Rares, Justice Steven --- "Authorised law reporting: remarks to welcome to Australia the Incorporated Council for Law Reporting for England and Wales" (FCA) [2018] FedJSchol 5

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^[3].

10. In the late 18^th century, aEURoeauthorisedaEUR reports emerged. The judges often granted law reporters authority to access judgesaEURtm 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 aEURoea great chaos of judicial legislationaEUR^[4].

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^[5]. 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^[6], Daniel identified four defects of the dual law reporting system at that time: expense, prolixity, delay and imperfection - plus O<, 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 aEURoepeculiarly instructiveaEUR^[8].

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: aEURoepreparation 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 WalesaEUR (Memorandum and Articles of Association, 1870)^[9].

Australian history

16. Other common law countries, including Australia, followed the United KingdomaEURtms lead soon afterwards.

17. The State of Victoria adopted a system of authorised reporting in 1875, overseen by the Victorian Council of Law Reporting. VictoriaaEURtms 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^[10].

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^[11].

19. Although an official council was not immediately introduced in New South Wales, two major series of law reports were published privately^[12]: 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). 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^[13] and has published since 1970 the New South Wales Law Reports, cited as NSWLR.

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 CouncilaEURtms aims of the careful selection of cases and publication in a convenient form remain as important as ever aEUR" 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 aEURoegreat chaos of judicial legislationaEUR.

22. Lord Roskill identified a related issue in Pioneer Shipping Ltd v BTP Tioxide Ltd^[14], 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 counselaEURtms 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^[15].

23. To that end, legal practitioners should heed Lord Judge CJaEURtms adaptation in R v Erskine^[16]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^[17].

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.

---

* 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 authoraEURtms alone.

Lord Neuberger PSC, aEUR~No Judgment aEUR" No JusticeaEURtm, Annual Bailii Lecture, British and Irish Legal Information Institute, 20 November 2012, pp 14-19

Susan Barker, aEUR~Law Reporting in England and the United States: History Controversy and Access to JusticeaEURtm (2007) 32(4) Canadian Law Library Review 178

The aEURoeGratitudineaEUR (Mazzola, Master) [1801] EngR 525; (1801) 3 C. Rob. 240 at 269; [1801] EngR 525; 165 ER 450 at 460

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

[2009] EWCA Crim 1425; [2010] 1 WLR at 201 [66]-[67]

later Earl of Selborne

later Lord Lindley

Barker: op cit at 179

Incorporated Council for Law Reporting for England and Wales, aEUR~About aEUR" ICLRaEURtm, <http://iclr.co.uk/about/>

Victorian Reports, aEUR~About the Victorian ReportsaEURtm, <https://victorianreports.com.au/about/victorian-reports>

Queensland Reports, aEUR~About UsaEURtm, <http://www.queenslandreports.com.au/about-us/> Queensland Reports, aEUR~FoundationaEURtm, <http://www.queenslandreports.com.au/about-us/foundation/> Queensland Reports, aEUR~Foundation of ICLRQaEURtm, <http://www.queenslandreports.com.au/history/foundation-of-iclrq/>

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, aEUR~Australian Men of MarkaEURtm, <http://wwwbda-online.org.au/files/CB1_MenofMark1889.pdf>

New South Wales Law Reports, aEUR~About UsaEURtm, <https://nswlr.com.au/about-history>

[1982] AC 724

[1982] AC at 751E-F

[2009] EWCA Crim 1425; [2010] 1 WLR 183

[2009] EWCA Crim 1425; [2010] 1 WLR at 203 [75]

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