DECISION-WRITING Superannuation Complaints Tribunal Members Conference 1 and 2 March 2007

1. DECISION-WRITINGSuperannuation Complaints TribunalMembers Conference1 and 2 March 2007 Justice Garry Downes AM President Administrative Appeals Tribunal

2. 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”.

3. Why publish reasons? • Section 40 of the Superannuation (Resolution of Complaints) Act1993 (Cth): • “…[T]he Tribunal must give written reasons for its determination.”

4. 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.

5. 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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.”

12. 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.”

13. 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 the reasoning in about 60.

14. 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.”

15. 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 discussions”

16. 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.”

17. The Goal • Reasons which are: • Comprehensible • Concise • Cogent • Complete

18. Factors to Achieve the Goal • What are the factors to emphasise as an aid to achieving the goal? • Structure • Language

19. Structure • Planning • Editing • The opening paragraphs

20. Language • Simplicity • Active voice

21. 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 • Result

22. 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;

23. 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.

24. Planning • Set out the structure in outline. • Note the things which need to be included and the things which need to be excluded.

25. Edit • Remove everything that need not be there.

26. 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.)

27. 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.

28. 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.

29. 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.

30. 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.

31. 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 are about costs.

32. 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.

33. 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.

34. 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)

35. 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)

36. 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.