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Reasons December 16, 2021

Lichaa v Boutros [2021] NSWCA 322

  1. The need for reasons and the content of reasons to satisfy that obligation were conveniently summarised in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 per Ipp JA, with whom Bryson JA and Stein AJA concurred, at [56]-[68] but particularly at [56]-[57] and [61]:

The judicial obligation to give reasons

[56]   A miscarriage of justice can arise where what is and is not disclosed in a judge’s reasons is a breach of the principle that justice must not only be done but must be seen to be done: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431 (per Mason P).

[57]   As McHugh JA explained in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, one of the purposes served by a judicial decision is that: “…[I]t enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”. Accordingly, as McHugh JA said (at 278–279): “…[A] judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationality…”

[61]   But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.”

  1. It is well-established that the function of an appellate court is not to determine the optimal level of detail required in reasons for a decision but rather to determine the “minimum acceptable standard” which is informed by the issues at trial, the nature of the evidence, the nature of the submissions, the scope of any right of appeal, and other relevant circumstances. The standard required of reasons is not one of perfection: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] (Bell P (Ward JA agreeing)).

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