At the end of most Supreme Court hearings the presiding Judge says “we will reserve our decision”. In older reports the words are cur adv vult, the Court wishes to consider. Nothing more happens in open court until judgment is delivered, and the period in between raises practical questions.
Why judgments are reserved
A bench of three or five Judges must reach a decision together, and each must either agree with a draft or write separately. Constitution section 155(2) makes the decision final, so it is written with care. Ex tempore judgments, delivered on the day, are given on short applications before a single Judge, on objections to competency, and occasionally on appeals where the answer is clear; the substantive appeal is nearly always reserved.
How the judgment is delivered
(1) When any cause or matter, after being fully heard before the Supreme Court, is ordered to stand for judgement, it is not necessary that all the Judges before whom it was heard be present together in Court to declare their opinions on it, but the opinion of any of them (a) may be reduced to writing; and (b) may be read or handed down to the parties or their counsel by any other Judge at any subsequent sitting of the Supreme Court at which judgement in the cause or matter is appointed to be delivered. (2) In a case referred to in Subsection (1), the question shall be decided in the same manner, and the judgement of the Court has the same force and effect, as if the Judge whose opinion is so read or handed down had been present in Court and had declared his opinion in person.
The Registry lists the matter “for decision” on a day in the sittings and notifies the lawyers at the Form 17 address, often by telephone or email a day or two before. Attendance is not compulsory, but a party who attends receives the written judgment on the day and can ask for consequential orders. The judgment is usually a single written opinion of the Court, or one opinion with others concurring; where the Judges differ, each writes, and section 7 provides that the decision is that of the majority. See what happens if the Judges disagree.
If a Judge cannot deliver
Section 12 covers a Judge who has written an opinion but cannot attend the delivery: another Judge reads it. Section 3 covers a Judge who, before judgment, becomes unable to exercise the functions of the office at all, through illness, retirement or death: the remaining Judges give judgment if both parties agree and at least two remain, otherwise the appeal is reheard. Order 12 Rule 4(b)(i) adds that where judgment is delivered by fewer than the full bench and no costs order is included, the Judges delivering it may hear the parties on costs. See whether the Court can decide with fewer than three Judges.
The position while judgment is reserved
| Question | Answer |
|---|---|
| Is the National Court judgment in force? | Yes, unless a stay was granted under s 19 of the Act; a stay ordered “pending determination of the appeal” continues until judgment is delivered |
| Can I file further submissions? | Only with leave; write to the Registrar asking that the bench consider a new authority, with a copy to the other side, and the Court decides whether to receive it or relist |
| Can I settle? | Yes; file a notice of discontinuance under O 7 r 20 or consent terms, and the Court will make the orders instead of delivering judgment |
| Can I ask how long it will take? | A courteous letter to the Registrar is acceptable; correspondence to the Judges is not |
| Does interest run? | Yes, on a money judgment below, under the Judicial Proceedings (Interest on Debts and Damages) Act |
| Does time for anything run? | No time limit runs against the parties until judgment; the 21 days under O 11 r 32 for slip rule and post-judgment applications runs from delivery |
Delay
Neither the Act nor the Rules set a time within which a reserved judgment must be delivered. Constitution section 37(11) requires civil proceedings to be fairly heard within a reasonable time, and section 155(4) allows the Court to make orders necessary to do justice, which is the basis on which a party can, in an extreme case, apply for the matter to be relisted for delivery or reheard. In practice the Chief Justice’s administrative supervision of outstanding judgments is the remedy. The judgment when delivered speaks from its date, and the orders take effect then unless the Court says otherwise. See when a Supreme Court judgment takes effect, getting a sealed copy of an order and finding and citing a Supreme Court judgment.
Sources
- Supreme Court Act (Chapter 37) — ss 3, 7, 12, 19
- Supreme Court Rules 2012 — O 7 r 20; O 11 rr 4, 32; O 12 r 4
- Constitution — ss 37(11), 155(2), (4)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.