Introduction
I have interpreted my task as writing principally for decision makers, tribunal members and other quasi-judicial personnel. Since Tribunals are, for the most part, not involved in responding to challenges to their decisions,1 one possible piece of advice was to “stay right away” and leave it to the parties to fight over whatever mess you made with your decision and your reasons.
A key to good writing, however, is knowing your audience. It has been said that the most important reader of a court decision is the losing party.2 It follows, however, that, if you don’t convince your number 1 reader that they lost for good reasons, then another important reader who then ensues is the appeal court.
I have concluded that it may be beneficial to a writer of reasons to have some appreciation of the way in which an appeal court or review body reads the explanation of the primary decision maker when the decision is subject to challenge.
Basis for Challenge
It is trite to note that different decisions are subject to different forms of challenge. Different legal criteria are applied in deciding whether a decision can be set aside. A cursory survey of these many different bases for challenge may be useful in thinking about the way in which decisions are approached when they are subject to challenge.
Appeals
Since appeal courts (whether you hate them or love them) are courts, too, they will begin their task of adjudicating a challenge to a decision below by reference to the legislation which creates the right to challenge.
Decisions in the trial division of the Supreme Court of Queensland are subject to nothing more elaborate than a provision that “an appeal lies to the Court of Appeal from any judgment or order in the trial division”.3
Though the language may be spare, the term “appeal” carries its own ambiguity. There is more than one form of appeal. Generally, an appeal from a single judge to a Court of Appeal will be an appeal by “rehearing”.4 A rehearing does not mean what it says. But it does mean that the appeal court will consider argument concerning suggested errors in fact finding as well as suggested errors of law.5 An appeal from a magistrate to a District Court judge under the Justices Act 1886 (Queensland) is specified to be an appeal by way of rehearing.6
An appeal by rehearing may be contrasted with a hearing de novo. A hearing de novo, in most cases, also means something other than what it says. It does mean, however, that it is not necessary to identify error in the court or tribunal below. It means that the appellant can ask the court hearing the appeal to look at issues of fact, law or discretion afresh. An appeal will generally be held to be by way of hearing de novo if it is from an administrative tribunal to a court without further specification.7
A hearing de novo makes a primary decision easier to challenge especially where either fact finding or the exercise of discretion is the area that is thought to be wrong. In practical terms, even in a hearing de novo, one looks for error below. It is not very convincing advocacy to start by saying that the decision is perfectly fine but I want Your Honour to do something different.
Some appeals are restricted to legal issues only. The standard appeal from the Commonwealth Administrative Appeals Tribunal to the Federal Court is restricted to an appeal “on a question of law”.8 An application for leave to appeal from the Planning and Environment Court in Queensland may be made on the basis of “error or mistake in law on the part of the court”.9
This does not mean that a court or tribunal’s conclusions on factual questions cannot be successfully challenged. It does mean, however, that it is much more difficult to challenge and that the error must be able to be categorised as an error of law.10 For example, a factual finding of the Consumer Trader and Tenancy Tribunal in New South Wales that was unsupported by evidence was held to involve an error of law.11
The nature of the decision that a court or tribunal has been asked to make will sometimes affect the way in which the appeal court approaches the decision. This can be independent of the words of the section governing the nature of an appeal. The best example of this is where the decision being challenged involves the exercise of discretion. Sometimes, courts are making findings of fact. And, when the facts are determined, the law requires a specific order to be made. For example, a jury which is satisfied beyond reasonable doubt that the evidence establishes the elements of the offence has no choice but to bring in a verdict that the accused is guilty of that offence.
However, usually, the sentencing judge is in a different position. The judge is required to take into account all the relevant circumstances of the case. But there is no absolutely correct sentence to be imposed. The same applies to awards of damages; decisions whether or not to grant injunctions or other forms of equitable relief; and decisions dividing up the property left over from a marriage or a relationship. Discretion is one of a judge’s stocks in trade.
When an appeal court comes to consider an appeal on sentence, it is not up to the court to decide whether it agrees or not with the sentence imposed. The appeal court is not to substitute what they think is the correct or preferable sentence. They can only interfere if some error of principle has occurred. An appeal court will, therefore, be taken to the sentencing remarks in order to identify errors of principle.
However, if the sentence is unreasonably high (or the award of damages is unreasonably low), the appeal court can assume that the judge who made the order got something wrong. The appeal judges can infer that there was an error in principle.12
Judicial Review
Review on the Merits
I have already mentioned that appeals by way of hearing de novo do not require the identification of an error in the court or tribunal below. As mentioned, in practice, most appeals to the District Court from a magistrate do involve the parties and the judge scouring the record to see whether and, if so, where the process in the court below went awry. In the world of administrative decision making, however, we are very familiar with real hearings de novo.
Although review tribunals (for example, in the case of various forms of promotions appeals) did exist before 1 July 1976, that date represents a crucial day in the history of review on the merits. That is the day that the Commonwealth’s Administrative Appeals Tribunal or AAT opened its doors. Established by the Adm
inistrative Appeals Tribunal Act 1975 (Commonwealth), the AAT hears appeals from government decision makers across a huge range of areas of activity.
And for the AAT, the decision below is almost irrelevant, except for the light it shines on the background of the case. The AAT Act provides for the Tribunal to receive the material on which the decision maker made the decison. The parties are able to supplement this information with oral and written evidence. The parties can conduct a full trial (and often do) or, if they wish, just reargue the case relying on the evidence before the decision maker.
However the case is conducted, the AAT members make their own decision on the material before them as if they were the decision maker. Their decision, subject to any reversals on appeal from the AAT, becomes the administrative decision on the matter in question.
Queensland and most other states in the federation now have their very own centralised administrative appeals body. Review on the merits of government decisions is commonplace and familiar to almost everybody.
Judicial Review for Error
The mid-1970s was a time of administrative law reform. It was a product of the Whitlam government including Senator Lionel Murphy who was the Attorney-General for most of the period of that government. Famously, however, the process of reform was continued by the Fraser government under the particular guidance of Attorney-General, Robert Ellicott MP.13
Our view of judicial review is particularly influenced by the passing of the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth). The ADJR Act commenced on 1 October 1980. The new system of administrative law supplemented the common law system of judicial review which predated it. The common law system had been based on the prerogative writs which had developed in the king’s courts originally to keep the king’s lieutenants in the provinces under control. The most well-known of these writs are certiorari, mandamus, prohibition and habeas corpus. For practical purposes, in many areas of government decision making, the new system replaced the old writs of certiorari and mandamus, at least.14
The new system had a more user friendly set of procedures. It came with the great practical advantage that one could apply to the decision maker for a set of reasons for the decision.15 And the new Act set out very clearly the various grounds16 on which an applicant could seek to set aside government decisions that were unwanted, disliked or inconvenient.
A brave new world had dawned.
In order to properly understand the grounds set out in s. 5 of the ADJR Act, it is useful to take a quick look at the basis on which certiorari is (and was) able to be obtained.
For present purposes, certiorari could be obtained to quash a decision on grounds that included a breach of natural justice; jurisdictional error; or an error of law on the face of the record. And certiorari could be obtained to set aside a decision that was obtained by fraud.
Jurisdictional error is, in one sense, the opposite of Justice Potter Stewart’s hard-core pornography.17 It is easy to define but not always, at least when we are looking at the actions of Courts, able to be recognised until the High Court has spotted it for us.18 So, jurisdictional error involves doing things that you, as a court or tribunal, do not have legal authority to do. Alternatively, it may mean a failure to exercise a power that one does indeed have. When it comes to judicial review of courts, however, it becomes very difficult to tell the difference between just getting things wrong and getting things so wrong that you have exceeded your jurisdiction.19
But administrative decision makers have the ability to commit jurisdictional error all the time. They are made for the very purpose of committing jurisdictional error. An error of law that causes one to identify a false issue; ask a wrong question (as part of the decision making process, not of a witness); ignore relevant material; rely on irrelevant material; in some cases make an erroneous finding or reach a mistaken conclusion, is probably going to result in jurisdictional error.20 In turn, that will result in certiorari being granted and the decision being quashed.
Error of law on the face of the record at common law is a vexed concept. Generally, the record was restricted to the commencement document (say, a complaint and summons); the defining document (any form of pleading available in the case) and the court’s order disposing of the matter.21 Importantly, the reasons were left out of what was the record. So, the very best way of finding an error, the Court’s reasons, was not part of the record.
This was the background against which the ADJR Act was passed.
Subsections 5 (1) and (2) ADJR Act reads as follows:
“(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
The coming into effect of the ADJR Act felt like an extraordinary change. The new forms were simple. The grounds that could be relied upon were not hidden away in cases that were lost in the mists of time. And challenging a decision maker seemed to be an activity that was blessed by the nation rather than some unsavoury, almost treasonous activity that only dissatisfied miscreants engaged in.
Perhaps the most significant reform was the ability to seek the reasons of the decision maker whoever they might be. This was particularly useful where the decision maker was not an actual tribunal that was used to giving reasons, anyway.
The reform in paragraph 5(1)(f) seems important in that the new judicial review was available for error of law whether that appears on the face of the record or not. In substance, however, since just about any error of law is treated as jurisdictional error in the case of an administrative decision maker, the reform was less important than it seemed.
Otherwise, the new, clearly stated grounds of review can be recognised as derived from common law equivalents that preceded them. Thus, paragraph 5(1)(a) restates the natural justice basis of jurisdictional error.
Paragraphs (b) (procedures), (c) (decision maker did not have jurisdiction) and (d) (not authorised by the enactment) are merely broad re-statements of the notion of jurisdictional error. They represent the obvious forms of jurisdictional error that everyone can recognise but which do not happen very often.
Paragraph (e), taken with all the components in subsection 5 (2), and paragraph (f) pick up all the inappropriate mental states that can lead to a decision being set aside. They range from paragraphs 2 (a) and (b) (taken wrong considerations into account) which can result from a simple misunderstanding of what the law requires, through 2 (c) and (d) (which provide weak and strong versions of bad faith) all the way through to paragraph 1(g) which concerns a decision obtained by fraud.
Paragraphs 1 (f) (error of law), (h) (no evidence, which is an example of an error of law) and (i) (otherwise contrary to law) are all concerned with errors of law.
The experience of most administrative lawyers working since 1980 (including working with state versions of judicial review statutes) is that, apart from procedural simplicity, the reforms have not produced the dramatic changes that they may have appeared to represent at the time. Most plaintiffs’ lawyers, at least, believe that the judges who deal with judicial review applications have worked hard to ensure that government decisions are secure provided that some obvious and significant error has not been made.
That concludes my cursory survey of the various bases on which the decisions of courts and tribunals may be challenged and overturned. I now wanted to turn to the frame of mind in which those who receive and deal with challenges to primary decisions approach their task.
A Sympathetic Reading
The obligations of appeal courts extend both to avoiding justice and to maintaining the state of the law. However, appeal courts, at whatever level in the system, have limited resources and, therefore, have an incentive to avoid unleashing forces that add to their current workload.
On the other hand, every person convicted, every person sentenced, every person awarded damages or who has had damages awarded against them, indeed, every person who has received an adverse decision from any decision maker has a strong incentive to believe that the decision was wrong, unreasonable, against the evidence, involved errors of law and, probably, involved a breach of natural justice.
The result of these competing mindsets is that appeal courts tend to read the reasons which come before them with a degree of sympathy and understanding for those who made the decisions being appealed against. Courts who are asked to review decisions approach the challenged decisions and the reasons provided with a similar mindset. If every infelicity of expression22 were held to lead to invalidity and setting aside, the result would be unworkable.
Ambiguous statements in reasons are resolved in favour of the author of those reasons. Often, the appeal or review court finds favourable ambiguity where the advocate could see none. Those seeking to set aside decisions must look for errors of principle. Where appellants finds statements of principle, whether in the past cases or the reasons below, appeal courts often find mere observations of fact confined to the facts of the particular case.
Both in appeals and judicial review, the use of the fine tooth comb is eschewed. An example of these approaches of appeal and review bodies to the decision below is neatly encapsulated in a decision from an Employment Appeal Tribunal in the United Kingdom. The passage manages to describe a number of aspects of the whole approach as well as using the magic words, “a fine tooth comb”. The passage goes as follows:23
“The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not “use a fine toothcomb” to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law.”
The High Court has, in the context of judicial review, expressed the essence of the sympathetic approach. Adopting earlier statements, the Court confirmed that a court should not be concerned with looseness of the language nor unhappy phrasing, the reasons of the decision maker are not to be construed minutely and finely with an eye attuned only to error. The Court advised that the reasons of an administrative decision maker are not to be scrutinised by seeking to discern whether some inadequacy can be gleaned from the way in which the reasons are expressed. The Court also warned against turning a review into reconsideration on the merits.24 But where was a reference to the finely toothed comb when you expected it.
A Point of Principle
There are lessons to be drawn from all of this for the advocate.
One is to be very clear from the beginning of your consideration about the basis on which the decision you are attacking (or defending) may be challenged. Clearly, where an appeal is only available on a question of law, it will not be very useful to start thinking in terms of “against the weight of the evidence”. Even if you think the decision is a dreadful decision on the facts, you will need to be thinking about grounds such as a complete absence of evidence or about arguing that the state of the evidence was such that, as a matter of law, a particular finding was not open.
On the other hand, if the appeal is one by way of hearing de novo, your analysis can take place in a much less restricted atmosphere.
The other lesson is to try to think in terms of principles. Be clear about those principles which govern the case you are considering. Sometimes, this requires a good understanding of just a couple of sentences in the key case on the subject. Sometimes, it requires careful analysis of several decisions or of the various views that go to make up a shifting majority in an unclear area of the law.
But, if you think in terms of principles, you are more likely to identify errors of principle. And you are more likely to be able to communicate those errors in a way that will not appear like an attempt to turn fact into principle to your audience court.
And, if your role is to defend decisions, a good understanding of the relevant principles will also be important. At the same time, learn off as many ways to say fine tooth comb, overzealous scrutiny and infelicitous phrasing as you can. They will not be wasted.
Lessons for the Decision Maker
No one underrates the difficulties of having all of one’s decisions placed under careful scrutiny, overzealous or not.
I think, however, that the lesson for the judge at first instance, the tribunal member and the administrative decision maker is not to be defensive. You can rest reasonably assured that unimportant errors will not lead to your public humiliation.
Transparency is a virtue in the writing of reasons. Exposing one’s thinking process may reveal errors in principle. But, more frequently, it will reveal the difference between conclusions of fact and application of the law. It will avoid needless misunderstanding. It will reveal that the writer did indeed understand what the law required.
Increasingly, I have come to the view that block quotes are a barrier to communication. They are also a barrier to understanding. This applies to both the recounting of the evidence and the restating of the law. State what the witness said not every garbled and confused question and answer. State what the legal principles are not what Justice Callinan said on pages 433-435 of volume 189 of the CLRs. In each case, you can footnote to the original. But you and your readers will be much better served by your expression of your understanding of the key matters.
And good writing helps. We cannot all be Hemingway but we can write in short sentences. We can use formatting to advantage. We can sign post within the text and use headings and sub-headings. And we can all approach our task in a systematic way.
Lastly, deal in principles. What did the law require? What was the effect of the evidence adduced in support? How was that evidence challenged? How are the important differences in the evidence to be resolved? What is the effect of the preferred evidence? How do those findings relate to what the law required? If you keep these key signposts in your head, neither you nor your various audiences are likely to get lost in the minutiae.
And enjoy the hour.
Stephen Keim SC
Footnotes
1. See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, paragraph 54
2. I have read and heard this said many times. As it turns out, the authority located to verify this statement talks of both parties being a principal audience. See Judicial Writing Manual, published by the Federal Judicial Centre, 1991, at http://www.fjc.gov/public/pdf.nsf/lookup/JudiWrit.pdf/$file/JudiWrit.pdf (accessed 26 February 2013) at page 1.
3. Supreme Court Act 1991 (Queensland), s. 62
4. Blank and Selby, Appellate Practice, Federation Press, 2008, page 17
5. See CSR Ltd. v Maddalena (206) 224 ALR 1 at [16] cited in Blank and Selby, Appellate Practice, Federation Press, 2008, page 18
6. Justices Act 1886 (Queensland), ss. 222-223
7. Builders Licensing Board v Sperway Constructions (Syd) Pty. Limited (1976) 135 CLR 616, 621
8. Administrative Appeals Tribunal Act 1975 (Commonwealth), subs. 44 (1)
9. Sustainable Planning Act 2009 (Queensland), s. 498 (1) (a). it can also be made on the basis of jurisdictional error.
10. For discussion of the distinctions between errors of law and errors of fact, see Collector of Customs v Pozzolanic Enterprises Pty. Ltd. (1993) 43 FCR 280 at 287; Collector of Customs v Agfa-Gevaert Ltd. (1996) 186 CLR 389 at 395; and Hope v Bathurst City Council (1980) 144 CLR 1, at 8-10.
11. Kostas v HIA Insurance services Pty. Ltd. [2010] HCA 32
12. See, for the classic passage on this point, House v The King (1936) 55 CLR 499 at 504-505.
13. Ellicott had served as solicitor-general during the first year of the Whitlam government.
14. A system of statutory bail had put habeas corpus out of most of its work.
15. Administrative Decisions (Judicial Review) Act 1977, s.13
16. Administrative Decisions (Judicial Review) Act 1977, s.5
17. http://en.wikipedia.org/wiki/I_know_it_when_I_see_it (accessed 28 February 2013)
18. As it did recently in Kirk v Industrial relations Commission of New South Wales [2010] HCA 1
19. The classic analysis appears in Craig v South Australia (1995) 184 CLR 163, 177
20. Again, the classic passage comes from Craig v South Australia (1995) 184 CLR 163, this time, at 179.
21. Craig v South Australia (1995) 184 CLR 163, 180
22. The phrase is used in Zoneff v R [2000] HCA 28; 200 CLR 234; 172 ALR 1; 74 ALJR 895 (25 May 2000) at [86].
23. ASLEF v Brady [2006] IRLR 576 at [55]
24. Minster for Immigration and Ethnic affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The earlier comments were borrowed from Collector of Customs v Pozzolanic Enterprises Pty. Ltd. (1993) 43 FCR 280.
