JAMES N KIRBY PTY LTD (T/AS BARR PLASTICS) v KALINIC [1994] NSWCA 152

JAMES N KIRBY PTY LTD (T/AS BARR PLASTICS) v KALINIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CLARKE JJA 2 June 1994, 1 July 1994

[1994] NSWCA 152

The issue on appeal is whether the trial judge failed to give adequate reasons in his judgment. In trial, the issue was whether despite the fact that the respondent was suffering from a psychotic condition in 1989, the appellant had established that the neurotic condition which had been found to exist in 1980 had gone by 1989. The trial judge rejected the appellant's case that this question should be answered in the affirmative but did not explain the reasoning process which led him to reject the fundamental point made by the appellant.

Held: Clarke JA held that both counsel and the persons present in court during submissions and his Honour's pronouncement of his reasons for judgment would have entertained no doubt why his Honour had decided the case as he did. However, the decision was still deficient for want of reasons and thus represents an error of law. Nevertheless, this error does not affect the ultimate conclusion reached by his Honour. Accordingly, the appeal is dismissed with costs. Mahoney and Priestley JJA agree with Clarke JA's order but do not agree that his Honour made an error of law.

ORDERS

The appeal is dismissed with costs.

Mahoney JA I agree with Clarke JA that this appeal should be dismissed with costs. Two issues arise for decision: (a) whether the trial judge failed to give reasons, to the extent that he erred in law; and (b) (if he did) what order should be made by this Court.

(a) The judge was obliged, under pain of error of law, to indicate his reasons for dismissing the employer's application: in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 this Court indicated the nature and extent of that obligation.