In October last year, the Supreme Court issued a new Practice Direction governing the Citation of Authority (No 16 of 2013).
This Practice Direction applies to all proceedings in all divisions of the Supreme Court.
It has also been extended, by further Practice Directions, to all proceedings in the District Court (Practice Direction 11 of 2013), the Planning & Environment Court (Practice Direction 12 of 2013) and the Magistrates Court (Practice Direction 19 of 2013).
These Practice Directions were not issued lightly.
They were the subject of some controversy — but were ultimately issued because of a real concern by the Judges that many legal practitioners have lost sight of some of the most basic principles concerning the way in which authorities are actually used by the courts to decide cases.
This departure from basic principle is making the Judge’s role increasingly unworkable.
It is becoming unworkable because, increasingly, the cases being cited in court are not the leading authorities on point and are not being provided in their optimal format (viz in a reported format with a reliable headnote which usefully summarises the facts and legal findings, with cross-references to the key passages in the judgment). Instead, the courts are commonly being given only the most recent unreported case which paraphrases or applies the leading authorities — leaving the Judges themselves to find and analyse the truly authoritative decisions.
To seek to deal with this problem, the Practice Directions prescribe six main principles.
The purpose of this paper is to briefly:
- outline each of the principles and their rationale;
- explain the course of events that has led the Courts to be so concerned that these principles are not being understood or applied;
- outline the main point of controversy which arose in relation to the Practice Directions and the approach which is being taken by the Incorporated Council of Law Reporting in Queensland to seek to remove the point of concern.
Six Principles
The first principle is that, when a citing a judgment to the Court, the authorized report of that judgment is the preferred citation.
What is an authorized report and why are the courts so concerned about it?
To answer these questions, it is helpful to know a little about the origins of the modern authorized reports in the 1860s in England.
The situation in the early 1860s had striking similarities to the present day.
For the first time, virtually every decision of every superior court in England was readily available to the legal profession through a range of different sources – through newspapers, a range of legal journals (eg Law Journal, Law Times, Solicitors Journal etc) and a variety of different law reports (eg the nominate reports).
The problem which this produced was an overload of authorities. The dataset of decided cases simply became an unworkable jumble of both significant cases (cases which explicitly considered and clarified the law) and cases of no real precedential value (including cases which were uncontested, cases which were poorly argued or cases where the judgment merely sought to paraphrase the existing law in an inexact way because it was uncontroversial in that case).
At the time, it was widely agreed that the solution to this problem was an independent and reliable selection process, pursuant to which the key cases were extracted from this jumble, and with the assistance of the deciding Judges, published in an optimal format for future use by the legal profession and the courts.
This was a format produced by:
- checking every quotation;
- checking every citation;
- checking the text of the judgment itself for unintended errors;
- summarizing the course of argument which led to the judgment;
- summarizing in a headnote the central facts and law in the judgment (ideally with cross-references);
- classifying the case so that it could be digested; and
- consulting the deciding Judges to give them a final chance to correct or rephrase their judgment and approve the final version of the report.
This was obviously a very substantial endeavour and, in the 1860s, the English government was not prepared to assume responsibility for producing a set of official law reports of this kind.
In consequence, the Judges and the legal profession of England and Wales worked together to establish a charitable body — the Incorporated Council of Law Reporting for England and Wales — to publish an authorized set of law reports on the explicit basis that they would be made available “at a moderate cost”.
These law reports were “authorized” because they were recognized by the Courts as the preferred record of its judgments.
That is the model which has been adopted in Queensland since 1902.
In essence, the way it works is that:
- the Judges each year appoint three barristers and three solicitors to serve on a voluntary basis on the Council of the ICLRQ;
- the Council appoints some of our most respected colleagues at the Bar to serve as Editors, Sub-Editors and Reporters — all of whom give their time on a largely voluntary basis;
- every week, the Senior Editor (Roger Derrington QC) reads through the entire output of the Supreme Court and selects the cases which are likely to have precedential value;
- the Senior Editor notifies the whole profession of these choices every week through our free publication the Queensland Law Reporter;
- then we seek to complete the entire reporting process (checking, summarizing, obtaining authorization and then publishing) within about six months of the delivery of judgment — with this process being supervised by our Co-Editor, the Dean of the UQ Law School, Professor Sarah Derrington.
So when you see a set of authorized reports, like the Queensland Reports, it actually represents a huge of amount of largely voluntary effort, by the Judges and a large number of members of the legal profession, to seek to produce an optimal dataset of Australian caselaw.
In these circumstances, it is easy to understand why the Judges are so anxious to ensure that it is this version of the caselaw which is cited when it is available.
Under the Practice Directions, the ten current sets of Australian authorized reports are listed.
If a case in not reported in these sets, then the Practice Directions permit another report of the case to be cited.
Alternatively, if there is no report at all of a case, then the Practice Directions permit an unreported version of the case to be cited where that is necessary.
But use of unreported judgments is really the last resort — not the first.
The second of the six principles is that, when a judgment is being cited, the court should be referred specifically to the particular passage being relied upon.
The reason for this requirement is to assist the court. Unless the proposition is uncontroversial, a Judge has to verify that each case really does stand for the proposition for which it is cited.
If the relevant passage is clearly identified to the court, then the Judges’ work is made easier.
The third principle is that, for each judgment being cited, it is necessary to check whether it has been subsequently followed — or doubted or not followed in a relevant respect.
The new Practice Direction certainly does not encourage any practitioner to burden the court with citation of recent cases which have followed or approved an earlier case which is being relied upon.
But it does require us to draw to the court’s attention any subsequent judgment which has doubted or not followed, in a relevant respect, any judgment which is being relied upon.
This gives explicit recognition to the general duty of frankness which advocates owe to the Court.
The fourth principle is to be sparing in the citation of authority — focusing upon what is necessary for the case at hand.
If the case turns on a particular unresolved question, then by all means provide the court with all the citations of caselaw which are necessary to resolve this question.
But where the proposition is unlikely to be controversial, it is probably unnecessary to cite authority beyond the leading decision of the High Court or a Court of Appeal.
The fifth principle concerns our choice of authority.
It is a common mistake to think that the most recent authority is the most authoritative. It is not.
The key point to understand is that when courts are consciously seeking to resolve a disputed point, they generally take care to formulate a principle or test which is capable of being applied not just to the case in point — but also to resolve future cases.
It is cases of this kind which produce authoritative statements of principle — and they are almost always to be found in an authorized report.
Over the course of subsequent years, these authoritative statements of principle will be paraphrased or applied in a host of different cases — cases in which the courts may have had no reason to be particular about the way the principle was expressed.
Most of these cases will not find their way into the authorized reports — or any reports for that matter – because they are of no precedential value.
And the fact that cases of this kind were decided last week or last month does not make them any more valuable.
For this reason, the Practice Directions seeks to discourage the citation of authorities which do nothing more than paraphrase, illustrate or apply principles — unless they do materially assist the court in resolving the matter at hand.
The sixth and final principle urges caution in using any unreported judgments.
It is easy to understand why this principle is adopted.
Save for very recent decisions, most unreported judgments:
- have ordinarily been discarded by the Editors of the law reports as adding nothing to the corpus of decided authority;
- are unlikely to be familiar to the Judges; and
- have not been summarized or presented in a format which makes them user-friendly for the Judges.
So they are particularly burdensome for Judges to use — and usually not worth the effort.
Of course, there are many categories of unreported judgments which are helpful to the courts, including:
- cases which deal with obscure statutory provisions — which will never be reported;
- cases which deal with particular words in contracts — which again will never be reported;
- cases which deal with quantum or sentencing.
What the Practice Direction requires, however, is that we appreciate when it is appropriate to use these authorities — and not to use them as our first port of call.
What Prompted the Practice Directions?
The breakdown in obedience to conventional principles concerning the citation of authorities has been developing over a number of years.
Modern practitioners have been delighted with the ease of access to legal materials available through the internet — and even more delighted when these materials are available free of charge (eg through AustLII).
Given the comparatively high cost of online access to the authorized reports, this has led an increasing number of practitioners to rely exclusively on free online legal sources when conducting legal research.
For these practitioners, it is tempting, when online searches produce a large number of relevant cases, to simply to select the most recent case that makes the point which is sought to be established — and print out the unreported version of the case for use in court.
The difficulty caused by this trend is felt by the courts. It is resulting in Judges being swamped with unfamiliar cases, in an unhelpful format which are often of limited value as precedents.
It is because this situation is becoming unworkable that the Practice Directions were issued, to convey to the profession that this kind of approach is poor practice and not acceptable.
One Point of Controversy
The one point of controversy in the debate concerning these Practice Directions was concern about the cost to the profession of obtaining access to the authorized reports.
In principle, many believe — and I am one of them — that in any system in which the courts require the use of authorized reports, there is a difficulty in leaving the publication of these reports in the unconstrained hands of commercial publishers.
The authorized reports are a special category of publication and need to available at a moderate cost.
That was the basis upon which the ICLRQ was established — and it should be the basis upon which all authorized reports are published.
So far as Queensland judgments are concerned, the ICLRQ (in consultation with the Supreme Court and the Supreme Court Library) is confident that we can solve this problem during the course of this year.
We are presently digitizing the whole of our backset of the Queensland Reports from 1859, and working with the Supreme Court Library to launch a new website which will provide basic online access to all Queensland judgments — both reported and unreported — from 1 January 2015.
For as long as we can viably do so, the ICLRQ is planning to make the entire content of this website available free of charge.
From a financial viewpoint, this is only possible:
- whilst we enjoy the generous support from the Queensland Bar and other service providers
- (including the Department of Justice and the University of Queensland) — which allows us to operate on the lowest possible costbase; and
- whilst we are able to earn sufficient levels of advertising revenue through the publication of public notices in the Queensland Law Reporter.
To assist those who undertake their research primarily on free websites (such as AustLII or Jade), we will be encouraging the publishers of those websites to include links from the unreported Queensland judgments to reported version on the SCL/ICLRQ website.
To assist those who undertake their research primarily on Lexis or Thomson websites, the ICLRQ is hoping to negotiate suitable licensing arrangements with both publishers, so that the Queensland Reports are available on their websites at a moderate cost.
For those (like me) who still wish to have a hard copy set of Queensland Reports close at hand for regular use, the ICLRQ is hoping to completely revise its pricing policy — so that the reports are readily affordable by practitioners.
The price will depend a great deal upon the level support we receive for these publications, so that we can maintain our production volumes.
Ideally, however, the price will be closely aligned to the cost of publication – a tax deductible price of about $60 a volume.
Conclusion
What the ICLRQ is attempting to deliver in Queensland is a radical departure from the status quo in Australian legal publishing.
It is hoped, however, that a similar approach will be embraced by all Australian jurisdictions so that all authorized reports are available to court users on an affordable basis.
JD McKenna QC
