Transcript PowerPoint Show - Administrative Appeals Tribunal

DECISION-WRITING
Superannuation Complaints Tribunal
Members Conference
1 and 2 March 2007
Justice Garry Downes AM
President
Administrative Appeals Tribunal
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What is decision-writing?
•The recording of reasons for a decision.
• The decision is the dispositive determination.
What we call a “decision” is generally correctly
described as “reasons for decision”.
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Why publish reasons?
• Section 40 of the Superannuation
(Resolution of Complaints) Act 1993 (Cth):
“…[T]he Tribunal must give written reasons
for its determination.”
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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.
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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
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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.
• They make the task of appellate courts more
difficult.
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Why are these matters not
addressed in decisions?
• They are less likely to impact upon other
decision-makers.
• They will delay the determination of the
claim:
Parties want results not legal text books.
• They will make the life of a member more
difficult.
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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.
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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.
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Examples
When the question is whether a decision was
“fair and reasonable in the circumstances” (ss14, 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.
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Judicial Statements
The House of Lords recently said unanimously (South Bucks
District Council v Porter [2004] UKHL 33 at [36]; [2004] 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.”
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Conciseness
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.”
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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
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the reasoning in about 60.
Digi-Tech (Australia) Ltd v Brand
[2004] 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.”
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Digi-Tech (Australia) Ltd v Brand
[2004] 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
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discussions”
Digi-Tech (Australia) Ltd v Brand
[2004] 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.”
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The Goal
Reasons which are:
• Comprehensible
• Concise
• Cogent
• Complete
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Factors to Achieve the Goal
What are the factors to emphasise as an aid to
achieving the goal?
• Structure
• Language
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Structure
• Planning
• Editing
• The opening paragraphs
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Language
• Simplicity
• Active voice
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Beginning, Middle and End
• Introduction
• Issues
• Facts generally stated
• Issues of fact and law set out
• Facts found and evidence or other material
referred to
• Law isolated
• Reasoning
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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:
1. Identify and partition the issues;
2. Prepare a LOPP (Losing Party’s Position)/
FLOPP (Flaw in Losing Party’s Position)
analysis for each issue;
•
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Structuring Decision Making
(cont.)
3. 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’;
4. Prepare an outline with case-specific
headings;
5. Write a beginning;
6. Write an ending;
7. Review the draft decision with a checklist.
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Planning
• Set out the structure in outline.
• Note the things which need to be included
and the things which need to be excluded.
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Edit
• Remove everything that need not be there.
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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 [2006] FCA 1751 per
Branson J.)
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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.
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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.
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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.
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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.
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The Opening Paragraphs
• Pascal (again) (1670):
“The last thing one knows when writing a book
is what to put first.”
• The conclusion in the first paragraph:
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
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are about costs.
The Opening Paragraphs
Reasons are not thrillers which should keep
readers in suspense until the last paragraph.
• The point in the first paragraph:
This helps lawyers researching on the internet.
It enables the decision to be read intelligently,
knowing in advance what parts will be
significant.
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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.
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Some Famous First Lines
• “This is an application for review of…”
OR
• “It happened on April 19, 1964. It was
bluebell time in Kent.” (Hinz v Berry [1970] 2 QB 40)
• “Old Peter Beswick was a coal merchant in
Eccles, Lancashire.” (Beswick v Beswick [1966] Ch 538)
• “In summertime village cricket is a delight to
everyone.” (Miller v Jackson [1977] QB 966)
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Some More Famous First Lines
• “In Bognor Regis there was years ago a
rubbish tip.” (Dutton v Bognor Regis UDC [1972] 1 QB 373)
• “This is a case of a barmaid who was badly
bitten by a big dog.” (Cummings v Granger [1977] QB 397)
• “There is a pop group of four or five
musicians called ‘Fleetwood Mac’.” (Clifford Davis
Management Ltd v WEA Records Ltd [1975] 1 All ER 237)
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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.
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