Lawyers Perth | Legal Advice | Solicitors Perth | Perth Lawyers
Macdonald Rudder
Macdonald Rudder
08 9328 9788

Judgments and Orders\Courts & Judges; Judgments and Orders\Reasons for Decision; Courts & Judges\Judgments and Orders; Reasons for Decision\duty to give; Duty to give reasons

Disclaimer: No liability accepted. Use this information at your own risk

Duty to give reasons. A judge's duty to state his reasons for decision does not exist in respect of every matter which is raised in proceedings. Evidence of a fundamentally supplementary or ancillary nature and not critical to an issue in the case is not required to be dealt with in the reasons for decision. It is generally not necessary for a judge to rationalise his impressions of a witness.
duty to give reasons.doc

Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 (NSW CA)
Timpar Nominees Pty Ltd -v- Archer & Anor [2001] WASCA 430

See also Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170

Tran -v- Claydon [2003] WASCA 318 (18 December 2003)

The Duty to Give Reasons

35 Ordinarily, it is the duty of a Judge to state his or her reasons for decision and failure to do so may constitute an error of law: Garrett v Nicholson (1999) 21 WAR 226 per Owen J at 248. In determining whether in a particular case there is a duty and the extent of that duty, regard should be had to the function to be served by the giving of reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per Mahoney JA at 270.

36 Where there is a right of appeal, the function of reasons is to allow an appeal court to determine whether the decision was based on an appealable error. In addition to securing a right of appeal, the obligation to give adequate reasons is an aspect of procedural fairness to a litigant who is entitled to know why it is that he or she has been successful or unsuccessful. Thus, it is sufficient if the reasoning process which led to a result is disclosed with sufficient certainty to enable a litigant to know why it is that the result ensued and to ensure that the statutory right of appeal has been secured: Garrett v Nicholson (supra) per Owen J at 248. If that is achieved there is no additional requirement that every fact relevant to the ultimate decision or the detailed chain of reasoning be set out or every submission be addressed: Soulemezis v Dudly Holdings Pty Ltd (supra).

37 In determining the sufficiency of reasons, it is necessary to look at the reasons as a whole, and if necessary in the context of the evidence, to see if they give the sense of what was intended in a way that achieves the required function and purpose: Garrett v Nicholson (supra) per Owen J at 248; Charleston v Smith [1999] WASCA 261 per Malcolm CJ at 15.

38 As noted by Meagher JA in Beale v GIO of New South Wales (1997) 48 NSWLR 430 at 443, the content of the obligation is not the same for every judicial decision and no mechanical formula can be given for determining what reasons are required. Meagher JA went on to give a useful description of the fundamental elements of a statement of reasons. He said (at 443-444):

    "However, there are three fundamental elements of a statement of reasons, which it is useful to consider. 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 ... 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 ... 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. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: ...

    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. Those reasons or the process of reasoning should be understandable and preferably logical as well."

Whether a Breach of Duty to Give Reasons

39 Insofar as the causation issue related to whether the delay in the onset of the low back pain was inconsistent with accident caused damage, that was primarily a factual issue requiring the resolution of a conflict of evidence. Insofar as it related to the range of potential triggers, that is a question of mixed law and fact. The High Court has in a number of recent decisions considered what is required for a plaintiff to make out a prima facie case of causal connection: Bennett v Minister for Community Welfare (1992) 176 CLR 408 per Gaudron J at 420-421, per McHugh J at 428; Chappel v Hart (1998) 195 CLR 232 per McHugh J at 244; Rosenberg v Percival (2001) 205 CLR 434 per Gummow J at 461.

40 Gaudron J said in Bennett v Minister of Community Welfare (supra) at 420-421:

    "... generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."

41 Having regard to this formulation of principle, it would be relevant to consider and make findings concerning the appellant's pre-accident condition, the nature and force of the collision and whether the injuries occurred within an area of foreseeable risk.

42 However, the trial Judge made no positive factual findings on, or in relation to, causation. He gave no reasons as to why he was unable to make any factual findings and made no reference to relevant recent decisions on the legal principles governing causation in tort.

43 It is not in dispute that the trial Judge owed a duty to give reasons. The issue is one of sufficiency. In my view, it is not possible from a consideration of the trial Judge's reasons as a whole and the relevant evidence relating to causation to discern why the trial Judge reached his conclusion on causation. In particular, there is insufficient in his disclosed reasoning for this Court to determine whether the decision on causation in relation to the appellant's admitted low back injuries was based on an appealable error or why the result on that issue ensued. Accordingly, the trial Judge breached his duty to state his reasons, which breach constitutes an error of law.

Macdonald Rudder
Email: Tel + 61 8 9328 9788; Fax + 61 8 9328 9711
109 James Street Northbridge Western Australia; PO Box 120 Northbridge WA 6865;
DX 200 Perth
Kalgoorlie: 126 Hannan Street Kalgoorlie: 6430: DX 60910 Kalgoorlie Tel: +61 8 9021 2154,
Fax: +61 8 9021 5945
Macdonald Rudder Terms of Use and Privacy

Lawyers Perth | Macdonald Rudder

Contracts Family Law Perth Dispute Resolution Estate Planning Inheritance Claim Probate Deceased Estates Power of Attorney Violence Restraining Orders Corporations child custody children Financial agreements Commercial advice Disclosure Notices Stuart Macdonald David Lang Ernest Ng Jeremy London