Oral Decisions Tips on Technique

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Oral DecisionsTips on Technique

• A Presentation by
• Justice Stuart Morris
• Justice of Supreme Court of Victoria
• President of Victorian Civil and Administrative
  Tribunal

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Why give reasons

• There may be a statutory obligation to give
  reasons
• Common law obligation
• But not all decisions require reasons
• routine rulings on evidence
• routine decisions on costs
• interim decisions

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Types of reasons

• Reasons may be oral or written
• Sometimes legislation provides that if oral
  reasons are given, a party may request written
  reasons
• Sometimes legislation provides that written
  reasons must include findings on material
  questions of fact
• A responsibility to make clear, coherent and
  intelligible findings Noel Johnsons No 1 Pty
  Ltd v Kennedy-Bush (1996) 10 VAR 102, 107 per
  Charles JA

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Why give reasons?

• To provide the foundation for the acceptability
  of the decision by the parties and the public.
• To further judicial accountability.
• To enable an appellate court to be in a position
  to determine whether the decision contains an
  appellable error.
• To have an educative function for practitioners,
  legislators and the public.
• Fletcher Construction Australia Ltd v Lines
  Macfarlane
• Marshall Pty Ltd (No 2) (2002) 6 VR 1, 30, per
  Charles,
• Buchanan and Chernov JJA

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The audience

• The loser
• The public
• The appeal court
• The legal practitioners
• The expert witnesses
• Tribunal colleagues
• Yourself

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Types of oral decisions

• Ex tempore decisions
• Delivered after short adjournment
• Delivered after lengthy adjournment

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Why give oral decisions?

• To promote better decisions
• To promote better reception of decisions
• To avoid delay, and thus reduce
• economic costs to the parties
• anxiety and worry
• use of blackmail tactics based upon delay
• To better manage the workload
• the build up of reserved decisions creates stress

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Appeal court attitudes

• A judges tardiness in completing his her
  judicial task after a trial is over denies
  justice to the winning party during the period of
  delay. It also undermines the losers confidence
  in the correctness of the decision when it is
  eventually delivered.
• Bishopsgate Investment Management Ltd v Maxwell
  1993 BCC 120, per Hoffman LJ

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Appeal court attitudes

• One way of avoiding the dangers associated with
  delay is to adopt a routine practice of
  delivering unreserved judgments. It is a
  technique with which famous names can be
  associated.
• Hadid v Redpath 2001 NSWCA 416, per Heydon JA

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Famous exponents

• Sir William Page Wood
• Writing is extremely injurious to my health
• Viscount Sumner
• Ill-arranged and fragmentary
• Sir George Jessel
• I may be wrong and sometimes I am, but I never
  have doubts

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Kitto and Dixon

• Sir Frank Kitto a judge should reserve in every
  case
• Sir Hayden Starke liked to put a case away and
  let it simmer
• Sir Owen Dixon replied
• you mean put it away until you have forgotten
  the difficulties

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Advantages for system

• Promotes more efficient hearing
• Parties tend to concentrate on main points if
  they expect an oral decision will be given
• Enables better focus on explaining reasons to
  loser
• Reduction in delay
• King John in Magna Carta promised not only not to
  sell justice, but not to delay it.

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Advantages to judicial officer

• Often the issues will be sharper in the mind at
  the conclusion of the hearing than at any other
  time.
• The piling up of unreserved decisions can be mind
  numbing and stressful.
• Appellate courts will make assumptions in favour
  of the ex tempore judgment that they will not
  make for a reserved judgment.

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Written order may still be needed

• Some legislation requires the order to be in
  written form.
• eg. VCAT Act s 116(1)
• In any event, an understanding of the precise
  terms of the order to be made is essential to the
  giving of oral reasons (so it is often better to
  write it down)

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When to give oral reasons?

• Urgent cases
• Interlocutory cases
• Simple cases
• Cases in summary lists
• Cases when you are well prepared
• There should not be an expectation that reasons
  will be delivered orally in every case.

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Before major hearings

• Look at, and organise, the file
• At least peruse any pleadings (or similar) and
  any written evidence
• Think about the key issue and how the case might
  be decided

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Prepare an outline

• An outline will engender confidence
• Can be confined to one A4 sheet or one page in a
  notebook
• May be based (fully or partly) upon a template
• Should be added to during the hearing
• Be prepared to hold up the hearing whilst you
  note up the outline

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The wheat and the chaff

• Every decision will depend upon a few key factors
  - try and identify them early in the hearing.
• The reasons must then concentrate on those key
  factors.
• Extraneous factors should be mentioned, but can
  be dealt with in just a sentence or two.

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Do not regurgitate!

• There is no need to regurgitate the evidence or
  the arguments.
• Sometimes it is desirable to identify, in a
  summary way, the arguments - but only to then
  deal with them.
• Your notes of evidence and argument may be
  cross-referenced to your outline, but are not an
  outline!

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Use breaks in hearing

• Overnight or lunch breaks are excellent
  opportunities to develop the outline.
• Even short breaks can be used to organise
  thoughts.
• There is every justification for standing the
  matter down for a short period - or even keeping
  the parties waiting for a minute - to prepare the
  outline.

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Is there a typical outline?

• This will vary from case to case.
• The basic structure may be syllogistic.
• The relevant facts are found. The applicable
  rule of law is stated. The conclusion results
  from the application of the law, so stated, to
  the facts, so found.
• M Kirby, Reasons on the Run (1995) 25(2) UWALR
  213.
• All cases involve identifying the key issues,
  explaining why these are key issues and
  presenting the basis for conclusions on these
  issues.

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A civil outline
Type of claim - Damages for shading to carpet
Not key issues - Religious factors Lateness of
delivery Lack of courtesy
Legislation - Fair Trading Act, s. 9(1)
Basic facts - 1. Discussions leading to
purchase. 2. Contract, cl 17 3. Delivery 4.
Extent of shading
Key issues - Promise re lack of shading Oral
promise Wording of cl 7 Defn of industry
standard Extent of defect Number of angles
affected Extent of shading
Submissions - Pl. Contract provides for industry
standard quality not delivered. Def. Shaded
carpet is industry standard.
Conclusion - Order under FTA, s. 159
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An outline discipline case
Charge - Unprof. conduct at Grand Prix
Legal principles - Unprof. conduct turns on
standards expected by reasonable person Not
perfection Tolerance of lapses
Basic facts - 1. Proceedings before MPB panel
and appeal 2. Protocol preparation. 3. 4 March
2001 4. Direction 5. Aftermath 6. Panel finding
Protocol Casualties becoming fatalities or
suspected fatalities from any cause on the track
are to be given full resuscitation including
intravenous infusion and endotracheal intubation,
etc.
Factors in this case - Urgent, under
pressure. Just following protocol. Protocol
deficient, but joint, considered effort. ???
moment of death. Track side operation new
factor Panel treating doctors not UC-
consistency??
Submissions - MPB - Resuscitation of dead man
inappropriate Doctor - Error, but not
unprofessional
Vissenga v Medical Practitioners Board of Vic
2004 VCAT 1044
Legislation - MPA ss. 45A, 3
Conclusion - Not UC
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Delivering the decision

• Concentrate on the reasons forget the parties
  are there.
• Let the losers down as lightly as possible.
• If relevant, praise the presentation of the
  submissions of the losing party
• Do not spend too much time praising the winner

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Visual material

• Sometimes visual material might be used in
  delivering the decision
• Photographs
• Charts
• Plans
• Montages

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Use oral headings

• Headings have become a significant part of
  written work to guide the reader.
• Oral presentations should contain oral headings
  to assist the listener.
• I will start by setting out some background
  matters.
• I now return to discuss the key issues.
• There are certain matters that have been raised
  that I do not regard as determinative.

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Have quotes at hand

• Material that will be borrowed from or quoted
  should be at hand.
• Try and place this material in a logical order.
• Prudent use of flags will assist - but too many
  flags merely confuses the issue.

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Recording the reasons

• Rely upon the tribunal or court recording system
• A dictaphone is an alternative (and a handy
  backup)
• If the oral reasons are transcribed, revise
  transcribed reasons
• Revised reasons may change the grammar and add
  new points, provided the overall substance is the
  same

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Oral decisions - its easier than you think