Trial judge's duty to give reasons April 20, 2016
116 A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon  HCA 57; (2005) 79 ALJR 1816 at  (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council  NSWCA 5 at  (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic  NSWCA 175; (2008) 72 NSWLR 728 at  (Basten JA, Allsop P agreeing); Sangha v Baxter  NSWCA 264 at  (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic  NSWCA 14 at  (Ipp JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at ; Kostic at . This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, and saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic  NSWCA 187; (2006) 66 NSWLR 186 at  (Ipp JA, Mason P and Tobias JA agreeing); Kostic at .