Virtual judgments

Bay Street Appeal [2020] FCAFC 192

Allsop CJ (at [4]) cautions against so-called ‘virtual judgments’.  The same judge has written about why judicial work should not be done by ‘judge-bots’7.  But that is not what he is getting at in this instance.

What Allsop CJ is concerned about is treating court judgments literally ‘as if they were the text of a statute’8, sometimes also called the ‘formula trap’.  He says that sentences from High Court judgments should not be strung together to support an argument about interpretation ‘almost as if to create a new, virtual, High Court judgment’.  The reason for this, and the principle, is clear.  The task, first and last, is to attribute meaning to the text of the law itself.

This principle is from Episode 68 of interpretation NOW!


7 Allsop (2019) 38 UQLJ 1, Allsop [2019] FedJSchol 1.

8 Cassell [1972] AC 1027 (at 1085) cited, cf PVYW [2013] HCA 41 (at [15-16]).