutions (NSW) and need not be repeated. [1] The section in its present form provides:

2. [40]

   The role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal has been considered in a number of recent judgments of this Court, including Mack Fleet Pty Ltd v Transport for NSW, [2] Forrest and Franklin v Director of Public Prosecutions (NSW). [3] (A case of similar vintage, Jankovic v Director of Public Prosecutions, [4] was not followed in a material respect in Forrest.) Subject to a qualification with respect to one aspect of the reasoning in Franklin, the following principles emerge:

   1. (1)

      Section 5B confers a power on a District Court judge determining an appeal from the Local Court in a criminal matter to submit a question of law “arising on” the appeal to the Court of Criminal Appeal.

   2. (2)

      A party to the District Court appeal may “request” the judge to submit a question of law: s 5B(2). If that step is taken after final orders have been made in the District Court, the Court of Criminal Appeal may quash the order of the District Court: s 5B(3).

   3. (3)

      If the District Court exercises the power of its own motion under subs (1), that step will generally be taken before any final order is made. If the submission of the question occurs pursuant to a request under subs (2), the question must be submitted either before, or within 28 days after, the final order.

   4. (4)

      When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to:

   5. (5)

      If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially.

3. [41]

   The operation of s 5B is to be viewed in the context of three overarching considerations. First, s 5B does not create a right of appeal, either generally, or limited to a question of law. Rather, it confers a power on the District Court judge to submit questions of law, including the authority to settle the form and content of any questions which are to be submitted.

4. [42]

   Secondly, satisfaction as to the factors set out (4) above are matters to be determined by the District Court judge: it is not for this Court on a judicial review proceeding to satisfy itself that, for example, a particular question of law “arose on the appeal”. [5] This Court can only intervene if a material error (of a kind to be considered further below) had been made by the District Court judge in forming his or her state of satisfaction. To this extent, aspects of the reasoning in Franklin should not be followed. Thus, s 5B does not impose an obligation to submit a case to the Court of Criminal Appeal so long as the questions are “not obviously frivolous and baseless”. [6] A state of satisfaction may be set aside if formed arbitrarily or capriciously, irrationally, or not bona fide, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu. [7]

5. [43]

   Thirdly, a decision as to whether or not to submit a question of law, if exercised after final orders have been made, is incidental to the process of determining an appeal from the Local Court under Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW). It is not strictly the exercise of a judicial power: nor is there any suggestion in the Criminal Appeal Act that the power is to be exercised judicially in the sense of quelling a controversy after hearing the parties. The power under s 5B is not identified as one of the powers to be exercised by the District Court in order to “determine an appeal”, pursuant to the Crimes (Appeal and Review) Act, ss 20, 27 and 28. In effect, the District Court judge is acting as a gateway to the exercise of jurisdiction by another court. Nor does that other court (the Court of Criminal Appeal) have any jurisdiction to review the decision made by the District Court judge, although it may decline to answer questions submitted to it.

6. [44]

   The next issue is whether the power to be exercised under s 5B of the Criminal Appeal Act constitutes part of the criminal jurisdiction of the District Court for the purposes of Pt 4 of the District Court Act 1973 (NSW). If it does, s 176 of the District Court Act (appearing in Pt 4) states that “[n]o adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.” It has long been held that this provision precludes judicial review in the supervisory jurisdiction of this Court for errors of law on the face of the record and permits only review for jurisdictional error. [8]

7. [45]

   The scope of the phrase “adjudication on appeal” is capable of a meaning broader than “a determination of an appeal” and may extend beyond the making of a final order. The supervisory jurisdiction is sometimes expressed as limited to orders affecting legal rights, but that does not exclude orders which may for some purposes be treated as interlocutory, but which affect legal rights. As explained in Ainsworth v Criminal Justice Commission: [9]

8. [46]

   If the District Court submitted, or refused to submit, a question of law prior to making a final order, that act would readily fall within the concept of “adjudication on appeal”. If the section applies to an interlocutory order involving the power to submit a question of law, it should be accepted that it also applies to a decision on a request made after the final determination of the appeal in the District Court. Accordingly, if the applicant has a right to seek judicial review of a refusal to submit a question under s 5B, as has frequently been accepted, the applicant is limited to review based on jurisdictional error.

9. [47]

   There are two further issues relating to the nature of the process. The first is whether the decision of the judge is required to be conveyed in a particular manner, such as by making an order in open court. The second is whether the judge is under an obligation to give reasons for his or her decision.

10. [48]

    The decision of the judge in the present case was conveyed to the applicant by the Registrar of the Local Court at Queanbeyan in an informal manner in the course of an email exchange. Directions of an administrative kind, such as listing arrangements, are given in that manner every day in every court. In principle, however, formal judgments should be delivered in open court, if it is practicable to do so. In normal times that is undertaken by the statement in open court of the orders of the court and, if available, the delivery of reasons. However, that practice is by no means universal. In many cases, especially in civil trials of some complexity, a judgment will be delivered which invites the parties to formulate appropriate orders, which may be provided to the judge in writing. The orders may not be pronounced in open court. The necessary element of formality is provided by the entry of orders in the records of the court, now computerised. There may be no fixed procedure for conveying the record to the parties, although obviously that should be done.

11. [49]

    In June 2005, the Victorian Court of Appeal discountenanced the practice of “posting or emailing by judges of their written reasons”. [10] In 2017, in Di Benedetto v Kilton Grange Pty Ltd, [11] the Court accepted a more flexible approach. While noting the importance of open justice, the Court also referred to the overarching purpose in the Civil Procedure Act 2010 (Vic), namely to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute (s 7(1)), and continued:

12. [50]

    There was a further factor of concern in that case, namely that the reasons were transmitted by the associate:

13. [51]

    In 2018, in Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd, [12] the Court stated, with respect to Esso Australia:

14. [52]

    With respect to Di Benedetto, the Court made two points:

15. [53]

    A matter of greater importance than where and how a judgment is delivered is to ensure that it reaches the parties. Handing down judgment in open court will not achieve that if the parties are not notified in advance of the hearing. Further, the current pandemic, which has resulted in the public being precluded on occasion from entering court buildings would have stopped the course of justice in its tracks if judgments could not be delivered electronically, or by post, although the former has the advantage of contemporaneous delivery equivalent to hearing the judgment delivered in open court. (This Court now generally provides remote links to the court room for delivery of orders, followed by electronic and postal transmission of orders and reasons, and uploading them to the internet.)

16. [54]

    The issues of concern in the present case were twofold. The first was that the applicant received no document recording the decision from the judge. The decision was conveyed by a person identified only by his or her initials and described as “Registrar, per MH Queanbeyan Local Court”, stating what the judge had “advised”. Secondly, there is no record of the application, or its disposition, on the computerised records of the District Court. If there is a notation on the file, it is not available to this Court. Nevertheless, there is no suggestion that a decision was not made in accordance with the Registrar’s email to the applicant.

17. [55]

    The more difficult question is whether the three brief paragraphs in the Registrar’s email should be taken as the reasons of the judge for the decision. If they are so taken, there might be a further question as to whether they constitute part of the court record for the purposes of s 69 of the Supreme Court Act 1970 (NSW), which relevantly provides:

18. [56]

    It is not necessary to resolve whether s 69(4) is engaged, because, as noted above, review for error of law on the face of a record is precluded by s 176 of the District Court Act. That did not leave the applicant without a remedy if he could demonstrate jurisdictional error. It may be possible to demonstrate jurisdictional error from the judge’s reasons, or from a consideration of the result, if it can be shown, without having access to the reasoning of the judge, that the decision in fact reached could not have been reached if the function were exercised according to law. [13]

19. [57]

    In the present case, the three paragraphs in the Registrar’s email (set out at [7] above), while not entirely coherent, do not affirmatively demonstrate that the District Court judge misconceived her true function in relation to the request to submit questions of law. The first paragraph accurately, so far as it goes, reflected the discretionary scope of the power in s 5B. To the extent that it was inaccurate, it favoured the applicant by suggesting more limited grounds for refusal than those identified in Forrest.

20. [58]

    The second paragraph is obscure. It may have been correct that the judge was “functus officio” and did not have power to “reopen” the case. That was not what the applicant, in terms, sought. If it were to be inferred that the judge believed she was required to reopen the case in order to submit questions of law to the Court of Criminal Appeal, that might possibly have indicated jurisdictional error on the basis that it denied power in circumstances where power existed. On the other hand, the judge may have formed the view that the twelve discursive and argumentative “questions” (set out in full at [13] above) were in truth a request to reopen the hearing. That would not have been an unreasonable view, given that none of the questions could be described as pure questions of law, but rather read like a repetition of the applicant’s case on the appeal.

21. [59]

    Whatever the correct understanding of the second paragraph in the email, the statement in the third paragraph, that the judge “has declined to state a case”, is less consistent with an (incorrect) belief that she lacked power, than a refusal to exercise the power. Given the statement as to the existence of the power in the first paragraph, jurisdictional error should not be inferred.

22. [60]

    The only other alternative is not to treat the reasons provided by the Registrar as the reasons of the judge. In that event, it is appropriate to ask whether the refusal to submit the questions in the form in which they were presented by the applicant was consistent only with a misconception as to the judge’s function under s 5B. In fact, a consideration of the questions demonstrates the contrary; applying proper principles, the judge could not have submitted any of the questions.

23. [61]

    The final issue is whether, if the email from the Registrar is not to be taken as the judge’s reasons for refusing to submit a case, the decision was invalidated by a failure to give reasons. It has never been required that a judge give reasons for every decision made in the course of exercising the judicial function. In Soulemezis v Dudley (Holdings) Pty Ltd [14] Mahoney JA observed that “where ordinarily an appeal is not contemplated, there may not be a need for reasons” and that in cases of “applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given.” In the same case, McHugh JA, after rejecting the proposition that reasons were only required where there was a right of appeal, stated: [15]

24. [62]

    There is, of course, an intermediate course which operates in some of the circumstances outlined in Soulemezis. In circumstances where a judge would not ordinarily be expected to give reasons, a party may request reasons. In my view, a request to exercise the power to submit a question of law under s 5B is such a case. Ordinarily the judge would not be required to give reasons unless reasons were sought, there being no right of appeal and the judge being required to exercise a gateway function with respect to a limited form of appeal. If, despite a request for reasons, the judge declined to provide them, the applicant could test the matter by seeking an order from this Court that the judge provide reasons. Such a process would be cumbersome and expensive, but the situation would rarely arise. The possible difficulty of enforcement of a contingent right does not warrant the imposition of a rigid requirement for reasons, nor does it require that decisions be invalidated in the absence of reasons.

25. [63]

    For these reasons, additional to those given by the President, the application must be dismissed.

26. [64]

    MEAGHER JA: As the separate reasons of the President and Basten JA show, the making and communication to the parties of decisions and orders of a court, whether or not required to be accompanied by reasons, remains an essential aspect of its functions. The present case illustrates some of the difficulties that arise where there is a departure from a process which includes, at an appointed time, the delivery to the parties of the court’s decision, preferably in open court. I agree for the reasons their Honours give that Mr Gibson’s application should be dismissed with costs.