Consultative Council of Australasian Law Reporting: A Brief Note about Law Reporting

The Consultative Council of Australasian Law Reporting (CCALR) has issued the following note concerning the publication – and importantly for advocacy purposes the citation of and use – authorised and other reports in Australian Courts. The chair of CCALR – also chair of the Incorporated Council of Law Reporting for the State of Queensland – is John McKenna KC of the Queensland Bar.

The background of the note is that:

• The note was issued because of a concern that some confusion is developing within the profession about the distinctions between different kinds of law reports – and why these distinctions matter. 

• This confusion is having practical consequences for the efficient workings of the courts.  Indeed, it seems to be quite common to find that bundle of authorities, which were intended to include cases from the CLRs or the UK Appeal Cases, are in fact prepared with AustLII or BAILII printouts of the unreported version of the judgments.

• Thus, the note was prepared with a view to summarising the key points that explain this area of practice.

• This note was tabled in late October 2022 at a meeting of the Council of Australian Law Deans, with a view to its contents being worked into the curriculum of Australian law schools.

• The CCALR seeks it be brought to the attention to the legal profession as a whole.

Background

1. (Purpose of this Note) The purpose of this note is to mention some key features and practices of our system of law reporting. These practices are fundamental to the efficient operation of the courts. However, the recent experience of courts, across Australia and New Zealand, has given rise to concern that these practices are not sufficiently understood or observed.  It is hoped that this trend can be reversed, with the assistance of the Law Schools and the professional associations.
2. (CCALR) This note has been prepared by the Consultative Council of Australasian Law Reporting (CCALR). The CCALR is the peak body which seeks to maintain standards of law reporting in Australia and New Zealand. It is constituted by 16 nominees of the courts, the legal profession, and the various Councils of Law Reporting of Australia and New Zealand.

Court Judgments – Preparation, Delivery, Publication and Revision

3. (Core Workload of the Courts)     The workload of the courts is immense. On any given working day, many thousands of civil and criminal matters are resolved by the courts of Australia and New Zealand. The vast majority of these matters do not turn upon questions of law and are resolved immediately (ex tempore). To deal with this core workload, it is critical for the courts to be able to identify, quickly and reliably, the governing legal principles to be applied. Applying these principles, the court’s reasons for judgment can then be delivered to the parties orally. A transcript of these oral reasons is usually available to the parties, but ordinarily is not published more widely. The formal outcome of the hearing is then embodied in a written judgment or order, which is entered in the records of the court.
4. (Reserved Judgments) In a relatively small proportion of matters, mostly in the higher courts, judgment is reserved to allow time for the court to give the matter further consideration (curia advisari vult). Again, most of these matters do not turn upon questions of law, but still require the courts to identify the governing principles quickly and reliably. Where a judgment is reserved, the reasons of the court are most commonly prepared in a written form. Then, when the court reconvenes for the delivery of judgment, these written reasons are delivered to the parties, with a formal written judgment or order then being entered in the records of the court.
5. (Publishing Unreported Judgments) Since about 2000, each of the courts has developed practices for the online publication of reasons for judgment (unreported judgments).  To facilitate their citation, unreported judgments are assigned a medium neutral citation (eg [2021] HCA 1). These judgments are published, almost immediately after delivery to the parties, on the relevant court website. They are then distributed by the court to other online publishers. In practice, most reserved judgments are published in this way, unless there is some particular reason for non-publication (eg a pending criminal trial). Some transcripts of ex tempore judgments are also published online, depending upon the practices of the relevant court.
6. (Revision of Reasons) Whilst there are narrow limits upon a court’s power to amend a formal judgment or order, different principles apply to the revision of reasons for judgment. In broad terms, courts are free to revise the text of their reasons for judgment, provided that the substance of the reasons is not changed1. Significant revisions are most common where the judgment has been delivered ex tempore2. However, even reserved judgments are commonly subject to some revision3. Revisions of this kind are inevitable, given the complexity of many judgments, the time pressure on the courts to deliver judgments promptly, and the limited resources available within the court system.  As a consequence, even judgments delivered by the High Court of Australia are marked: “Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports”.  When changes in an unreported judgment are initiated by the court (or at the request of the parties), the practice is for the court to issue a replacement version of the unreported judgment to all online publishers. In some jurisdictions, the practice is for the revisions to be explicitly noted on the revised judgment4. In other jurisdictions, the judgments do not record whether they are in a revised form.
7. (Problems Arising from a Multiplicity of Judgments) As a result of the sheer volume of the courts’ workload, the number of unreported judgments published in Australia and New Zealand in any given year usually exceeds 10,0005. The vast majority of these judgments are of little practical utility as legal precedents. On the whole, it is estimated that only about 10-15% of unreported judgments materially change, refine or explain the law. However, these key judgments are not easy to locate within the vast body of published judgments. In any given area of the law, there are usually many judgments dealing with the same issues and referring to the same leading authorities. However, most of these judgments do little more than cite earlier authorities, provide an imperfect paraphrase of earlier authorities6, or record the absence of any relevant dispute about the issue7.  Some are of doubtful reliability8. Most are difficult to quickly analyse, because of the absence of a headnote summary9. As a result, any excessive reference to these judgments can be time-consuming and unproductive10. The practical problem this causes for the courts has been fairly summarised in the following terms11:

“[In collections of unreported judgments] there is no preselection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. Lawyers frequently feel that they have an obligation to search this material. Anything which supports their clients’ case must be drawn to the attention of the court. This is so even when it is likely that the court which gave the judgment probably never intended it to be taken as creating a new legal principle. A number of consequences flow from this. First, of course, it is the client who eventually has to pay for all this searching. This growing costs burden runs counter to the environment being promoted by the Woolf reforms. Further, it is a fact of life that sometimes courts go wrong, or at least not conspicuously right. That is why we have a system of appeals. A poor decision of, say, a court of first instance used to be buried silently by omission from the reports. Now it may be dug up and used to support a cause of action or defence which, without its encouragement, might have been allowed to die a quiet death. Thirdly, it is a common experience that the courts are presented with ever larger files of copied law reports, thereby extending the duration and cost of trials, to the disadvantage of the legal system as a whole. It seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material, not just from this country but from other jurisdictions, particularly common law ones.”

Authorised Law Reports – Role, Preparation and Use

8. (Role of Law Reports) The role of the law reports is to assist the legal system in coping with this “unorganised, unfiltered, unedited” volume of caselaw12.  The system of law reporting seeks to: (a) expertly identify, from amongst the vast body of published judgments, the key group of authorities which materially change, refine or explain the law; and (b) publish them in a permanent form which is authoritative, reliable, and easy to use as a reference source.  This approach has been described by Lord Neuberger as “scholarly” law reporting – rather than mere “judgment dissemination”13.  Law reports are produced by a range of different publishers, to serve a range of different needs.  Some are designed to meet the needs of specialist practice areas (eg Australian Trade Practices Reports). Some are designed for prompt publication (eg Australian Law Reports). However, the core sets of law reports are the “authorised” reports for each jurisdiction.
9. (Authorised Law Reports) The “authorised” law reports for a jurisdiction are those which are recognised by the courts of that jurisdiction as containing the most authoritative version of the court’s judgments. This recognition usually arises because these reports are prepared in consultation with the court, in a scholarly way, with the draft text being submitted for consideration and revision by the Judges14. As a result of this practice, the courts prefer the use of an authorised report of a judgment over any other version15. In most jurisdictions, this preference has now been formalised in Rules or Practice Directions16.  This practice is also adopted in academic legal writing17.  It is a practice which is not based upon pedantry, but upon inherent utility18.
10. (Process of Authorised Law Reporting) To appreciate why the courts adopt these citation practices, it is important to understand what is involved in authorised law reporting19. In most jurisdictions, the authorised law reports are produced under the supervision of an independent Council of Law Reporting. These Councils are usually constituted by senior practitioners, who are the nominees of the court or the legal profession. Under their supervision, or the supervision of experienced publishers, a small group of lawyers are selected and trained to serve as specialist editors and reporters.  Their role typically involves the following steps.  First, the editors examine all newly published judgments of the court to select those which are likely to be of precedential value. Secondly, the text of the judgment is checked by a reporter for typographical errors or other slips. This typically involves checking: (a) the accuracy of all citations; (b) the accuracy of all quotes from other judgments, articles or texts; and the balance of the text for typographical or other unintended errors. Thirdly, an accurate headnote summary of the judgment, usually with cross-references to the text, is prepared by the reporter and checked by the editors – with the judgment being classified under an established taxonomy. Fourthly, for the most significant authorised reports20, a summary of the argument before the court is prepared. Fifthly, these components are compiled into a draft law report, which accords with the standard typographical style for that set of reports.  Finally, the draft law report is submitted to the relevant Judge or Judges for consideration and for any further revision which they may wish to make. These revisions may be extensive21.  The object of these efforts is to produce an authoritative version of the judgment which is ideally suited to provide a reference source for future courts and researchers. It is important to note that the revisions which are incorporated into the authorised report do not usually result in any revision of the unreported version of the judgment. Upon publication, the authorised report supersedes the unreported judgment as the most authoritative version of the court’s reasons for judgment.
11. (Rationale for Use of Authorised Reports) The practice of favouring the use of authorised reports is based upon seven main considerations. First, it ensures that the version of the caselaw being considered by the courts is authoritative and readily available to all parties22. Secondly, it tends to focus attention upon the key authorities which establish or clarify the governing legal principles23. Thirdly, it assists the court in quickly assessing the effect of unfamiliar caselaw, by providing an accurate headnote summary with cross-references to the key passages of the judgment24. Fourthly, it facilitates debate about the effect of the key authorities, as all parties are addressing the same version of the text (eg with the same headnote and pagination). Fifthly, over time, it tends to familiarise the courts with a core set of key judgments, which can be applied repeatedly and efficiently to resolve future matters. Sixthly, it tends to allow the law to develop more consistently, as the expressions of principle in a core set of readily-accessible judgments are applied and developed over time25. Finally, it promotes efficiency, by identifying the key authorities and their correct citation for inclusion in the judgment under preparation.
12. (Appropriate Use of Unreported Judgments) Consistently with these principles, unreported judgments still have an important role to play in the legal system. This largely arises in circumstances where: (a) a new judgment of significance is too recent to have been reported; (b) the judgment is of assistance in analysing a quite specific issue which has arisen in a particular case (eg the interpretation of a particular expression); (c) the judgment contains a convenient summary of the governing principles in an area of the law; or (d) recent judgments have considered whether an older line of authority continues to have governing force. In all these circumstances, the reference to an unreported judgment is apt to assist the courts in efficiently resolving the matter under consideration26.
13. (Inappropriate Use of Unreported Judgments) However, the work of the courts is materially hampered when parties cite unreported judgments excessively or inappropriately. This largely arises in circumstances where: (a) the judgment cited is also reported in the authorised reports;(b) the judgment cited does not establish or clarify the relevant legal principle, but merely quotes or paraphrases earlier judgments; (c) the judgment cited merely illustrates the application of established principle, in a way which does not materially assist the court in resolving the matter; or (d) the judgment is cited merely to demonstrate that the lawyer is “up to speed” with the most recent cases. Where unreported judgments are used in this way, it adds to the burden on the courts by requiring the Judges to read and analyse judgments which:(i) are not likely to be familiar;(ii) are not easy to digest because of the absence of headnotes; and(iii) are not likely to be of real assistance in resolving the matter. This practice is also likely to require the court to undertake tasks which should properly have been the responsibility of the parties, in locating the relevant, governing judgments from the authorised reports for inclusion in the judgment.
14. (Ready Access to Authorised Reports) The authorised reports are readily accessible online or in printed sets, under subscription-based arrangements. It is true that unreported judgments are even more accessible, as they are published on free websites. However, the key points to note are that: (a) these free websites are only able to function because of the courts’ assistance in supplying their content; (b) these same websites usually provide case citators, which allow the correct authorised report citation to be readily identified27; and (c) full copies of the relevant authorised report can be obtained, free of charge or at low cost, from public law libraries or from the websites of the Councils of Law Reporting (including on a “pay per view” basis). For these reasons, the practices relating to citation are easily complied with.
15. (List of Authorised Reports) The authorised reports of the superior courts of Australia and New Zealand, as currently published, are as follows:

• Australian Capital Territory Law Reports (Supreme Court of the ACT)
• Commonwealth Law Reports (High Court of Australia)
• Federal Court Reports (Federal Court of Australia)
• New South Wales Law Reports (Supreme Court of NSW)
• New Zealand Law Reports (Supreme Court, Court of Appeal and High Court of NZ).
• Northern Territory Law Reports (Supreme Court of NT)
• Queensland Reports (Supreme Court of Queensland)
• South Australian State Reports (Supreme Court of SA)
• Tasmanian Reports (Supreme Court of Tasmania)
• Victorian Reports (Supreme Court of Victoria)
• Western Australian Reports (Supreme Court of WA).

1 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 at [49]-[60].

2 R v Jones (2010) 79 NSWLR 143; [2010] NSWCCA 195 at [8]; AL Powell Holdings Pty Ltd v Dick [2012] QCA 254 at [46]-[55], [92].

3 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 at [51].

4 See, for example, the revised decision of the Federal Court of Australia in re Cornerstone Investment Aust Pty Ltd (in liq) [2022] FCA 1008, where a “Table of Corrections” appears on the cover sheet of the judgment.

5 The unreported judgments from the Supreme Court of one Australian State (New South Wales) can comprise over 2500 judgments annually.

6 Lambert v Lewis [1982] AC 225 at 274; Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 at 201.

7 Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 at 201.

8 Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 at [78]-[79].

9 Hobbs v Fairall [2016] NSWDC 116 at [171].

10  Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 at 200-202.

11 Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 at [79].  And see S Gageler “What is Information Technology Doing to the Common Law?” (2014) 39 Aust Bar Rev 146 at 154.

12 Lord Bingham quoted in R v Erskine [2010] 1 WLR 183 at [73].

13 Lord Neuberger “No Judgment – No Justice”, First Annual BAILII Lecture, 20 Nov 2012, at [33].

14 Fairman v Perpetual Investment Building Society [1923] AC 74 at 78; Lord Neuberger “No Judgment – No Justice”, First Annual BAILII Lecture, 20 Nov 2012, at [41].

15 Reed International Ltd v Inland Revenue Commissioners [1974] Ch 351 at 360.

16 eg High Court of Australia Practice Direction No 1 of 2017; Federal Court of Australia Lists of Authorities and Citations Practice Note (GPN-AUTH); Supreme Court of Australian Capital Territory Practice Direction No 2 of 2022 (Citation of Authority); Supreme Court of New South Wales Practice Note SC Gen 20 (Citation of Authority); Supreme Court Rules 2004 (NZ) at r 34; Court of Appeal (Civil) Rules 2005 (NZ) at r 42; Supreme Court of Northern Territory Practice Direction No 2 of 2007; Supreme Court of Queensland Practice Direction No 16 of 2013 (Citation of Authority); Uniform Civil Procedure Rules 2020 (SA) rr 101, 217-218; Supreme Court of Tasmania Practice Direction No 3 of 2014 (Citation of Judgments); Supreme Court of Victoria Practice Note SC Gen 3 (Citation of Authorities and Legislation); and Supreme Court of Western Australia: Consolidated Practice Direction PD 2.1.

17 eg Australian Guide to Legal Citation (MULRA, 4th  Ed, 2018) at [2.2.2].

18 Murphy v Nationwide News Pty Ltd Ltd (No 2) [2021] FCA 432 at [9]-[10]; Palmer v McGowan (No 6) [2022] FCA 927 at [43].

19 See NJ Haxton “Law Reporting and Risk Management Citing Unreported Judgments” (1998) 17 Aust Bar Rev 84 at 87-89.

20 eg Commonwealth Law Reports (High Court of Australia) and the New Zealand Law Reports (Supreme Court of New Zealand).

21 See, for example, the changes to James v Thomas H Kent [1950] 2 All ER 1099 at 1103-1104 which were made at [1950] 1 KB 551 at 556, and which were the subject of discussion in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 258-259.

22 Murphy v Nationwide News Pty Ltd Ltd (No 2) [2021] FCA 432 at [10].

23 S Gageler “What is Information Technology Doing to the Common Law?” (2014) 39 Aust Bar Rev 146 at 152; P Devlin The Judge (OUP, 1981) at 180.

24 Hobbs v Fairall [2016] NSWDC 116 at [171]; S Gageler “What is Information Technology Doing to the Common Law?” (2014) 39 Aust Bar Rev 146 at 153.

25 Lord Neuberger “No Judgment – No Justice”, First Annual BAILII Lecture, 20 Nov 2012, at [39].

26 See, eg, the principles set out in Supreme Court of Queensland Practice Direction No 16 of 2013 (Citation of Authorities) at [4]-[5].

27 eg LawCite (lawcite.org) which is associated with AustLII and NZLII.