Chapter 13
Ex Tempore Judgments
13.1 Introduction
13.2 Justification
13.3 Method
13.1 Introduction
Ex Tempore Judgment
Ex tempore is a legal term that means literally 'at the time.' Its sense is better captured if it
is rendered as ‘on the spot’ or ‘in the instant’. An ex tempore judgment is handed down at
either of two times – immediately after the conclusion of the case or soon after the
conclusion following only a brief pause. Thus it is given with small preparation at most
so that they are largely if not totally off the cuff. Typically it is given orally but it may be
written.
Reserved Judgment
An ex tempore judgment is contrasted with a reserved judgment where the court takes its
time to consider the case. Typically a reserve judgment is given in writing. In a reported
case in some jurisdictions there is a common notation in the head note to indicate that a
judgment has been reserve. The notation is in Latin and abbreviated. It says: “Cur. ad.
vult”. In full form this phrase is ‘Curia advisari vult”. It translates that court wishes to
consider the matter. Therefore it retired from the bench at the end of the hearing and
returned at a later time to deliver judgment.
Status as a Precedent
A reserved judgment has status as a precedent according to the court that gives the
judgment. There are two aspects to the status of an ex tempore judgment as a precedent.
The status or value of a decision as a precedent will be weakened by any factor that
undermines the quality of reasoning that underlies it. Consequently any ex tempore
decision on a question of law is open to this type of attack. However, this attack is always
open to some form of rebuttal if it can be shown that the reasoning is in fact cogent.
Some jurisdictions have a common law rule that decisions of intermediate courts have
little or no value as a precedent precisely because many decisions are ex tempore. For
example, in New South Wales intermediate-level courts' decisions are not binding on
inferior courts, that is to say, decisions of the District Court are not binding on the Local
Court.
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Valentine v Eid (1992) 27 NSWLR 615
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