Nominal Defendant v Stephens [2011] NSWCA 312

Whealy JA:

70 There is no doubt that the primary judge was obliged to give reasons for the conclusions he reached. The extent and scope of a trial judge’s duty to give reasons depends, however, upon the circumstances of the individual case ( Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed). The critical question in the present matter is whether the reasons given by the primary judge were adequate ( Beale v Government Insurance Office of New South Wales(1997) 48 NSWLR 430 at 431 per Mason P; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 – 279 per McHugh JA). This question must be answered against the background of an important principle. This is that the proper administration of justice requires that reasons be given in a form, firstly, that will enable the losing party to understand the grounds upon which the case was lost, and secondly, that will not frustrate the losing party’s right of appeal ( Public Service Board of NSW v Osmond(1986) 159 CLR 656 at 666 – 667). However, it is, as always, necessary to read the primary judge’s decision fairly. It is important not to read passages in isolation. It is important not to read the decision selectively ( Dobler v Halverson (BHT Kenneth Halverson)[2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA (with whom Ipp and Basten JJA agreed). This was a lengthy decision, so it is not appropriate, in my view, to seize on a sentence or two and suggest thereby that there has been a failure to give adequate reasons. In my opinion, when one has regard to the way in which the issues unfolded in the present matter; to the way in which they were argued at the conclusion of evidence, and to the detailed findings and analysis his Honour made, the complaints of the appellant cannot succeed. When regard is had to the decision as a whole, it is clear in my view that the asserted failures in the structure of the reasons have not been established.


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