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Judge's reasons December 28, 2016

Toll Pty Ltd v Harradine [2016] NSWCA 374

69. … The basic principle is that stated by Meagher JA in Beale v Government Insurance Office of NSW, [19] when referring to “three fundamental elements of a statement of reasons”:

“First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.


Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached…. [W]here findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other…


Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.”


70. It is not appropriate, where there is a conflict in the evidence, for the judge merely to set out the competing versions and then express a preference for one version over the other. [20] 


71. The significance of a failure to give adequate reasons in a case such as the present was explained by Hayne J in Waterways Authority v Fitzgibbon: [21] 


“…because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.

The primary judge’s reasons stated his conclusion that the evidence of Dr Trevithick was to be accepted and preferred to that of other evidence but disclosed no reasoning supporting that conclusion. No analysis was made of the competing evidence and no explanation proffered for rejecting it.…

The absence of explanation for, and reasoning in support of, the conclusion expressed in the primary judge’s reasons reveals that the process of fact finding miscarried. It miscarried because, so far as the reasons reveal, no examination was made of why Dr Trevithick’s evidence was to be preferred to that of other witnesses.”


72. I accept, as this Court recently pointed out in Murray v Sheldon Commercial Interiors Pty Ltd, [22] that specific findings of fact are inherently an incomplete statement of the impression made on a trial judge by the evidence. I also accept that due deference must be paid to findings of fact that are based on a trial judge’s assessment of the credibility of witnesses whose evidence is in conflict. [23] But in the present case the primary Judge’s reasons for preferring the Worker’s account as to crucial issue of fact do not adequately explain why his Honour reached the conclusion he did. The absence of adequate reasons suggests that the process of fact finding miscarried. In particular, there is nothing in the Primary Judgment to show that his Honour directed attention to important matters that cast doubt on the accuracy of the Worker’s recollection of events. In short, his Honour does not seem to have examined all the evidence material to what was seen as a critical fact of issue in the case.

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