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Achieving world’s best practice in the writing of appellate judgments

Cover Story

Cite as: (2002) 76(10) LIJ, p.30

The High Court of Australia and other appellate courts could learn from overseas jurisdictions when it comes to the writing of judgments.

By Cosmas Moisidis

THE HIGH COURT OF AUSTRALIA AND OTHER APPELLATE COURTS COULD LEARN FROM OVERSEAS JURISDICTIONS WHEN IT COMES TO THE WRITING OF JUDGMENTS.

The purpose of this article is to raise an issue that affects every legal practitioner and every member of the judiciary in Australia. Does the traditional approach to the delivery of appellate judgments need to be reformed so that the ever-growing body of case law is more accessible to the legal profession and the Australian public?

To that end, this article puts forward a model practice statement which, while primarily directed at the High Court, is of relevance to all Courts of Appeal. The thrust of the model practice statement is twofold; first, to argue that the practice of delivering multiple concurring appellate judgments needs to be curtailed and second, to argue that in the case of all reserved decisions, appellate courts should produce a headnote to be known as an “authorised headnote” which may be cited in all courts as an authoritative summary of the case.

PURPOSE OF APPELLATE JUDGMENTS

In common law tradition, the decisions of appellate courts are significant because of the doctrine of precedent. Former High Court Chief Justice Sir Anthony Mason described the doctrine in the following terms:

“ . . . in its strict sense precedent signifies the obligation of a court, whatever its own inclinations may be, to accept and apply a decision of a court above it in the hierarchy to which it belongs. Thus the Magistrates’ Court is bound to apply the decisions of the courts ranking above it in the Victorian curial hierarchy reaching all the way to the High Court of Australia, for the High Court is the apex of the curial hierarchy in Victoria.”[1]

The purpose of judgments has been described in terms of the following elements. First, to explain to the parties how the result was reached. Second, to expose to the public and to the appellate court, important aspects of the process of reasoning on matters of fact and law. Third, a written judgment should, when appropriate, identify defects in the law or in its administration, and wrongs done or not done when the litigation contains allegations of wrongdoing. A fourth purpose is to demonstrate to the public that justice has been done.[2] The law teaching profession and the media have also been suggested as relevant audiences for appellate judgments.[3] To this, I would add that appellate judgments should clearly and succinctly state the law for the benefit of lower courts and the legal profession.

JOINT v MULTIPLE CONCURRING JUDGMENTS

A contentious issue on the topic of appellate judgments is whether appellate courts should deliver single or multiple concurring judgments. This is a significant issue as the High Court can sit as a Bench of seven judges, with each justice delivering a separate judgment, resulting in lower courts and lawyers being left to unravel what is the majority point of view (if any) on each of the issues in the case.

Former High Court Justice Sir Frank Kitto wrote in 1973:

“I come to the really difficult question whether and when a member of a multiple court is justified in simply concurring in a judgment written by a colleague . . . I . . . favour . . . the conclusion that a Judge should set out his own reasons . . . Sir Owen [Dixon] himself once said to me that he had never agreed in another’s judgment without having some cause to regret it afterwards; but he went on agreeing in the judgments of others on occasions and the advantage of certainty in the law was aided by his doing so.

“I say certainty in the law because that seems to me to be the one great benefit of a joint judgment. I put aside as unworthy of attention the advantage that busy or lazy practitioners and (with apologies) Judges may rejoice to find having only one judgment to read, but there are two other considerations that I must concede. One is that with several judgments reaching the same ultimate conclusion there is often uncertainty as to whether differences of expression or emphasis indicate differences of substance; and the other is that where differences of substance exist it is not always easy for the student or a lower court to know which view is likely to prevail in future.”[4] Sir Frank, in summing up the arguments for and against joint judgments, dismissed as a sign of laziness, any complaint by practitioners and judges about the time involved in reading and applying multiple concurring judgments. He did not address the issue of practitioners passing on to litigants the added preparation costs which must result from practitioners having to read multiple concurring judgments. Nor did Sir Frank address the issue of delay in the court system resulting from judges and magistrates having to hear lengthier legal argument in cases or the inevitable delay in delivering decisions after the hearing of lengthy argument.

There are many examples of cases in which multiple concurring judgments have led to uncertainty for practitioners and lower courts as to how similar cases will be dealt with in the future.[5] In Perre v Apand Pty Ltd,[6] a case in which the High Court had a diversity of views on the subject of the law of negligence in the case of pure economic loss,[7] McHugh J made the following comments:

“Most lawyers now charge hundreds of dollars an hour for their services and legal aid is often unavailable to litigants in tort cases. The cost of those services is substantially increased when lawyers cannot give advice to their clients without the need to read numerous and lengthy academic articles and judgments – this being one of them – to find out what the law is. The cost of those services is also substantially increased when trial lawyers have to make lengthy and complex arguments about what appellate courts have ‘decided’ and what policies govern their cases. Inevitably, some litigants must compromise or abandon what they believe to be just claims or defences and be left with a sense of grievance.”[8]

It is inevitable that multiple as opposed to joint judgments will add to the length and cost of a case. Chief Justice of South Australia John Doyle, in an article on judgment writing, commented that between 1935 and 1989 the average page length of judgments reported in the South Australian State Reports had almost tripled from an average of six pages per case in 1935 to 15.75 pages per case in 1989. His Honour, when comparing the length of cases reported in the Commonwealth Law Reports, said that in 1935 the average page length per case was 18 pages and that by 1997 one volume contained an average of 50 pages per case and another volume contained an average of 73 pages per case. Accordingly, his Honour concluded that the length of the cases reported in the Commonwealth Law Reports over a 60-year period had, on average, tripled.[9] No doubt, access to modern computer word processing has contributed to the problem. The Internet has also vastly increased the number of decisions available with the result that past distinctions between reported and unreported cases are no longer valid.

PROCESSES OF REACHING JUDGMENT

High Court of Australia

The Australian High Court throughout its history has not taken a uniform approach to the process of reaching judgment. The extent to which the justices have on a collegiate basis conferred, circulated their reasons, become partners to joint judgments, or written concurring judgments has depended on the personalities of the individual justices, their sitting arrangements and places of residence, and the role and influence of the Chief Justice.[10] The practice of the High Court has varied from informal conferences among the justices after the hearing of a case to the circulation of draft judgments without any conferences taking place. A process of formal conferences commenced with the Latham Court (1935-1952). In the Gleeson Court (1998 to date), informal conferences commonly follow the hearing of argument and formal conferences are now held with all participating justices in the week following each sitting of the Court to discuss reserved judgments.[11] The High Court in its 1998-99 Annual Report has described these arrangements as having “contributed in some cases to agreement upon single opinions for the Court [and] the acceptance of obligations, on the part of particular Justices, to prepare a first draft for the Court’s consideration”.[12]

United States Supreme Court

The modern practice of the United States Supreme Court has its origins in reforms initiated by Chief Justice John Marshall who was Chief Justice between 1801 and 1835. John Marshall exerted considerable personal influence on the Court and he persuaded his fellow justices to drop the practice of seriatim opinions, by which each justice wrote his own views and to adopt “the opinion of the Court” approach, so that the Court spoke with one voice.[13]

Since the time of Chief Justice Marshall, a schedule of conferences was established for the purpose of resolving cases. Since 1955, the Court has not sat on a Friday and Friday has become a conference day. Wednesday afternoons have also been set aside for conferences. Conferences commence by the Chief Justice calling the first case to be decided and discussing it. The senior associate justice followed by the other justices then speak in order of seniority. Once a case has been discussed, the justices vote in reverse order of seniority with the most junior justice voting first and with the Chief Justice voting last. The Chief Justice then assigns the task of writing the majority opinion if he is in the majority or if the Chief Justice is in the minority, the task is assigned by the senior associate justice. Once a draft judgment is produced, it is circulated among the justices for approval. Some opinions have to be rewritten repeatedly before a final majority agreement is achieved.[14]

William Rehnquist, the current Chief Justice of the US Supreme Court has made the following comments about the task of achieving an opinion of the Court:

“The truth is that there simply are not nine different points of view in even the most complex and difficult case, and all of us feel impelled to a greater or lesser degree to try to reach some consensus that can be embodied in a written opinion that will command the support of at least a majority of the members of the Court . . .

“ . . . the true position of the conference discussion of argued cases is not to persuade one’s colleagues through impassioned advocacy to alter their views, but instead by hearing each justice express his own views to determine therefrom the view of the majority of the Court. This is not to say that minds are never changed in conference, they certainly are. But it is very much the exception and not the rule, and if one gives some thought to the matter this should come as no surprise.”[15]

On the subject of assigning the task of writing the opinion of the Court, Chief Justice Rehnquist has made the following comments:

“Now that I am Chief Justice, of course, I have the responsibility for assigning the writing of opinions for the court in cases where I have voted with the majority. This is an important responsibility and it is desirable that it be discharged carefully and fairly. The Chief Justice is expected to retain for himself some of the opinions that he regards as of great significance, but he is also expected to pass to his colleagues some of this kind of opinion.”[16]

Supreme Court of Canada

Until 1900 the judgments of the Supreme Court of Canada were described as “a complex amalgam of individual pronouncements”.[17] This was to change in the 1920s when Chief Justice Anglin assumed a key role in reshaping the judgments of the Court. In a speech delivered in 1925 the Canadian Chief Justice stated:

“Before I became Chief Justice of Canada, comment was almost universal that Supreme Court judgments were entirely too numerous . . . There were usually judgments delivered by every member of the Court, many of them simply restatements of what had been said perhaps better by somebody else . . . It occurred to me the remedy was this: to suggest to my colleagues that, wherever possible, we should agree that the majority should deliver one judgment, the judgment of the Court, from which would be eliminated all side issues on which every member of the Court was not prepared to concur, and in which there would be a simple, plain statement of material facts, so that a perusal of the one judgment would enable anybody reading it to know exactly what the Court had decided without having to study the opinions of half a dozen gentlemen in order to find some point on which possibly they agreed, while they differed in a good many others.”[18]

Further progress was achieved in the 1960s when Court conferences became systematic under Chief Justice Cartwright.[19] Unlike the US Supreme Court, the procedure of the Canadian Supreme Court at conferences is for each judge to state his or her views in reverse order of seniority, beginning with the most junior judge and concluding with the most senior. This tradition is intended to avoid junior judges simply following the views of their elders. After tentative views are expressed, a member of the group that is likely to form the majority, will normally volunteer to write the first draft judgment. If there is no volunteer, the Chief Justice will ask one in the group to take on the task. A draft judgment is then circulated and amended if necessary until a majority viewpoint is confirmed.[20]

Madame Justice L’Heureux-Dube of the Canadian Supreme Court has described the single opinion of the Court or single majority opinion accompanied by a single dissenting opinion as bringing clarity to the law. Commenting on the period between 1985 and 1990, her Honour has stated that in four out of five cases the Canadian Supreme Court delivered a unanimous judgment. Also in four out of five cases in which the Court did not reach a unanimous decision, the majority position was contained in a single judgment. Her Honour also noted that the average length of the Court’s judgments as reported in the law reports during this period was about 20 pages per case.[21]

Privy Council

The modern judicial committee of the Privy Council was established by The Judicial Committee Act 1833. This statute was the brainchild of Lord Chancellor Henry Brougham who emphasised the need to provide a Privy Council that gave correct and speedy justice to countless millions around the globe.[22 ]Section 5 of the Act provided in part that:

“ . . . no report or recommendation shall be made to his Majesty unless a majority of the members of such judicial committee present at the hearing shall concur in such report or recommendation . . . ”

This provision resulted in Privy Councillors engaging in discussion after judgment had been reserved, and at that stage an individual being deputised to prepare a draft judgment. Often several conferences and two or three revisions of the judgment were required before agreement was reached.[23] A further reform occurred in 1966 when the publication of dissenting opinions was permitted.[24]

House of Lords

The Law Lords sitting in the English House of Lords do not operate under any obligation to produce “an opinion of the Court”. A conference follows the hearing of argument in which each Law Lord is asked to express his or her views in inverse order of seniority. If the Law Lords are agreed for substantially the same reasons, the presiding Law Lord will call for a volunteer to write the first draft. In many cases it is not clear who is going to write the first draft speech, with the result that several drafts are produced and circulated. This often leads to tension when two or more speeches are produced which substantially say the same thing and result in individual Law Lords being put under pressure to withdraw their speeches and to concur with the speeches of others. These practices have led one commentator to conclude that the prevailing ethos in the House of Lords is that of laissez-faire, it being up to individual Law Lords to decide whether or not to write separate concurring speeches or to dissent.[25 ]

Headnotes

A typical feature of published law reports is a summary of each reported case known as a “headnote”. These headnotes are usually prepared by barristers who edit reports of a case for the law reports. The tradition of law reporters preparing headnotes can be found in law reports going as far back as the English Reports (which reproduce reported decisions between 1220 and 1865).[26]

Headnotes can greatly vary in usefulness for legal practitioners. A headnote which accurately summarises the facts of a case and the reasons for the decision can save time and expense in litigation especially when the headnote contains a full statement of principle upon which a practitioner intends to rely. It seems pointless to require lawyers to read an entire case (at the expense of their clients) in order to find a statement of principle in the terms of the headnote. Practitioners usually go through this exercise because a headnote is not an authorised summary which can be referred to in court in place of the text of the judgment.

Reliance on headnotes in court is discouraged because as some commentators have noted, headnotes can be useless as a summary of the principles of a case and at times they can be wrong. An example of a useless headnote can be found in the report of the case of Carlill v Carbolic Smoke Ball Co.[27 ]The headnote summarises the orders made without referring to the principles of contract law for which the case is famous. The law reports also contain examples of erroneous headnotes, as in one case being cited and adopted as authority in subsequent cases. In the case of Bonser v La Macchia,[28] the headnote incorrectly states that the High Court took the view that the commonwealth Parliament has no power to make laws within three nautical miles of the coast of an Australian state. In Raptis & Son v South Australia,[29] three judges of the High Court (with a fourth judge concurring) make an incorrect reference to the ruling in Bonser, presumably as a result of having read the incorrect headnote without having read the entire case.

Headnotes could have the status of being authorised summaries if they are written by or prepared under the supervision of the judges whose judgments they purport to summarise. Arguably the best person to summarise a judgment is not a law reporter but the judge who wrote the judgment.

There are some examples of 19th century US Supreme Court decisions in which the headnote (which is called a syllabus) is signed by an individual justice.[30] The current US practice is reflected in the case of United States v Detroit Lumber Co,[31] in which the US Supreme Court held that a syllabus is not the work of the Court, it is the work of the reporter, who has prepared it for the understanding and convenience of the profession.

Some state Supreme Courts in the US are required by law to produce a syllabus. The Kansas Supreme Court Rules provide that “when a case is decided by the supreme court, the judge delivering the opinion shall, at the time the decision is made, file with the clerk a brief statement, in writing, of the points decided in the case, which shall constitute the syllabus in the published reports of the case”.[32]

Article VIII, of the West Virginia Constitution provides that Supreme Court appellate decisions are not binding authority on any court “unless a majority of the justices in court concur in such decision” and where a majority of justices do concur in a decision, it is “the duty of the court to prepare a syllabus of the points adjudicated in each case in which an opinion is written”.[33]

Magistrates’ Courts

In a state of the judicature address, Gleeson CJ emphasised the increasing importance of summary disposition of civil and criminal matters as a means of dealing with the evils of cost and delay. His Honour emphasised the fact that in New South Wales, 98 per cent of sentences were imposed in local courts. His Honour referred to the establishment of the Federal Magistrates’ Court and also stated: “It is upon the magistrates’ courts that we depend principally for our ability to make justice accessible to ordinary people. The legal profession, and the community generally, have a large stake in the capacity of local courts, to deal promptly, fairly, and inexpensively, with the bulk of litigation. That stake is not sufficiently recognised. The profession ought to take a strong and active interest in the magistracy.”[34] On the subject of the magistracy, High Court Justice Michael Kirby has commented that “the average magistrate in Australia must get through a crushing workload disposing of each case in a matter of minutes. Rarely will there be a time for lengthy cogitation.”[35] Given these comments, there is a compelling need for Magistrates’ Court users to have access to case law which is clear, precise and quickly accessible.

CONCLUSION

Access to justice in all courts (especially courts of summary jurisdiction) can be improved if there is an improvement in access to case law. This can be achieved by a greater commitment by our Courts of Appeal and High Court to achieving “an opinion of the court” approach to the delivery of judgments, as has been the goal in some overseas courts. The endeavour by individual appeal judges to write the definitive judgment on a case is achieved at too high a price, if the downstream consequence of such judgments is that case law becomes complex, uncertain and leads to potential litigants being priced out of access to justice. If it is reasonable for juries to be required to deliver unanimous or majority verdicts on the facts of a case, then arguably it is also reasonable for appellate courts to follow suit on questions of law.

If appellate courts also resolve to prepare their own authorised summaries of cases, then less senior courts will be able to make informed and cost effective decisions which have full regard to the doctrine of precedent. Such an approach would arguably amount to a world’s best practice approach to the writing of appellate judgments. To this end, I have drafted and annexed to this article a model practice statement for consideration by the legal profession and our appellate courts.

MODEL PRACTICE STATEMENT FOR HIGH COURT OF AUSTRALIA AND COURTS OF APPEAL
As it is the function of all appeal courts not only to decide a case inter partes but also having regard to the doctrine of precedent, to give reasons which can be conveniently followed by lower courts, the following practice statement will apply to all future decisions of the Court.
After the hearing of a matter it shall be discussed at a conference of the relevant justices with a view to achieving a majority decision.
If a majority decision is not reached at a first conference, the matter shall be discussed again by the relevant justices at a subsequent conference.
If a majority decision is arrived at following a first or subsequent conference, the Chief Justice or senior puisne justice presiding should then assign to himself or herself or to one of the justices with whom a majority decision has been reached, the task of drafting the written reasons of the majority. Such assignments should be made on a basis which is fair and reasonable and gives all concurring justices an equal opportunity to draft the judgment of the majority of the Court.
After a majority judgment has been drafted it should be circulated among all of the justices of the Court who sat in the relevant matter and a vote should then be taken as to whether or not the draft judgment is supported by a majority of justices as the judgment of the Court. A justice should only draft and publish a separate concurring judgment if he or she has a substantial and irreconcilable difference of opinion with the other majority justices. It should be the exception rather than the rule that multiple majority judgments are delivered in a case.
The Chief Justice or justice assigned the task of drafting the judgment of the majority shall at the same time and in the style of the authorised law reports draft a headnote to be known as an “authorised headnote”. The authorised headnote should summarise the facts of the case, the orders made and the reasons of the majority justices.
Authorised headnotes may be referred to as authoritative summaries in all courts. In the event that there is a conflict between an authorised headnote and the judgment itself, the text of the judgment shall prevail to the extent of the inconsistency.


NOTES

COSMAS MOISIDIS is a solicitor practising in the Office of the Commonwealth Director of Public Prosecutions and a member of the Law Institute’s Criminal Law Section. The views expressed in this article are those of the author and not necessarily those of the Commonwealth DPP.


[1] Sir Anthony Mason, “The use and abuse of precedent” (1988) 4 Australian Bar Review 93 at 95-96.

[2] John Doyle, “Judgment writing: are there needs for change” (1999) 73 ALJ 737 at 738.

[3] Ian Callinan, “Law and literature” (2001) 21 Australian Bar Review 265.

[4] Sir Frank Kitto, “Why write judgments?” (1992) 66 ALJ 787 at 796-797.

[5] See for example: Peters v R (1998) 192 CLR 493 and the discussion of that case by CR Williams “The shifting meaning of dishonesty” (1999) 23 Crim LJ 275 and by Alex Steel “The appropriate test for dishonesty” (2000) 24 Crim LJ 46.

[6] (1999) 73 ALJR 1190.

[7] See the discussion of Perre v Apand Pty Ltd by J Swanton and B McDonald “Liability in negligence for pure economic loss” (2000) 74 ALJ 17.

[8] Note 6 above, at 1205.

[9] Note 2 above, at 740.

[10] T Blackshield, M Coper, G Williams, The Oxford Companion to the High Court of Australia, Oxford University Press 2001, contribution by Troy Simpson at 130.

[11] Note 10 above, at 131-133.

[12] Cited in The Oxford Companion to the High Court of Australia at 132-133.

[13] Elder Witt (ed), “The Supreme Court and its work” 1981 Congressional Quarterly, US 7-9.

[14] Note 13 above, at 65-67.

[15] William H Rehnquist, The Supreme Court. How it was, how it is (1992) William Morrow and Company Inc 290, 294-295.

[16] Note 15 at 297.

[17] Claire L’Heureux-Dube, “The length and plurality of Supreme Court of Canada Decisions” (1990) vol 28 no 3 Alberta Law Review 580 at 584.

[18] Note 17 at 584.

[19] Note 17 at 585.

[20] Bertha Wilson, “Decision-making in the Supreme Court” (1986) 36 University of Toronto Law Journal 227 at 236.

[21] Note 17 at 587.

[22] PA Howell, The Judicial Committee of the Privy Council (1833-1876): Its origins, structure and development (1986) WW Gaunt & Sons 14-15.

[23] Note 22 at 198.

[24] See the Judicial Committee (Dissenting Opinions) Order 1966.

[25] Alan Paterson, The Law Lords (1982) MacMillan Press, 92-93, 97, 108-109.

[26] E Campbell, EJ Glasson & A Lahore, Legal Research Materials and Methods (1981) Lawbook Co, 21-30.

[27] Cited in A MacAdam & J Pike, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) Butterworths Australia, 58.

[28] (1970) 122 CLR 177 and see discussion of case in note 27 at 59.

[29] (1976-1977) 138 CLR 346 and see discussion of case in note 27 at 59.

[30] See for example, Burgess v Seligman (1882) 107 U.S. 359 and Murphy v Ramsay (1884) 114 US 47.

[31] (1905) 200 US 499 at 505.

[32] Kan Stat Ann at 60-2106(a) 2000.

[33] WVa Const Art. VIII at 4 2001.

[34] Chief Justice Murray Gleeson, “The state of the judicature” (2002) 76 ALJ 24 at 24-25.

[35] Justice Michael Kirby, “Judging: Reflecting on the moment of decision” (1999) Australian Bar Review 4 at 19.

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