Case: Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117 ; (2006) 234 ALR 241
Outcome: cited
In Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd [2006] FCAFC 117 ; (2006) 234 ALR 241 an issue arose as to the adequacy of the reasons of the trial judge. Weinberg J and I said: 44 As to the second matter, the obligations of the trial judge to give adequate reasons, on the appeal Kovan relied strongly on what was said by Nettle JA (with whom Batt and Vincent JJA agreed) in Hunter v Transport Accident Commission (2005) 43 MVR 130 at [21]. While noting that the extent of the reasons will depend on the circumstances of the case, his Honour said that the reasons should deal with the "substantial" points which have been raised, include findings on "material" questions of fact and provide an "intelligible" explanation of the reasoning from evidence to findings to ultimate conclusion. Reference to the evidence should not be limited to the evidence that has been accepted and acted upon, but "ordinarily" should deal with the "substantial" points made in evidence which has been rejected and explain why it has been rejected. The judge must deal with evidence which is "relevant and cogent", arguments which are "substantial" and issues which are "significant". 45 No matter how prescriptive the principles laid down, they inevitably involve disclaimers as to any universal applicability. Moreover, the passage from Hunter would give an unbalanced view if it were not read in conjunction with the firm warnings of courts of high authority against over-lengthy judgments. These are noted by the Full Court in Expectation [Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 ; (2004) 140 FCR 17] at [83] . Of the cases there referred to, particular note should be taken of what was said by the New South Wales Court of Appeal in Digi-Tech (Aust) Ltd v Brand [2004] NSWCA 58 ; (2004) 62 IPR 184 at [287] [290] and the following passage from the joint judgment of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon [2003] HCA 48 ; (2003) 200 ALR 447 (at [62]): ... it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case. 46 As the Full Court said in Expectation (at [71]), in the normal case statements by a trial judge of a general assertive nature can be accepted as encompassing a detailed consideration of the evidence. As their Honours immediately go on to say, such statements should be treated with some reserve where there has been "significant" delay between trial and judgment. After such a delay: ... a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision. ... 48 As to the suggested obligation on the trial judge to explain why evidence or argument of the losing party has been rejected, we would refer to what was said by Schiemann LJ in Customs and Excise Commissioners v A [2003] 2 All ER 736 at [82] [83], in a passage cited with approval in Digi-Tech (at [285]): ... judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; and (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice. Often it is not possible to reconcile neatly all evidence and arguments. Sometimes evidence or arguments of the losing party may be valid in themselves; it is just that there seem to the trial judge to be other and more persuasive items of evidence and points of argument the other way. If the trial judge does not mention such evidence or arguments of the losing party an appellate court may take a different view. It may reverse the decision below because it finds the appellant's evidence or arguments persuasive. But that will be because the appeal court took a different view of the facts or law from that of the trial judge, not because the trial judge made a legal error in the way his or her reasons were expressed -- provided the minimum requirements identified by Schiemann LJ are satisfied. 109 The other member of the Court in Kovan , Allsop J, said: 119 As to the discussion of the adequacy of the reasons of the primary judge, in addition to my complete agreement with Heerey and Weinberg JJ, I would only wish to make reference to what Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 (a decision affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155): [I]t is the duty of the judge to state his reasons for deciding as he does and that his failure to do so may constitute an error of law ... However, such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: In such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269 70 and 280 1. 110 These observations apply a fortiori to the Federal Magistrates Court with its statutory mandate for informality and expedition. 111 The appeal is dismissed. I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 15 May 2008 Counsel for the First and Second Appellants: N Clelland SC Counsel for the Third Appellant: G Livermore Solicitors for the Appellants: Simmons Wolfhagen Counsel for the Respondent: J Bourke and M Felman Solicitors for the Respondent: Clayton Utz Date of Hearing: 31 March and 1 April 2008 Date of Judgment: 15 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/646.html