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Duty of judges to give reasons

Daoud v GIO General [2011] NSWSC 1001. Hall J.

[42] The principles in relation to the duty to give adequate reasons are well-known.

In Alchin v Daley [2009] NSWCA 418, Sackville AJA (with whom McColl and Young JJA agreed) identified the relevant principles in determining whether a judge had given adequate reasons for making findings of fact.

His Honour enunciated the following principles by reference to the relevant case law:

(1) The giving of adequate reasons lies at the heart of the judicial process, since a failure to provide sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost.

(2) While lengthy and elaborate reasons are not required, at a minimum, the trial judge's reasons should be adequate for the exercise of a facility of appeal, where that facility is available.

(3) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute.

[43] The principles have been stated and reviewed by the Court of Appeal on a number of occasions: see Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372 at 399 per Basten JA, who observed that a failure to give reasons by a tribunal for its decision will constitute an error of law which will permit the decision to be set aside on appeal where the right of appeal is limited to errors of law); see also Soulemezis v Dudley Holdings PL (1987) 10 NSWLR 247 at 200; Beale v Government Insurance Office (1997) 48 NSWLR 430 at 442, per Meagher JA.


[60] Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 observed at 728, that the failure of a court to give attention in a decision to the evidence on an issue that is contrary to an assertion of fact made by one party so as to indicate the basis for rejecting the evidence, tends to deny both the fact and appearance of justice having been done. In such a case, such failure will have worked a miscarriage of justice and have produced a mistrial which constitutes an error of law which is reviewable on appeal.


Albury City Council v Gunton [2011] NSWWCCPD 68. Roche DP.

126. I do not accept that the Arbitrator gave adequate reasons for his conclusions.

In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186, Ipp JA (Mason P and Tobias JA agreeing) held, 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’.”


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