Remarks to welcome to Australia the Incorporated Council of Law Reporting for England and Wales

by Justice Steven Rares

9 May 2018

1. It is my pleasure, as Chair of the Consultative Council for Australian Law Reporting (CCALR) to welcome you to tonight’s function that has been arranged to welcome the members of the Incorporated Council for Law Reporting for England and Wales (ICLR) who are visiting Australia.

2. Authorised law reports perform the vital function of providing legal practitioners and members of the judiciary with access to accurate records of prior court decisions that establish the law, and enable the courts to give effect to the doctrine of precedent (or, in law Latin: stare decisis). To operate efficiently and effectively, courts need to have the resource of well-known, readily locatable, leading decisions in a collection of work that includes professionally written headnotes, and in some cases summaries of argument, that synthesise and distil their ultimate legal conclusion (or rationes decidendi).

3. Furthermore, the principle of open justice is an important safeguard of a legal system subject to the rule of law. It requires courts to operate transparently in public. Members of the public have the right to enter Australian courts and view the judicial proceedings which take place in them. Printed law reports are an essential means of recording and communicating significant judicial decisions to both the judiciary and the legal profession, and across generations.

4. The vast majority of judicial reasons for decisions, however, are in one sense unremarkable and therefore, not reportable. In those, the judge or judges apply the law settled in precedents to the facts in a conventional manner. We now live in an age where online legal databases are ubiquitous. Members of the public, legal practitioners and the judiciary can access nearly all modern judgments (both notable and unnotable) on the internet. However, authorised law reports continue to perform the valuable function of sifting the wheat from the chaff of the available judgments.

5. As Lord Neuberger of Abbotsbury PSC described, in the first Annual British and Irish Legal Information Institute (Bailii) Lecture in 2012, there are currently two forms of law reporting which perform their functions in different, but complementary, ways (‘No Judgment – No Justice’, Annual Bailii Lecture, British and Irish Legal Information Institute, 20 November 2012, pp 14-19).

6. First, there is judgment-dissemination reporting. That gives members of the public easy and full access to unedited judgments. This is done through online databases such as Bailii in the United Kingdom, or the Australasian Legal Information Institute (Austlii) and Barnet’s Jade, here in Australia. It is regrettable that Austlii has decided not to cooperate with the CCALR and its constituents in facilitating access to reported judgments. Bailii’s position is refreshingly different.

7. Secondly, there is judgment-enhancement reporting. This is exemplified by the work of bodies such as the ICLR, and in this country, the New South Wales, Queensland and Victorian Incorporated Councils for Law Reporting, which assist the courts and the legal profession to access revised reports of leading decisions. The accuracy and status of an authorised report derive from the work of the judge or judges whose decisions they collect in revising and approving the published reasons.

British history

8. The British tradition of written law reports dates to the publication of the Year Books, commencing during the reign of King Edward II around 1283. These were brief manuscript notes of proceedings, recorded by apprentice lawyers or scribes in shorthand, and later distributed in sets in Law French or Latin (Susan Barker,  ‘Law Reporting in England and the United States:  History Controversy and Access to Justice’ (2007) 32(4) Canadian Law Library Review 178).

9. After Gutenberg invented the printing press in the 1450s, books no longer needed to be elaborately copied by hand. From 1535 to 1865, the courts in Great Britain and her former colonies accepted printed volumes of case notes or judgments recorded by judges and barristers, which bore the name of their authors, as records of prior decisions. However, the nominate reports had variable quality and led to discrepancies between reports of the same decisions, depending on the identity of the author. In the High Court of Admiralty in 1801, for example, Sir Walter Scott said of a reporter:

“Of Molloy I say nothing, knowing well that the authority to which he refers does not sustain him, and that his own authority amounts to little” (The “Gratitudine” (Mazzola, Master) (1801) 3 C. Rob. 240 at 269;  165 ER 450 at 460).

10. In the late 18th century, “authorised” reports emerged. The judges often granted law reporters authority to access judges’ notes of the cases being reported. These reports were sometimes reviewed and corrected by the presiding judge or judges.

11. Nonetheless, during this period, cases were reported indiscriminately, with Lord Westbury famously describing the mass proliferation of authorised and unauthorised reports as “a great chaos of judicial legislation” (see:  William Cornish, Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden and Keith Smith, Oxford History of the Laws of England Vol XI, Oxford University Press, 2011 at p 1215).

12. Lord Judge CJ, writing for the Court of Appeal of England and Wales, set out a brief history of the formation of the ICLR in R v Erskine [2009] EWCA Crim 1425; [2010] 1 WLR 183 at 201 [66]-[67]. In 1863, W.T.S. Daniel QC proposed that a council of law reporting be formed to manage and direct the printing and sale of authorised law reports. In, a perhaps pithy, 66 page open letter to the Solicitor-General, Sir Roundell Palmer (later Earl of Selborne), Daniel identified four defects of the dual law reporting system at that time: expense, prolixity, delay and imperfection – plus ҫa change, plus c’est la même chose. As a result, a meeting of the English bar occurred, which voted to establish a committee to consider the introduction of an official system of law reporting.

13. Nathaniel Lindley QC (later Lord Lindley), expressing the view of the Chancery Bar, argued for the careful selection of cases for publication that met one or more of four criteria, namely that they were decisions that:

• introduced or appeared to introduce, a new principle or rule;
• materially modified an existing principle or rule;
• settled, or materially tended to settle, a question on which the law is doubtful; or
• were for any reason “peculiarly instructive”       (Barker:  op cit at 179).

14. The committee recommended the introduction of a system of authorised law reporting, administered by both solicitors and barristers. As a result, the ICLR was established in 1865, with the aims identified two years earlier by Lindley QC. The first volumes of the Law Reports were disseminated in 1866 to around 400 subscribers, at an annual rate of 5 guineas.

15. In 1870, the ICLR was incorporated with the object of the: “preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England and Wales” (Memorandum and Articles of Association, 1870).

Australian history

16. Other common law countries, including Australia, followed the United Kingdom’s lead soon afterwards.

17. The State of Victoria adopted a system of authorised reporting in 1875, overseen by the Victorian Council of Law Reporting. Victoria’s authorised law reports have been published in various series since the 1860s. Since 1957, the series has been known as the Victorian Reports, cited as VRs. The selection criteria adopted by the Victorian Council are similar to those set out by Lindley in 1863, namely the cases must:

• deal with an aspect of the common law which is novel;
• involve a departure from a long line of authority; or
• involve a survey of authorities and a comprehensive restatement of principle (Victorian Reports, ‘About the Victorian Reports’).

18. In 1901 in Queensland, the Supreme Court Library Committee, chaired by the then Chief Justice, Sir Samuel Griffith, developed a proposal for the establishment of a council of law reporting based on the ICLR model. The inaugural Council of Law Reporting was established in 1901 and included the Chief Justice, the Attorney-General, the Supreme Court Registrar and three barristers and solicitors. The Queensland Reports, cited now as Qd R, the authorised reports of the Supreme Court, were first published in 1902. The Council was restructured in 1907 into its current form, the Incorporated Council of Law Reporting for the State of Queensland (Queensland Reports, ‘Foundation’ and ‘Foundation of ICLRQ‘).

19. Although an official council was not immediately introduced in New South Wales, two major series of law reports were published privately: the New South Wales Weekly Notes from 1884 to 1970, cited as WN (NSW), and originally what were called the New South Wales Law Reports, and from Federation in 1901 until 1970 the State Reports, New South Wales, cited as SR (NSW). (Charles F. Maxwell, Wentworth Court published the New South Wales Weekly Notes and the New South Wales Law Reports until the publishing business was sold to Arthur and Ernest Hayes in 1891 and became known as C. F. Maxwell (Hayes Brothers) Ltd. C. F. Maxwell (Hayes Brothers) Ltd rebranded as the Law Book Company of Australasia Limited in 1901, and continued to publish the New South Wales Weekly Notes and the newly renamed State Reports, New South Wales. For a brief history of the publisher, see: Biographical Database of Australia, ‘Australian Men of Mark’.) The first Council of Law Reporting for New South Wales was established by the Attorney General, at the suggestion of the NSW Bar Association, in 1963 on an administrative basis. The current Council of Law Reporting was established under statute in 1969 and has published since 1970 the New South Wales Law Reports, cited as NSWLR (New South Wales Law Reports, ‘About Us’).

20. It goes without saying that the tradition of law reporting has had a profound impact in shaping the common law of both Great Britain and Australia.

21. Whilst 153 years have passed since the ICLR was formed, the Council’s aims of the careful selection of cases and publication in a convenient form remain as important as ever – even though the internet has enabled us to access almost any decided case, it is still possible for legally significant cases to be overlooked in that “great chaos of judicial legislation”.

22. Lord Roskill identified a related issue in Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724, at 751E-F, namely, the over-zealous citation of authorities by counsel, when he said:

“I hope I shall not be thought discourteous or unappreciative of the industry involved in the preparation of counsel’s arguments if I say that today massive citation of authority in cases where the relevant legal principles have been clearly and authoritatively determined is of little or no assistance, and should be firmly discouraged”.

23. To that end, legal practitioners should heed Lord Judge CJ’s adaptation in R v Erskine [2010] 1 WLR 183 at [75] of a well-known aphorism coined in 1641 by Viscount Falkland:

“If it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach should be rigidly enforced.”

24. With our shared history in mind, it is my great pleasure to welcome the ICLR, Victorian and New South Wales Councils to the Federal Court of Australia this evening, to discuss the implications of recent developments in the production, dissemination and use of authorised law reports in the United Kingdom.

 

Steven Rares

A judge of the Federal Court of Australia and an additional judge of the Supreme Court of the Australian Capital Territory.  The author acknowledges the assistance of his associate, Georgia Allen, in the preparation of this paper.   The errors are the author’s alone.

This speech was originally published on the website of the Federal Court of Australia.