SOME THOUGHTS ON WRITING JUDGMENTS IN, AND FOR, CONTEMPORARY AUSTRALIA.

Author:Mortimer, Debbie
Position::CRITIQUE AND COMMENT: 2018 MELBOURNE UNIVERSITY LAW REVIEW ANNUAL LECTURE
 
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CONTENTS I Introduction II The Historical Development of Giving Reasons for Court Orders III Who is the Audience? IV Can Judges Write More Succinctly, and Should They? V Two Contemporary Examples of a Different Approach to Judgment Writing VI The Relevance of a Judge's Promise and Duty VII Conclusion I INTRODUCTION

Until five years ago, I was entirely a consumer of judgments. I have worn a number of consumer hats at various stages--law student, practitioner, barrister, pretend academic from time to time--and with each hat comes a different approach to a judgment.

Now I am still a consumer of judgments, because I need to read a lot of them in order to write my own decisions. In another way, I am a consumer as the recipient of drafts from my colleagues in the Federal Court's appellate jurisdiction, which may lead to me writing separately, or being a contributor to a final joint judgment. Finally, I am now also an unwilling consumer, when there are appellate judgments about my own decisions.

However, it is with my new perspective as a producer, as well as a consumer, of judgments that I would like to share my thoughts on judgment writing. I am now almost five years into my judicial role. Not entirely new anymore, but a long way from being highly experienced. It seems a good point at which to reflect on the discipline of writing judgments. And, as the title suggests, writing them in, and for, contemporary Australia. I added that because, as I hope you will see from other parts of this paper, how judges write reflects the society and period in which they do so. I am not persuaded that we are yet writing for contemporary Australia.

This topic is a personal one. In preparing this paper, it became apparent that judges (and former judges) actually spend a lot of time writing about writing judgments. As with just about everything else judges write, their views differ. I can only offer my own perspective. It is also important to bear in mind that I am speaking as one of 51 judges on a Court with both trial and intermediate appellate functions. (1) For example, judgment writing as a discipline in the High Court imports quite different considerations. (2) So too will judgment writing in a Magistrates' Court, or in a tribunal such as the Victorian Civil and Administrative Tribunal, where different considerations and demands exist.

It is likely that there are judgments I have written which are inconsistent with the factors I identify as desirable in a judgment written for contemporary Australia. I am content to admit to failing to live up to the standards I suggest in this paper, and the fact that I do fail is illustrative that all this is easier said than done.

Relevantly to what I say in the rest of this paper, the exercise of judicial power is by the court in the making of its orders not the giving of its reasons. (3) The judge does so only as an officer of that court. The orthodox view of judicial power is that it is institutional, and it is not a power exercised personally. That is one of the reasons for the legal fiction of persona designata, the doctrine that allows those who exercise judicial power, such as me, to also exercise, as an individual, a power that is executive: for example, the power to issue a warrant, (4) and the power to determine whether a person is eligible for surrender under the Extradition Act 1988 (Cth). (5)

Therefore, one of the curious factors to confront in considering how judgments might be written is that they are written to support orders made by the court, as an institution, but they are also written by an individual human being as the person who exercised the power of that institution on that occasion. Striking a balance between reflecting individual reasoning and opinion and ensuring that a judgment still accurately reflects an explanation for an institutional exercise of power is one of the challenges presented to a judge. At an impressionistic level, it seems to me the longer and more complex a judgment, the more difficult it is for the reasons to represent an explanation of the institutional exercise of power, and the more they tend to reflect an individual approach of a judge to an exercise of power.

II THE HISTORICAL DEVELOPMENT OF GIVING REASONS FOR COURT ORDERS

It is worthwhile exploring a little of the historical development of the giving of reasons to demonstrate how much attitudes have changed towards this aspect of a court's function. The proposition that judges are obliged to give reasons is of comparatively recent origin. Further, legal history shows that there is no historical or inherent reason that judgments need to be lengthy and complex.

There has been much written on this subject, so in this paper I do no more than select some of the aspects I have found relevant and interesting for my own purposes.

In his series of Clarendon Law Lectures, entitled The Law's Two Bodies: Some Evidential Problems in English Legal History, Professor John Baker explores the informal sources of the common law, and encourages the reader to appreciate that what we might now see as a coherent body of fully detailed, written case law was far from the form of the early common law. (6) Professor Baker traces the development of what was called 'common learning': discussion and debate of law and legal principles at universities, in the inns of court, or indeed over what Professor Baker calls a 'good spread' at a tavern near the Old Bailey called 'The Cardinal's Hat', (7) which was, according to a passage in a medieval manuscript quoted by Professor Baker, 'a place accustomed for lerned men in the lawe to comen [ie discuss] maters concernyng the lawe'. (8)

Professor Baker notes the close relationship in the Tudor period between judges and inns of court where barristers were taught, so that some of the law reports from this period freely mix learning exercises with dicta uttered by judges in courts, and it did not matter where a judge uttered a statement about the law, so much as who the judge was. (9) Sometimes, what mattered was that it was not a judge who uttered the statement, but rather the statement was made by a respected advocate and, for that reason, might be given more weight. (10)

It is probably fair to say that current day advocates may wish this were still the situation.

In his third lecture in the Clarendon Law series, Professor Baker traces the change occurring at the end of the 16th century, the era of Coke and Walmsley, where 'common learning' was said to reside in books, rather than in these informal sources. (11) Professor Baker notes that in this period Sir Edward Coke was writing that '[o]ur book cases ... are the best proof of what the law is'. (12) Professor Baker notes also that in this period, Plowden's Comentarles (first published in 1571) decried the use of discussions as a source of law, instead asserting that in reasoned judicial decisions lay the 'most firmness and surety of law'. (13)

Professor Baker recounts that by a century later, in the late 1600s, Vaughan CJ made a clear statement that the opinion which governs a judicial decision is the best source of the law, rather than what his Honour called an 'extrajudicial opinion.' (14) This, as Professor Baker notes, refers to what we now would call obiter dicta, not something outside a judge's reasons. (15) However, the interesting part, and from my perspective a link forward to the present day, is that the basis identified by Vaughan CJ for the supremacy of the judicial opinion governing a decision is because it was given under judicial oath. (16) The importance of what a judge promises to do, and is obliged to do, as a result of her or his judicial oath is a factor affecting the nature and content of any reasons given.

In their chapter 'Reasoned Decisions and Legal Theory', Professors David Dyzenhaus and Michael Taggart point out that much of the philosophical debate about the common law has assumed judges are under a duty to give reasons for their decision, and always have been. (17) As Professors Dyzenhaus and Taggart demonstrate, as a matter of legal history that is not the case at all. (18) In this chapter, Professors Dyzenhaus and Taggart express their agreement with the spirit of Jeremy Bentham's understanding of legal theory, as they describe it, to 'make law serve best the interests of all those individuals who found themselves subject to it, rather than what they describe as some legal philosophers' 'neglect of practice'. (19)

Professors Dyzenhaus and Taggart identify the absence in early common law cases of any recognition of an obligation to give reasons, and indeed point to judicial observations emphasising that judicial power could be exercised without doing so. (20)

Expressions of similar opinions can be found in the United States ('US') in the 19th century. Houston v Williams is a rather rousing decision on a petition filed by the plaintiff requesting written reasons in an appeal concerning an ejectment action. (21) The plaintiff relied on a Californian statute which in its terms indeed appeared to compel the provision of reasons for appellate decisions. (22) The Supreme Court of California railed against the encroachment of the State legislature into the judiciary's domain of deciding whether or not to give written reasons for decision. Field J began with the following:

In its own sphere of duties, this Court cannot be trammeled by any legislative restrictions. Its constitutional duty is discharged by the rendition of decisions. The Legislature can no more require this Court to state the reasons of its decisions, than this Court can require, for the validity of the statutes, that the Legislature shall accompany them with the reasons for their enactment. (23) Having pointed out that Blackstone records that reasons, if any were given, were generally stated orally by the judges, and taken down by the reporters in shorthand, Field J then referred to the reports of Sir Edward Coke in the late...

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