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The common ‘pitfalls’ in appealed judgments
Saying too little, too much, or saying it incorrectly are some of the common pitfalls in judgments that are picked apart by appeal benches.
Naomi Neilson
Judges who are guilty of making sweeping statements or droning on about salacious and titillating details are some of the most at risk for having their judgments appealed, Federal Court Justice Emilios Kyrou said.
In a paper delivered last October at a member induction and training program – and published by the court last week – Justice Kyrou identified five of the “main pitfalls” in decision writing, including a failure by a judge to find the line between saying too little and too much.
“I can say that what I have learned over the years is that the overarching requirements for good decision-writing are use of language that is appropriate for the intended audience, a logical structure, clarity and succinctness,” Justice Kyrou said of his 15 years of experience.
Starting with the pitfall of saying too little, Justice Kyrou explained that appeal benches find the primary decision-maker has either not dealt with an issue raised in a case or overlooked an important submission by the parties.
This included making findings without an explanation of why, failure to identify statutory provisions before an interpretation is made, and identifying a witness preference without a summary of all witness evidence.
Justice Kyrou added that it was also not permissible for judges to express their reasons in “conclusionary terms” without explaining the basis for it.
“Nor is it permissible to make sweeping statements that you have taken ‘all relevant factors’ into account without first identifying what those factors are and how they have informed your reasoning process,” he said.
On the other end of this pitfall is the temptation by some judges to make observations that are not relevant to the resolution of the proceeding “and which the witnesses and parties were not given an opportunity to address”.
For example, Justice Kyrou said decision-makers should refrain from making damaging evidentiary findings that were not put to witnesses or raised in submissions, and from including excessive legal citations.
Judges should also limit their description of events to the facts and avoid making statements that may be considered “salacious or titillating”.
“If you do so, a party may complain that you took into account irrelevant considerations,” Justice Kyrou said.
“Leave the scandalous writing to those who make a living from it.”
Justice Kyrou added moral judgments should also be avoided by steering clear of findings or language that could be interpreted as such.
“To do so is to invite an appeal ground alleging that your personal views of a party or witness inappropriately influenced your decision,” he said.
The third pitfall is a judgment that uses terms or explains reasons incorrectly, such as by opting for “humiliating, snarky or patronising” language over an objective and evidence-based approach.
Justice Kyrou explained the decisions should also not be used as a vehicle for judges to “flaunt your perceived superior literary prowess”.
Saying something differently can be a similar pitfall, with some appeal benches taking issue with decisions that have inadvertently introduced inconsistency, either by forgetting to use a specific phrase throughout the entire judgment or using different language to explain the same matter.
Finally, Justice Kyrou said some of the “worst” decisions were those that contained an “outpouring of thoughts without any logical flow or structure”.
“These types of decisions which involve a stream of consciousness create a real risk that an appellate court may find that an important issue was not adequately considered or that the reasons do not contain a discernible path of reasoning,” Justice Kyrou said.
A “good” tribunal decision should follow a structure by setting out a proper sequence that enables the reader – and the appellate court – to follow every step of the reasoning process that led to the decision.
“It should not be a ‘Where’s Wally’ type of exercise,” he said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
