Justice Pamela Tate, an appellate judge of the Court of Appeal of the Supreme Court of Victoria, provided her perspective on ‘Running appeals in the 21st century’ at the 2018 Australian Bar Association and NSW Bar Association Conference, where she said that appeals now require “rigorous persuasive written submissions”.
Justice Tate argued there are three reasons why rigorous and persuasive written submissions are critical to the appeal process.
The first “is because appeals, unlike trials, require the identification of error in the judgment below” the court in which the appeal is being heard, she said.
Secondly, “the rigour and analytical clarity needed to identify error is facilitated by the written word, especially in the careful choice of language”, Justice Tate explained.
Ultimately, the judge said, the task for an appellate court is a task in analytical writing, with the third point expressed by Justice Tate noting there is very little case management, no jury to manage, and few preliminary steps taking up the court’s time.
Therefore, aside from the hearing, “the role of an appellate court is primarily to engage in written legal analysis”.
“If, in carrying out that task, the court can pick up your written submissions and use your conceptual framework, your structure and your language, you are more than half-way home,” she emphasised.
In her view, “much as in the United States, they [written submissions] should no longer be seen as supplementary but rather as an indispensable means of persuasion”.
“The best standard of written submissions is achieved if they are prepared on the assumption – usually fictitious – that there will be no opportunity for oral advocacy,” Justice Tate considered.
“Everything necessary to persuade the judge should be laid bare.”
Justice Tate’s rationale for this comes from “a firm expectation that judges come to the hearing of an appeal having read the reasons below and the bulk of all other relevant materials”.
Not only is court time “increasingly precious”, she said, it “springs from a recognition that unless the bench has a detailed understanding of the competing arguments, the opportunity may be lost for a meaningful exchange at the hearing”.
“Before coming onto the bench, a judge, in addition to engaging in a careful review of the judgment below, will have examined any statutory context and the principal authorities,” Justice Tate said.
She said, “This is the time when an appellate judge is forming a view of the merits on the issues raised – albeit preliminary only and while keeping an open mind.”
As a result, “the well-supported identification of error at this early stage can be powerful”.
“Equally, so too can a well-reasoned defence of the judge’s reasons below,” she considered on the contrary.
In recognising that the purpose of an appeal hearing has changed, Justice Tate said “the hearing of an appeal has become a site for oral exchange with the bench”, bringing with it “a professional obligation on judges”.
She noted it as “incumbent on appellate judges to make parties aware of any legal or logical flaw they consider they have identified in a party’s case”.
“The inscrutable demeanour of a judge – once regarded as obligatory – has now diminished to vanishing point,” she said.
And, “given the recent reports of judicial bullying, I might add that counsel should be given a fair opportunity to respond”.
Lawyers Weekly has previously reported on Thai cave rescue diver Dr Richard Harris’ appearance at the Australian Bar Association and NSW Bar Association Conference, as well as on comments made by a former attorney-general about asylum seekers not being held in detention facilities on Nauru at the same event.