Appeals – orders not reasons September 12, 2019

11. In relation to the appellant’s principal point, that he wishes to challenge the “finding” of the court below and the statutory construction underpinning it, it is axiomatic that parties are entitled to appeal from orders made and not reasons given: Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91(1968) 121 CLR 45 at 64; [1968] HCA 91 per Barwick CJ and Kitto J:

“ … it is of the nature of appeals, as s. 73 of the Constitution recognizes, that they lie only against “judgments, decrees, orders and sentences”, not against reasons. The word “judgments” in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.”

12. The same point has been made on many occasions in this Court. See, for example, TriCare (Hastings) Limited v Allen [2015] NSWCA 344:

“[10] It is well established that a “judgment or order” in the context of s 101(1)(a) of the Supreme Court Act refers to an operative judicial act, i.e., the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Limited v Federal Commissioner of Taxation [1968] HCA 91(1968) 121 CLR 45 at 64; and see the other authorities referred to by Campbell JA, with whom Handley AJA agreed, in Wang & Liu v State of New South Wales [2011] NSWCA 321 at [23] noting his Honour’s observation that while error in a judgment or order might be demonstrated on an appeal by showing error in a judge’s reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment.”

BP v State of New South Wales [2019] NSWCA 223

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