Contemporary Judgement Writing: The Problem Restated

• NCJ Number: 188768
• Journal: Judicial Review Volume: 4 Issue: 4 Dated: 2000 Pages: 347-356
• Author(s): Bryan Beaumont
• Date Published: 2000
• Length: 10 pages
• Publication Format: Article
• Publication Type: Issue Overview
• Language: English
• Country: Australia
• Note: Paper was presented at the Supreme and Federal Court Judges' Conference, 25 January 1999, Sydney.

Annotation

This article discusses the three schools of thought on the form of judgment writing in Australia.

Abstract

The first school of thought is expanding the obligation to give reasons in every case. Advocates of this school of thought give the following reasons by way of justification: an appreciation of social and political developments; technological developments that expand the range of materials and magnitude of information; institutional developments that have produced greater candor; and greater sensitivity to the rights of litigants with simpler language to understand. However, expansion of judgment writing responsibilities could further burden an already stressed judicial system, encourage procrastination, or emphasize form over substance. The second school of thought is confining the scope, or in some cases dispensing with reasons entirely. There is a strong case of abbreviation in the dismissal of an appeal in summary terms in cases where this is appropriate as well as where the parties have a continuing relationship which could be further damaged by detailed findings on credibility. Some advocate that categories of case where no reasons need be given should be expanded but litigants may be disturbed by any suggestion that the processes of fact-finding should be minimized. The third school of thought is adopting a form of reasons that is “proportionate” to the circumstances of the particular case. This principle aims to ensure that, without rationing justice, “overkills” do not occur. A generally flexible approach at trial and on appeal is consistent with the aim of continuity of judicial management in each case. A flexible approach would permit an ex tempore judgment if this is appropriate, for example, where the issues are few and have been well-rehearsed in oral argument. Problems with this approach could arise when deciding whether the court should accord either summary or extended treatment to a discussion of legal principle. 31 footnotes.