Thursday 20 December 2012

APPELLATE JUDGMENTS – THE NEED FOR CLARITY Justice James Allsop


APPELLATE JUDGMENTS – THE NEED FOR CLARITY
Justice James Allsop
http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwFiles/allsop190909.pdf/$file/allsop190909.pdf

   


3 I will limit my comments to appellate judgment writing – primarily 
intermediate appellate courts. I propose, however, to say something, by 
way of “consumer” comment, on ultimate appellate court judgments. 
The functional dichotomy of appellate judgment writing 
4 At the outset, one must recognise the two incidents of the function of an 
appeal court (in the exercise of the  power of the judicial branch of 
government):    
(a) disposition – by way of correction of error or affirmation of correctness 
in the judgment below; and 
(b) declaration or development of the law – by way of judicial exposition of 
the general law or the meaning of legislation.



- 2 - 5 This may be an oversimplification  and one that is not without its own 
debate, especially as to (b) above.

6 These functions are common to intermediate and final  appellate courts. 
Intuitively, one can conclude that at the level of intermediate appellate 
courts the dispositive function outweighs the declaratory or developmental 
and vice versa at the final appellate level. (Though, if one considers the 
burden of special leave applications  in the High Court and its original 
jurisdiction, one should not  underweight the dispositive function of that 
court.) 
7 Notwithstanding the heavy dispositive function of the intermediate 
appellate courts, the important role of these courts in the declaration and 
development of the law should be recognised. A detailed discussion of the 
freedoms and restraints upon intermediate appellate courts is beyond this 
paper.

 It can readily be accepted that many areas of the law lack 
authoritative statements of  principle, whether from  ratio decidendi  or 
considered  obiter dicta, of the High Court.  There are many legitimate 
examples of intermediate courts of appeal declaring or restating important 
areas of the law.  When existing principle is clear no such restating is 
necessary; indeed, it is to be discouraged as mere proliferation of  dicta
away from the original source.  Care and rigorous discriminating 
judgement is called for in deciding whether this task need be undertaken.  
If it does not need to be, restatement of principle is not only unnecessary, 
but also potentially dangerous, for the reasons discussed below. 
Nevertheless, it should be  said that it is not always straightforward to 
determine how far principles should be analysed in respect of their 
particular application. 
                                                          


- 3 - 8 Sometimes, there may not only be a lack of clarity in  the expression of 
principle, but also there may be a lack of binding authority.  In such cases 
an intermediate appellate court has a choice to make as to the content of 
the relevant legal rule.   
9 In my view, it is clear that intermediate appellate courts have declaratory 
and developmental roles. These are,  of course, secondary roles to the 
final appellate court. 
The place of reasons in this functional dichotomy 
10 The requirements for, and the necessary content of, reasons depend, of 
course, upon the context and purpose of the judicial act in question. 
11 Common to all contexts and purposes, however, is the role of the court as 
an arm (the judicial arm) of government to quell controversies.

 The 
importance of this fact manifests itself in different ways. 
12 In its dispositive function, the court should quell the controversy with as 
much surety and clarity as possible. If no novel or unusual principle arises, 
if only facts or otherwise uncontroversial matters attend the resolution of 
the dispute, the court’s governmental role will generally require that no 
more than the immediate dispute be disposed of. In such cases, the court 
should be economical and clear in its reasons. The loser should 
understand simply and directly why  he or she has lost. A great equity 
judge in New South Wales, Mr Justice John Kearney, said at his farewell 
to the profession on his last sitting day that Sir Robert Megarry had once 
told him the identity of the most important person in the courtroom – the 
party (whoever it may be) who was to lose. The clear, coherent, readable 
and, if possible, brief expression of why the state (through the court) is or 
                                                          

- 4 - is not exercising its power for or against him or her is of the utmost 
importance. This applies as much to appellate courts as to trial courts. 
13 This function of the appellate court may often require an attendance to 
reasons as close in form and structure to an oral delivery as possible. Lord 
Rodger of Earlsferry in, if I may  say, both an entertaining and valuable 
article,

 identified the movement away from oral judgments to the written 
“work” as central to the difficulty and complexity of many modern 
judgments. 
14 At this level of the dispositive function a simple structure shorn of all 
unnecessary legal pretence may be desirable.  If the loser of a case that 
threw up no question of contested principle cannot understand from a 
clear accessible judgment why he or she has lost, the dispositive function 
has miscarried, potentially leaving  the loser confused, and thus doubly 
dissatisfied. 
15 Also, if a party, in an otherwise simple case, receives elaborate and 
adorned reasons, he or she may be distrustful of a process that has 
hitherto appeared to be simple, but now has elaborate and complex legal 
discussion as an element of its disposition. A sense of grievance may 
arise.  Further, in such a simple case, the lengthy restatement of what 
should be implicit foundational material implies that no case is simple, that 
all cases contain legal complexity, thereby undermining confidence in the 
practical workability of the system. Yet,  it is fair to say, overly simple 
exposition may tempt a suspicious High Court that not all the authorities 
have been considered. 
16 It may be a valid criticism that this kind of unnecessary restatement of 
well-known and otherwise unargued principle is far too common.  Apart 
from the dangers above, it slows down disposition; it moves work to 
                                                                                                                                                                            


- 5 - colleagues to allow for the unnecessary task of restatement of 
uncontested principle to be undertaken; it litters the law reports and 
electronic databases with unnecessary citation; and it has the potential for 
the creation of doctrinal confusion by restating the primary source in 
different words. 
17 When one turns to appellate judgments that do legitimately require some 
discussion or elaboration of principle, clarity is required for other and 
additional reasons: the proper expression of the law and the maintenance 
of the coherence of the fabric of the law. 
18 In a common law system, the expression of principle by courts is the law 
(by declaration or development) – it is  not just the terms or basis of the 
settlement or resolution of a particular dispute.
8
19 To quote Chief Justice Marshall, though out of context (in that he was 
concerned with the supremacy of the  courts over the legislature in 
declaring and interpreting the law):
9
“It is, emphatically, the province and duty of the judicial department 
to say what the law is.” 
20 Within that duty is the responsibility for clarity. The reason for this is 
simple: if the law is what the courts say it is; and if what the courts say is 
unclear or opaque; the law is unclear or opaque. As Lord Diplock said in 
Merkur Island Shipping Corporation v Laughton
10
 (speaking of the law of 
industrial relations and of a statute): 
“But what the law is … ought to be plain. … Absence of clarity is 
destructive of the rule of law; it is unfair to those who wish to 
                                                          
8
Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 
16; 158 FCR 325; Jenkins v Robertson (1966-69) LR 1 Sc 117; Australian Broadcasting Tribunal 
v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 
9
Marbury v Madison 5 US 137 (1803) at 111 
10
 [1983] 2 AC 570 at 612; see also C S C Sheller 4 Jud Rev 127 at 129-130 
- 6 - preserve the rule of law; it encourages those who wish to 
undermine it.” 
The social and economic significance of clear reasons
21 Not only is the clear expression of principle important to the integrity of the 
law itself, it has wider social and economic importance. 
22 The time and uncertainty involved in the ascertainment of the legal 
position of the citizen, corporate or human, is a significant economic and 
social cost. Money spent on lawyers’  fees that need not be so spent is 
money that could have been invested in society in more productive ways. 
Regulation by complex and lengthy  statutes is a modern burden – 
taxation, superannuation and securities regulation is  of a linguistic 
complexity far beyond the age-old concepts involved (contract, property, 
debt, income, capital, duties and rights). At times, the impenetrability of the 
language in these statutes makes  one ask oneself whether the Act in 
question is truly a law of the Parliament. 
23 The courts bear their own responsibility in this regard. Life in 1970 was not 
so different to 2009. Technologies have changed and developed; society 
is, to a degree, more complex. However, doctrine (as a matter of policy 
choice) has grown more complex. For instance, in the 1970s and 1980s in 
most common law jurisdictions a choice was made to permit the recovery 
of economic loss beyond that immediately consequent upon physical loss. 
I do not question that doctrinal shift. What must be recognised, however, is 
that whatever social benefit  has been derived from the wider 
compensation available to some plaintiffs, the change has led to an 
increase in uncertainty as to the nature and application  of the operative 
- 7 - rule. This has diverted large sums of money away from productive 
investment and into legal advice and litigation. 
24 The length and complexity of reasons also cost money.  The longer a 
judgment takes to be understood and the more vague a judgment is 
multiplies exponentially the cost of “translation” into advice. 
25 As an international trading and commercial nation heavily dependent 
upon, and integrated with, the rest of the world, Australian must ensure 
that its law has both clarity and a resonance with international standards 
and practice. This is not a call to follow or adopt slavishly whatever 
England, Europe or the  United States does. Rather, it involves the 
proposition that as a participant in  international commercial and social 
intercourse our legal rules and procedures should be such as to reflect the 
elements of common, or generally accepted, international standards or 
content. To do otherwise risks self-imposed provincial marginalisation. In 
the development of the general law, this requires clarity of exposition of 
doctrine, whether that doctrine be simple or complex.  If Australian law is 
unclear or opaque, it will be less likely that it will act as a reference point 
for courts of other countries, thereby diminishing the standing of the 
jurisprudence of this country.  
26 At the level of education, academics and students can be left to struggle if 
there is a lack of clearly expressed  doctrinal leadership by the courts. 
Without such leadership, students  may be trained in an environment of 
muddy or vague principles and with a  sense that those principles are 
compromised and relative. This denies them a clear foundation or vision of 
the legal structure of society, or at least Australian society. 
27 An examination of the Commonwealth  Law Reports of the last 25 years 
undertaken in order to ascertain the relevant principles in the 
ascertainment of a duty of care,  its scope and content, the place of 
foreseeability therein and breach of duty will yield a task for study of 
significant proportions. This is not said critically; the law has undergone 
- 8 - important policy and doctrinal shifts about which views of justices have 
varied. Accepting that, my only point is that such basic and fundamental 
principles must be accessible through clear exposition. Such has not 
always been the case in this body of cases. It has led to legislatures 
stepping in to make statutory codification of variable consistency and 
success.  That statutory “reform” was undertaken, at least in part, because 
of a perception (correct or not) that the courts were unable to enunciate 
rules with a clarity and workability to allow society and important economic 
structures within it such as the insurance markets to operate satisfactorily.  
This was a failure of the common law. 
28 On the other hand, causation is  a topic capable of engaging the 
philosopher and the theorist for a lifetime’s work. Yet in one emphatic, 
clear and short judgment
11
 the High Court settled a workable coherent 
framework of the law capable of being understood and implemented at all 
levels of judicial disposition. 
Pressures and forces tending to complexity and obscure expression 
“Environmental” pressures 
29 Modern life and technology as they have affected the practice of the law, 
including the judicial task, have brought significant changes. In years past, 
the process of legal exposition and legal development was undertaken by 
reference to a relatively small  proportion of judgments, hand-picked by 
editors of law reports for their place in understanding an existing 
taxonomical scheme, which was  explained by well-known legal 
encyclopaedias: Blackstone in the 18
th
 century and Halsbury in the 19
th
and 20
th
 centuries. Being part of a vertical hierarchy with one imperial 
court at its apex also simplified the system. 
                                                          
11
March v E & M H Stramare Pty Ltd [1991] HCA 12; 171 CLR 506
- 9 - 30 The modern task is the development of an independent Australian 
common law in an era in which the  electronic legal resources make 
available, without discrimination, the totality of legal expression by courts 
at first instance and on appeal, in Australia and in many sophisticated legal 
centres.  The precedential value of reported over unreported decisions has 
all but disappeared.  The challenges in this task should be recognised and 
not underestimated. 
31 Thus, any intermediate appellate court, in the absence of a binding rule 
expressed by the High Court is  faced with the immediate task of 
reconciling what has been said by it and by co-ordinate courts on the 
relevant topic. 
32 It is also faced with the available welter of persuasive foreign authority also 
electronically available. 
33 This has led to an exponential growth in citation of cases. The use of tools 
such as Casebase and like proprietary aids is now seriously compromised 
by the sheer number of citations. 
Imposed pressures  
34 The requirement for reasons has grown more stringent in the last 40 
years.
12
 The giving of reasons is an incident of the judicial process.
13
 The 
essential requirement is to reveal the grounds and basis of the decision 
including, where necessary, factual findings out of contested evidence. 
35 I am not, for one moment, questioning the desirability of courts giving full 
and adequate reasons to explain the acts of government that they perform.  
                                                          
12
Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v Tatmar 
Pastoral Co Pty Ltd  [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 
NSWLR 247; Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656; 
and see generally Kirby 12 Aust Bar Rev 121; and Beaumont 73 ALJ 743 
13
Tatmar at 386 
- 10 - There may, however, be room for more thorough investigation as to the 
circumstances in which courts are able, with statutory authority, to provide 
shorter reasons in circumstances where the nature of the controversy 
does not call for more than summary expression.  The modern approach 
to the case management of litigation has at its foundation the need 
appropriately to marshal public and private resources in the most efficient 
way having regard to the nature and  demands of the controversy in 
question. 
36 I am not suggesting that some litigants are entitled to a second class 
service.  What I am suggesting is that with statutory backing court should 
be freer to provide summary form reasons in hearings where this is 
appropriate.  
37 Under the Supreme Court Act 1970 (NSW), s 45(4) and the Uniform Civil 
Procedure Rules Part 51 Rule 51.55 the Court of Appeal in dismissing an 
appeal may in accordance with the rules give reasons for its decision in 
short form if it is of the unanimous opinion that the appeal does not raise 
any question of general principle. I have rarely seen this used.  A search 
has indicated 17 examples in the Court of Appeal since 1998.  It should be 
used in appropriate cases. We may be being too timid. In  Collins v 
Tabart
14
Kirby J, with whom Gleeson CJ, Hayne, Crennan and Kiefel JJ 
agreed, in a short judgment, revoked special leave in an appeal where 
there had been a complaint that the Court of Appeal had not conducted a 
rehearing. The Court of Appeal had given its reasons in short form. The 
High Court said the Court of Appeal had recognised its duty to conduct an 
appeal by way of rehearing under s 75A but was entitled to give its 
reasons in short form under s 45(4).
                                                          
14
 [2008] HCA 23; 246 ALR 460
- 11 - 38 The requirement for reasons in  the above manner, and with the above 
detail, is compounded by the obligation in Australian intermediate courts to 
provide an appeal by way of rehearing.
15
39 There has been much discussion at the level of the High Court and in the 
intermediate courts of appeal as to the meaning and content of an appeal 
by way of rehearing and the relationship between the court reaching its 
own view of the facts and the essential task of the appellate function in this 
respect of the correction of error.
16
40 Not being courts of error, it is insufficient for intermediate appeal courts to 
examine first instance judgments at a level of generality requiring the clear 
demonstration of error before engaging the analysis of the facts. A full 
rehearing is required, nevertheless with the aim of the identification of 
error. 
41 It is beyond this paper to discuss this process at any length and the fault 
lines at which the tension between a full rehearing and the correction of 
error manifests itself.  For present purposes it need only be recognised 
that the responsibility for a full rehearing places on the appeal court a 
necessity, subject to submissions of the parties, to re-examine the record 
and within the confines of the notice of appeal, engage in a factual 
weighing analysis of a kind not dissimilar in extent of demands of time to 
                                                          

 that conducted by the primary judge.  Of course, the primary judge may 
have a position of advantage from seeing witnesses and the like.

   
42 This task of rehearing requires reasons which display a careful analysis of 
the facts.  Clarity of expression in this task does not necessarily equate 
with brevity.  The most demanding part of intermediate appellate practice 
is the analysis of factual material.  The lean, clipped and brief expression 
of primary facts in a complex factual dispute may lead to the view by the 
parties that the intermediate appellate court has not fully engaged with the 
factual debate and issues in the same way as the primary judge may have 
done. 
43 One can say immediately, of course, that brevity of expression does not 
reflect a lack of attention to detail.  Only someone unfamiliar with the legal 
system might think that.  Nevertheless, I had experience at the Bar of a 
thoroughly correct primary judgment expressed in the most elegant, lean 
and brief terms being overturned, quite wrongly, by an appeal court, in 
part, I was convinced at the time, because the appeal court did not have in 
the primary judge’s reasons an exhaustive examination of the evidence.  
Such would have taken the judge significantly longer to draft; but it might 
have beaten off an appeal court which misunderstood the facts, and saved 
the cost of a High Court appeal that completely vindicated the primary 
judge.  Trade-offs in cost and time are obviously involved. 
44 Likewise on appeal, if an appeal court does not, in an organised and 
comprehensive manner, examine the evidence relevant to the dispute, an 
applicant may be given an  unjustified advantage  in an application for 
special leave to appeal; it may also sow a suspicion in the High Court that 
the facts have not been attended to with the requisite care, when in fact 
they have been, albeit briefly. 
                                                          
17
Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167;  Devries v Australian 
National Railways Commission (1993) 177 CLR 472; and State Rail Authority (NSW) v Earthline 
Constructions Pty Ltd [1999] HCA 3; 73 ALJR 306; 160 ALR 588
- 13 - 45 A further consideration in relation to the imposed requirements upon 
intermediate courts of appeal comes from cases in the High Court such as 
Kuru v NSW.
18
    In Kuru, the High Court expressed the view that it was 
desirable for an intermediate appellate court to decide all matters in 
controversy on the appeal, not merely  those that it thinks sufficient to 
dispose of the appeal.  This concern first arose in  a number of patent 
cases originating in the Federal Court.
19
  These patent cases involved a 
dispute about a public register.  The Court returned to the matter in the 
context of the criminal law in Cornwell v The Queen (2007) 231 CLR 260.  
In a civil damages suit in Kuru, the following was said at [12] by Gleeson 
CJ, Gummow, Kirby and Hayne JJ: 
“This Court has said on a number of occasions, that although there 
can be no universal rule, it is important for intermediate courts of 
appeal to consider whether to deal with all grounds of appeal, not 
just with what is identified as the decisive ground.  If the 
intermediate Court has dealt with all grounds argued and an 
appeal to this Court succeeds this Court will be able to consider all 
the issues between the parties and will not have to remit the 
matter to the intermediate court for consideration of grounds of 
appeal not dealt with below …” 
46 It is to be noted that the Court said that it was important for intermediate 
court of appeal to consider whether to deal with all grounds of appeal. 
47 The Court of Appeal of New South Wales has expressed, on at least two 
occasions, considered views that it would not, in the interests of justice, 
deal with all the issues raised on the appeal.
20
  In these cases, the Court 
indicated that it approached the matter by reference to considerations 
                                                                                                                                                                            
18
 [2008] HCA 26; 236 CLR 1; see the Hon Justice Ronald Sackville, “Intermediate Appellate 
Courts: The Multiple Issues Dilemma” (2008) 82 ALJ 650
19
Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited [2001] HCA 8; 
207 CLR 1 at 19-20 [34], Aktiebolaget Hässle v Alphapharm Pty Limited [2002] HCA 59; 212 CLR 
411 and Lockwood Security Products Pty Limited v Doric Products Pty Limited [2004] HCA 58; 
217 CLR 274 
20
Rebenta Pty Ltd v Wise  [2009] NSWCA 212 at [9]-[12] (Basten JA with whom Ipp JA and 
Sackville AJA agreed) and Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets 
Ltd [2008] NSWCA 206; 252 ALR 659 at 795-797 [824]-[833] (Ipp JA with whom Giles JA and 
Hodgson JA agreed) 
- 14 - such as the need to use judicial resources in a discriminating rather than 
undiscriminating fashion, the interests of the general administration of 
justice and the lack of desirability of flooding the legal system with 
unnecessary obiter dicta. 
48 Applying  Kuru can lead to the expression of  obiter dicta that would not 
otherwise be expressed.  This, of itself, can lead to judgments of greater 
length than need be written. 
What can be done to promote clarity? 
Teaching: structure, approach and style 
49 It is beyond this paper to survey the material already on the record about 
judgment writing and its teaching.  Prominent in the field in this respect all 
around the world, including in Australia, is Professor James Raymond.  His 
work is known to many and he has conducted training courses for judges 
and magistrates at all levels in this country and overseas.  This coming 
October there was to be a two day appellate judges’ seminar and 
workshop in Melbourne at which he was to attend.  Unfortunately, it will not 
be proceeding because of lack of  sufficient appeal judges wishing to 
attend. 
50 It is undoubted that all writers (appellate judges included) can profit from 
critical analysis of their style and approach.  It is also undoubted that 
judges burdened with a heavy responsibility for writing and armed with 
dictaphones and word processors can sometimes be less precise than 
they might be. 
                                                                                                                                                                            
- 15 - 51 It is also undoubted that a clear approach to structure and organisation is 
critical to the production of clearly expressed well ordered thoughts and 
reasons. 
52 All of us are, however, individuals.  We all express ourselves differently.  It 
should also not be forgotten that the  process of writing and composition 
has an essential place in thinking.
21
  Reasons for judgment are not a 
literary work in the sense of a work of the imagination.  They are the 
construction of a body of reasons explaining an act of government.  
53 Some elementary procedures must of course be followed.  There must be 
a logical organisation and structure.  The reasons should not be merely a 
stream of consciousness without a logical framework.  There should be a 
beginning, a middle and an end.  That said people approach their work 
differently.  Some think, write a structure and dictate.  Some write and as 
they are writing think.  Some dictate.  Some type.  The process of coming 
to terms with a problem which may be a sprawling factual debate laced 
with difficult legal questions to which complex, sometimes repetitive and 
overlapping arguments have  been directed is not straightforward.  Very 
often the very process of writing the judgment is a process of unravelling 
the complexity and thinking about the case towards a result. 
54 Further, few judges have the luxury  of the immediate availability of 
required time to write a complete judgment shortly after a hearing.  To the 
extent that time is available immediately after the hearing it should be, and 
often is, used productively to sketch  a structure.  Nevertheless, the 
productive use of time in broken blocks over a period which may be weeks 
or months may require the progressive development and organisation of 
important aspects of the background material. One often sees the 
comment that it is preferable to distil pleadings and arguments rather than 
set them out.  That may be true, but it may be far quicker and more 
                                                          
21
 See the insightful discussion by F Kitto in 66 ALJ at 796
- 16 - convenient to piece together elements of the structure of a judgment over 
time, rather than synthesise a product in one block of time. 
55 The workman-like construction of a  judgment also aids the writer upon 
return to the partly-built structure.  As the edifice grows through the 
identification of the issues from the pleadings, the arguments of the parties 
and the primary fact the returning craftsman is able quickly to put himself 
or herself back in place to continue the work. 
56 This process can lead to less than elegant structure and prose, but it may 
be the most efficient use of time in the formulation of the work, especially 
given other pressures of time. 
57 Of course, upon completion the whole edifice can be reviewed, elements 
removed, elements synthesised and a  considerable shortening process 
undertaken.  In a perfect world that would always be done.  It is not a 
perfect world.  After the construction of any detailed judgment which has 
taken some days over a period of  weeks the task of remodelling and 
editing of that kind can take up a day or the best part of a day.  This is time 
that could be used for another hearing or to advance the reserved 
judgments of other waiting litigants.  A value judgement must be made: is 
the expenditure of time worth it? 
58 In any busy intermediate appellate court, these questions of time rationing 
become critical.  Chief Justice Spigelman, when discussing with me my 
move to the Court of Appeal, evoked with his customary clarity this kind of 
time rationing and its effect on judgment writing when he said to me not to 
try to be too elegant, as elegance was difficult to maintain when drinking 
out of a fire hose.  This has been my experience. 
59 Nevertheless, in many cases it is essential and critical, as opposed to 
discretionary, to re-edit and re-evaluate a judgment once “finished”.  For 
instance, in deciding a question of law or practice for a specialist tribunal 
reliant upon the intermediate court of appeal for clear expression of 
- 17 - principle, it is absolutely essential  that clarity of thought, clarity of 
expression and brevity are the hallmarks of the judgments to guide such 
tribunals and their practitioners. 
  
60 There are some practical aspects of approach which may assist 
intermediate appellate court judges in the production of judgments.  First, 
there should be, at the outset, a rigorous consideration of what reasons 
are required in the appeal: is the appeal simply dispositive or is there 
required some declaration or discussion of principle?  If this rigorous selfquestioning is undertaken in each appeal, careful consideration can then 
be given to what aspects, if any, require detailed treatment of legal 
principle. 
61 To the extent that principle is required to be expressed, there should be a 
rigorous consideration of what is not disputed (which need only be dealt 
with by, at most, the most authoritative case) and what is disputed (which 
may need to be analysed in detail). 
62 To the extent that detailed analysis of High Court or intermediate appellate 
authority needs to be undertaken, an  autodidactic approach should, if 
possible, be avoided and a clear analytical path for the reader should be 
chosen.  This may require significant additional time after research and 
analysis is complete.  For instance, it may well be that because of the 
requirement to discuss principle a chronological, case by case approach to 
the analysis of governing relevant authority is necessary to illuminate for 
the judge in his or her thought and decision-making processes how the law 
has developed and what its current state is.  This very often requires the 
step by step, year by year, analysis of cases, the growth of principle and 
its current content.  That does not mean that all this research should be 
set out in the reasons.  Reasons  are not a research bank or the 
explanation as to how the judge has come to master the subject.  Once 
one has undertaken such a necessary, and often difficult and laborious, 
task the expression of reasons should be encapsulated in principled 
- 18 - structured expression in a “top down” fashion rather than left in a form 
reflecting the intellectual journey from “the bottom up”. 

Conclusion 
77 There are many competing forces that promote judgment length and 
judgment complexity. 
78 It is essential, however, to recall at all times that the governmental act 
undertaken both by trial courts and appeal courts is one that is both the 
exercise of power and the explanation for that exercise of power.  Part of 
that responsibility is the clear communication of the reasons for the 
exercise of power.   
79 In an age of the electronic dissemination of all judicial  utterances it has 
become imperative to exercise restraint in relation to the expression of 
view as to principle.  How such restraint fits with the injunction of the High 
Court in Kuru  is a matter for careful consideration by the court on each 
occasion. 
80 Notwithstanding the pressures of time, care and effort should be taken to 
examine rigorously what should be expressed and to enunciate with clarity 
- 22 - what is expressed.  In an era of undifferentiated electronic resources, it is 
not an exaggeration to say that the cohesion of the common law system 
depends on the clarity of organisation and expression of appellate 
reasoning and a degree of moderation in what is expressed. 
   

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