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The judicial duty to give reasons

Published online by Cambridge University Press:  02 January 2018

H L Ho
H L Ho*
Affiliation:
Faculty of Law, National University of Singapore
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Abstract

The desirability of having a general duty to give reasons for court decisions has been much debated in Commonwealth jurisdictions. In England, a series of recent cases has consistently upheld the duty, albeit with qualifications. The existence of this general duty is defensible in principle. However, exactly what is required to comply with the duty is not clear. The explanation the judge is expected to give may be analysed in terms of its structure, contents and standard. These aspects are dependent on many factors, such as the rationale underlying the duty, the limitations faced by the judicial system, the nature of the decision- making process, and the significance of the decision. While one can identify the major considerations that operate at a general level, the scope and extent of the duty to explain a particular decision are dependent on the circumstances of the case. This variability makes it difficult to be certain as to when a breach of the duty has occurred. The duty must meet the purposes for which it is imposed and at the same time must not be too unrealistic in its demands.

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 1 , March 2000 , pp. 42 - 65
Copyright
Copyright © Society of Legal Scholars 2000

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References

1. Lord, Campbell, The Lives of the Chief Justices: Volume 3 (New York: James Cockcroft & Co, 1873) p481 Google Scholar.

2. See Abada v Gray (1997) 40 BMLR 116; Coleman v Dunlop Ltd (26 November 1997, unreported); Beckford v Weston (22 June 1998, unreported); Flannery v Halifax Estate Agencies Ltd (1999) 149 NU 284; Bridges v P & NE Murray Ltd (1999) Times, 25 May. See also Grayan Building Services Ltd (in liq) (1995) Ch 241 esp at 257. For slightly earlier cases, see Eagil Trust Co Ltd v Pigott-Brown (1985) 3 All ER 119 at 122; R v Knightsbridge Crown Court, exp international Sporting Club (London) Ltd (1982) 1 QB 304 at 3 14–3 15; Capital and Suburban Properties Limited v Swycher (1976) Ch 3 19 at 325-326; Tramountana v Atlantic Shipping (1978) 2 All ER 870 at 871: and Hoev v Hoey (1984) 1 All ER 177.

3. 26 November 1997, unreported.

4. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277; cf R v Jones (1999) Times, 17 February, CA.

5. Waterson v Batten (13 May 1988, unreported).

6. R v Awatere (1982) 1 NZLR 644; R v MacPherson (1982) 1 NZLR 650. Cf Connell v Auckland City Council (1977) 1 NZLR 630.

7. MacDonald v R (1976) 29 CCC (2d) 257, esp at 262. See also R v Urie (1977) 38 CCC (2d) 33. But cf Wright v Ruckstuhl (1955) 2 DLR 77.

8. R v R(D) (1996) 107 CCC (3d) 289; followed in R v Feeney (1997) 146 DLR (4th) 609.

9. Namely Capital and Suburban Properties Limited v Swycher (1976) ch 319; R v Knightsbridge Crown Court (1982) 1 QB 304, and Hoey v Hoey (1984) 1 All ER 177.

10. Eg Re Merceron (1877) 7 Ch D 184 at 187; Cobb v Cobb (1900) P 145 at 146–147; Barker v Barker (1905) 21 TLR 253; Romilly v Romilly (1934) 50 TLR 387; Potts v Potts (1934) 50 TLR 386 at 387. More recently: Guppys (Bridport) Ltd v Sandoe (1975) 30 P & CR 69 at 74.

11. (1957) 107 LJ 505.

12. J L Montrose ‘Reasoned Judgments’ (1958) 21 MLR 80 at 81.

13. The expression judices lion tenentur exprimere causam sententine suae (judges are not bound to explain their decision) was used as long ago as 166 1: Anonymous (1661) Jenk 75, quoted by M Taggart ‘Should Canadian Judges be Legally Required to give Reasoned Decisions in Civil Cases’ (1983) 33 U Toronto LJ at I. In addition to the two cases discussed in the text, see also R v Wyhourn (1969) Times, 21 January. Historically, the notion that judges need not give reasons for their decisions may have come about because it had been improperly linked to the fact that reasons were never an essential part of the official record: see J W Bridge ‘The Duty to Give Reasons for Decisions as an Aspect of Natural Justice’ in D Lasok et al (eds) Fundamental Duties (Oxford: Pergamon Press, 1980) p 85.

14. (1950) AC 361 at 363–364.

15. Cf (1950) AC 361 at 369, commenting on need for ‘an exposition of the relevant law’.

16. (1952) 2 All ER 1084. H W R Wade, referring only to the report of this case in The Times, thought that this was an authority for the absence of any judicial duty to give reasons: ‘Statutory Tribunal's Duty to Give Reasons’ (1963) 79 LQR 344 at 346.

17. (1983) 1 All ER 824 at 826.

18. This seems to be an outright rejection of the duty. But the Privy Council in the later case of Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729 apparently did not think so: it approved of Selvanayagam in one part of the opinion (at 741) without any indication that it was inconsistent with its strong endorsement, in an earlier part. of the judicial duty to give reasons (at 734). Cf Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Waterson v Barten (13 May 1988, unreported) (see dissenting judgment of Kirby P).

19. Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729 at 734.

20. As was clearly said by Henry LJ in Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284 and the Privy Council in Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729 at 734.

21. Eg Stefan v General Medical Council (1999) WLR 1293 at 1300.

22. Wade, above n 16, p 346; cf de Smith, Woolf and Jowell Judicial Review of Administrative Action (London: Sweet & Maxwell, 5th edn. 1995) para 9-040. This argument is disputed by Bridge, above n 13, pp 81–95.

23. Save to say this much: if judges are required to give reasons, the absence of a similar duty in administrative law becomes more difficult to justify: see M Taggart ‘Osmond in the High Court of Australia: Opportunity Lost’ in M Taggart (ed) Judicial Review of Administrative Action in the 1980s (Auckland: Oxford University Press in association with the Legal Research Foundation, 1986) pp 58-61; The Hon Justice M D Kirby ‘Accountability and the Right to Reasons’ ibid, pp 36-52; P P Craig Administrative Law (London: Sweet and Maxwell, 3rd edn, 1994) p 315; cf H W R Wade and C F Forsyth Administrative Law (Oxford: Clarendon Press, 7th edn, 1994) pp 541–542. However, some Australian judges do not think that an analogy can be drawn between the two regimes: see Soulemezis v Dudley (Holdings) Pry Ltd (1987) 10 NSWLR 247 at 261 and Public Service Board of New South Wales v Osmond (1986) 63 ALR 559 at 566. But cf Meagher JA in Beale v Government Insurance Office of NSW (1997, unreported, Court of Appeal of New South Wales).

24. See Coleman v Dunlop Ltd (26 November 1997, unreported). In Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729 at 734 the Privy Council held that the duty exists even outside the rules of court. See also Palmer v Clarke (1989) 19 NSWLR 158; R v Harrow Crown Court. exp Dave (1994) 1 WLR 98 at 106.

25. There is as much a judicial duty ‘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’: Pettitt v Dunkley (1971) 1 NSWLR 376 at 387-388. See also Soulemezis v Dudley (Holdings) Pty Ltd above n 4 at 269, 273.

26. Housing Commission of New South Wales v Tatmar Pastoral Co Pry Ltd (1983) 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279; Public Service Board (New South Wales v Osmond (1986) 63 ALR 559 at 566: Bruton v New South Wales Insurance Ministerial Corp (1994, unreported, New South Wales Court of Appeal).

27. (1999) 149 NLJ 284.

28. Certain practice directions are indicative of a practice of giving reasons but not a duty to do so: see eg the consolidated Practice Direction for the Court of Appeal (Civil Division) dated 19 April 1999 (reported in (1999) 1 WLR 1027) paras 7.2.l(f), 7.3.l(h), 7.7.1 and 7.7.2. But statutes may explicitly require reasons to be given: see the provision considered in Hillingdon London BC v H [19931 1 All ER 198 at 203-204 and the examples given in P J Richardson et al (eds) Archbold: Criminal Pleading, Evidence and Practice (London: Sweet and Maxwell, 1999) para 5–54.

29. Hadjianastassiou v Greece (1992) 16 EHRR 219 at para 33; Les Travaux Du Midi v France (1991) 70 European Commission of Human Rights - Decisions and Reports 47 at 58; Hurk v The Netherlands (1994) 18 EHRR 481 at para 61; Hiro Balani v Spain (1994) 19 EHRR 566 at para 27; Ruiz Torija v Spain (1994) 19 EHRR 553 at para 29; Helle v Finland (1998) 26 EHRR 159 at para 55.

30. ‘Errors may be committed by a judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found’: Azzopardi v Tasman UEB Industries Ltd (1985)4 NSWLR 139 at 156.

31. This distinction was emphasised in R v Burns (1994) 89 CCC (3d) 193 at 198, 199 and R v Barrett (1995) 96 CCC (3d) 319 at 320.

32. Harper v R (1982) 65 CCC (2d) 193, esp at 213; R v Burns (1994) 89 CCC (3d) 193 at 200; Mifsud v Campbell (1991) 21 NSWLR 725.

33. See para 2.10.1 of the consolidated Practice Direction for the Court of Appeal (Civil Division) (1999) 1 WLR 1027

34. MacDonald v R (1976) 29 CCC (2d) 257 at 263; Harper v R (1982) 65 CCC (2d) 193 at 210.

35. R v Awatere (1982) 1 NZLR 644 at 648–649.

36. Sometimes it is not clear whether certain factors which ought to have been considered had actually been taken into account in the deliberation of the trial judge, and, in any event, even if they had entered the mental processes of the judge, how they had been taken into account is not (sufficiently) disclosed. See eg Gilbert v James Hardie & Co Pry Ltd (1987, unreported, Court of Appeal of New South Wales).

37. (1999) 149 NLJ 284.

38. Pettitt v Dunkley (1971) 1 NSWLR 376 esp at 389; Sun Alliance Insurance Ltd v Massoud (1989) VR 8 at 20; Public Service Board of New South Wales v Osmond (1986) 63 ALR 559 at 565; Palmer v Clarke (1989) 19 NSWLR 158 at 171-172. Cf Lawson v Lee (1978) 19 SASR 442.

39. MacDonald v R (1976) 29 CCC (2d) 257 at 262. But the point is not as important where the appeal is not so confined. See In the Marriage of P W Scott Appellant/Husband and CE Scott Respondent/Wife (1994) FLC 92–457.

40. ‘[O]ne alternative remedy to quashing the decision is to invite or require the court to give reasons’: Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284, per Henry LJ.

41. The Hon Justice Michael Kirby Reasons for Judgment: ‘Always Permissible, Usually Desirable and Often Obligatory’ (1994) 12 Aus Bar Rev 121 at 122.

42. But a re-trial is not always ordered; the appellate court may itself decide the matter: Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729 at 741. ‘Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial’: Per Meagher JA in Beale v Government Insurance Office of NSW (1997, unreported). See also NSW Insurance Ministerial Corp (formerly GIO of New South Wales) v Mesiti (1 December 1994, unreported, Court of Appeal, New South Wales). In Connell v Auckland City Council (1977) 1 NZLR 630 at 634, a retrial was not ordered because the judge could ‘not see the prosecution being able to improve its case’.

43. See eg Palmer v Clarke (1989) 19 NSWLR 158 at 164; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NZLR 247 at 253; Waterson v Batten (13 May 1988, unreported).

44. See generally Taggart, above n 13. In the administrative law context, see Stefan v General Medical Council (1999) WLR 1293 at 1300 and the materials cited thereat.

45. 26 November 1997, unreported.

46. Tramountana Armadora SA v Atlantic Shipping (1978) 2 All ER 870 at 872.

47. Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284. F Schauer refers to this aspect of giving reasons as the decision-disciplining function: ‘Giving Reasons’ (1995) 47 Stanford LR 633.

48. 1997, unreported.

49. Where the deliberation on the evidence is subject to supervision and control, there would, in theory, be less justification for the strict exclusion of evidence. But that is a separate thesis altogether and will not be addressed here.

50. See also Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284; Beale Government Insurance Office of NSW (1997, unreported); Re Poyser and Mills’ Arbitration (1964) 2 QB 467 at 478.

51. Capital and Suburban Properties Ltd v Swycher above n 2 at 326.

52. De lacovo v Lacanale (1957) VR 553 at 557-558, approving of the view taken in Broom's Constitutional Law (1st edn, 1866) pp 152–153: ‘A public statement of the reasons for a judgment is due to the suitors and to the community at large.’ (Emphasis added.)

53. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279.

54. Broom's Constitutional Law. above n 52.

55. See Bridge, above n 13, p 85, and the speech entitled ‘The Judicial Method’ given by the Honourable Justice McHugh on 5 July 1998 at the Australian Bar Association Conference. More generally, see F Schauer, above n 47. This point does not apply to a pure finding of fact.

56. 1997, unreported.

57. See also Flannery v Halifax Estate Agencies Lid (1999) 149 NLJ 284.

58. Wright v Australian Broadcasting Commission [1977) 1 NSWLR 697 at 701, 702.

59. 1997, unreported.

60. ‘Once reasons are given, there is a natural inclination to challenge them’: postscript to Kirby, above n 41, p 135.

61. (1971) 1 NSWLR 376 at 388.

62. Eg Brittingham v Williams (1932) VLR 237 at 239.

63. (1971) 1 NSWLR 376 at 388.

64. Soulemezis v Dudley (Holdings) Pry Ltd (1987) 10 NSWLR 247 at 269, 278; Sun Alliance Insurance Ltd v Massoud (1989) VR 8 at 20 at 19; Housing Commission of New South Wales v Tatmar Pastoral Co Pry Ltd (1983) 3 NSWLR 378 at 386.

65. See below nn 166–168.

66. See below text associated with nn 169 and 170.

67. (1987) 10 NSWLR 247 at 258, agreeing with D Shapiro ‘In Defense of Judicial Candor’ (1987) 100 Harv LR 731 at 737.

68. McHugh JA in Soulemezis v Dudley (Holdings) PQ Lrd (1987) 10 NSWLR 247 at 279 perhaps exaggerated this point when he said that without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. Similarly, see R N Komar Reasons for Judgment (Toronto: Butterworths, 1980) p 9, cited in R v Blundon (1993) 84 CCC (3d) 249 at 265. Cf Lord Denning Freedom Under the Law (London: Stevens, 1949) pp 9 1–92.

69. Per Meagher JA in Beale v Government Insurance Office of NSW (1997, unreported).

70. (1987) 10 NSWLR 247 at 278.

71. A Denning The Road to Justice (London: Stevens, 1955) p 29. See also J P Spreutels ‘Giving Reasons for Sentence in the Crown Court’ (1980) Crim LR 486 at 494–495.

72. R Megarry Lawyer and Litigant in England (London: Stevens, 1962) p 135. Same observation made in Connell v Auckland City Council (1977) 1 NZLR 630 at 634.

73. Beale v Government Insurance Office of NSW (1997, unreported); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. See also Bridge, above n 13, pp 82–83 and the judgment of Mahoney JA in the New South Wales Court of Appeal case of Rujski v Bainton (6 September 1991, unreported: the relevant part of the judgment is quoted in NSW Insurance Ministerial Corp (formerly G10 of New South Wales) v Mesiti (1 December, unreported)).

74. Meagher J A pointed out this paradox in Beale v Government Insurance Office of NSW (1997, unreported): ‘On the one hand, the provision of inadequate reasons can lead to a sense of injustice and a reduced appreciation or understanding of legal rights and obligations. On the other hand, an overly onerous duty to provide reasons increases costs and delay in the judicial system which has the effect of undermining public confidence in the judicial system.’

75. Per Lord Griffiths, R v Knightsbridge Crown Court (1982) 1 QB 304 at 315.

76. Eg Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279.

77. (1976) 29 CCC (2d) 257 at 262-263. But the Canadian Supreme Court appears to be moving towards the duty to give reasons; the rule in MacDonald is now qualified: see eg R v R(D) (1996) 107 CCC (3d) 289; R v Feeney (1997) 146 DLR (4th) 609. See also R v Abdallah (l998) 125 CCC (3d) 482; R v Morra (1998) WCBJ 1; R v Vanloon (1997) WCBJ 1025; R v Sohal (1998) WCBJ 819.

78. One would have to agree, to some extent, with Mahoney JA when he said that ‘[i]t would be unfortunate if considerations of form rather than of function or necessity required unnecessary time to be spent in writing rather than in judging’: NSW Insurance Ministerial Corp (formerly G10 of New South Wales) v Mesiti (1 December 1994, unreported). The point was repeated in Sinak v Tess (1995, unreported, New South Wales Court of Appeal).

79. Judging by the continental experience, it may be well founded: M Damaska ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1973) 121 U Pennsylvania LR 506 at 540, n 77.

80. Admittedly, the imposition of a duty to give reasons would not eradicate the ‘worst cases imaginable… where what on the record appears a reasonable decision supported by the evidence is corrupted by the conscious immoral reasoning of the trier of fact’: R J Allen and G T G Seniuk ‘Two Puzzles of Juridical Proof’ (1997) 76 Can Bar Rev 65 at 78. But even if the problem of unethical ‘fixing’ of judgment is a real one, the cause is not the duty to give reasons.

81. (1982) 1 NZLR 644.

82. (1982) 1 NZLR 644 at 648-649.

83. See E L Haines ‘Obligation of Magistrates to give Reasons for Judgment’ (1958) 1 (5) Can Bar J 55 at 57.

84. Eg Hill v Arnold (1976) 9 ALR 350 at 357; Beale v Government Insurance Office of NSW (1997, unreported); Soulemezis v Dudley (Holdings) Pty Lid (1987 10 NSWLR 247 at 259.

85. See below section (b).

86. Soulemezis v Dudley (Holdings) Pry Ltd (1987) 10 NSWLR 247 at 260, per Kirby P, citing Cunningham-Hankins v Sun Alliance Insurance Ltd (8 October 1985 unreported, Court of Appeal of New South Wales) and Mobasa Pty Ltd v Nikic (1987) 47 NTR 48.

87. See below section (d).

88. In Waterson v Butten (13 May 1988, unreported).

89. In the Marriage of John Christopher Towns Appellant/Husband and Deborah Jane Towns Respondent/Wife (1990. unreported,).

90. The duty is not a universal one (per Kirby P, Bruton v New South Wales Insurance Ministerial Corp 1994, unreported); it is not an ‘inflexible rule of universal application’ (per Gibbs CJ, Public Service Board of New, South Wales v Osmond (1986) 63 ALR 559 at 566).

91. Cawley v Furnell (1851) 12 CB 291 at 303.

92. Hence, when the Crown Court sits in an appellate capacity it must give reasons for its decision: R v Harrow Crown Court, exp Dave (1994) 1 WLR 98 at 106; R v Snaresbrook Crown Court, ex p Input Management Ltd (1999) Times, 29 April (4 March 1999 QB, DC); cf R v Southwark Crown Court, exp Brooke (1996, unreported, QBD). In Australia, see Pettitt v Dunkley (1971) 1 NSWLR 376 at 388, citing Carlson v King (1973) 64 WN (NSW) 65 at 66; Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697 at 701-702. But cf Nana Osei Assibey III, Kokofuhene v Nana Kwasi Agyeman, Boagyaahene (1952) 2 All ER 1084.

93. So Henry LJ observed in Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284. But cf Potts v Potts (1934) 50 TLR 386 at 387; Lawson v Lee (1978) 19 SASR 442 at 446. Cf Bridge, above n 13, p 86.

94. R v Northumberland Compensation Appeal Tribunal, ex p Shaw (1952) 1 KB 338 at 349; R v Southend Stipendiary Magistrate, ex p Rochford DC (1995) Env LR 1 at 6 R v Harrow Crown Court, exp Dave (1994) 1 WLR 98 at 103.

95. Stefan v General Medical Council (1999) WLR 1293 at 1298-1299, citing R v Civil Service Appeal Board, exp Cunningham (1992) ICR 816 at 825-826.

96. Lawson v Lee (1978) 19 SASR 442 at 446.

97. (1976) ch 319 at 325-326.

98. In relation to interlocutory applications, see Knight v Clifton (1971) 1 Ch 700 at 721; R v Harrow Crown Court, ex p Dave (1994) 1 WLR 98 at 105; Watson v Anderson (1976) 13 SASR 329 at 332. However, even in matters of practice and procedure, where the decision will effectively decide finally the rights of the parties, reasons must be given: per Kirby P, Glen Rees T/as Glynmar Pastoral Co v Walker (1988, unreported, New South Wales Court of Appeal), citing Apps v Pilet (1987) 11 NSWLR 350 at 354.

99. Watson v Anderson (1976) 13 SASR 329.

100. Eagil Trust Co Ltd v Pigott-Brown (1985) 3 All ER 119 at 122; Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284.

101. But, as McHugh JA held in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279: ‘It all depends on the importance of the point involved and its likely effect on the outcome of the case.’ Kirby, above n 41, p 128, has suggested that the general rule ‘does not relieve a judge, particularly in criminal trials (and one might add cases involving status) of providing, however briefly, reasons for important evidentiary rulings’ . Similarly, see Archbold above n 28, para 15-440; cf R v Moss (1990) 91 Cr App R 371 at 375.

102. Antaios Compania Naviera SA v Salen Rederierna AB (1985) 1 AC 191 at 205. Cf Kirby, above n 41, pp 128–129.

103. But it is said that it is desirable to give reasons where the punishment is severe: R v Newman and Newman (1979) 1 Cr App R (S) 252 at 254; R v Smith (David Thomas) (1987) 9 Cr App R (S) 475 at 477.

The fear that the burden of a duty to explain sentences might be overly great can be met by lifting the duty where the offence is a trivial one and by being reasonable in our expectation of the statement of the reasons. See D A Thomas ‘Sentencing - The Case for Reasoned Decisions’ (1963) Crim LR 243 at 252.

105. See Richardson, above n 28 and A Ashworth Sentencing and Criminal Justice (London: Butterworths, 2nd edn, 1995) pp 297–299.

106. Bridge, above n 13, p 83.

107. That these are separate questions was recognised by Meagher JA in Beale v Government Insurance Office of NSW (1997, unreported).

108. Eg Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729; Ellis v Hartley (1901) 27 VLR 31; Brittingham v Williams (1932) 1 NSWLR 376; Carlson v King (1973) 64 WN (NSW) 65; Lock v Gordon (1966) VR 185; Ex p Powrer; Re Powter (1945) 46 SR (NSW) 1; Pettitt v Dunkley (1971) 1 NSWLR 376; Perez v Transfield (Qld) Pty Ltd (1979) Qd R 444 at 443. But cf Nana Osei Assibey III, Kokofuhene v Nana Kwasi Agyeman, Boagyaahene (1952) 2 All ER 1084.

109. (1994) 1 WLR 98.

110. (1994) 1 WLR 98 at 107.

111. (1989) VR 8 at 19.

112. Likewise: Brittingham v Williams (1932) VLR 237 at 239; Public Service Board of New South Wales v Osmond (1986) 63 ALR 559 at 566.

113. Brittingham v Williams (1932) VLR 237 at 239: Romilly v Romilly (1934) 50 TLR 387.

114. Knight v Clifton (1971) 1 ch 700 at 721; Capital and Suburban Properties Ltd v Swycher (1976) ch 319 at 326, and cf at 325. See also Stefan v General Medical Council (1999) WLR 1293 at 1299, discussing Wickramsinghe v United Kingdom (1998) EHRLR 338. Cf In the Marriage of John Christopher Towns Appellant/Husband and Deborah Jane Towns Respondent/Wife (1990, unreported).

115. Jacobs v London CC (1950) AC 361 at 369.

116. On the meaning of ‘giving reasons’, see D J Galligan Due Process and Fair Procedures-A Study of Administrative Procedures (New York: Clarendon Press, 1996) pp 429–430.

117. For an extreme case. see Yates Property v Darling Harbour Authority (1992) 24 NSWLR 156 at 172.

118. 1997, unreported.

119. Beckford v Weston (22 June 1998, unreported).

120. Pettit v Dunkley (1971) 1 NSWLR 376; Donovan v Edwards (1922) VLR 87; Lock v Gordon (1966) VR 185.

121. Eg Benmax v Austin Motor Co Ltd (1955) AC 370 at 373.

122. (1957) 107 LJ 505. Similarly, see Sewell v Electrolux Ltd (1997) Times, 7 November, CA.

123. The last two propositions were made by Meagher JA in Beale v Government Insurance Office of NSW (1997, unreported). Similarly, see Sewell v Electrolux Ltd (1997) Times, 7 November; cf Stacey v Smith (3 April 1998, unreported) CA.

124. See above nn 113 and 114.

125. Failure to do so led to a retrial in Bryant v London Fire and Civil Defence Authority (1994) 22 BMLR 124 at 132.

126. So held Clarke JA in Waterson v Batten (13 May 1988, unreported), on facts broadly those outlined in the text. See also Montrose, above n 12, p 82; Abada v Gray, (1997) 40 BMLR 116 at 134. Cf Mifsud v Campbell (199]) 21 NSWLR 725 esp at 727.

127. Per Meagher J A, Beale v Government Insurance Office of NSW (1997, unreported) citing Rajski v Bainton (6 September 1991, unreported). The European Court of Human Rights has adopted a similar approach to art 6(1) of the European Convention on Human Rights: Van de Hurk v The Netherlands (1994) 18 EHRR 481; Hiro Balani v Spain (1994) 19 EHRR 566; Ruiz Torija v Spain (1994) 19 EHRR 553; Helle v Finland (1998) 26 EHRR 159.

128. Eagil Trust Co Ltd v Pigott-Brown (1985) 3 All ER 119 at 122, citing Knight v Clifton (1971) 1 ch 700 at 721 and followed in Clarke v Winsley, (8 June 1998, unreported, CA). But note warning in text associated with n 114 above.

129. 1997, unreported.

130. Kirby P was clearly mindful in Bruton v New South Wales Insurance Ministerial Corp 1994. See also above nn 84-89 and associated text.

131. Romilly v Romilly (1934) 50 TLR 387 at 387; R v Thain (1985) NI 457 at 478; Ex p Powter; Re Powter (1945) 46 SR(NSW) 1 at5;Sobiecka v Blanton (1960) Qd R 152 at 161; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274,280; Palmer v Clarke (1989) 19 NSWLR 158 at 170; Bruton v New South Wales Insurance Ministerial Corporation (1994, unreported) (see the judgment of Kirby P); Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 385.

132. 1989, unreported.

133. See judgment of Meagher J A in Beale v Government Insurance Office of NSW (1997, unreported).

134. R v Harrow Crown Court, ex p Dave (1994) 1 WLR 98.

135. Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284.

136. An example given in Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284.

137. As was the issue in Burwood Night Patrol Pty Ltd v Lagarde (1996, unreported, New South Wales Court of Appeal).

138. Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284, followed, on this point, in Quinn v Challinor Roberts Cooksey (a firm) (6 May 1999, unreported, CA). It is not necessary for the judge to go further and say, for example, that the reason was based on demeanour: Connell v Auckland City Council (1977) 1 NZLR 630 see also Soulemezis v Dudley (Holdings) Pty Lid (1987) 10 NSWLR 247 at 273-274, 280. See also Burwood Night Patrol Pty Ltd v Lagarde (1996, unreported) (see judgment of Meagher JA); In the Marriage of P W Scott Appellant/Husband and CE Scott Respondent/Wife (1994) FLC 92-457. Cf Daniel James Pilmore v Rodney Gavin Anderson (1995, unreported, Supreme Court of the Australian Capital Territory), citing Crowley v Willis (1992) 110 FLR 194 at 200.

139. See Guppys (Bridport) Ltd v Sandoe (1975) 30 p* CR 69 at 74-75; Allen & Seniuk, above n 80; J Frank Courts on Trial – Myth and Reality in American Justice (Princeton, New Jersey: Princeton University Press, 1949) p 170. The same difficulty is experienced in the quantification and apportionment of damages: eg Glen Rees T/as Glynmar Pastoral Co v Walker (1998, unreported) (see judgment of Mahoney JA); Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 386. Cf Lai Wee Lian v Singapore Bus Ltd (1984) 1 AC 729.

140. On such occasions, we would have to agree with Kirby P (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259) that “(w)here nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.”

141. R v MacPherson (1982) 1 NZLR 650 at 652.

142. Daniel James Pilmore v Rodney Gavin Anderson (1995, unreported); Crowley v Willis (1992) 110 FLR 194 at 200.

143. Or, to use the words of McHugh J A, where ‘evidence and probabilities are involved’: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280.

144. Flannery v Halifax Estate Agencies Ltd (1999) 149 NLJ 284. See also Beale v Government Insurance Office of NSW (1997, unreported) (see judgments of Meagher JA and Mason P); Palmer v Clarke (1989) 19 NSWLR 158 at 170.

145. (1994) 1 WLR 98 at 107.

146. As Somers J explained in R v MacPherson (1982) 1 NZLR 650 at 653: ‘In a criminal case the acceptance of prosecution evidence needs to be accompanied by the rejection of the evidence for the defence. For the acceptance of the one does not discount the possibility of the truth of the other.’

147. (1999) 149 NLJ 284.

148. The summary manner in which the trial judge had resolved the conflict in expert evidence stands in stark contrast with the care and thoroughness with which the judges analysed the expert evidence in Eckerslev v Binnie (1987) 18 Con LR 1.

149. But it explained that this does not mean that there are not two sets of rule, one for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The underlying principle is the same: ‘Transparency should be the watchword.’

150. (1997) 40 BMLR 116espat 134. As the judge lacked expertise in the field in dispute, he had mainly to rely on the impression the expert witnesses made on him, and the cogency with which they expressed their views.

151. (1988) 94 FLR 339.

152. (1998) 94 FLR 339 at 354.

153. (1998) 94 FLR 339 at 351.

154. (1998) 94 FLR 339 at 351-352.

155. (1988) 94 FLR 339 at 353.

156. (26 November 1997, unreported). An equally good illustration is In the Marriage of P W Scott Appellant/Husband and CE Scott Respondent/Wife (1994) FLC 92-457. See also Grayan Building Services Ltd (in liq) (1995) ch 241 esp the judgment of Henry LJ.

157. Henry LJ held that the trial judge ‘did not give a satisfactory judgment to resolve the issue in front of her, nor did she give proper reasons for that judgment’; and Harman J said that the ‘judgment as delivered [did] not make it clear that that part of the evidence which could be decisive was in fact so decisive’.

158. (1985) 3 All ER 119 at 122.

159. Eg Beckford v Weston (22 June 1998, unreported); R v Harrow Crown Court, exp Dave (1994) 1 WLR98at 107; Waterson v Batten (13 May 1998, unreported); Beale v Government Insurance Office of NSW (1997, unreported). Similarly, the European Court of Human Rights has held that the duty to give reasons implied by art 6(1) of the European Convention on Human Rights varies with the circumstances of the case: see Hiro Balani v Spain (1994) 19 EHRR 566, Ruiz Torzja v Spain (1994) 19 EHRR 553; Helle v Finland (1998) 26 EHRR 159.

160. Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1987) 10 NSWLR 247 at 381; upheld by the Privy Council Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 58 ALJR 553.

161. Beckford v Weston (22 June 1998, unreported).

162. See eg Sinak v Tess (1995, unreported), in particular the judgment of Mahoney JA.

163. See Palmer v Clarke (1989) 19 NSWLR 158 at 170; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [19831 3 NSWLR 378 at 386; Rajski v Bainton (6 September 199], unreported) (see judgment of Mahoney JA). Cf, in the administrative law context, P P Craig ‘The Common Law, Reasons and Administrative Justice’ (1994) 53 CLJ 282 at 300.

164. See above section (a).

165. See above n 96.

166. Eg R v MacPherson (1982) 1 NZLR 650 at 652; Wright v Australian Broadcasting Commission (1977) 1 NSWLR 697 at 701; Beale v Government Insurance Office of NSW (1997, unreported) (see judgment of Meagher JA).

167. Eg Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, per McHugh JA. Cf Stefan v General Medical Council (1999) WLR 1293 at 1298-1300.

168. Waterson v Batten (13 May 1988, unreported) (see judgment of Kirby P); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281-282; Yates Property v Darling Harbour Authority (1992) 24 NSWLR 156 at 160–161, 170–172, 188–189.

169. But an appellate court may not need to give a detailed explanation for the dismissal of an appeal if it accepts the reasoning of the court below: Helle v Finland, (1998) 26 EHRR 159 at paras 55-59.

170. See above nn 64 and 66.

171. To meet this demand, the judgment ‘should contain sufficient reasoning to enable the parties to know why they have won or lost, as the case may be’ . Abada v Gray, (1997) 40 BMLR 116, at 134.

172. Soulemezis v Dudley (Holdings) Pry Ltd (1987) 10 NSWLR 247 at 259; Connell v Auckland City Council (1977) 1 NZLR 630 at 634.

173. (1989) VR 8 at 19.

174. As the European Court of Human Rights has repeatedly acknowledged: see its decisions cited above n 159.

175. Eg awarding of compensation to incapacitated victim: hi Wee Lian v Singapore Bus Ltd (1984) 1 AC 729.

176. In the Marriage of John Christopher Towns Appellant/Husband and Deborah Jane Towns Respondent/Wife (1990, unreported).

177. (1999) Times, 25 May.

178. Lord Cameron of Lochbroom in an Australian conference has also stressed the need to be sensitive when giving reasons, especially in a family dispute, to the feelings of litigants: see above n 60, p 135.

179. (1971) 1 NSWLR 376.

180. (1971) 1 NSWLR 376 at 392. See also at 384, per Asprey JA.