Handbook for Judicial Officers — Delivery of judgments

We as judges need to be mindful of how we discharge our institutional role. The administration of justice is not the work of individual judges. Our work is the work of an institution, and we have responsibilities to that institution. Those responsibilities are discharged most directly in the writing of judgments.

In this context, I make some brief remarks about the vexed question of multiple or single judgments of appellate courts.^[3]

We have to start with the basic proposition that it is the undeniable right of a judge to give a reasoned judgment in the terms which he or she wants.

Multiple judgments by an appeal court have been described as “one of the glories of the system”.^[4] For all that gloriousness though, multiple judgments may also lead to uncertainty and unpredictability, and give rise to “extra work for lawyers and, in some cases, [are] responsible for the cost of avoidable litigation”.^[5]

Many will have read the Honourable J D Heydon’s essay “Threats to judicial independence: the enemy within”^[6] in which he attacks joint judgments, pre- and post-hearing conferences and other forms of judicial cooperation and collegiate behaviour generally. His thesis is that the avoidance of conferences about cases and adherence to the practice of individual judgments are essential to the maintenance of judicial integrity of appellate courts. Otherwise, individual judges may be overborne by stronger personalities so that there is a failure of the institution.

Heydon also expressed the view that it is through diverse reasoning, obiter dicta and concurring and dissenting judgments that the incremental development of the common law is promoted. In this respect, he is in eminent company.

Lord Reid, in Cassell & Co Ltd v Broome,^[7] even thought that multiple judgments conduce to clarity:

In 2008, Dame Mary Arden described multiple judgments as an expression of judicial independence, in the sense of decisional independence, and accountability.^[8]

Lord Neuburger recently said that a single judgment of an appeal court:^[9]

It has to be said that there can be a real tension between the proper concern not to go beyond a statement of what is strictly necessary to decide a particular case and giving a clear, coherent and forthright statement of why one thinks that a given case should be decided in a particular way. It is a fair criticism of some joint judgments that it can be difficult to understand why the case has been decided in a particular way.

All this having been said, the right of each appellate judge to write his or her own judgment, like all rights, carries with it institutional responsibilities, one of which is to provide clear, practical guidance to the community and the legal profession. We cannot pretend that we work in isolation: we have institutional responsibilities which those writing academic treatises do not.

In response to “Threats to judicial independence: the enemy within”, Peter Heerey wrote:^[10]

One point which can be made here is that a judge who insists upon always writing separately is likely to cause delay in the completion of the work of the court. Only rarely would it be consistent with the irreducible level of professional commitment to the success of our institution for any judge to delay the giving of a decision in any case by insisting that his or her voice be heard. Especially is that so when that voice will not affect the outcome of the case.

A failure by the courts to resolve the controversies which come before them as expeditiously as possible means that the courts, as institutions, are letting the community down. They are also risking irrelevance.

If one looks at Commonwealth Law Reports for the last two years of each of the Mason, Brennan and Gleeson courts and the most recent two years of the French court, one sees some interesting figures. In the last two years of the Mason court, there were 78 reported cases; and there was a single majority judgment in 36 of them. The average time between argument and judgment was 241 days.

In the Brennan court, there were 65 reported cases, but only 12 were decided by a single majority judgment. The average time between hearing and judgment was 224 days.

In the Gleeson court, there were 96 reported decisions, of which 30 involved a single majority judgment. The average time between hearing and judgment was 138 days.

During 2013–2014 in the French court, there were 96 reported decisions, of which 38 involved a single majority judgment. The average time between hearing and judgment was 87 days.

Now obviously one cannot make too much of these figures. For example, the Mason and Brennan courts found themselves deciding more of what we regard as landmark cases than has been the case more recently when it might fairly be said that we are in a period of consolidation.

But the figures are not entirely without significance. They do tell us some things: first, it is evident that there has been a trend towards more joint judgments; and second, that trend is associated with a substantial reduction in the delay between hearing and judgment. And that is not a bad thing.

Lack of clarity and predictability in the law creates “more litigation”.^[11] More litigation means greater cost in terms of money and time, and is wasteful of the resources of the community. It is essential therefore that, as far as it can reasonably and properly be, the law is clear, certain and predictable.

A single judgment may sometimes be the best way to afford authoritative decisive guidance. Sometimes, not always, it may be the only effective way. And where they are possible, judgments of the court are desirable because they are inherently more authoritative, and have the potential, at least, to be more conducive to clarity.

Anything that can be done to help lawyers give confident advice and so lessen litigation is a good thing. By providing a clear and authoritative ratio in a single majority judgment, we can try to reduce the legal costs, lost opportunities and inefficiencies which are consequential on uncertainty — and in this the courts fulfil their duty to the development of the law, and their duty to society.

Even Sir Frank Kitto, who was not generally in favour of joint judgments, acknowledged that “one great benefit of a joint judgment” is the certainty of the statement of the legal rule because “with several judgments reaching the same ultimate conclusion there is often uncertainty as to whether differences of expression or emphasis indicate differences of substance”.^[12]

Anyone who doubts the desirability of a single judgment as a means of providing clear authoritative guidance to lower courts, and to the legal profession, and through it, to the community, should read the High Court’s decision in HML v The Queen^[13] where there were six separate and disparate judgments concerning the admissibility of evidence of uncharged acts in cases of alleged sexual assaults and the appropriate directions to be given by trial judges to jurors.

In the area of admissibility of evidence and directions to juries, clarity, above all else, is a necessary attribute of authority; and if guidance is to be worthwhile it must be authoritative.

And there is a larger implication here for the institution which makes the common law. If judges can’t get within cooee of agreement on the articulation of a rule of law, then perhaps there is either something wrong with the rule, or with the functioning of the institution whose function it is to articulate it.

In addition to HML, can I add some examples of civil cases where multiple judgments have led to an embarrassing lack of coherence: for example,Northern Sandblasting Pty Ltd v Harris^[14] and Commonwealth v Verwayen.^[15]

In tort law there is Perre v Apand Pty Ltd,^[16] where the seven separate judgments on the recovery of negligently inflicted economic loss did little to clarify the learned muddle of the five separate judgments (out of five) delivered in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad”.^[17]

In Crimmins v Stevedoring Industry Finance Committee,^[18] six different points of view were developed in relation to the circumstances when the common law duty of care will oblige a statutory authority to exercise its statutory powers. A significant measure of clarity and coherence was restored by the agreement of Gaudron J with Gummow and Hayne JJ as members of the four to three majority in Graham Barclay Oysters Pty Ltd v Ryan.^[19]

In the fields of constitutional and defamation law, the muddles which were Theophanous v Herald & Weekly Times Ltd^[20] and Stephens v West Australian Newspapers Ltd^[21] were an embarrassment until the unanimous judgment in Lange v Australian Broadcasting Corporation.^[22]

Lange is a great example of the value of a joint judgment in settling the law. It may not be too much to say that the idea of an implied constitutional guarantee of free political communication may not have survived if it had continued to fray at the edges as individual attempts to articulate the content of the freedom failed to provide sufficient common ground to allay scepticism as to whether the discovery of the implied freedom was an unprincipled overreach.

By way of another and even more venerable example, the immediate authority of the Engineers’ Case^[23] was due in no small part to the power of the single voice in which the majority view was expressed. It resolved great constitutional questions, but its decisive power could not be attributed to the felicity of its expression — Sir Isaac Isaac’s rather orotund prose is not a pleasurable read, and the logical force of his argument is elusive. The abiding influence of the decision rests upon the authority of its unified statement of the position, rather than upon the quality of the reasoning and expression of the judgment itself, which Professor Sawer described, not unfairly, as “one of the worst written and organized in Australian judicial history”.^[24]

Similarly, it was the authority of the single voice of the joint majority judgment in R v Kirby; ex p Boilermakers’ Society of Australia,^[25] which gave the quietus to the heresy which had prevailed between 1926 and 1953 in the line of cases cited by Williams J in dissent,^[26] that the Arbitration Court was a body properly constituted as a federal court created under Ch III of the Constitution.

The joint judgment in Cole v Whitfield^[27] afforded an authoritative statement of the scope and effect of s 92 of the Constitution. It may be said, as it usually is, that the High Court, having established the settled test in Cole v Whitfield, then fractured it in the very next case, Bath v Alston Holdings Pty Ltd,^[28] as to the application of that test to the facts of the case. But to focus on that circumstance is to fail to recognise the historic success of Cole v Whitfield in removing the uncertainty surrounding s 92, its success being reflected in the vast reduction in litigation concerning s 92. Section 92 cases have become, over the last 20 years, a rarity. And that, too, is a good thing.

And the same point may be made of the plurality decision in relation to s 90 of the Constitution and excise duties in Ha v NSW^[29] after decades of uncertainty generated by multiple judgments in which a “ratio decidendi” could not be discerned.

Clarity of statement is important for all appellate courts, but it is especially important for the High Court, as a court of ultimate appeal. It is to be remembered that the legislature was persuaded 30 years ago to allow the High Court to determine which appeals it should take up, in order to allow the court better to perform its function of settling controversies involving questions of legal principle. Given the history of the adoption of the special leave filter, it is particularly incumbent on judges of the High Court as an institution to strive to achieve that end.

Chief Justice Gleeson, writing extra-judicially in 2000, referred to the criticism of the length and diversity of the reasons for judgment given by the High Court. He attributed the phenomena which gave rise to this criticism to “the individualistic spirit” of the judges who constitute the court.^[30] Significantly, however, he did not seek to suggest that the criticism was devoid of justification.

No doubt it is of the first importance that every judge should decide each case conscientiously, and to do that it may be necessary to go a long way towards completing one’s own draft. But that does not mean that one must publish a separate judgment.

As our colleague Kiefel J noted in last year’s Sir Richard Blackburn Lecture, Sir Robert Menzies believed that at the earliest days of the High Court, Barton J wrote separate reasons for judgment, but hearing Griffith CJ read his reasons in court (as they did in those days), would put his draft away and simply concur with the Chief Justice on the basis that to seek to add to the principal judgment was to risk compromising its clarity.^[31]

The practices of collaboration which are developing within most of the appellate courts in Australia are not out of line with modern practice in the UK. In Professor Alan Paterson’s book, Final judgment: the last Law Lords and the Supreme Court,^[32] there is an account of his interviews with the judges of the House of Lords in its last few years before October 2009 and the Supreme Court of the UK thereafter. It is apparent from these accounts that some of the Law Lords lobby others, some are willing to consider changes to their draft judgments, and some are not.

What is particularly interesting for us is Professor Paterson’s observation that since the creation of the Supreme Court, there has been a “notable increase in collaborative team-working and interactive dialogue”.^[33] They have adopted the practice of short pre-hearing meetings, more debate after the hearing, and working together to produce joint judgments.

Lord Neuberger “emphatically disagreed” with the view that discussions between appellate judges about their judgments are wrong in principle. Lord Neuberger’s view was that the collegiate character of a court which consists of more than one judge obliges each individual judge to do his or her best to ensure that the court “produces as clear and coherent a judgment or set of judgments as is consistent with each member’s opinion”.^[34]

It has been my experience that collaboration sharpens up a joint judgment and actually contributes to the rigour and richness of the reasoning. To the extent that this removes unnecessary or hazy or self-indulgent commentary or observations, that too is a good thing.

I should say that it has also been my experience that there are real advantages to judicial cooperation in terms of doing my job as an individual judge. I find the insights of colleagues very valuable. There are often angles to the case or details of the evidence which I have missed while reading the parties’ written submissions before the hearings and which are supplied at the pre-hearing conference. I do not think that there is any harm in being open to this kind of assistance.

Indeed, it seems to me that there is something distinctly quixotic in the notion that one should make a deliberate effort to avoid assistance from people who are quite likely to be the best lawyers to have considered the problem at hand.

In summary on this point, I would respectfully adopt what was said by our colleague, Kiefel J, in this year’s Blackburn Lecture:^[35]

While a judge must ultimately decide cases in the loneliness of his or her conscience, the ideal of fairness to which we seek to give effect is not the product of individual virtue or wisdom or intuition; it is an institutional achievement. It depends on the understanding and disciplined observance of rules deriving from the practice of a distinctive professional ethos developed over a millennium.

It was the professional association of barristers and judges which originated in the Inns of Court, aided no doubt by the Reformation, which fixed the character of the common law and its processes as something quite different from the civil law system rooted in the academic treatment of Roman law and canon law.

That professional association and the ethos which binds its members has been one of the major dynamics in the development of the common law in Australia. It has been, and remains, crucially important.

Sometimes, in our enthusiasm to maintain our independence, including our independence from each other, we lose sight of these institutional connections without which we could not even begin to face the challenges of doing justice to our rights-conscious and self-confident fellow citizens.

I conclude by saying that the institutional ethos which enlivens that institution is a practical expression of the best of us. We cannot hope to be wiser or better than the institution of which we are a part. We, as members of our ancient profession, must address the implications of this truth for the way in which we discharge our judicial functions.