Developments in ICLR Services

For many members of the Queensland Bar, the significant role carried out by the Incorporated Council of Law Reporting for the State of Queensland (ICLR) may not be at the forefront of your mind.

Over the last 12 months, the ICLR, under the direction of its Chairman, Mr John McKenna SC, has conducted a major review of its operations. This review has resulted in the development of important changes to the services that the ICLR provides. These changes are designed to improve the quality, efficiency and cost-effectiveness of the services provided by the ICLR to the courts, the legal profession and the public in Queensland.

The purpose of this article is to provide members of the Bar with details of these important developments, which will be implemented from1 January 2013. The ICLR looks forward to the support of members of the Bar, for the exciting new initiatives that are outlined below.

What is the ICLR?

The ICLR is a charitable corporation, which was established in 1907.

The principal object of the ICLR is:

“the preparation and publication in a convenient form, at a moderate price, and under gratuitous professional superintendence and control, of Reports of Judicial Decisions of the Supreme Court in the State of Queensland.”

To the extent that it is able to do so, the ICLR also has as a subsidiary object:

“to supplement or assist any of the libraries of the Supreme Court of the State of Queensland by gifts…of such profits of the Association as the Council shall from time to time determine to donate.”

The ICLR is under the control of a 9 member Council, which comprises three practising barristers and three practising solicitors, who are appointed annually by the Judges of the Supreme Court, together with the Attorney-General, the Solicitor-General and the Registrar of the Supreme Court, to the extent they wish to exercise their ex officio entitlement to sit on the Council. At present the Council comprises Mr John McKenna SC (Chairman), Mr Declan Kelly SC, Ms Helen Bowskill, Mr Chris Coyne, Mr David O’Brien, Ms Rachael Miller and Ms Julie Steel.

The principal function of the ICLR is to publish the authorised reports of the Supreme Court of Queensland – the Queensland Reports.

As a subsidiary function, the ICLR also prepares and publishes a weekly print publication, the Queensland Law Reporter. This publication contains advance summaries of forthcoming reports of cases, recent practice directions of the court, and legal notices published for those who wish to advertise a proposed application to the court (in particular, applications for admission to the legal profession and applications for probate or administration).

The long-standing problem of identifying key decisions

One of the key issues confronting the ICLR is how to provide a solution to the problems that presently arise because of the sheer volume of unreported Supreme Court decisions.

The vast majority of these decisions, whilst of great significance to the parties concerned, involve no change or clarification to the general law. They usually involve nothing more than an orthodox application of established principle to a particular factual dispute. The sheer volume of these decisions, however, is beginning to overload Australian legal information databases, making it harder to identify the key decisions which truly redefine or clarify the law.

The problem of identifying, from the morass of new judgments, those decisions which truly develop or redefine the law is not simply a product of the digital age.

Even at the time of Queensland’s foundation, in 1859, vast numbers of English decisions – many of very little significance – were reported in a wide variety of reports, journals and newspapers. This was the era of the Law Journal Reports, the Solicitors Journal Reports and many separate sets of nominate reports. This approach was followed in the new Colony of Queensland, with virtually every new decision of the Supreme Court being extensively reported in local newspapers or journals, including the Queensland Law Journal.

In 1901, however, the Chief Justice of Queensland (Sir Samuel Griffith) believed it was time that the key decisions of the Supreme Court of Queensland were extracted and preserved in a set of official reports, to be modelled upon the new approach to authorised law reporting which had been developed in England.

This involved establishing a Council of Law Reporting — an independent body under the control of the legal profession and the Supreme Court — which would be responsible for making a suitable selection of cases and then publishing authorised reports of these decisions at a moderate cost.

The unique feature of these authorised reports was that they were the product of a four stage process of:

• selection — to make sure that only cases which materially redefined or clarified the law were chosen for reporting;
• checking — to make sure that each report was free from any textual error, and that all quotes and references were correct;
• summarising — to include a headnote which quickly and accurately identified the key facts and points of importance; and
• authorisation — to allow the deciding Judge a final opportunity to revise and approve the report before publication.

From 1902, these authorised reports began to be published as the State Reports of Queensland – with notes of practice decisions being published as the Queensland Weekly Notes.

From 1908, these reports were supplemented by another weekly publication, the Queensland Law Reporter. This supplement provided the profession with advance notice of new cases which were thought to be of sufficient importance to justify inclusion in the Queensland Reports, and carried a range of public notices (including probate and admission notices) which were required by the Rules of Court or Practice Directions.

Once this system was established, it became the practice to cite only authorised reports of Queensland judgments in submissions to the courts.

Challenge of unreported judgments

Whilst this system of law reporting proved to be effective in Queensland for almost 100 years, new challenges have arisen because of the large number of unreported judgments which are now published on court websites every week.

For courts and practitioners alike, the sheer volume of this material is creating a serious and deep-seated problem. It affects those who seek to read new judgments to keep up-to-date with the law, as well as those searching for answers to specific legal problems, who now find themselves confronted with scores of marginally relevant cases. It also affects the courts, who are now being burdened with numerous citations of unreported judgments which add nothing of substance to established principle.

Selecting key cases

In the Council’s view, there is only one practical solution to this problem — an early application of expert and perceptive judgment to select, from the morass of new cases, those which truly develop or clarify the general law.

The Council was delighted that its Senior Editor, Mr RM Derrington SC, was prepared to take on this role. Mr Derrington SC is one of Queensland’s leading commercial silks, having been in practice for some 22 years. In reviewing new cases, he is able to draw upon advice from a panel of practitioners with specialties which cover the full range of the Court’s jurisdictions.

As well as reviewing all new cases for reporting, Mr Derrington SC also monitors earlier decisions which are cited in more recent cases, to ensure that no key decisions are mistakenly excluded from the reporting process.

The fundamental importance of skilled selection, in the context of scholarly law reporting, to the development of the common law was recently emphasised in the first annual BAILII lecture presented by Lord Neuberger, the new President of the UK Supreme Court, on 20 November 2012 ( http://www.supremecourt.gov.uk/docs/speech-121120.pdf , particularly at [35]-[40] ).

New Queensland Reports website

The practical implementation of this process will involve the introduction of a rapid case classification and monitoring system, which will be available on a free new website ( www.queenslandreports.com.au ).

The system is quite simple.

Every week, all new decisions handed down by the Supreme Court of Queensland will be reviewed and analysed by Mr Roger Derrington SC, with a view to rapidly isolating the key decisions of the Court which truly redefine or clarify the law.

These key decisions will then be briefly summarised and indexed — using the conventional Queensland Reports classification system – and added to a Key Judgments database on the Queensland Reports website. These cases will also be notified to the profession and the judiciary every week through a free email service – the relaunched Queensland Law Reporter. Appeals from these key decisions will then be monitored, with updates also provided through the Queensland Law Reporter.

As a general rule, all the cases on the Key Judgments database — unless reversed or overtaken by an appeal decision — will then proceed to be fully reported and headnoted, in authorised form, in the Queensland Reports. The aim is to ensure that the Queensland Reports continues to be a reliable source of all key decisions of the Supreme Court.

Special treatment, however, will be given to key decisions dealing with matters of practice or procedure. These cases, which often do not justify inclusion in the Queensland Reports, will be collected together in a new Key Practice Decisions database on the website.

In the initial phase of the website, it will also include, in addition to the Key Judgments database and the Key Practice Decisions database:

• a free printable backset of recent Queensland Law Reporters;
• a free searchable database of probate and administration notices; and
• background information about the history and role of authorised law reports in Australia.

These innovations are only some of the changes which are planned to be introduced to the Queensland Reports, over the next two years, to meet the needs of the modern legal system.

New Queensland Law Reporter

The launch of the new Queensland Reports website will coincide with the launch of a new Queensland Law Reporter.

The new Queensland Law Reporter will be available for email delivery, free of charge, from January 2013.

The new Queensland Law Reporter has been designed to allow the Editors of the Queensland Reports to communicate directly to the whole of the judiciary and legal profession every week — and so provide key information, which is not readily available elsewhere, about the latest developments in the law of Queensland.

The new Queensland Law Reporter will contain a weekly update of:

• all new legislation, rules of court and practice directions which affect practice in Queensland State courts;
• all new cases which have been added to the Key Judgments database, and the progress of appeals in these cases; and
• all new headnotes of cases being published in the Queensland Reports.

The Queensland Law Reporter will also include the familiar public notices concerning applications for probate and admission — but now reformatted in a way which will ensure that they are easier for busy practitioners to scan.

Changes in the Queensland Reports

The speed and quality of the Queensland Reports has also been the subject of careful review.

To ensure that the quality of the headnotes in the Queensland Reports reaches the highest academic standards, the Council has appointed a former Professor of Law at the University of Queensland — Dr Sarah Derrington — to the position of co-editor. In this role, Dr Derrington is responsible for settling all headnotes which are prepared for publication in the Queensland Reports by a team of specialist sub-editors and reporters.

This new editorial team has dramatically reduced the time lag between the delivery of judgments and the date of their publication in the Queensland Reports. They are now close to achieving their object of publishing authorised reports of judgments within six months of their delivery.

With these developments, the ICLR hopes to further enhance the contribution of the Queensland Reports to what Lord Neuberger describes as “judgment enhancement” ( www.supremecourt.gov.uk/docs/speech-121120.pdf at [33], [41]-[42]).

How can you access the new QLR?

The new website – www.queenslandreports.com.au – will be operational from 1 January 2013.

The ICLR encourages all members of the Bar to register at www.queenslandreports.com.au , from 1 January 2013, in order to obtain the free email Queensland Law Reporter, and take advantage of the useful legal information databases which appear on the website.