The nature of the duty to give reasons
30The duty to give reasons is a necessary incident of the judicial process: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41] per Santow JA. In that case his Honour said (at [41]):
".... It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings."
31In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Meagher JA said (at 442):
"A failure to provide sufficient reasons can, and often does, lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478. This Court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost."
32These authorities establish that the failure to provide adequate reasons, if established, amounts to an error of law: Stoker at [41] per Santow JA, Mason P and Sheller JA agreeing; Beale at 444 per Meagher JA.
33In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110, McColl JA (with whom Ipp JA and Bryson AJA agreed) said (at [57]-[58], citations omitted):
"The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes a sense of grievance and denies both the fact and the appearance of justice having been done, thus working a miscarriage of justice.
The extent and the content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties".
34In Qushair v Raffoul [2009] NSWCA 329 Sackville AJA (with whom Campbell JA and Bergin CJ in Eq agreed) made reference to the judgment of McColl JA in Pollard before summarising the principles in the following way (commencing at [52], citations omitted):
(i)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;
(ii)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 to appeal, where that facility is available;
(iii)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;
(iv)where credit issues are involved, it is necessary to explain why one witness is preferred to another. Consequently, bald findings on credit, where substantial factual issues have to be addressed, may not comply with the common law duty to give reasons;
(v)where an appellate court concludes that the trial judge has failed to give adequate reasons, the court has a discretion whether or not to direct a new trial. If, despite the inadequate reasons, only one conclusion is available, a new trial may not be necessary.
35In the present case, counsel for the plaintiff relied upon the observations of Button J in Madden's Stable Bedding Pty Limited v Reid [2014] NSWSC 554. Having concluded that the Magistrate in that case had provided adequate reasons for his findings his Honour said (at [32]):
"That is particularly so given the low level of legal and factual complexity involved in this case, and the fact that it was heard in the Local Court. The purpose of providing reasons for a decision must be weighed against the burden that it imposes on the judicial system: Soulemezis v Dudley (Holdings) Pty Limited at 259; Beale v Government Insurance Office of NSW at 444. Accordingly, the context in which a decision is made will shape what constitutes adequate reasons: see for example Pollard v RRR Corporation Pty Ltd [2009] NSWSC 110 at [56]. The volume of matters, pace of proceedings, and level of seriousness of matters heard in the Local Court must be kept firmly in mind in determining whether a ground such as this has been established."
36I do not understand anything his Honour said in that passage to derogate from the principles to which I have referred in [31]-[34] above. In my view, his Honour was doing nothing other than recognising that the extent of the duty to give reasons necessarily depends upon a number of factors: Pollard (supra); Qushair (supra); Mifsud v Campbell (1990) 21 NSWLR 725. It remains the case that a statement of reasons must be such as to enable a proper understanding to be gained of the basis on which a particular decision has been reached: Pettitt v Dunkley [1971] 1 NSWLR 376 per Asprey JA at 382, cited with approval in Soulmezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 257.
The Magistrate's reasons in the present case
37It will be apparent from my references to the evidence that there was a significant, and fundamental, factual issue between the parties, namely whether Stinson's vehicle encroached into Buckley's lane. Buckley gave evidence that it did, Stinson denied that this was the case. The issue was, as I have noted, the subject of submissions from counsel appearing for each party.
38In these circumstances it is significant that the Magistrate's reasons in [9] and [10] did not include any finding that that Stinson's vehicle in fact encroached into Buckley's lane. What the Magistrate found was that Stinson's vehicle "drove so near" to that of Buckley.
39Further, and leaving aside the terms of that finding, I am left to conclude that the Magistrate rejected the evidence given by Stinson. However, there is no exposition of the reasoning process which led the Magistrate to make that determination. Indeed, there is not the slightest explanation of why Stinson's evidence was apparently rejected. As I have already noted, the reasoning of a trial judge on a point which is critical to the contest between the parties must be exposed. The apparent preference of Buckley's evidence over that of Stinson was critical to the contest in the present case. The Magistrate's failure to set out the reasons for that apparent preference renders his reasons inadequate.
40As I have previously noted, counsel for the defendant submitted that the limited nature of an appeal from the Local Court necessarily had a bearing upon the extent of the reasons which were required. In doing so, he placed significant emphasis upon the judgment of McHugh JA (as he then was) in Soulmezis (supra) which, he submitted, supported the proposition that the Magistrate's reasons in the present case were adequate. In Soulemezis his Honour said (at 281):
"If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough if the decision simply turned on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough".
41I have already noted the importance, in the present case, of a determination of whether Stinson's vehicle encroached into Buckley's lane. The resolution of that issue depended upon which of the two competing versions of the circumstances of the accident was accepted. I am left to infer that Stinson's evidence was rejected. More significantly, I am left to speculate upon why that decision was made. The Magistrate's reasons provide no indication to the plaintiff of why it was unsuccessful in the proceedings: Beale (supra). In my view, given these factors, nothing said by McHugh JA in the passage set out above assists the defendant. In the circumstances of the present case, the inadequacy of the Magistrate's reasons amounts to a breach of the principle to which McHugh JA referred, namely that justice must be seen to be done.
42Moreover, earlier in his judgment in Soulemezis (at 280) his Honour had observed (citations omitted):
"Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary for him to go further and say, for example, that the reason was based on demeanour" (emphasis in original).
43In the present case, the Magistrate did not even go so far as to actually state that he accepted the evidence of Buckley in preference to that of Stinson. I am left to infer that this is the case. In these circumstances, the observations of Moffitt P (with whom Glass and Reynolds JJA agreed) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701 are important:
"It is not satisfactory that an appellate court be left to speculate from collateral observations as to the reasoning upon which a critical decision is made, when the trial judge can and ought directly reveal it".
44In Soulemezis McHugh JA referred to the decision in Wright before saying (at 280, citations omitted):
"If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated".
45The Magistrate in the present case clearly had an obligation to provide reasons. The findings in [10] were critical to his determination of the proceedings. For the reasons I have expressed, the Magistrate's reasons were inadequate. In particular, they fell short of meeting the requirement that the reasoning in respect of a critical issue between the parties be exposed. On this basis an error of law is made out.
46A related issue arises from the factual findings themselves. At [15], when dealing with the scope of the duty of care owed by the respective drivers to each other, the Magistrate concluded that it was foreseeable that harm might occur "if a vehicle did not keep within a marked lane or a single line of traffic". It is to be assumed that in doing so, the Magistrate was seeking to apply the relevant test of foreseeability to the facts of the present case. The difficulty is that up to that point in the judgment, the Magistrate's only factual findings were those set out in [9] and [10]. Those findings did not include a finding that Stinson's vehicle "did not keep within a marked lane or a single line of traffic". Although such a finding appears to have been reached in [16], that is a different finding to that expressed in [10].
47A further difficulty arises from the Magistrate's determination that the degree of Stinson's contributory negligence was 100%. Having found that each of Stinson and Buckley breached the relevant duty of care, the Magistrate was required to make an apportionment, as between them, of their respective shares in the responsibility for the damage sustained to the Kenworth. That task required the Magistrate to properly compare their respective degrees of culpability, to consider the degree to which each departed from the standard of care of the reasonable man, to determine the relative importance of their respective acts in causing the damage, and to then arrive at an apportionment which had regard to those factors: Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; [1985] 59 ALJR 492 at 494.
48Apart from stating (in a shorthand way) the basis upon which he found that both Stinson and Buckley had breached their respective duties of care, the Magistrate's reasons do not address any of the matters which were material to the issue of apportionment. The Magistrate simply cited the basis upon which he found each of the drivers negligent and, without more, proceeded to determine that Stinson was entirely responsible for the damage sustained to his vehicle. There was no proper comparison undertaken of the respective degrees of culpability as between Stinson and Buckley, there was no reference at all to the degree to which each had departed from the standard of care of the reasonable man, and there was no proper consideration given to the relative importance of the acts of each of them in causing the damage. As a consequence, there was no exposition of the reasoning process which led the Magistrate to the conclusion that Stinson was entirely responsible for the damage caused. Moreover, and to the extent that the Magistrate's conclusion was based upon a finding that Stinson failed to keep within his designated lane, that was not the finding he reached in [10]. As a consequence of all of these matters, a further error of law is made out.
49Finally, there was evidence before the Magistrate which touched upon the question of whether the lane in which Buckley was travelling narrowed at one point. However on the pleadings, it was not part of the case of either party that the narrowing of the lane caused the collision. Notwithstanding this, the Magistrate concluded (inter alia) at [6] that the "issue of fact is whether the lane narrows .... causing a collision" before going on to say (at [7]):
"Counsel for the plaintiff submits that the narrowing of the lane explains how the accident occurred".
50The proper identification of the relevant issues is a routine step in the discharge of the ordinary jurisdiction of any court. Demonstrable mistake in such identification will commonly involve an error of law: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179-180. In my view, the Magistrate failed (in [6]) to properly identify the issues before him. In fact, he identified, as an issue, something that was not an issue at all. On this basis, error of law is established.
51Further, whilst the Magistrate's observation in [7] as to the terms of counsel's submission was correct, explaining how an accident occurred is not the same thing as explaining its cause. At no stage was it put on behalf of the plaintiff that the narrowing of the lane had caused the accident. A reference to transcript of the address of counsel then appearing for the plaintiff (at T 45 L20-24) makes that clear. What counsel put (consistent with the pleaded particulars of negligence) was that in circumstances where the lane narrowed, Buckley had failed to keep a proper look out.