EN LA MUNICIPALIDAD DE SAN JOSE
DISPOSICIONES GENERALES
2.2. Faltas graves
The commission raised for consideration whether, in certain circumstances, the courts should have the power to make decisions without giving reasons, unless the parties request reasons. The commission also noted that:
It is necessary to specify what types of decisions •
should be able to be delivered without reasons. Should this encompass interlocutory decisions, final judgments, decisions on applications for leave? Different considerations apply to decisions that finally determine a matter compared with those that are interlocutory.
In some situations, it may be appropriate to require •
only ‘limited’ or ‘short’ reasons.
If there is no requirement to give reasons unless •
the parties require it, it may be contended that this will impede the development of new law. In some jurisdictions, for certain matters, reasons •
are not required.502
Submissions in response to the initial proposal
There was some support among judges of the Supreme Court for the view that courts should be permitted to make decisions without being required to give reasons, with the consent of the parties. Presumably at present parties may waive any rights they have to obtain reasons.
Some of the judges indicated that they already give decisions without reasons in the Practice Court. It was noted that if any party requests reasons in the Practice Court they will be provided. However, it would appear that parties do not often request reasons. One judge stated that the power would be useful where the judge knows the answer ‘but it takes 2 months to write the decision’.503
Maurice Blackburn contended that in some cases ‘reasons are unnecessary’. The firm suggested that the ‘default position should be that no reasons be given for interlocutory matters unless reasons are sought within 14 days’.504
However, many submissions were not supportive of the proposal. Judge Wodak contended that the ‘absence of reasons creates a risk of decisions to be given arbitrarily and without a proper basis’. Further, he suggested that
‘[w]hat reasons are needed varies according to what has to be determined, but reasons need to be adequate’.505
The Federation of Community Legal Centres contended that the legal process must be seen to be ‘fair, open and transparent’. It asserted that a fair, open, dignified and careful justice system is preferable to a justice system that over-emphasises quick, cheap ‘case management’, summary disposals and decisions without reasons. It also noted that
490 These concerns have sometimes been associated with the time which can elapse between the conclusion of a hearing and the giving of a judgment which has been reserved. It has also been suggested that the increasing length of judgments stems in part from ‘excessive citation of previous cases’, from wordiness in argument, ‘from presentation of several separate opinions in cases [where] a single opinion would … have been sufficient’ and ‘from excessive reporting of judgments’: Enid Campbell, ‘Reasons for Judgment: Some Consumer Perspectives’ (2003) 77(1) The
Australian Law Journal 62, 63. See
also John Doyle, ‘Judgment Writing: Are There Needs for Change?’ (1999) 73 The Australian Law Journal 738; and Harry Gibbs, ‘Judgment Writing’ (1993) 67 The Australian Law Journal 494. Research has found that the length of reasons of the High Court has increased from the beginning of the 1990s: Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903–2001’ (2004) 32 Federal Law Review 255. 491 Campbell (2003) above n 490, 64. 492 Ibid.What is reasonable will vary
depending on the circumstances but the time taken for a judgment to be delivered may be unnecessarily prolonged if judges insist on writing separate opinions.
493 Submission CP 31 (Victoria Legal Aid). 494 Campbell (2003) above n 490, 64.
The concern being that the longer the reasons and the more number of separate reasons to be considered, the greater the overall cost to the client. 495 Ibid. Campbell suggests that ‘[s]ome may be interested only in the outcome of the case and its effects. Some may expect no more than that the gist of the reasons be explained to them by their legal adviser. Some may seek legal advice on whether the judgment is appealable, and, if so, whether an appeal should be lodged and with what prospects of success’. 496 Ibid, 62. The only reference to reasons
for judgment in the Supreme Court
(General Civil Procedure) Rules 2005
and the County Court Rules of
Procedure in Civil Proceedings 1999
is in r 59.04, which provides that where the court gives any judgment or makes any order and the reasons are written, ‘it is sufficient to state the result orally without reasons, but the written reasons shall then and there be published by delivery to the Associate’. The commentary on this rule by Williams is that if the court ‘gives oral reasons for judgment, it is permissible for the court to revise the reasons to reflect what the court intended to say or to correct any infelicity of expression. However the court cannot alter the substance of its reasons’: Williams (2008) above n 114, I 59.04.5.
497 Campbell (2003) above n 490, 62. 498 Justice Chris Maxwell, ‘A New
Approach to Civil Appeals’ (Paper presented at the Law Institute of Victoria, Melbourne, 13 November 2006) 2.
499 The Magistrates Court Act 1989 sets out a scheme for mandatory arbitration of small claims under $10 000—see discussion in Chapter 3 under mandatory arbitration. 500 Magistrates Court Act 1989 s
104(1)–(2).
501 Magistrates Court Act 1989 s 104(4). 502 For example in the Victorian Supreme
Court and County Court Practice Courts in interlocutory applications reasons are not always given. 503 Consultation with the Supreme Court
of Victoria (9 October 2007). 504 Submission ED2 19 (Maurice
Blackburn).
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‘[r]easons safeguard the rule of law and guarantee participants that their submissions have been given due consideration’. The Federation felt that ‘[d]ecisions made without stated reasons are inconsistent with the … right to a fair trial’ under the Charter.506
Similar concerns were raised by Steve White and Legal Aid, who argued that providing reasons is an ‘important part of ensuring the administration of civil justice is both fair and transparent’.507
One Supreme Court judge suggested that it was a ‘big step’ to permit decisions without reasons. His concern was that if the practice went outside the area of party consent, it would be difficult to specify the circumstances where reasons may not be required. Although a judge in a lower court might consider a certain case to be hopeless and therefore not require reasons, a higher court may not agree that it was a hopeless case and this may leave the parties and the court in a difficult position. It was also suggested that reasons were particularly necessary for the purpose of appeals. Accordingly, it was suggested that if there is a right to appeal, reasons should be required to be given. In his view, what amounts to sufficient reasons will depend on the issues litigated.508
Another Supreme Court judge questioned whether there would be any real advantage in changing the requirement to give reasons. In his view, the briefest reasons can be prepared quickly and it was noted that masters tend to give reasons, even short ones. In the submissions, there was some support for permitting short reasons in certain situations.509
Submissions in response to the Consultation Paper
Question 44 of the Consultation Paper asked:
Are there reforms which would reduce the time taken for the delivery of judgment after a trial?
The TAC considered that ‘[e]xpedition in the delivery of a judgment carries risks which would need to be carefully balanced against the potential for appeal and re-hearing if the delivered judgement is deficient in the scope and adequacy of its reasoning’. The TAC noted that the ‘Court of Appeal has, in the last 2 years, allowed a series of appeals from County Court judges (… beyond the personal injury context) because trial judges’ reasons have been inadequate’.510
WorkCover noted that its experience is that ‘the absence of written judgments or … easy access to authorised transcripts … significantly impedes decision making with regard to appeal issues and may necessitate [the lodgement of appeals] based on verbal advice’. WorkCover regarded ‘timely access to written judgments in civil litigation as an ‘access to justice’ issue for all parties’. It also noted that it would ‘encourage an expectation … that judgments be delivered within four weeks of trial (excluding any period of leave taken by a judge)’.511
The Magistrates’ Court advised that it expects that ‘no decision should be reserved for longer than three months’.512 Hollows Lawyers similarly considered that decisions should to be handed down
within three months, ‘other than in exceptional circumstances’.513 Victoria Legal Aid suggested
that ‘there should be time limits on the delivery of judgement’ and that ‘[t]his strategy could be supplemented by judicial education and performance standards for judicial officers’.514
eLaw suggested that ‘[a]lthough this would not detract from the time necessary for the judge to adequately reflect upon the evidence and make a decision … having all the material in a case available electronically would enable easier location and retrieval of information, especially from transcripts (which the judge could mark up with notes) and the tendered exhibits’.515
12.4 DISCUSSION
The common law duty to give reasons
It is well established in Australia that reasons are required to be given by courts.516 As Chief Justice
Gleeson has observed:
This form of accountability is not to be taken lightly. The requirement of giving a fully reasoned explanation for all decisions has profound importance in the performance of the judicial function. Apart from judges, how many other decision makers are obliged, as a matter of routine, to state, in public, the reasons for all their decisions? Most decisions, other than those by judges, are made by people who may choose whether or not to give their reasons.517
Reasons are important for a variety of reasons. They focus the mind of the person making the decision. They provide an explanation to the losing (and winning) party of the rationale for the outcome. They enable the decision to be considered by an appellate court to determine whether an error has been made. However, in some cases, a judge may come to what is in fact the correct conclusion, but may give incorrect or inadequate reasons. In some instances this may be taken into consideration by appellate courts, without necessarily requiring a retrial.
Another important principle is that judicial proceedings must be conducted in public.518 There are exceptions to this principle
but they are few and are strictly defined.519 This principle
requires that a court should do nothing to ‘discourage the making of fair and accurate reports of what occurs in the courtroom’.520 The obligation of a court is to publish reasons
for its decision, not merely to provide reasons to the parties.521
Justice McHugh has noted that this has as its ‘foundation’ the principle that ‘justice must not only be done but it must be seen to be done’.522 Chief Justice Gleeson has observed
that the requirement to conduct judicial proceedings in public promotes ‘good decision making and the acceptability of the outcome of the judicial process, and they are consistent with the idea that democratic institutions should conduct their affairs in a responsible manner’.523
The Charter
The Charter may impact on the judicial duty to give reasons. As discussed in Chapter 1 and above, section 24(1) provides that a party to a civil [or criminal] proceeding ‘has the right to have the … proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing’.524
Section 24(3) provides that ‘all judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits’. The charter also provides that ‘[s]o far as it is possible to do so consistently with their purpose, all statutes must be interpreted in a way that is compatible with human rights’.525
Moreover, ‘[i]nternational law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision’.526 The right to a fair trial under section 24 may
include the duty to give reasons.
The right to a fair trial under section 24 of the Charter is based on article 6 of the European Convention on Human Rights.527
As Professor Zuckerman has noted, ‘[t]he right to a reasoned decision is recognised as part of the right to fair trial under ECHR, Art 6’.528 Referring to the duty to give reasons, the
English Court of Appeal has explained:
The duty [to provide reasons] is a function of due process, and therefore of justice. Its rationale has two principle aspects. The first is that fairness surely requires that the parties—especially the losing party—should be left in no doubt why they have won or lost. This is especially so since
506 Submission ED2 9 (Federation of Community Legal Centres). 507 Submission ED2 10 (Victoria Legal
Aid). See also submission ED2 3 (Steve White).
508 Consultation with the Supreme Court of Victoria (9 October 2007). 509 Consultation with the Supreme Court
of Victoria (9 October 2007). 510 Submission CP 37 (Transport
Accident Commission) citing Fletcher
Construction Australia v Lines Macfarlane & Marshall (No 2) (2002)
6VR 1, [31]–[34]. 511 Submission CP 48 (Victorian
Workcover Authority).
512 Submission CP 55 (Magistrates’ Court of Victoria).
513 Submission CP 52 (Hollows Lawyers). 514 Submission CP 31 (Victoria Legal Aid). 515 Submission CP 19 (<e.law> Australia
Pty Ltd).
516 Donovan v Edwards [1922] VLR 87, 88; De Iacovo v Lacanale [1957] VR 553, 558–9; Pettitt v Dunkley [1971] 1 NSWLR 376; Hill v Arnold (1976) 9 ALR 350, 357.
517 The Hon. Murray Gleeson, ‘Judicial Accountability’ (1996) 2 The Judicial
Review 117, 123–4, quoted by The
Hon. J J Spigelman, ‘Seen to be Done: The Principle of Open Justice’ (Paper presented to the 31st Australian Legal
Convention, Canberra, October 1999) 7.
518 Scott v Scott [1913] AC 417; Dickason
v Dickason (1913) 17 CLR 50, 51; Russell v Russell (1976) 134 CLR 495,
520; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 41, 50–3. A court may not even agree to hear a case in camera by consent (Scott v Scott [1913] AC 417, 436 and 481). 519 See, eg, McPherson v McPherson
[1936] AC 177, 200; R v Tait (1979) 46 FLR 386, 402.
520 John Fairfax & Sons Ltd v Police
Tribunal of NSW (1986) 5 NSWLR 465,
476–7 (see also 478–9). See in addition
Attorney-General v Leveller Magazine
[1979] AC 440, 449–50; Hodgson v
Imperial Tobacco Ltd [1998] 1 WLR
1056, 1068–73; Ambard v Attorney-
General for Trinidad and Tobago
[1936] AC 322, 335. 521 Frank W Kitto, ‘Why Write
Judgments?’ (1992) 66 The Australian
Law Journal 787; Pettit v Dunkley
(1971) 1 NSWLR 377, 382; Housing
Commission of NSW v Tatmar Pastoral Co. Pty Ltd (1983) 3 NSWLR
378, 385–6; Public Service Board v
Osmond (1986) 159 CLR 656, 666–7; Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 247, 273, 277–81.
522 Soulemezis v Dudley (Holdings) Pty
Ltd (1987) 10 NSWLR 247, 278 (see
also 279B–C). Samuels J made similar comments in Mifsud v Campbell (1991) 21 NSWLR 725, 728.
523 Gleeson (1996), above n 517, 123. See also, for a good discussion of the obligation to give reasons: Gibbs (1993) above n 490, 494–502. 524 This echoes other provisions on human
rights. Article 14(1) of the International
Covenant on Civil and Political Rights,
opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), provides that everyone has the right to ‘a fair and public hearing by a competent, independent and impartial tribunal established by law’. Article 6(1) of the European Convention on Human
Rights and Fundamental Freedoms,
opened for signature 4 November 1950, CETS 005 (entered into force 3 September 1953) provides, inter alia, that: ‘In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
525 Charter of Human Rights and
Responsibilities Act 2006 s 32(1).
526 Charter of Human Rights and
Responsibilities Act 2006 s 32(2).
527 Charter of Human Rights and
Responsibilities Act 2006 s 24(2)
provides that ‘[d]espite sub-section (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter’. The note to subsection (2) provides: ‘For example, section 19 of the Supreme Court Act 1986 sets out the circumstances in which the Supreme Court may close all or part of a proceeding to the public. See also
County Court Act 1958 s 80AA and Magistrates’ Court Act 1989 s 126.’
528 Zuckerman (2006) above n 464, 123 citing Hiro Balani v Spain (1994) EHRR 566, ECtHR; Garcia Ruiz v Spain (1999) 31 EHRR 589, ECtHR.
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without reasons the losing party will not know … whether the court has misdirected itself, and thus whether he [or she] may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.529
However, the European Court of Human Rights and English law has ‘accepted that the extent of the court’s duty to give reasons varies according to the nature of the decision and the circumstances of the case’.530
Professor Zuckerman notes that ‘[a]ccording to the European Court of Human Rights, the court need only address specifically those points raised by a party which would be decisive if accepted … [Under English law, full reasons] must be given for a decision on the merits, although it is not necessary to address … every point made by the parties’.531
The right to a public hearing is part of the section 24 right to a fair trial under the Charter.
As mentioned above, the section 24 right to a fair trial is, in part, based on article 6 of the European Convention on Human Rights. The European Court of Human Rights has articulated the reasons for the right to a public hearing:
The public nature of the proceeding helps to ensure a fair trial by protecting the litigant against arbitrary decisions and enabling society to control the administration of justice. This possibility of supervision by the public, even if frequently theoretical or potential, is a guarantee to the parties to a dispute that a real endeavour will be made to establish the truth through hearings conducted by a judge whose independence and impartiality can be verified by the way in which he [or she] conducts the hearing, summons and questions witnesses and experts, considers the relevance of proposed evidence, and respects the right to be heard.532
There are limits on the right to a public hearing, however. The European Court of Human Rights has found that article 6 ‘requires that judgments should be pronounced publicly, but it is not necessary that a judgment should be read out in public, it is enough that it is made public’.533
Section 24 is also, in part, modelled on article 14(1) of the International Covenant on Civil and Political
Rights (ICCPR). The ICCPR General Comment No. 32 ‘Article 14: Right to equality before courts and
tribunals and to a fair trial’ provides as follows:
28. All trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing. The requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations, or to pre-trial decisions made by prosecutors and other public authorities.
Professor Zuckerman argues that considerations of time and resources are relevant to shaping the extent of the requirement for public proceedings just as they are relevant to other aspects of