Too much or not enough

The grainy black and white photographs showed a mass of men, their faces blurred for anonymity, crowded into a room reminiscent of a 1950’s asylum. Evoking strong emotions, the photographs would not have been out of place in a tabloid exposé. Instead, they were attached to a recent judgment of the US Supreme Court in Brown v Plata,1 in which the majority held that California’s prisons are so overcrowded that they are a violation of the Constitution’s ban on cruel and unusual punishment, and that the State must release or relocate some 32,000 inmates over the next 2 years. In the majority judgment, Justice Kennedy referred to 2 appendices. Appendix B contained 2 photographs of hundreds of inmates crowded into open gymnasium-style rooms. Appendix C, an image of a telephone booth sized cage used to hold people on suicide watch. The inclusion of the photographs attracted comment2 and questions about the inclusion in the court’s reasons of such visual aids.

Once upon a time, reasons for judgment included only words. More recently, it is not unheard to find photographs, maps, extracts of submissions, media articles (and in the US, video footage) attached to a court’s reasons.

The failure of a trial judge or tribunal member to give adequate reasons for judgment can amount to an error of law and is a commonly raised ground in civil appeals confined to error of law (eg. appeals from the Planning & Environment Court, the Queensland Industrial Relations Commission, appeals without leave from Queensland Civil and Administrative Tribunal). The inclusion of visual aids in a judgment raises an interesting question about how such material might be construed as part of the reasons and whether the inclusion of it could lend itself to a ground of appeal.

A search (which does not profess to be exhaustive) for the purposes of this article did not reveal any Australian decisions in which this issue had arisen. However one could imagine that the inclusion of a photograph or video footage might raise questions about the purpose of the image and what it adds to the text, its potential importance and whether the reasons articulate adequately its significance and weight. If the decision maker referred to an image, for example, to illustrate a conclusion or on the basis that the image “spoke for itself”, there is a risk that another person viewing the image might not draw the same conclusion or impression. An image may do no more than add an emotional aspect to the reasons. One can imagine objections to the inclusion of visual aids on the basis of authenticity, lack of context, and manipulation (even if the picture itself is authentic).

The case referred to above provides a convenient, if tenuous, link to considering the relevant principles on the adequacy of reasons for the purposes of a ground of appeal, and when inadequate reasons will amount to an error of law.

In Drew v Makita (Australia) P/L [2009] 2 Qd R 219 at 2373 the Court of Appeal (Muir JA, with whom Holmes JA and Daubney J agreed) summarised the relevant principles:

(a) to avoid leaving the losing party with “a justifiable sense of grievance“: Beale v Government Insurance Office of NSW (Supra) at 431.

(b) through not knowing or understanding why that party lost: Beale v Government Insurance Office of NSW (Supra) at 442;

(c) to facilitate or not frustrate a right of appeal: Soulemezis v Dudley (Holdings) Pty Ltd (Supra) at 259, 271; Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 666 — 667 per Gibbs CJ; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 129;

(d) as an attribute or incident of the judicial process: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257, 269, 273, 279;4

(e) to afford natural justice or procedural fairness: Soulemezis v Dudley (Holdings) Pty Ltd (Supra) at 279; Flannery v Halifax Estate Agencies [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381 — 392; Waterways Authority (Supra) at [129]; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 475, 476;

(f) to provide “the foundation for the acceptability of the decision by the parties and the public” and to further “judicial accountability“: Soulemezis v Dudley (Holdings) Pty Ltd (Supra) at 279.

4. The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and “the function to be served by the giving of reasons“: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386.

5. For that reason, what is required has been expressed in a variety of ways:

(a) in Soulemezis v Dudley Mahoney JA said:

“… And, in my opinion, it will ordinarily be sufficient if — to adapt the formula used in a different part of the law … by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.”

(b) McHugh JA’s view in the same case was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but “… it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”;

(c) In Strbak v Newton (Unreported, New South Wales Court of Appeal, Gleeson CJ, Samuels and Priestley JJA, 18 July 1989) Samuels JA said:

“…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the claim of reasoning which authorises the judgment which is given.”

(d) Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith, [1983] FCA 179; (1983) 48 ALR 500 at 507 said that the decision maker:

“…should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions .”

(e) Meagher JA in Beale v Government Insurance Office of NSW (Supra) stated these propositions at 443 — 444:

“…there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v University of the West Indies [1983] 1 WLR 585; [1983] 1 All ER 824. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported).

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.”

6. The three “fundamental elements” should not be applied rigidly, but they provide useful guidance for a determination of the sufficiency of reasons in the general run of cases.

In resolving conflicts of expert evidence, a trial judge may need to be more explicit in the reasons and include a coherent reasoned explanation for why one expert’s evidence is preferred over another: Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811; [2000] 1 WLR 377 at 381 — 382 referred to with approval in the reasons of Ipp JA in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 at 137.

However, the Queensland Court of Appeal in Tendiris Pty Ltd and Anor v Moreton Bay Regional Council and Ors5 recently cautioned in relation to conflicting expert evidence:

“… it is not the duty of a judge to decide every matter raised in argument; the judge ‘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 … Where it is submitted that evidence is relevant, or where it is not clear that it is irrelevant, it may be necessary in a particular case for the reasons to explain why the judge has concluded that it is irrelevant, ….” [footnotes omitted]

Contrast this with statements in Cypressvale P/L & Anor v Retail Shop Lease Tribunal [1996] 2 Qd R 462 [6] to the effect that where a Judge has to decide between conflicting witnesses the choice is often a matter of judgment, not of detailed reasoning.7 It is “plainly unnecessary” for a judge to refer to all the evidence led in the proceedings, or to indicate which of it is accepted or rejected, although failure to explain the basis of a crucial finding of fact involves a breach of the principle. The obligation to do so does not exist in respect of every matter, of fact or law, which was or might have been raised in the proceedings. Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemise which of the factual matters to which he has had regard.8

Putative errors of law should be presented by an appellant so as to be recognisable as such by the appellate court without the need for that court to descend into the evidence to be reviewed on the proposed appeal in order to determine whether leave should be granted.9

In Camden v McKenzie [2008] 1 Qd R 39 Keane JA (with whom McMurdo and Douglas JJ agreed) said at 30-31:

“The appellants contend … that adequate reasons for judgment will refer to the evidence which was important to the determination of the matter, and will set out material findings of fact, given the judge’s reasons for his … findings of fact, and stating the basis on which the judge has come to prefer one body of evidence over a competing body of evidence.

As a general rule, observance of these requirements is necessary to demonstrate that litigation has been determined fairly and rationally. Adherence to these requirements ensures that rights of appeal are not rendered meaningless, and that a party affected by a decision adverse to his or her interests is not left with the justified sense of grievance that the case has not been properly considered. In short, these standards promote the conscientious public discharge of the responsibilities of a judge to litigants, as well as to the community, which has a vital interest in the integrity of the judicial process.” [footnotes omitted]

More recently, the principles in Beale and Soulemezis, relied upon in Drew v Makita, were affirmed by the NSW Court of Appeal in Alchin v Daley [2009] NSWCA 418, in which it was said that it is essential to expose the reasoning on a point critical to the contest between the parties, and 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.

In conclusion, it is clear that the extent of the duty to give reasons will vary depending on the function that is served by the giving of reasons and the nature of the evidence being considered .

Tracy Fantin

Equity Chambers, Cairns

Footnotes

1.  Brown, Governor of California v Plata 131 S. Ct. 1910 (2011), (23 May 2011) at http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf . In a 5:4 decision, Kennedy J delivered the opinion of the court, in which Ginsburg , Breyer , Sotomayor , And Kagan JJ joined. Scalia J filed a dissenting opinion in which Thomas J joined. Alito J filed a dissenting opinion in which Roberts  CJ joined.
2. “Show, Don’t Tell – Do photographs of California’s overcrowded prisons belong in a Supreme Court decision about those prisons ?” By Dahlia Lithwick May 23, 2011 in Slate. See http://www.slate.com/articles/news_and_politics/jurisprudence/2011/05/show_dont_tell.html  
3. At [57]-[64]. Recently cited in In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 (15 March 2011); Littlejohn v Julia Creek Town and Country Club Inc [2010] QCA 361; Tendiris Pty Ltd & Anor v Moreton Bay Regional Council & Ors [2010] QCA 349; [2011] QPELR 289.
4. Recently emphasised by the High Court in Wainohu v New South Wales [2011] HCA 24 (23 June 2011) at [55] (fn 134 citing Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1995] QCA 187; [1996] Qd R 2 462 at 483; Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373) and at [56] — [59]).
5. [2010] QCA 349 per Fraser JA at [24]
6. Cypressvale P/L & Anor v Retail Shop Lease Tribunal [1996] 2 Qd R 462 per Fitzgerald P at 476-7; McPherson and Davies JJA at 482-4; [1995] QCA 187; Soulemezis v Dudley (Holdings) Pty Ltd at 269C; Camden & Anor v McKenzie & Ors (Supra) cited in S & L Developments P/L & Ors v Maroochy Shire Council & Ors [2008] QCA 296.  
7. Ibid at 482 L37-46 and 484 L1-9
8. Ibid at 484 L10-20
9. Ibid at [13]