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Obligation to give reasons April 20, 2016

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

56 The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge’s reasons must, “as a minimum…be adequate for the exercise of a facility of appeal”: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 – 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, “considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding”: Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713).

57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA. 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson[2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 59 The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J. 60 Various observations have been made about the extent to which reasons should deal with the evidence. None is exhaustive; the test of adequacy, as I have earlier said, is relative. It is sufficient for the purposes of this case, to note the following. 61 The general proposition was stated by Samuels JA in Mifsud (at 728):

            • “…[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge … may promote a sense of grievance in the adversary and create a litigant who is not only ‘disappointed’ but ‘disturbed’ – to use the words which appear in the New Zealand case of

          Connell v Auckland City Council  (1977) 1 NZLR 630 at 634.”

            • In similar vein, Gray J (with whom Fullagar and Tadgell JJ agreed) has said “[t]o have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant”:

          Sun Alliance Insurance Ltd v Massoud   [1989] VR 8 (at 18).

62 In Beale (at 443) Meagher JA referred to the requirement that a judge should refer to evidence which is important or critical to the proper determination of the matter as the first of the three fundamental elements of a statement of reasons. While his Honour explained that it was unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, he added that where such evidence was 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, referring to North Sydney Council v Ligon 302; see also TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [150] per Spigelman CJ (Mason P and Grove J agreeing). Meagher JA added that “[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.”

63 Where, as in the present case, there is documentary material arguably supporting a party’s case, that material must be considered in the judge’s reasons in a satisfactory way: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [94]) per Kirby J.

64 Bald conclusionary statements should be eschewed. As Ipp JA said in Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [28]):

    • “28 It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.”

65 Finally, where credit issues are involved it is necessary to explain why one witness’s evidence is preferred to another’s. “[B]ald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge’s common law duty to provide the parties, and the appellate court, with the basis of his decision”: Palmer v Clarke (1989) 19 NSWLR 158 (at 170) per Kirby P (Samuels JA agreeing).

66 Because a primary judge is bound to state his or her 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. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v FitzgibbonMosman Municipal Council v FitzgibbonMiddle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 (at [130] – [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)); see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing).

67 Where an appellate court concludes that the primary judge has failed to give adequate reasons, it has a discretion as to whether a new trial should be ordered. If the only conclusion open on the evidence available at trial was the conclusion reached by the primary judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial: Beale (at 444) per Meagher JA applying NSW Insurance Ministerial Corporation (formerly Government Insurance Office (NSW)) v Mesiti (Court of Appeal, 1 December 1994, unreported). In the latter case where the trial judge accepted the respondent’s version of what occurred, Sheller JA (with whom Handley JA agreed) said, “[i]f there had been persuasive and critical contrary evidence the principles enunciated by Samuels JA in Mifsud v Campbell would suggest that a new trial must follow”: Mesiti (BC9403342 at 9); see also Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 (at 284). In some cases of inadequate reasons, where there is no credit issue, the appeal court may be in as good a position to decide the matter as the trial judge: see Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1 (at [37]) per Nettle JA.

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