A judgment is a written statement of the reasons for a court’s decision. A typical judgment contains the following elements:
- A statement of the facts of the case, and lower court rulings.
- Identification of the legal issues involved in the case.
- Arguments raised and cases cited by the parties.
- The legal reasoning that is relevant to resolve those issues.
- The ruling of the court on questions of law.
- The result of the case: the court’s order, and which party was successful.
Most legal disputes that are eventually resolved by the verdict of a court are rarely straight forward. Consequently, judgments are usually more complex than the simple outline of elements above can capture. Because the High Court only hears the most important cases in Australia, its judgments are often among the most complex.
A judgment may also contain comments and arguments on legal points or issues that are not raised directly by the facts. These statements are known as obiter dicta (‘said in passing’). Although obiter dicta contained in lower court judgments are not considered binding, recent decisions and scholarship suggest that obiter dicta in High Court judgments may now bind lower courts (see here).
Written reasons will usually indicate which earlier cases and arguments put to the Court by the parties the judge found persuasive or unpersuasive. Reasons for a decision assist parties in understanding why they were successful or unsuccessful in their immediate case, but more importantly also form a source of principles to be considered and possibly applied in future cases.
Single judgments, joint judgments and plural judgments
A single judgment is the written reasons of one judge. Sometimes the High Court issues a single, unanimous judgment in which all judges join. One perceived advantage of a unanimous judgment is that the Court’s view and the interpretation of the law is made very clear. In other cases, every judgment issued will be a single judgment.
A joint judgment is a judgment that is co-authored by two or more judges. Where a majority of Justices issues a joint judgment, that forms the majority judgment of the Court. A majority may still form among several judgments, which is sometimes referred to as a plurality (although that term is not often used in Australia, and its precise meaning is not settled). The key to understanding the difference is to remember that the majority’s ruling is formed by whichever orders a majority of the judges would make (for example, dismiss the appeal, appellant to pay the respondent’s costs, and so on).
Judges may dismiss an appeal based on different (and sometimes conflicting) legal arguments: the end result is the same for the immediate parties before the Court, but the case’s significance in future cases may be unclear or open to interpretation. In this instance, there may be no clear majority. Instead a majority ‘view’ must be divined, if possible, from the reasons for judgment. This can quickly become a complex task. Sometimes it is relatively simple: for example, two judges may co-author a joint judgment, and the remainder write single judgments that explicitly state that the judge agrees with the joint judgment (‘I agree with Justice X’, and often referred to in commentary using the phrase ‘with whom Justice Y agreed’), but adds further comments, or canvasses additional issues raised by the case. There is no practice in the High Court of clearly identifying the ‘majority reasons’ as the ‘opinion of the Court’, nor is it common practice for a Justices to precisely identify particular sections of another judgment that a judge agrees with or dissents from. Both of these practices occur in other supreme courts, such as the Supreme Court of the United States.
Where a judge disagrees with the orders proposed by a majority of the court, his or her written reasons are a dissenting judgment or ‘dissent’. Dissents critique the legal reasoning of the majority. Although arguments made in dissents may come to be seen as persuasive in later cases, or may flag future developments in the law, dissenting judgments themselves do not have any precedential, binding value.
We encourage those who would like to learn more about judgments to read the following speeches by current and former justices:
- Michael McHugh, ‘The Judicial Method’ (5 July 1998).
- Michael Kirby, ‘Reserved Judgments’ and ‘Ex Tempore Judgments’ (from The Oxford Companion to the High Court) and ‘On the Writing of Judgments’.
- Susan Kiefel, ‘Reasons for Judgment: Objects and Observations’ (18 May 2012).
- ABC Local, ‘Sunday Profile: Justice Dyson Heydon’ (15 March 2013).
- Justice Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (23 January 2012).