Your audience, your language and liars
One matter always to be considered in resolving these conflicts, and in deciding the language to be used in resolving them, is to consider who will be the audience for the reasoning. Of course, one of those might inevitably be judges on an appellate Court, who are likely to take an entirely different approach to reasoning and language than the parties themselves who might read the reasons carefully.
There is, I think it fair to say, some controversy in the writing and case law in this area about the extent to which in making findings as to credit, it is necessary to avoid harsh language, or specific findings about the reliability of particular witnesses. Common experience shows us that some judges manage to find against credit but always do so ever so nicely. On other occasions we see judges who are highly critical of witnesses, and find or uphold accusations of dishonesty or even perjury. To make a specific finding other than that one prefers one body of evidence over another and explain the basis for that preference, one could do so for any one of the sorts of reasons that I mentioned earlier and were identified by Lord Bingham.
There is a distinction to be drawn between the rejection of evidence of a particular witness for reasons which are explained, and a finding that a witness intentionally lied. In the High Court in Smith v New South Wales Bar Association7, members of the Court identified that something extra was needed to reject particular evidence on the basis of deliberate untruth. Justice Deane mentioned some of the factors which would be relevant in determining whether a witness has deliberately lied and said:
“There are many circumstances in which a trial judge â and the Court of Appeal in the present case was effectively sitting as a court of first instance â is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made”.
Putting aside findings of dishonesty, it is well established that the process of reasoning must, because it is the basis for a decision, make the relevant adverse findings on credibility, and that it is not enough just to “let the witness down lightly by making a tactful finding”.
Examples of statement of principle to this effect may be found by Justice Tobias in the New South Wales Court of Appeal in McGlen-McLeod v Galloway [2012] NSWCA 368 where he said at [124]:
“It must be remembered that it is no answer to the obligation, if required, of a judge to make an adverse findings on credibility to avoid doing so in order, as it were, to let the witness down lightly by making a more tactful finding which does not honestly reflect the judge’s real assessment of the witness’s evidence. This point was well made by Campbell JA, with whom Giles and Hodgson JJA agreed, in Adamson v Ede [2009] NSWCA 379 at [146] where his Honour said:
I do not accept that the judge was in error in this way. One reason why the judge was not in error is that the obligation of a trial judge in giving reasons for decision is to state the reasons that he or she really has for deciding the case, not to give a bowdlerised or sanitised version of those reasons. There may well be cases where a judge regards it as sufficient reason for concluding the case in one particular way to make a soft finding rather than a harsher finding â but a judge is justified in so doing only if the soft finding is at the end of the day the judge’s real reason for concluding the case that way. There is no legal obligation on a judge to choose the soft finding, when a case could be decided by either a soft finding or a harsher finding.”
Related to this point is the issue of what language is to be used in the judgment. There is a considerable body of literature on how to write pithy, accurate and well constructed judgments, and I do not wish to deal with that issue here. But it is important when making findings of credit and in disclosing the process of reasoning to ensure particularly in the context of Tribunal decision making (as distinct perhaps from judicial determinations) to ensure that as far as possible the language used is such that the parties themselves will understand what decision has been made and why.
With due acknowledgement to His Honour Judge Brian Harrison of the Queensland District Court, and his recently well publicised approach to sentencing remarks, I have extracted and rewritten, using his method, critical parts of the decision in Donoghue v Stevenson, the famous snail in the ginger beer bottle case that established the law of modern negligence. I hope you will find this analysis useful in your future judgment writing, with my supplementary findings in bold;.
Donoghue v Stevenson [1932] AC 562 Modified extract from the reasons of Lord Macmillan
The appellant, who was a shop assistant, and sought to recover damages from the respondent, a real goose. He was a manufacturer of aerated waters. He heard me refer to him in argument as a clown or an idiot. Well he is. It’s people like him who wreck it for everyone.
She sued for injuries she suffered as a result of consuming part of the contents of a bottle of ginger-beer. The ginger-beer was manufactured by the idiot.
The beer and which contained the decomposed remains of a snail. From what I have heard in the evidence about how the respondent got it there in the first place I don’t hold out any confidence he won’t expose some other poor member of the public to the same thing because out will come the flawed bottling techniques , about three seconds before the brain.
The appellant averred that the bottle of ginger-beer was purchased for the appellant by a friend in a cafe at Paisley, which was occupied by one Minchella. The bottle was made of dark opaque glass and that the appellant had no reason to suspect that it contained anything but pure ginger-beer; that the said Minchella poured some of the ginger-beer out into a tumbler, and that the appellant drank some of the contents of the tumbler. After this, her friend proceeded to pour the remainder of the contents of the bottle into the tumbler. This was when a snail, which was in a state of decomposition, floated out of the bottle. Obviously this can only have been made by a man who has got no respect, have you, for this system? You just don’t care, do you?
As a result of the nauseating sight of the snail in such circumstances, and in consequence of the impurities in the ginger-beer, which she had already consumed, the appellant suffered from shock and severe Gastroenteritis.
It is sometimes said that liability can only arise where a reasonable man would have foreseen and could have avoided the consequences of his act or omission. I say a reasonable man even though only an idiot or a goose like the respondent here would say he was reasonable.
In the present case the respondent, when he manufactured his ginger-beer, had directly in contemplation that it would be consumed by members of the public. Can it be said as the Respondent does that he could not be expected as reasonable man (this one’s about as unreasonable as they get, clown that he is) to foresee that if he conducted his process of manufacture carelessly, he might injure those whom he expected and desired to consume his ginger-beer? Of course he says that because that’s where he wants to be, because nothing penetrates his thick skull.
And it’s because of grubs like him – and I use that word advisedly – grubs like him, that we’re hearing that kind of submission.
The possibility of injury so arising, seems to me in no sense so remote as to excuse him from foreseeing it.
The Respondent can’t just go ahead, put his brain into neutral, if he’s got one – and I seriously question that – and then just go and do what he likes.
What a goose. Judgment accordingly.
The problem of adopting Counsel’s submissions and template reasons
My reference under this topic head concerns itself primarily with avoiding the temptation which sometimes presents itself to adopt the language of a cleverly argued case from one party, rather than undertake the process of reasoning that I have described on page 2 of this paper. Not only in the past, but even more recently, there have been examples perhaps a little like that which I used in the introduction to this paper, of arriving at the decision in the case by the simple process of adopting all of the evidence and all of the submissions for one side.
Sometimes reasons adopt a formulaic or template aspect. This too is problematical. Fundamentally the problem is that in adopting either practice one risks a perception if not an accusation that there has been a failure to give genuine consideration to the merits of the case; even though that may not in fact be truly so.
In Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407, the NSW Court of Appeal was considering reasons of the lower court which dealt with the evidence and submissions of the parties in the following terms:
“The evidence in this matter is all contained in the applicant’s case and the circumstances of the commencement of the relationship between the applicant and the first respondent and what transpired thereafter up until the date of injury and indeed thereafter, are all detailed therein. There is no reason why the whole of the applicant’s evidence and the other evidence contained in the applicant’s case should not be accepted and I do accept it in its entirety”.
This ‘reasoning’ sounds a lot like the example I used from my early experience at the Bar doesn’t it?
The trial judge had then said that he incorporated into this judgment the transcript of the submissions made by all the parties.
Kirby P (as his Honour then was), with whom Priestley JA and Waddell A-JA agreed, in the appeal from that judgment, said, at 417:
“(3) It may be possible to conceive an instance where the incorporation of submissions by one party in reasons for judgment would be an adequate compliance with the judicial duty to provide reasons. That was certainly not the case here. . . This Court has no idea of the basis upon which Moroney CCJ entered his award. Unless a judicial officer states that basis, there is a risk that he or she will not have addressed attention adequately, or at all, to the arguments of the parties. Certainly, there is the risk that the parties will so conclude and that is damaging to the administration of justice . . .”
So in his Honour’s view this practice of incorporating submissions was actually damaging to the administration of justice.
In Pollard v Wilson [2010] NSWCA 68 at [166] the New South Wales Court of Appeal was considering a case where 35 pages of the reasons consisted of a verbatim reproduction of the submissions made by counsel for one party. The trial judge had said of the submissions that they were “an excellent analysis of the relevant law” and further said “I agree with that analysis and (counsel’s) conclusion in her written outline of submissions.” After reproducing the outline document the judge said:
“The plaintiff having failed to prove its case against the second defendant on the balance of probabilities, means there will be a verdict for the second defendant and the plaintiff is to pay the second defendant’s costs”.
The Court of Appeal said about this approach at [166]:
“The submissions made by counsel for the Council are well constructed and the reasoning is sound. However, the conclusions depend upon various assertions as to the relevant facts. Although the assertions are made, his Honour nowhere in his reasons indicates that he has analysed the relevant evidence and himself concluded that the assertions made by counsel are justified by the evidence. He should have done so”.
So as may be seen, we are back to the point I started with in this paper.
In the earlier mentioned decision of Camden and Anor v McKenzie and Ors [2008] 1 Qd R 39 a trial judge in the District Court had approached the determination of the case on the basis that the issue as to what relevant representations were made depended on his assessment of the credibility of the appellants and the first respondent and had said in his reasons:
“I formed views on the credibility of each of those three persons as each gave his or her evidence. I was provided with extensive written submissions by each of Mr Somers for the [appellants], Mr Ashton for the first and second [respondents] and Mr Perry SC for the third [respondent], and each counsel addressed me in support of his written submissions. Before and during the preparation of these reasons I read and reread both the evidence and those submissions and examined the documentary exhibits. [The appellants] were present throughout the addresses and, I believe, are familiar with their content.
I am now firmly of the view that, so far as credibility be concerned — and therefore the acceptability of the evidence of those three persons be concerned — the evidence of [the first respondent] was the more credible and therefore I accept his evidence in preference to that of [the appellants]. As between the [appellants], I was never convinced that I could act on it alone to find the facts which necessarily had to be found before this claim could succeed. The submissions of the [respondents] capture my own views. Mrs Camden’s evidence was imprecise, and even vague, although I am convinced that she did all in her power to make a success of the business, while Mr Camden’s evidence reminded me of a person who had memorised a prepared script but then could not withstand the examination represented by his cross-examination. The analyses of this evidence contained in the submissions by both Mr Ashton and Mr Perry support the conclusions I reached as to the extent to which I could rely on the evidence of [the appellants]. [The first respondent], on the other hand, was impressive and believable. He was called to give evidence in the [appellants’] case and gave his evidence in a manner which would not have met the requirements for a declaration that he was a hostile witness. His evidence did not support that given by the [appellants] on the crucial issues. He had left the second [respondent’s] employ in 1997, some time after the shopping centre had been sold by the third [respondent]. I have been conscious of Mr Somers’ strictures as to his inability to cross-examine [the first respondent] but that was a consequence of a decision made by him or his instructing solicitor and there is no way I can mitigate the effect of the evidence given by [the first respondent]. Neither am I convinced that his evidence, both in chief and in cross-examination, was other than truthful and honest. The [appellants] bore the onus of proving their claim. Their evidence did not convince me to the point that I am prepared to accept it. Neither did the submissions made on their behalf.”
In relation to this, Keane JA, with whom Philip McMurdo and Douglas JJ on the Court of Appeal agreed, said at [36]:
The course taken by the learned trial judge of explaining his reservations as to the credibility of the appellants by adopting submissions made by the respondents is to be deprecated. It is a course distinctly apt to give an impression to the losing party that the case has been decided without proper consideration. That impression will not be allayed by an assurance from the judge that the submissions of the parties have been read, even several times.
In June last year the Full Federal Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 289 ALR 244 had as its focus an argument that the Administrative Appeals Tribunal failed to consider some of the appellant’s evidence in making its decision, as well as what was discovered to have been the Tribunal’s copying to a very significant degree one party’s (the Commissioner of Taxation) submissions into the reasons.
The Full Court also commented adversely on the conduct of the Commonwealth which was a party, for failing to disclose to the primary judge these aspects of the AAT decision. Except for a small number of paragraphs, the published reasons of the Tribunal for its decision to dismiss the Applicant’s application were copied verbatim from the Commissioner’s written submissions without attribution.
In the joint reasons of the Court there was recounted how, some days before the appeal came on for hearing, the Court drew to the attention of the parties the apparent extent of the verbatim copying without attribution of the Commissioner’s submissions by the Tribunal and the apparent history of the drafting of those submissions. Neither of these matters had been addressed in the written submissions of the parties filed for the purposes of the appeal to the Full Court. One of the matters on which the Court sought the assistance of the parties was how it was that submissions came to be put to the primary judge in the form recorded in the judgment.
The Court said:
We were not taken to and we are not aware of any authority in this country dealing with very substantial and unattributed copying of a party’s submissions as the basis of the reasons of a tribunal. There are some decisions of superior courts in Australia but more particularly in North America which deal with the issue of such copying by judges and we shall refer briefly to them, noting that different considerations apply to evaluating the reasons of a court than apply to the reasons of a tribunal: see Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [53] and Wu Shan Liang (above).
Some of the Australian cases deal with template or standard paragraphs where a tribunal has copied some paragraphs from other documents, usually previous decisions of that tribunal. Litigants challenging such use have sought to put the matter of complaint into various categories of jurisdictional error, most frequently apparent bias or other denial of procedural fairness. However some of the cases refer to the question whether the tribunal had considered the matter for itself. A major distinguishing feature between those cases and the present case is that in each of those cases, with the exception of Huluba v Minister for Immigration & Anor (1995) 59 FCR 518, the first instance tribunal was dealing with a number of cases which raised the same or similar issues, that is, the same or similar claims about the same countries.
The critical question in the Appeal was whether a particular affidavit had been considered by the Tribunal. The Court concluded that
“It is clear to this Court that the reason the Tribunal did not refer to the contents of the Schokker affidavit was not so much reference to “the structure and text of the Tribunal’s decision” but to the immediate source of the Tribunal’s reasons, being the Commissioner’s written submissions to it, and to the drafting of those written submissions without reference to the substance of the Schokker affidavit in the parts copied by the Tribunal. It is a distraction to examine the reasons of the Tribunal as if they were an independent text without reference to their source”.
In our opinion, the Tribunal did not conduct that evaluation of the material in the Schokker affidavit, whether by reference to written submissions on behalf the Commissioner or oral submissions on behalf the Commissioner or otherwise. For the reasons we have explained, the Tribunal did not address compliance with reference to the Schokker affidavit although in a paragraph copied verbatim and without attribution from the Commissioner’s written reply submissions there is a reference to a submission which refers to the Schokker affidavit. Importantly, nowhere does the Tribunal refer to the detailed analysis of the Schokker affidavit by counsel for the Commissioner in oral submissions.
We find that the Tribunal did not have regard to the material in the Schokker affidavit and thus it failed to have regard to the appellants’ explanation relevant both to the question of breach of the Tribunal’s directions and to the exercise of the Tribunal’s discretion conferred by s 42A(5)(b) of the AAT Act”.
Since this paper was originally delivered in March this year , the English Court of Appeal in Crinion v IG Markets Ltd [2013] EWCA 587 a decision handed down on 23 May 2013, considered what must have been close to the low water mark for such conduct. In that case it was found that 94% of the words of the judgment under appeal represented Counsel for one party’s drafting — and there was no alteration whatever to the structure of Counsel’s submission, essentially cut and pasted into the judgement without acknowledgement. The Appellants even pointed out that in the “properties” file in the Word version of the judgment the “author” is shown as that counsel .The Appellants said that it reflected the “reality” of the matter.
Lord Justice Underhill said at [16]-[17]
“In my opinion it was indeed thoroughly bad practice for the Judge to construct his judgment in the way that he did…
For the Judge to rely as heavily as he did on Mr Chirnside’s written submissions did indeed risk giving the impression that he had not performed his task of considering both parties’ cases independently and even-handedly. I accept of course that a judge will often derive great assistance from counsel’s written submissions, and there is nothing inherently wrong in his making extensive use of them, with proper acknowledgement, whether in setting out the facts or in analysing the issues or the applicable legal principles or indeed in the actual dispositive reasoning. But where that occurs the judge should take care to make it clear that he or she has fully considered such contrary submissions as have been made and has brought their own independent judgment to bear. The more extensive the reliance on material supplied by only one party, the greater the risk that the judge will in fact fail to do justice to the other party’s case — and in any event that that will appear to have been the case. …I have never before seen a case where the entirety of a judgment has been based on one side’s submissions in the way that occurred here.
However, to say that the judgment was defective, even seriously so, is not necessarily to say that there has been an injustice which requires the appeal to be allowed. The judgments in the three cases considered by this Court in English were very seriously defective, but the Court was able in the end, by careful analysis of the judgment in the context of the evidence and submissions made, to satisfy itself that the judge had in each case properly performed his or her judicial function. Likewise in this case, if it is possible to demonstrate that, whatever the first impression created by the way he constructed his judgment, the Judge did in fact carry out a proper judicial evaluation of the essential issues and did not simply surrender his responsibility to counsel, then the judgment should stand. This involves no qualification of the principle that justice must be seen to be done; but in deciding whether that is so it is necessary, at least in a case like this, to go beyond first impressions.
In the end, and not without some hesitation, I have come to the conclusion that the judgment in this case does show, when examined carefully in the context known to the parties, that the Judge performed his essential judicial role and that his reasons for deciding the dispositive issues in the way that he did are sufficiently apparent”.
Sir Stephen Sedley said at [38]-[39] :
“ Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost. Such an omission is not generally redressed by a perfunctory acknowledgment of the latter’s arguments. Even a party without merit is entitled to the measure of respect which a properly reasoned judgment conveys.
Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done. In principle, no doubt, it differs little from the modus operandi of the occasional judge, familiar to an earlier generation of counsel, who would pick up his pen (sometimes for the first time) and require the favoured advocate to address him at dictation speed. But in practice, for reasons which Lord Justice Underhill has described, the possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for, as Lord Justice Underhill says, appearances matter”.
Lord Justice Longmore said at [42]-[43]
“In these days of written final submissions and computer literacy it must be tempting for a judge who has formed a clear view of a primarily factual dispute to frame his judgment by lifting large parts of the written submissions of the party he has decided should win and incorporating them in his judgment. But to do so without (or with only minimal) acknowledgment and without making reference to the submissions made by the other side inevitably leaves a deep sense of grievance with the losing party. He or she will understandably feel that the judge has never properly engaged with the case when forming his judgment.
It also puts this court in a position of considerable difficulty because it has to make a detailed examination of underlying factual material to see whether the judge has truly engaged with the losing party’s case when the judge could easily have shown that he had so engaged, by reciting the main points made by the losing party and stating why he rejects them”.
The issue of the use of reasons using formatted judgements is an associated topic. In an immigration case in Wu Shan Liang (1994) 51 FCR 232; (1994) 34 ALD 350 [1994] FCA 926 Wilcox J had said in dealing with standard paragraphs used by the minister’s delegate in a decision at [52]:
The summary I have set out demonstrates, I think, that none of the so-called “standard paragraphs” concerns assessment of the circumstances of individual applicants. Indeed, little of the adopted material contains expressions of personal opinion. In the cases where personal opinions are expressed, other delegates have chosen not to adopt the material. It is obvious that delegates felt free to choose whether or not to adopt the previously-prepared material. Where they did adopt it, they seem to have been ready to vary its basic form so as to make it more accurately reflect their own views. Despite the concern which the use of “standard paragraphs” should always evoke, I see no reason to doubt that the delegates who refused the subject applications ultimately expressed their own views in their own way.
On Appeal the High Court in Wu Shan Liang (1996) 185 CLR 259;(1996) 136 ALR 481 at CLR 266 Brennan CJ, Toohey, McHugh and Gummow JJ said:
“A different delegate rejected the claims of each respondent in separate reasons for decision. Each set of reasons followed a broadly similar form. This was, at least partly, due to the practice of addressing common claims with “standard paragraphs” which had been prepared for the use of delegates. This practice was the subject of extensive argument before Wilcox J. His Honour rejected submissions that the use of such standard paragraphs indicated that the delegates “failed to give proper, genuine and realistic consideration to the merits of each application”. Wilcox J’s conclusion on this point was not the subject of consideration by the Full Court and the matter was not pressed in this Court.
A statement of reasons for a decision reviewable under the AD(JR) Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker. As the significance of the formulae employed by the respective delegates of the Minister in making their decisions in the present cases was not canvassed before us, we say no more about it.”
In another immigration case of Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100, Wilcox J stated at 122:
“…the use by decision-makers of reasons devised by others is a matter that should excite concern about the possibility that individual decisions were taken in accordance with an overriding rule or policy or at the direction or behest of others. But, if an inference is to be drawn from standard provisions, it is not enough to point to mere use. It is necessary to consider the content of the adopted provisions. The standard provisions widely used in this case were either statements of law or summaries of the substance of documentary material concerning conditions in Cambodia. The full documentary material was before each delegate. He or she had to decide whether or not to accept it. It seems to me that delegates who chose to accept that material could adopt already formulated summaries of its relevant content, without exposing themselves to the reproach of having surrendered their independence of judgment.”
In WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293, the Refugee Review Tribunal had used uniform text in some sections of its reasons, including sections in which it made findings about the credibility of the appellant. Counsel for the appellant submitted that the overwhelming majority of the “independent information” which the Tribunal set out in its reasons was copied from previous Tribunal decisions. French J, as he then was, did not consider that, even if a cut and paste technique had been adopted, as seemed likely, that was indicative of a failure by the Tribunal to carry out its statutory function. While French J thought it would be preferable for Tribunal members in drafting their reasons to express their conclusions in their own words rather than those of another decision by another member, failure to do so did not indicate that the Tribunal member had not applied his or her mind to the facts or that the Tribunal member did not in fact hold the view expressed in the reasons given.
Again on the issue of format reasons in Daniel Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518, an executive decision not a judicial one was under consideration. But it was accepted from Kioa v West (1985) 159 CLR 550, that this did not matter because as Mason J had said at 584:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”
As Deane J observed in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653:
“the law seems…to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making…”
In Huluba, Beazley J, as her Honour then was, held that procedural fairness required the second decision maker to apply an independent mind to the decision making process but that did not occur. It was obvious that the second decision maker used substantial portions of the report of the first decision maker. Those passages contained critical findings. The second decision maker used material from the first decision maker’s report which was specific to the applicant. They contained the decision maker’s findings as to whether the applicant’s alleged activities were presently grounds for persecution in Romania and as to the applicant’s credibility, both critical factors in the decision of both decision makers. If a decision maker adopted the reasoning of another without applying an independent mind to the matter, the consideration of other material could not cure the breach of procedural fairness that had occurred.8
Beazley J took the view that the use of the same language, sometimes in florid terms, on critical aspects of the decision making process, made it more probable than not that the second decision maker did not apply an independent mind to the decision making process.
The principles that have been applied are that at a general level there is no legal error in the use of standard paragraphs. As a matter of the quality of decision making, some courts have indicated it is preferable or desirable not to use such paragraphs. Where the paragraphs in question relate to the individual circumstances of an applicant, particularly a person’s credibility, then closer scrutiny of a decision which contains standard paragraphs is appropriate and necessary to determine whether the tribunal has discharged its statutory function and exercised its jurisdiction to review the decision before it. It is permissible to use standard paragraphs as a guide but not so as to seek to cloak the decision with the appearance of legality.
Similarly, in SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107 Flick J held that the case before him was an instance where such reasons as had been provided, albeit reasons which largely reproduced the submissions and reasons of others, did disclose the manner in which the Federal Magistrate proceeded. Flick J said at [6]:
“The appropriateness of reproducing the work of others may in large part depend upon the circumstances of each individual case. But the repetition of the reasoning and submissions of others has many dangers. At the very least, it may create in the mind of a disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution. It may also place in peril the discipline imposed upon a judicial officer of independently recording in writing reasons for decisions. An argument which may initially appear incontrovertible may become more uncertain of resolution as the process of writing reasons for any decision is undertaken”.
Sadly this means that there is probably no shortcut method to an evidence based reasoning process which allows the judgment writer to cut to the chase by adopting particular submissions or a line of reasoning that has been the subject of a submission to it. Nor is there much scope for the use of template reasons without significant risk arising.
The use of such practices is to be avoided at all costs, in my opinion, for more than one reason. Not least of those is to protect the integrity of the process in which we have been entrusted to play a part; and obviously to avoid the necessity for expensive retrials.
Peter Roney QC
Griffith Chambers
Footnotes
- In this paper for convenience I will call them “judges”, although the principles apply to tribunal members and decision makers in most judicial and some executive contexts .
- Bawden v ACI Operations Pty Ltd [2003] QCA 293; Chrystal Dawn Pty Ltd v Red Ruth Pty Ltd [1998] QCA 373; Camden v McKenzie [2008] 1 QdR 39 at 47
- See Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431; Fletcher Construction Australia Ltd v Lines Macfarlane and Marshall Pty Ltd (No 2) [2002] 6 VR 1 at 31-33.
- (1991) 21 NSWLR 725 at 728.
- Cypress Vale Pty Ltd v Retail Shop (1997) 2 QdR 462 at 484.
- In this paper all underlining is my emphasis added
- (1992) 108 ALR 55 at 65-6.
- Huluba at [53].
