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Oral Decisions Tips on Technique


Justice of Supreme Court of Victoria. President of Victorian Civil and Administrative Tribunal ... Reasons may be oral or written ... – PowerPoint PPT presentation

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Title: Oral Decisions Tips on Technique

Oral DecisionsTips on Technique
  • A Presentation by
  • Justice Stuart Morris
  • Justice of Supreme Court of Victoria
  • President of Victorian Civil and Administrative

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

Types of reasons
  • Reasons may be oral or written
  • Sometimes legislation provides that if oral
    reasons are given, a party may request written
  • 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

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
  • Marshall Pty Ltd (No 2) (2002) 6 VR 1, 30, per
  • Buchanan and Chernov JJA

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

Types of oral decisions
  • Ex tempore decisions
  • Delivered after short adjournment
  • Delivered after lengthy adjournment

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

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

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
  • Hadid v Redpath 2001 NSWCA 416, per Heydon JA

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

Kitto and Dixon
  • Sir Frank Kitto a judge should reserve in every
  • 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

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
  • Reduction in delay
  • King John in Magna Carta promised not only not to
    sell justice, but not to delay it.

Advantages to judicial officer
  • Often the issues will be sharper in the mind at
    the conclusion of the hearing than at any other
  • 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.

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)

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.

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

Prepare an outline
  • An outline will engender confidence
  • Can be confined to one A4 sheet or one page in a
  • 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

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
  • Extraneous factors should be mentioned, but can
    be dealt with in just a sentence or two.

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

Use breaks in hearing
  • Overnight or lunch breaks are excellent
    opportunities to develop the outline.
  • Even short breaks can be used to organise
  • 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

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
  • All cases involve identifying the key issues,
    explaining why these are key issues and
    presenting the basis for conclusions on these

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
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,
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-
Submissions - MPB - Resuscitation of dead man
inappropriate Doctor - Error, but not
Vissenga v Medical Practitioners Board of Vic
2004 VCAT 1044
Legislation - MPA ss. 45A, 3
Conclusion - Not UC
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

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

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
  • I now return to discuss the key issues.
  • There are certain matters that have been raised
    that I do not regard as determinative.

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.

Recording the reasons
  • Rely upon the tribunal or court recording system
  • A dictaphone is an alternative (and a handy
  • 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

Oral decisions - its easier than you think
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