It is very frustrating when you receive a judgment which skates over the points you think were good ones without grappling with them.  Turns out it is an appellable error of law.  The guy who won half a million dollars for assault by Connex officers after he spat in their face and broke his wrist as he fled got rolled on appeal, though he lives to fight another day in a retrial: ACN 087 528 774 P/L v Chetcuti [2008] VSCA 274.  The trial judge’s reasons were inadequate, according to Acting Justice of Appeal Hargrave, with whom Justices of Appeal Ashley and Dodds-Streeton agreed.  His Honour said:

20 This Court has in recent times considered the standard of reasons which are expected of judges when dealing with cases which actually or practically have the result of finally disposing of the rights of parties.[14] It is unnecessary to canvass these principles in any detail for the purposes of disposition of this appeal. It is sufficient to note that it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which led the judge to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues raised for determination. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must avert to and assign reasons for that rejection. As appears below, the trial judge’s reasons in this case did not meet the standard expected and an error of law has thus been disclosed. In particular, the trial judge did not give separate consideration to a substantial argument which was raised for determination, being one of the alternative ways in which Mr Chetcuti put his case.

14.  For example, Hunter v TAC & Anor [2005] VSCA 1, [21]–[22]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, [38]; Sun Alliance Ltd v Massoud [1989] VR 8, 18-19.

Hunter v TAC

The first reference is to a judgment of Justice of Appeal Nettle with whom Justices of Appeal Batt and Vincent agreed.  His Honour said:

[21] When a judge decides an application under s. 93(4)(d) of the Act the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[3] It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case[4], where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[5] Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.[6]

[22] These points are encapsulated in the judgment of Chernov, J.A. in Barlow & Anor v Hollis.[7] As his Honour there said, the fact that a judge may not mention some matter relevant to the disposition of a s. 93(4)(d) application does not necessarily mean that his or her judgment is deficient. For example, matters which are obvious need not be restated,[8] and the element of value judgment involved in the determination of such an application does not always lend itself to the degree of precision in expression that can be achieved in other matters.[9] But interlocutory in nature though these applications have now been determined to be[10], in reality they are finally determinative of rights. If an application is rejected, it is the end of the road for the applicant. And if the application is successful, it is odds on that the matter will settle.[11] Logic and fairness dictate that the reasons for judgment of such an application should be of a standard which is commensurate with that degree of finality.’

[3] Cropp v TAC [1998] 3 V.R. 357 at 376, per Charles, J.A.; Giannakopoulos v Melwire Pty Ltd and MMI Workers’ Compensation (Victoria) Ltd [2000] VSCA 153 at [23] et seq., per Tadgell, J.A.; Dodoro v Knighting [2004] VSCA 217 at [39], per Buchanan, J.A., and at [45] and at [58], per Eames, J.A., in diss.

[4] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 A.L.R. 447 at 463 [62].

[5] Sun Alliance Insurance Ltd v Massoud [1989] V.R. 8 at 18.

[6] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 N.S.W.L.R. 247 at 279-280 and 282, per McHugh, J; Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 V.R. 28 at 35[18], per Chernov, J.A.

[7] [2000] VSCA 26 at [ 15] and [16].

[8] Humphries v. Poljak [1992] 2 VR 129; Stone v Jarvis, ibid at 146.

[9] Nichols v Robinson [2001] VSCA 11 at [14] – [16]

[10] Dodoro v Knighting [2004] VSCA 217.

[11] So we were told by counsel for the respondent.

Franklin v Ubaldi Foods Pty Ltd

The second reference was to a decision of Justice of Appeal Ashley, with whom Chief Justice Warren and Justice of Appeal Nettle agreed.  His Honour said:

’38 I hope that I do not underestimate the difficulty that confronts a County Court judge who is faced with resolving applications such as this, one after the other, upon inadequately exposed material. I accept that in such circumstances reasons for decision may lack the precision which could be expected if the judge had the luxury – some would say it is most often the necessity – of hearing witnesses viva voce, and then having time for reflection; and yet that such reasons may be adjudged adequate. But one thing is clear. Reasons must be such as reveal – although in a particular case it may be by necessary inference[10] – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.

[10] Sun Alliance Insurance Ltd v. Massoud [1989] VR 8 at 19 per Gray J.’

Sun Alliance Insurance Limited v Massoud

The third reference was to a decision of Justice Gray, with whom Justices Fullagar and Tadgell agreed.  His Honour said:

‘I am not to be taken as saying that the acceptance of the defendant’s case is the only view that is properly open. If the learned trial judge had grappled with the defendant’s case and made sensible criticisms of the salient features of it, I would not have been disposed to disturb His Honour’s finding. This is particularly true when the finding is a refusal to be satisfied with the case of a party bearing the onus of proof.

Mr Anderson, counsel for the plaintiff, took the Court through the defendant’s evidence and made a number of criticisms of the evidence of each witness. These criticisms, to my mind, were not significant. But if criticisms of this kind had been made and acted upon by the learned trial judge, his ultimate conclusion would probably have been beyond attack.

In my opinion, the decided cases show that the law has developed in a way which obliges a Court from which an appeal lies to state adequate reasons for its decision.

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-

(a) the appeal Court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

In applying the above criteria to the circumstances of this case, it can, I think be said that the learned trial judge’s reasoning remains obscure. This Court is not able to identify with any conviction the considerations which moved His Honour to reach his conclusion. His Honour’s judgment may have miscarried because irrelevant matters were considered. In this connection, it appears that His Honour placed weight on at least one irrelevant fact, namely that the plaintiff was not charged with a criminal offence. It further appears that His Honour believed that the plaintiff’s case was supported by the evidence of his wife, which was not the case.

But the important fact is that the paucity of His Honour’s reasons is such that his reasoning process is not revealed to this Court to enable a judgment to be made as to whether His Honour fell into error. This is particularly true of the difficulty one feels in understanding how His Honour got over the strong points of the defendant’s case, to which I have earlier referred.

Turning to consider whether justice was seen to have been done, I cannot but feel that it was not. The defendant, having led a weighty body of incriminating evidence was entitled to have the evidence weighed by the Court and, if rejected, the grounds of its rejection expressed in reasoned terms. To 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.

In relation to the duty of a primary judge to give adequate reasons for decision I have stated the law, so far as it is relevant for present purposes, as it has developed during the course of the present century.

In Swinburne v David Syme & Co [1909] VLR 550, Madden CJ felt able to say that although a judge should give his reasons “he is not bound to do so”. But as time passed there were a number of decisions asserting the existence of such an obligation. Most of them are collected in the judgment of Monahan J in De Iacovo v Lacanale [1957] VR 553. In Pettitt v Dunkley [1971] 1 NSWLR 376, the New South Wales Court of Appeal laid it down that a judicial tribunal had a duty to state reasons if there is a right of appeal from a decision. See also Carlson v The King (1947) 64 WN (NSW) 65, per Jordan CJ, at p.66.

The view that the obligation only existed where there was a right of appeal has more recently been rejected. In Housing Commission of NSW v Tatmar Pastoral Company Pty Ltd [1983] 3 NSWLR 378 at p.386 Mahoney JA said that the giving of reasons was “an incident of the judicial process”. This view was confirmed by the High Court in Public Service Board (NSW) v Osmond (1986) 60 ALJR 209 at p.213, where Gibbs CJ said that a judge must give reasons when it is necessary to enable the matter to be properly considered on appeal.

Most of the foregoing authorities were considered recently by the Court of Appeal in New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. At pp. 279-280, McHugh JA said that without the articulation of reasons a judicial decision could not be distinguished from an arbitrary decision. His Honour went on to say that the giving of reasons for a judicial decision serves at least three purposes. First to enable the parties to see the extent to which their arguments had been understood and accepted as well as the basis of a judge’s decision. Second, to further judicial accountability and, third, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

In my opinion the cases to which I have referred amply justify the statement of the two minimum criteria with which I commenced this discussion.

That does not mean that on every occasion a judge will be in error if he fails to state reasons. The simplicity of the context of the case or the state of the evidence may be such that a mere statement of the judge’s conclusion will sufficiently indicate the basis of a decision. Some examples of such situations were given by Cussen ACJ in Brittingham v Williams [1932] VLR 237 at p.239. In such cases, the foundation for the judge’s conclusion will be indicated as a matter of necessary inference. But for the reasons I have endeavoured to express, the present is not such a case.

I conclude this discussion of authority with a further reference to Pettitt v Dunkley, supra. At pp. 387-8, Moffitt JA made some observations with which I respectfully agree. His Honour said:-

“The giving of reasons in an appropriate case was referred to as being the ‘duty’ of the Court of first instance. What is an appropriate case is a question of some difficulty, which will need consideration later, but it follows there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidence and admit relevant evidence of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have.”

Later on the same page His Honour continued:-

“If it can be established that a judge failed or declined to give any reasons for his decision in circumstances where there was a judicial duty express or otherwise to do so, then, as with other areas in the judicial process, I think he has erred in law.”

In all the circumstances of the present case I consider that the learned trial judge failed to adequately express his reasons and that such failure amounts to an error of law which necessitates an order for a new trial.’

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