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Lindgren, Justice Kevin --- "Is the Australian Law Journal an Australian law journal?" (FCA) [2007] FedJSchol 3

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Australia's Coat of Arms

The Judges’ Review Conference 2007
Past, Present & Future Perspectives on the Law

"Is the Australian Law Journal an Australian law journal?"

Friday, 16 March 2007 - The Westin Hotel, Sydney


Introduction

The first issue of the Australian Law Journal appeared on 5 May 1927. In his foreword to that issue (Vol 1 No 1), Sir John Latham, Commonwealth Attorney-General and later Chief Justice of the High Court, wrote:

The object of this new undertaking is in the first place to provide information which would be useful and interesting to the legal professions. The difficulties inherent in such an endeavour are complicated in Australia by the fact that there are one Federal and six State bodies of statute law and one Federal and six State judicial systems. It is true that the fundamental ground-work of the law is the same in every State, that the High Court is an ultimate appellant tribunal for all the States, and that the Parliament of the Commonwealth from time to time introduces uniformity into particular branches of the law. But substantial divergencies exist between the States (in the working out of details more often than in matters of general principle) and the task of those responsible for a genuinely Australian legal publication is accordingly a difficult one.

This Journal should, however, help to provide the means for removing the difficulties to which reference has been made. It is difficult for the practitioner, as for the legislator, to keep himself informed upon the course of legislation and judicial decision in the various States. Notes on statutes, short preliminary reports of High Court and Supreme Court cases, with notes on practice and conveyancing will be of considerable value.

Sir John Latham’s foreword is instructive, and forms an appropriate introduction to this paper. Note the reference in the second line to “the legal professions” (in the plural), followed by his reference to one Federal and six State legislative and judicial systems (we now have two Territory legislative and judicial systems in addition), and his conclusion: “the task of those responsible for a genuine Australian legal publication is accordingly a difficult one”.

I wish to pose this question: Has the ALJ overcome, or does it demonstrate, the difficulty that Sir John foresaw for it, of being a truly Australian law journal? In my respectful opinion, it demonstrates the difficulty, and the question to be asked is whether we should be concerned about it, and, if so, whether anything can be done about it. I will refer, in particular, to the area of property law.

The focus of my interest as, successively, academic and barrister, were, generally speaking, areas that had traditionally been the subject of State law - contract, company law, and land transactions (wider than, but often referred to as, “vendor-purchaser”). Generally speaking, and notwithstanding large intrusions made bys 52 of the Trade Practices Act 1974 (Cth), and the tortuous history of Commonwealth-State interactions in the case of company law, these areas were the province of the Supreme Courts. In my case, at least so far as practice at the bar was concerned, this meant the Supreme Court of New South Wales. If it is appropriate to speak of particular courts as being the “comfort zone” of a barrister, the Equity Division of the Supreme Court of New South Wales was mine.

My experience since appointment to the Bench in 1994, however, obliges me to acknowledge a problem. This is not due to my increased exposure to a different, vast, fascinating and apparently ever-expanding area of property law - intellectual property law. Nor is it the fact that I have been pleasantly surprised at the frequency with which questions of real property law arise in the Federal Court.

The problem to which I refer is that I often encounter the view expressed by Judges from other States, in the Supreme Courts as well as the Federal Court, and by practitioners in other States as well, that the ALJ is in substance, a Supreme Court of New South Wales law journal.

Is there any substance in the criticism? If so, does it merely reflect the fact that the Supreme Court of New South Wales is the busiest court in the country? Even if so, can and should anything be done to meet what those from the other States certainly perceive as a deficiency?

Australian Law Journal Survey Report

When I mentioned to Sarah Heard, General Manager, Thomson Legal & Regulatory Ltd, that I wished to address this matter, she helpfully indicated that my concern was to some extent reflected in the results of a survey of subscribers conducted by Thomsons in 2003. Those results seem to provide an appropriate starting point, and I am thankful to the publisher for permitting me to refer to them.

A total of 2,859 surveys were distributed, and 107 subscribers (4%) responded, distributed as follows:

“New South Wales: 50 respondents, or 46%
Victoria: 28 respondents, or 26%
Queensland: 11 respondents, or 10%
South Australia: 6 respondents, or 6%
Australian Capital Territory: 6 respondents, or 6%
Western Australia: 6 respondents, or 6%
Tasmania: 0%”

What is to be made of the fact that 96% of subscribers did not respond? Which jurisdictions did they come from?

The report of the results of the survey contains a deal of interesting, not all of it relevant to the subject matter of this paper. The report states: “The survey results indicate that subscribers are very happy with the Journal overall”. The report includes the following:

What if, any, content should be added to the Journal?

Areas of law respondents would like to see covered, which are not already covered, are:
Areas of interest outside NSW (13%)
Environmental Issues (8%)
UK Cases (8%)
US Cases (8%). (…)
Note: 55 respondents did not answer this question.

What is the general feedback on the Journal?

.... When asked to nominate changes or options to be made to the Journal, responses were:
less irrelevant articles disguised as current issues
less Sydney-centric content
no response (87 respondents) indicating that the majority of respondents are happy with the Journal overall (...).

Recommendations:
It is clear from the responses that the Journal is, and should continue to be, a first point of reference for practitioners wishing to stay up-to-date on developments and latest cases.

New South Wales bias

While there may be a perception of a New South Wales bias within the Journal (indicated by respondents and anecdotal feedback), clarity can be obtained with further content analysis around some basic issues:

If the majority of activity in these areas is in NSW, there is a strong foundation for continuing to cover these areas even though doing so may continue to provide a perception of NSW bias. In order to ensure that the Journal remains the first point of reference for practitioners, clarity around this issue must be provided.”

(“Bias” is the word used in the report. To a judge, the word “bias” causes an immediate alarm, or even fear. I will use it, however, not pejoratively, but simply to refer to the fact, for good or ill, of a predominant concern with matters relating to one jurisdiction.)

It will be noted that 46% of the 107 respondents came from New South Wales. It seems reasonable to expect that they would not complain about New South Wales bias, and would perhaps welcome it. Notwithstanding this, New South Wales bias seems to have been the major criticism of the ALJ elicited by the survey. It seems reasonable to speculate, then, that this particular complaint was commonly voiced among the 54% of the respondents who came from other States.

The survey was of subscribers. This leaves out of account two important groups. First, in courts, universities and other sizeable institutions, including large law firms, there are law libraries that service many lawyers who do not themselves subscribe. What is the opinion of those individuals? The view might be taken that their opinion does not matter because they are not potential subscribers, and their library will probably maintain its subscription or subscriptions no matter what they think. I have no reason to think that the publisher would take this cynical view, and, of course, I would reject it. The general reputation of the Journal and the quality of the articles offered to it for publication depend on the view of it held by, inter alia, such lawyers.

The second group not surveyed was simply those non-subscribers who are potential subscribers. They might be asked whether there are features of the Journal that cause them not to subscribe.

Editors

The general editors of the ALJ have been:

1927-1946 Mr (later Sir Bernard) Sugerman
1946-1961 Mr (later Sir Nigel) Bowen
1946-1958 Mr (later Justice) Rae Else-Mitchell
1958-1967 Mr (later Justice) Russell Fox
1968-1973 Mr (later Justice) Philip Jeffrey
1974-1992 Professor JG Starke QC
1992 to date The Hon Justice PW Young AO.

With the exception of Professor Starke, all of the general editors have been New South Welshmen and have come up through the ranks of the New South Wales Bar. All except Justice Fox and Professor Starke were at one time or another Judges of the Supreme Court of New South Wales, although some were also Judges of other courts (Sir Nigel Bowen was also Chief Justice of the Federal Court of Australia, and Mr Else-Mitchell was also a Judge of the Land and Environment Court of New South Wales).

The editors of the section of the ALJ dealing with the law of real property have likewise all come from New South Wales.

Throughout its eighty years, the ALJ has had a section by the successive names “The Conveyancer” (1927-1966), “Conveyancing” (1966-1998), and “Conveyancing and Property” (1998 to date). I am informed that until November 1959, there was no editor of the section, and that the general editor simply called for contributions (this must ignore informal arrangements, because in the issue for May 1937 (vol 11 No 1) Mr Sugerman thanked “the learned Reader in Conveyancing in the Sydney University Law School who edits the Conveyancer”). The section editors have been Mr Robert D Conacher (November 1959-December 1965), Mr HW (“Peter”) Tebbutt (February 1966-December 1986); and Professor Peter J Butt (May 1987 to date).

I wish to make one thing abundantly clear: I have known quite a number of both the general editors and the section editors, and have the highest regard for all of them. My concern is with a feature of an important institution, the ALJ, not personalities.

My own survey

I had a research assistant conduct a random survey of the May issue of the ALJ at ten year intervals, with a view to identifying the courts whose decisions were discussed in that section. Her results are set out in the following table (of course, if we were to read each case reflected in the table, there might be a variety of opinions on her categorisation, but what is important is the general picture):


Jurisdiction

Table giving an approximate indication of jurisdictions whose legislation or courts' decisions were discussed in the May issue of the Australian Law Journal at ten year intervals from 1927 to 2006

May 1927

May 1937

May 1947

May 1957

May 1967

May 1977

May 1987

May 1997

May 2006

Total

% States / Territories

% All Jurisdictions

NSW

7

5

8

5

1

2

6

4

13

51

48.57%

28.65%

VIC

4

2

7

3

2

4

3

25

23.81%

14.04%

SA

2

1

1

1

1

1

7

6.67%

3.93%

WA

1

1

1

2

5

4.76%

2.81%

QLD

1

3

2

2

3

11

10.48%

6.18%

TAS

1

1

1

3

2.86%

1.69%

NT

2

2

1.90%

1.12%

ACT

1

1

0.95%

0.56%

105 †

100%

All States & Territories

2

1

3

1.69%

Cth*

1

1

2

1

2

7

8

7

10

39

21.91%

NZ

1

1

2

1.12%

UK

6

6

6

1

1

2

22

12.36%

Canada

1

1

0.56%

International

2

1

2

1

6

3.37%

178 ‡

100%

* Included are all High Court, Federal Court and Family Court decisions and discussion of legislation of the Commonwealth Parliament. The subject matter is ignored. For example a High Court decision on the general law of contract is included.
† this is a total of all States and Territories
‡ this is a total of ALL jurisdictions referred to in the table, including, but not limited to, all States and Territories.


It is interesting that the percentages as between the six States and the two Territories correspond roughly to the percentages of the respondents to the publisher’s survey of subscribers referred to earlier.

I will now turn to the pages of the ALJ, and, in particular, to the discussion of property law that we find there.

Early volumes of the ALJ

In 1927, when the first volume of the ALJ appeared, there were simply no law journals in Australia. The first of the university law reviews was eight years off – the first issue of the University of Melbourne’s Res Judicatae was to appear in 1935.

Certain differences between volume 1 of the ALJ and today’s volumes cannot fail to make an impact on today’s reader. One is the lack of law report references for the recent judicial decisions that are discussed. This feature is alarming to us who can obtain an electronic copy of a judgment almost immediately it is delivered, and who will probably soon see a report of the case in more than one series of published law reports. Modern counsel could not get away unharmed if he or she were to refer in submissions to cases simply by identifying the court and the date of the decision, as happened in volume 1 of the ALJ.

A moment’s reflection, however, reveals that, to take the case of the High Court, the Commonwealth Law Reports volume containing the report of a case decided in 1927 would have taken quite some time to appear, and in the meanwhile no copy of the judgment would have been generally available. Accordingly, pending publication of the CLR volume, the ALJ was virtually the only source of information of recent High Court decisions. It was also the only journal available to perform the same important function in relation to decisions of the State Supreme Courts.

A second striking difference is the relative brevity and simplicity of the articles and case notes. There is absent from them the numerous references to authorities and to learned articles, to which we have become accustomed. Since 1927, the law itself has become more voluminous and complex, as has commentary on it, and the photocopier and word processor have also contributed to the prolixity of modern legal scholarly writing, not only in the articles to be found in the modern ALJ.

No doubt, the informational function of the early volumes also meant that their existence was justified without the need for lengthy discussion.

Volume 1 of the ALJ

Property law featured largely in the early volumes of the ALJ, as can be seen in the following review of the twelve monthly issues for 1927.

The first issue (May 1927) contained a short article addressing the question: “In what instances does the gift of a contingent interest by deed or will carry with it the intermediate income?” (The article addressed the then recently enacted s 175 of the Law and Property Act 1925 (UK) and the corresponding provision in s 43 of the Trustee Act 1925 (NSW)).

Three pages later (p 8) appeared a short article on “Limitations of Equitable Estates”, which was prompted by the High Court decision “in August of last year” in Sexton v Horton. In that case, the Court overruled its previous decision in Hunt v Korn [1917] ArgusLawRp 125; (1917) 24 CLR 1, preferring to follow the English Court of Appeal in Re Bostock’s Settlement [1921] 2 Ch 469. The article described the judgment as being “on a dry point of conveyancing”, but as having features of general interest.

Interestingly, Knox CJ and Starke J said that unless some manifest error was apparent in a decision of the English Court of Appeal, the High Court would “render the most abiding service to the community if it accepts that Court’s decisions particularly in relation to such subjects as the law of property, the law of contracts and the mercantile law, as a correct statement of the law of England until some superior authority has spoken”. The author of the article opined that this was a statement that would be “received with approval by the legal profession throughout Australia”. The author suggested that “doubts and difficulties would inevitably arise and that certainty which it is the paramount interest of the community that the law should attain would be even more difficult to arrive at than at present” if the High Court should decline to follow the English Court of Appeal in relation to the principles of common law and equity.

A section headed “The Conveyancer” noted four cases - all decided by the Supreme Court of New South Wales. The editor of the section was “PRW”. This section, by whatever name, became a standard feature of the ALJ (see above).

Under “Recent Decisions”, the Privy Council’s decision in Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners, given on 18 January 1927, involving the construction of provisions of the Melbourne Harbour Trust Act 1915 (Vic) was noted. Their Lordships had reversed the decision of the High Court in the case similarly cited [1925] HCA 15; (36 CLR 230), and restored, with a variation, the decision of the primary judge, Mann J, in the Supreme Court of Victoria.

A two-part article, “Hire Purchase Agreements and Distress for Rent” by Arthur Dean appeared in the second and third issues of the ALJ ((1927) 1 ALJ 38, 75).

In the “Current Topics” section of the third issue, the editor noted a rumour in Victorian legal circles concerning the possibility of Victoria’s adopting the “recent English legislation which practically reconstitutes the whole of the law of real property” (a reference to the Law of Property Act 1925 (UK)). The editor offered the opinion, however, that the rumours appeared to have very little foundation, and that it was debatable whether the introduction of the new English system would not do as much harm as good, because Victoria had already addressed many of the evils intended to be met by the English legislation.

The same issue contained a short article by Donald Kerr on “The Drafting of a Caveat” (1927) 1 ALJ 73). This kind of article of practical value has always been a characteristic of the ALJ. Mr Kerr could not resist noting that he had appeared as counsel “for the Caveatee” before the Full Court of the Supreme Court of South Australia in Houston, Caveatee v Shepherd, Caveator, in which he had procured an order for removal of the caveat.

The “The Conveyancer” section appeared in the third, fourth and fifth issues of Vol 1. I think it fair to say that the notes concentrated on New South Wales and English cases.

The year 1927 preceded by several decades the introduction of the strata title concept, but Mr PR Watts, a frequent contributor on property matters in the early years of the Journal, wrote an article in the ninth issue for that year entitled, “The Conveyance of a Residential Flat” ((1927) 1 ALJ 262), in which he addressed the question whether title might be acquired to the upper room of a building. As a matter of principle, Mr Watts saw no difficulty in the existence of title to an upper room, although he pointed out practical difficulties that might exist in relation to the obtaining of easements of support by the room or rooms below. He directed the reader’s attention to the only precedent of a conveyance of a residential flat of which he was aware, in The Conveyancer, Vol 5, p 701.

The ninth issue also contained a note on the Land Agents Act 1927 (SA) as being directed towards “Checking undesirable practices on the part of land agents”.

The “The Conveyancer” section contained notes on New South Wales and South Australian legislation, two Victorian cases and one New South Wales case.

The article by Mr PR Watts concerning the conveyance of a residential flat provoked a short response by Mr AD Graham in the next issue (the tenth), “Proprietary Interests in Residential Flats” ((1927) 1 ALJ 295). The second sentence surely dates the article:

The ever increasing taxation on real estate, the scarcity and inefficiency of domestic help, and the undoubted conveniences given to the housewife by the innovations of modern buildings, are combining to drive householders into flat life.

Mr Graham suggested that the discrepancy between the capital cost of a flat and the rental demanded for its occupation, combined with the uncertainty of the tenure, “urges prudent men toward the joint direction and ownership of their own flats”. He raised the question how persons desiring to acquire full proprietary rights in residential flats might combine their forces so as to preserve to each of them both security of tenure, unlimited rights of charge and alienation, and a substantial voice in the control of a joint venture. He suggested that one solution was the use of a joint stock company to own the freehold of the block of flats, with the memorandum and articles of the company providing for the issue to the proposed co-owners of specifically designated shares that entitled the holder of them or his nominees or assigns, to the exclusive use of particular parts of the building. An alternative, he suggested, was the vesting of title in trustees, and the execution of a trust deed protecting the interests of the building flat owners as cestuis que trustent.

The subject was taken up yet again in the twelfth and final issue for the first year when Mr PR Watts wrote a short article, “The Conveyance of a Flat - the Question of Defeasibility” ((1927) 1 ALJ 363).

At page 339 of the same issue, Mr Watts wrote an article comparing the law in England with that in the Australian States, concerning the effect of a mortgage over land to an unregistered money lender.

In summary, the first volume of the ALJ contains a good deal of important property law discussion and information, of then current interest, and, at least in relation to ownership and transferring of flats, a foreshadowing of things to come (see below).

Strata Title and Native Title

I suggest that the two developments of greatest importance to real property law in Australia over the first 80 years of the ALJ’s life have been the advent of strata title and the recognition of native title. We would expect to see these developments reflected in the pages of an “Australian” law journal. Have they been?

The first State legislature to introduce a strata title régime was New South Wales. Its Conveyancing (Strata Titles) Act 1961 was followed by Tasmania in 1962 (with the insertion of sections in its Conveyancing and Law of Property Act 1884 and provisions for stratum titles operative on 1 January 1964), Queensland in 1965 (in its Building Units Act 1965 which commenced on 1 July 1965), Western Australia in 1967 (in its Strata Titles Act 1966 which commenced on 1 November 1967), Victoria in 1967 (in its Strata Titles Act 1967), South Australia also in 1967 (with the introduction of Pt XIXB into its Real Property Act 1886, with effect on and from 22 February 1968), the Australian Capital Territory in 1970 (in its Unit Titles Ordinance 1970 and associated Real Property (Unit Titles) Ordinance 1970), and the Northern Territory in 1975 (in its Unit Titles Act 1975, Real Property (Unit Titles) Act 1975, and certain provisions of the Real Property Act 1886 of South Australia).

The introduction of the Bill for the New South Wales Act was promptly noted by the General Editor in the “Current Topics” section of 25 February 1960 (Vol 33, No 10, p 353). The same issue contained an article by Rosemary Norris, “Why Not An Own-Your-Own-Flat?” Ms Norris was a solicitor of the Supreme Court of Victoria and Independent Lecturer in Conveyancing, University of Melbourne. Her article addressed the general problem of dealings with flats, but not the New South Wales Bill.

Mr AF Rath QC (later Justice Rath of the Supreme Court of New South Wales) wrote an article on the then new strata titles legislation of New South Wales in Vol 35, No 2, p 32 (June 1961). The article was headed simply “Strata Titles (NSW)”, and its aim was, as the author said, “to explain the scheme of the Conveyancing (Strata Titles) Act 1961 (NSW)” (Act No 17, 1961) that was to commence on 1 July 1961. As is well known, at least in New South Wales, Mr Rath, with Messrs PJ Grimes and JE Moore, respectively Examiner of Titles and Legal Officer, Land Titles Office, wrote a handbook, comprising annotations and practice notes relating to this legislative novelty, entitled simply Strata Titles (1961, reprinted in 1966).

According to my researcher’s calculation, over the period from 1960 to 2007, notes and full-length articles, relating in one way or another to strata title, appeared in the Journal as follows:

Full length articles

7

Notes in “Current Topics”, “The Conveyancer”,

“Conveyancing and Property” and “Recent Cases” sections

21

The Native Title Act 1993 (Cth) was enacted following the delivery on 3 June 1992 of the High Court’s decision in Mabo v The State of Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1. However, the earlier decision of Justice Blackburn of the Supreme Court of the Northern Territory on 27 April 1971 in Milirrpum & Ors v Nabalco Pty Ltd (1971) 17 FLR 141, and his Honour’s earlier decision on an application for summary dismissal in Mathaman v Nabalco Pty Ltd (1969) 14 FLR 10, prompted discussion in the ALJ of “communal native title”.

Beginning in 1970 with volume 44 Issue No 4 there was a steady flow of case notes and letters concerning “communal native title”. Blackburn J’s decision in Milirrpum & Ors v Nabalco Pty Ltd (1971) 17 FLR 141 generated a series of letters to the editor that exhibit a somewhat acerbic tone. One, Geoffrey S Lester, wrote in the December 1971 issue of volume 45:

“One would have expected that the major organ of professional opinion in Australia would have been a little more critical in the judgement of Mr Justice Blackburn in Milirrpum & Ors v Nabalco Pty Ltd (1971) 17 FLR 141 … the manifest injustice of the decision seriously calls into question a system of law which in practice denies equality before the law to one of its racial minorities.”

In the January 1972 issue of volume 46, however, Mr CA Fryer defended the Journal, beginning his letter as follows:

If you are not going to defend yourself against Mr. Lester’s charge (45 ALJ.773) that you were insufficiently critical of the decision of Blackburn J in the Nabalco case, it seems that a correspondent must do it for you.”

The correspondence continued for quite a few issues, and other subscribers joined in the fray.

It is good and important that the General Editor should publish all letters he receives, including any adversely critical of himself, such as that of Mr Fryer. Apart from anything else that may be said in favour of such a policy, it tends to confirm the place of the ALJ as a journal that belongs to Australian lawyers nationally, not to the General Editor.

Following the High Court decision in Mabo, there was, of course, a renewal of interest in native title. There were immediately notes in the “Recent Cases” section by the general editor, Justice Young, and in the “Conveyancing” section by the editor of that section, Professor Butt.

Over the period from 1970 to 2007, notes and full length articles relating to native title, rejected by Blackburn J in Milirrpum and recognised by the High Court in Mabo, appeared in the Journal as follows:

Full length articles

6

Notes in “Current Topics”, “The Conveyancer”,

“Conveyancing and Property” and “Recent Cases” sections

18

In each case (strata title and native title), I have omitted letters to the editor (perhaps they make for the most interesting reading).

All in all, subject to one general qualification, I think that the ALJ has served us well in those two areas. The one qualification is that in some instances the discussion of strata title might have been more useful if interstate comparisons had been included.

Some suggestions

If you do not think that there is a New South Wales bias in the ALJ, or if you think that there is but that it is not untoward or deserving of remedial attention, do not read on.

The main suggestion I wish to make is this: rather than a passive editorial policy (reacting to what comes in), take positive steps to mould the Journal to express an Australia-wide character.

Here are some suggestions to this end:

  1. When a significant decision is given by any court, ensure, not only that attention is drawn to it, but that its implications for all jurisdictions are noted. This could be done by including in the note or article a reference to comparable statutory provisions in other jurisdictions. Although a result may be that case notes would become a little lengthier than at present, this might be considered a small price to pay for ensuring that readers in non-New South Wales jurisdictions immediately see the relevance of the decision for them.
  2. There could be an article on each year’s legislative and judicial developments within each State or Territory and at the Federal level. The review would be of the past calendar year, and could become a standard feature of, say, the February or March issue of the following year.
  3. The publisher could offer a prize for the best note on a case from the federal and each State and Territory jurisdiction (including New South Wales) written by a student, associate, tipstaff etc.
  4. Change the name of the ALJ to the New South Wales Law Journal - a suggestion that I would prefer to reject.



The Australian Law Journal Reports first appeared in Volume 32 (1958-59). Until the completion of Volume 41 (1967-68), the subscription ran from May of one year to April of the next. Volume 42 ran from May to December 1968. Commencing with Volume 43 (1969), the subscription ran from January to December.

Volumes 1 to 50 are bound in one book per volume. Volumes 51 to date are bound in two books per volume, the ALJ being one, the ALJR being another. I am addressing the ALJ alone over its eighty year history to date.

Tamika Williams, Research Assistant in the Sydney Registry of the Federal Court, whose assistance I gratefully acknowledge.


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