LSB September 2018_Web

FEATURE
Policy issues in the publication
of case law: do we still need
authorised law reports?
JENNY PAGLIA, SOLICITOR, WALLMANS LAWYERS
There is a convention in Australian
courts that the authorised report of a
judgement is the version that must be cited
in preference of other versions (such as
unauthorised or unreported).
This convention has been articulated by
practice direction in most jurisdictions. 1
In the remaining jurisdictions, it remains a
matter of convention only. 2
Authorised law reports are published by
legal publishers and are only available by
subscription. 3 Subscription to authorised
reports is expensive and increasingly
difficult to justify in the face of:
• the often-bespoke nature and
opaqueness of the cost structure
presented by legal publishers;
• the proliferation of open publication on
the internet - courts can publish their
own decisions on the court website as
soon as it is delivered;
• the practical reality that while the
conventional preference is to provide
the authorised report (preferably via
hyperlink on a list of cases/authorities)
to the court and other party; the
hyperlink will only work if each party
to the proceedings subscribe to the
same authorised report. Therefore, the
common practice is to hyperlink to the
“unreported” or neutral citation version
available through a free access to law
platform such as AustLII.
The logistical difficulties associated with
the use of case law by hyperlinking as
required by practice directions in some
State 4 and Federal jurisdictions 5 has caused
the Federal Court of Australia to provide
further guidance in this regard. As part
of its feedback and consultation process
in November, 2017 the Federal Court
provided an update regarding the number
of enquiries it had received relating to the
requirement to hyperlink cases.
The intention of the hyperlink requirement was
to utilise the List of Authorities to facilitate
the accessing of authorities electronically. Some
parties do not have easy access to reported
versions of cases (that are accessible through
subscription-only databases). Practitioners have
also raised queries about whether the Court will
38 THE BULLETIN September 2018
be able to access hyperlinks to cases from specific
subscription-only databases. 6
As a result, the Federal Court has put in
place the following interim arrangements:
1. The Court does not require the List of
Authorities to be hyperlinked but it remains as
an option for parties to adopt if they consider it
to be helpful, efficient and cost effective to do so;
and
2. If a party chooses to include hyperlinks
in the List of Authorities, any
hyperlink made from a subscriber of a
subscription-only database is able to be
accessed by another subscriber of the
same database. Parties should not be
concerned that the Court is unable to
access such links. 7
The interim arrangements appear to be
a retrograde step. Hyperlinking to case
law is the way forward, however, it is
hampered by the preference to hyperlink
to subscription-only authorised reports,
rather than freely-available versions.
ISSUES FOR THE FUTURE: OPEN
PUBLICATION ON THE INTERNET & THE
END OF AUTHORISED LAW REPORTS?
Although the ease of access to internet
publication of court decisions has
enhanced the ability of members of the
public and the legal profession to access
case law quickly, efficiently and freely, there
are some concerns.
These concerns relate to the accuracy,
authenticity and reliability of sources 8 for
internet-published decisions.
Authorised reports go through an editing
process that can be supported by legal
publishers. These reports are trusted, and
the legal publishers have proven themselves
to be reliable, accurate and authentic in the
publication of court decisions. 9
Can the same rigour be maintained in the
freely available case law? The Australian
experience suggests it can for a number
of reasons. First, the use of a neutral
citation format that embeds paragraph
numbers in the text of the judgment
provides a uniform system of referencing
across court-published decisions available
on court and tribunal websites. This
form of citation style has been adopted
by Australian courts and tribunals since
1998. 10
Secondly, issues of authority and
credibility are answered when the
publication of the decision is by the
“source”, being the court and the judiciary
that made (and presumably reviewed
and approved) the judgment prior to
publication.
Furthermore, courts also publish
their decisions on AustLII (a member
organisation of Free Access to Law
Movement) so there is no longer any real
doubt about accuracy. AustLII have sought
to overcome any residual concerns relating
to authority and credibility of access to
court-published decisions via the AustLII
platform by providing a “Signed by
AustLII” watermarked version of the court
decision certifying that it is an accurate
reproduction of the original decision. 11
FEDERAL CIRCUIT COURT EXPERIENCE
The Federal Circuit Court in Australia
has explicitly addressed this tension
between the continuation of practice
directions and conventions requiring
references to authorised reports and the
accessibility of accurate and verified case
law via the internet by the issuing of
Practice Note 1/2015 by the Chief Judge. 12
The important changes effected by this
practice note are three-fold:
• The parties may rely upon an AustLII
version of any judgment when referring
a judge of the Federal Circuit Court to
an authority;
• The parties are required to give the
media neutral citation; and
• The court has declared that its own
decisions, as published on AustLII, are
‘authenticated’ decisions. 13
The neutral citation version of a
judgment is preferred to other citations.
Authorised report citations can be
provided as an additional citation.
The approach adopted by the Federal
Circuit Court is a blue print for other
jurisdictions going forward as it seems