BY LUKE BECK

 

The High Court almost never gives proper reasons for its decisions on applications for special leave to appeal. In a new article in the University of New South Wales Law Journal, I argue that this practice is unconstitutional. This blog post summarises that argument and offers suggestions about what can be done about the problem.

The constitutional duty to give reasons for judicial decisions

My article challenges existing authority that reasons for judicial decisions should ordinarily, although not always, be provided and that a failure to provide reasons, where required, is an error of law. I argue that reasons for judicial decisions are always required and that a failure to provide reasons is not simply an error of law but is a jurisdictional error.

The argument takes the best part of a full journal article to develop and can only be summarised here. The starting point for the argument is the holding in Wainohu v New South Wales (2011) 243 CLR 181 that the giving of public explanations for judicial decisions is central to the judicial function (at [54]). In short, the giving of reasons is a defining characteristic of both the exercise of ‘judicial power’ and of ‘courts’ as institutions. As a defining characteristic, there cannot be any exceptions to this, and nor is there any persuasive rationale for any doctrinal proposition permitting a failure to give reasons for any judicial decision or category of judicial decision (Beck at 927-31).

It is settled law – following the Kable line of cases – that to take away a defining characteristic of a court, or of judicial power, impairs the institutional integrity of the court and that the Constitution does not permit this. The Constitution does not permit a Parliament to impair the institutional integrity of a court, and by parity of reasoning nor can judges act in a way that deprives a court of one its defining characteristics so as to impair the institutional integrity of a court. It follows that failing to give adequate reasons for a judicial decision impairs the integrity of the court and thus amounts to jurisdictional error (Beck at 936).

The question then becomes: what amounts to adequate reasons? How detailed reasons for a decision need to be will depend on a variety of factors. The irreducible minimum is that the ‘path of reasoning’ leading to the decision be disclosed (at [38]).

High Court special leave decisions

The High Court has a burdensome special leave workload. In the 2015–16 financial year, for example, the seven justices of the High Court dealt with 455 special leave applications.

My article examines two samples of High Court decisions refusing special leave from 2016. The first sample was of 20 decisions made on the papers (the first five such decisions from August, September, October and December 2016 to ensure a mix of judges) and the second sample was of 20 decisions made after an oral hearings (the 20 most recent such decisions to October 2016 when the sample was collected). For each decision in the sample, I looked at: word count, whether the area/s of law to which the application was discernible in the reasons, whether the proposed grounds of appeal were discernible, whether the ground/s on which the application was refused was stated, and whether the path of reasoning for the grounds for refusing special leave was discernible.

  On the papers After oral hearing
Median word count 69 words 37.5 words
Area/s of law

application relates

to discernible

7 out of 20 cases 3 out of 20 cases
Proposed grounds

of appeal

discernible

2 out of 20 cases 3 out of 20 cases
Ground/s on

which application

refused stated

20 out of 20 cases 20 out of 20 cases
Path of reasoning

for ground/s

discernible

3 out of 20 cases 7 out of 20 cases

 

In short, what the High Court usually does in deciding applications for special leave to appeal is this: assert the existence of one or more of the grounds on which special leave may be refused but not communicate, even very briefly, the path of reasoning leading the Court to believe that ground or those grounds exist.

If the analysis in my article is right, then most of the High Court’s special leave decisions are tainted by jurisdictional error.

What can be done?

There appears to be a practical explanation, albeit one at odds with constitutional requirements, for the High Court’s failure to comply with the constitutional duty to disclose the path of reasoning leading to the decision in respect of applications for special to appeal. That explanation is the High Court’s burdensome workload. What can be done?

Two options seem to me to be available. First, appoint more High Court justices. The last time the size of the High Court was increased was shortly after World War Two.

The second option is for Parliament to legislate under s 73 of the Constitution. That section makes the High Court’s jurisdiction to hear appeals subject to ‘such exceptions and subject to such regulations as the Parliament prescribes’. The requirement to obtain special leave to appeal is such an exception.

A new filtering mechanism modelled on the United Kingdom’s ‘leap frog’ appeals procedure is one possibility. A ‘leap frog’ appeal is an appeal from a decision of the High Court of England and Wales directly to the Supreme Court of the United Kingdom, skipping the Court of Appeal.

In such cases, an application for permission to appeal (the UK Supreme Court equivalent to special leave) may be filed in the Supreme Court only if the High Court grants a certificate. A certificate is granted where the High Court is satisfied that a:

sufficient case for an appeal to the Supreme Court [on one or more of the grounds on which permission to appeal to the Supreme Court may be granted] … has been made out to justify an application for leave to bring such an appeal’ (Administration of Justice Act 1969 (UK) c 58, s 12(1)(b)).

The new filtering mechanism would adopt the certification requirement (but without leap frogging intermediate appellate courts) to require the court immediately below to certify that the applicant has an arguable case for a grant of special leave to appeal to the High Court as a precondition to making an application for special leave. That is likely to reduce the number of hopeless applications filed.

The requirement should be that the applicant has arguable case for a grant of special leave rather than a requirement that the lower court certify that special leave ought to be granted. This threshold for certification would preserve the authority of the High Court to decide special leave applications and minimise the risk that the lower court certification process would limit opportunities for the High Court to develop the law in distinctive ways. It should also make it more practical for the High Court to comply with the constitutional requirement to provide adequate reasons for special leave to appeal decisions.

 

Luke Beck is Senior Lecturer at Western Sydney University.

Suggested citation:  Luke Beck  ‘High Court Special Leave Decisions: Constitutional Problems with the Lack of Reasons’ on AUSPUBLAW  (20 November 2017) <https://auspublaw.org/2017/11/high-court-special-leave-decisions/>