NSW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI [1994] NSWCA 221

NSW INSURANCE MINISTERIAL CORPORATION (FORMERLY GIO OF NEW SOUTH WALES) v MESITI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and SHELLER JJA 16 November 1994, 1 December 1994

[1994] NSWCA 221

ADMINISTRATIVE LAW — failure to give reasons duty to give reasons for various findings when liability at issue — limited new trial ordered

The plaintiff had commenced two proceedings against the defendant in the District Court with respect to two motor vehicle accidents, in both of which liability was at issue. By consent, these were heard together. The trial judge gave one judgment in both proceedings. The plaintiff appealed on the grounds that his Honour failed to give reasons to support his conclusion on liability, for preferring the plaintiff's medical evidence to the defendant's and for arriving at the amount assessed for future economic loss. The defendant argued that the failure to give reasons entitled it to a new trial.

Held:

(1) That the reasons given were insufficient.

(2) The failure to explain the basis of the findings on medical issues and the calculation of future economic loss amounted to a breach of the principle that justice must not only be done but must be seen to be done.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281. Government Insurance Office of New South Wales v Blanusa (unreported) Court of Appeal, 10 August 1992 distinguished.

(3) The failure to give reasons on liability did not call for a new trial since the plaintiffs case on negligence was overwhelming, there was no persuasive and critical contrary evidence and the trial judge's conclusion was correct.

Compare Mifsud v Campbell (1991) 21 NSWLR 725.

(4) Accordingly there should be a new trial limited to damages. A party is entitled to expect of a judgment that the judge spell out what happened and where and when it happened, summarise the evidence that goes to liability and make his or her findings on the evidence indicating, where there is conflict, why some rather than other evidence is preferred. It is part of the task of a trial judge to consider the evidence and arguments of the parties and, when reaching a decision, inform the parties of the basis for it. An important reason for this is to assist an appeal court, if there is an appeal: Pettitt v Dunkley (1971) 1 NSWLR 376 at 380.