Presentation delivered to the Superannuation Complaints Tribunal Members Conference
1-2 March 2007
Outline of PowerPoint Presentation
Superannuation Complaints Tribunal Members Conference
1 and 2 March 2007
Justice Garry Downes AM
Administrative Appeals Tribunal
2. What is decision writing?
3. Why publish reasons?
Section 40 of the Superannuation (Resolution of Complaints) Act 1993 (Cth):
"…[T]he Tribunal must give written reasons for its determination."
4. Why publish reasons?
To inform the parties, particularly the loser, how and why the decision has been made.
To enable an appellate court to examine the decision to see if it is affected by error of law.
To form part of a process of improving decision-making at first instance.
5. Why publish reasons?
In Tribunals, reasons are not provided:
to develop the law
to provide studies of issues of law
to deal in detail with all issues of fact and law arising in the case
to record how the hearing proceeded
to record all facts addressed at the hearing
to summarise the file
to address matters raised in the past which ultimately became irrelevant.
6. Why are these matters not addressed in decisions?
- They will lead to decisions that are likely to confuse the parties, particularly lay parties:
The parties want to know the result along with the simplest and clearest explanation of how and why it was reached.
Long decisions obscure the reasoning.
7. Why are these matters not addressed in decisions?
Parties want results not legal text books.
8. Good Decision-writing
Good decision-writing will result in a simple, concise, though well reasoned and easily comprehensible, explanation of why the decision was made.
9. What are Reasons
The provision of a rational explanation for arriving at a conclusion.
They will always involve logic and frequently involve syllogism.
As to each conclusion they will answer the question "why?"
In connection with each conclusion they will contain the word "because" or some similar word.
When the question is whether a decision was "fair and reasonable in the circumstances" (ss 14, 37 ff of the Superannuation Complaints Act) a statement carefully identifying and making findings of the relevant facts accompanied by a conclusion as to fairness and reasonableness without more will not satisfy the requirement for reasons.
A "because" clause answering the question "why" must be included.
11. Judicial Statements
The House of Lords recently said unanimously (South Bucks District Council v Porter  UKHL 33 at ;  WALR 1953) that these are the minimum requirements for a tribunal decision:
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration."
Conciseness is an end in itself. A concise decision which covers the essentials is something to be proud of. Pascal wrote in 1657 (Lettres provinciales, letter 16):
"This letter would not be so long, had I had the leisure to make it shorter."
13. NAFF v Minister for Immigration
I am proud of my 3 page dissent in NAFF v Minister for Immigration (2003) 127 FCR 259 of which the High Court said, in granting special leave to appeal the majority judgment, that the reasoning seemed "cogent". The appeal was unanimously upheld [(2004) 221 CLR 1].
The facts were set out in about 25 lines and the reasoning in about 60.
14. Digi-Tech (Australia) Ltd v Brand  NSWCA 58 (61 IPR 184)
Sheller, Ipp and McColl JJA:
"[Unnecessarily long decisions] should be discouraged. Prolixity is an enemy of comprehensibility and, indeed, cogency… [Setting] out in great detail the submissions advanced by the parties and the evidence of many of the witnesses... tends to obscure the essential issues that have to be decided and makes the reasoning process difficult to follow."
15. Digi-Tech (Australia) Ltd v Brand  NSWCA 58 (61 IPR 184)
The decision discourages:
recounting large tracts of submissions and evidence; quotes should be reduced to the minimum
expressing every line of thought in the chain of reasoning particularly where, for example, the line proved unhelpful
scattering the findings of fact "amidst discursive discussions"
16. Digi-Tech (Australia) Ltd v Brand  NSWCA 58 (61 IPR 184)
The decision states:
"A succinct analysis of the issues and their sequential determination, involving a clear and ordered statement of the facts found is the preferred aim."
17. The Goal
Reasons which are:
18. Factors to Achieve the Goal
What are the factors to emphasise as an aid to achieving the goal?
The opening paragraphs
21. Beginning, Middle and End
22. Structuring Decision Making
In his article, 'The architecture of Argument' (2004) 7 The Judicial Review 39, Professor James Raymond proposes 7 steps to assist in organising a decision:
Identify and partition the issues;
Prepare a LOPP (Losing Party’s Position)/ FLOPP (Flaw in Losing Party’s Position) analysis for each issue;
23. Structuring Decision Making (cont.)
Arrange the analysis of issues like 'rooms in a house' in which each room follows from another in a straight line from the 'front verandah' to the 'back verandah';
Prepare an outline with case-specific headings;
Write a beginning;
Write an ending;
Review the draft decision with a checklist.
26. Suggestions from Experience
ALWAYS address the section under consideration and its elements at all times. The more fundamental and well known the section is the more important this rule may be.
"I observe incidentally that it is a salutary discipline for every decision-maker to refer to the terms of the relevant statutory provisions and to identify each element of the statutory cause of action. Had the Tribunal in this case set out or paraphrased in its reasons for decision the terms of s 16 and s 19 [of the Safety, Rehabilitation and Compensation Act 1988 (Cth)] it is unlikely that it would have overlooked their critical elements."
(Australian Postal Corporation v Barry  FCA 1751 per Branson J.)
27. Suggestions From Experience
Isolate and describe the issues at the outset.
This will direct attention to the elements of the section.
It will lead you to a succinct decision.
The decision will be easily comprehensible.
28. Suggestions From Experience
Do not set out a long account of the parties versions of the facts. There is no point. Readers become confused as to which facts are accepted and which are not. Only include facts which are relevant, even important, to the issues.
Rather, make findings of fact or simply statements of what the facts are when not controversial. When facts are in dispute state your finding and explain "why".
Collect facts under issues not chronologically.
29. Nothing Gained
Nothing is gained by:
Reciting statements of facts and contentions
Setting out passages of statements or evidence
Reproducing documents or statutes
Reciting all the exhibits unless this is really necessary.
30. Nothing Gained
AND then the quotations should be as short as possible.
Do not set out a whole letter, summarise the relevant parts or quote only those parts.
31. The Opening Paragraphs
"The last thing one knows when writing a book is what to put first."
This is what readers want to know. Not always possible to read a head note and more difficult to go to the last pages when reading on the internet. Very frustrating when the last pages are about costs.
32. The Opening Paragraphs
Reasons are not thrillers which should keep readers in suspense until the last paragraph.
This helps lawyers researching on the internet.
It enables the decision to be used intelligently, knowing in advance what parts will be significant.
33. The First Pages
They are the critical pages.
They set the course of the decision.
A tightly written concise opening which identifies the issues will be carried through.
34. Some Famous First Lines
"It happened on April 19, 1964. It was bluebell time in Kent." (Hinz v Berry  2 QB 40)
"Old Peter Beswick was a coal merchant in Eccles, Lancashire." (Beswick v Beswick  Ch 538)
"In summertime village cricket is a delight to everyone." (Miller v Jackson  QB 966)
35. Some More Famous First Lines
"In Bognor Regis there was years ago a rubbish tip." (Dutton v Bognor Regis UDC  1 QB 373)
"This is a case of a barmaid who was badly bitten by a big dog." (Cummings v Granger  QB 397)
"There is a pop group of four or five musicians called 'Fleetwood Mac'." (Clifford Davis Management Ltd v WEA Records Ltd  1 All ER 237)
36. A Well Written Decision
A well written decision will:
Be easily readable.
Interest the reader.
State the issues at the outset, not the history of the litigation.
Resolve them with the minimum of detail.
Indicate at the outset where it is leading.