Mcaleese, Margaret --- "Encouraging The Use Of Medium Neutral Citation" [2005] CompLRes 10 (18 November 2005)

• Encouraging The Use Of Medium Neutral Citation

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Encouraging the use of medium neutral citation

Margaret McAleese

Law Librarian, University of Sydney

Introduction

Each year, when explaining medium neutral citation to our Legal Research students, I give them my prediction that, by the time they graduate, medium neutral citations will be all that will be required for recent judgments and that, as is the case now for legislation, it will be assumed that they are using a reputable source and are citing an accurate version. Australian legislation is cited by short title and year of original enactment, as in Judiciary Act 1903 (Cth).[1] It is assumed that you are referring to a version of the Act incorporating amendments up to the relevant date. If there is a discrepancy the official version that received the Royal Assent is the one that prevails, but there seldom is a discrepancy and people use the version that is most convenient to them.[2] It should be possible to use case law in the same way: give a medium neutral citation and use whatever version you like provided you are prepared to stand by it.[3] I have been saying this for so long that it is starting to sound like Bob Hawke’s famous statement that “by 1990 no Australian child will be living in poverty”.[4] It should have happened, but it hasn’t and I have been wondering what the drivers are for the acceptance of medium neutral citation and, by implication, for the acceptance and greater use of free sites. It is clearly in the interest of libraries to encourage the use of free rather than expensive resources. This is not to say that published law reports will disappear. They will continue if they remain useful, they might even improve and a librarian would not mind that, but it should not be necessary to buy them if we do not need or cannot afford them.

The position of medium neutral citations

First what is a medium neutral citation? It is a citation that does not depend on any one publisher. In Australian courts, and the courts of a number of other jurisdictions, the accepted convention is the year of the decision in square brackets, an abbreviation for the court, and the number of the decision as in [2005] HCA 50, the 50th decision of the High Court of Australia for 2005. Some courts have issued directives to this effect.[5] A particularly pleasing refinement is that the commercial law report publishers now include the medium neutral citation for each case. A further refinement is that courts now include paragraph numbers in their judgments, obviating the need to use a page number when citing a particular passage. When citing a paragraph number you include it in square brackets as in [2005] HCA 50 at [125]. This is called a pinpoint reference.

Australian courts will accept a medium neutral citation if there is not a published or “reported” version. We saw this recently in the High Court decision Ruhani v Director of Police [No 2] [2005] HCA 43, a case on appeal from the Supreme Court of Nauru but really dealing with an Australian issue, the treatment of asylum seekers rescued by the MV Tampa and held on Nauru. This case cited a number of PacLII decisions including one from Vanuatu, Benard v Minister for Immigration [2001] VUSC 20. A search on AustLII indicates that this is probably the first time a Vanuatu decision has been cited by the High Court. Incidentally the wider availability of law reports via the web not only means that Australian courts are taking their precedents from a wider field but also that previously unavailable Australian decisions are being cited in foreign court. A Queensland case, R vLM [2004] QCA 192, a case about Munchausen’s Syndrome by Proxy, was recently cited in the UK in Regina v. Mark R [2005] EWCA Crim 2257.

If a case has been reported in a commercial series the courts will almost always give the reported citation and not the medium neutral one even though, for practical purposes, the text of the judgment will be the same. We see this in Ruhani where the High Court cites its own decision Al-Kateb v Godwin as [2004] HCA 37; (2004) 78 ALJR 1099 and as [2004] HCA 39; 209 ALR 182 but does not give the medium neutral citation [2004] HCA 37. This is in accordance with the Court’s directive:

“...the Court now allows the citation of High Court decisions in a medium-neutral way where the decision itself has not been published in the printed law reports. In proceedings before the Court, the Commonwealth Law Reports (CLR) remain the required citation for the Court's published judgments.”[6]

I cannot see the logic in this. Australian courts have followed the English system of authorised law reports running in tandem with other series called side reports. The authorised reports for the High Court are the Commonwealth Law Reports but, in the absence of these, I cannot see why the ALJR and the ALR are any more authoritative than the AustLII version. All courts do this. The Family Court will cite a CCH reference in preference to a medium neutral one even though the text on AustLII is exactly the same.[7] How times have changed: once CCH reports themselves were considered second best.

Reported v unreported judgments – some progress

The rationale seems to be that, in some quarters, cases on the web are considered to be unreported and therefore inferior. I think it is time to kill off this notion. In the past unreported judgments were used sparingly because they were not in the public domain and using them was not really fair. Most courts have recognised the change in availability and I have noticed a different pattern of citation. In the following examples taken from a recent NSW Court of Criminal Appeal decision[8] the pre-medium neutral citation is correctly marked as unreported and the later one is not.

R v Boatswain (unreported, NSWCCA, 15 December 1993)

R v Chami [2005] NSWCCA 299

I think this is correct. I think we should consider the rule to be that a case is reported if it is in the public domain, for example, if it is on a reputable web site. Not all cases with medium neutral citations are available, of course. The Family Court, in particular, cites many of its own judgments complete with medium neutral citation that are not available to the general public. It is worth asking why, if they are considered worth citing, they are not released to AustLII but that is a side issue.

There is one area where the courts have taken a giant step towards adopting medium neutral citation and that is by citing paragraph numbers even when they have a page number. An example used in Ruhani is footnote [63]:

Al-Kateb [2004] HCA 37; (2004) 78 ALJR 1099 at 1105 [18] per Gleeson CJ, 1123 [122] per Gummow J; [2004] HCA 37; 208 ALR 124 at 130, 156.

I do not know why they include the paragraph number for the ALJR and not the ALR. Importantly the High Court includes the paragraph numbers for recent cases in conjunction with an authorised Commonwealth Law Report citation as in this example:

http://www.austlii.edu.au/au/cases/cth/high_ct/2005/60.html - fnB28#fnB28 [2000] HCA 54; (2000) 202 CLR 321 at 324-325 [3], 329 [21]-[22], 339 [57]-[58][9].

With this information an informed researcher would have no trouble identifying the relevant passage from a free web version of the case. Having given a parallel page and paragraph number it would be one small step to include a parallel citation. Let us encourage the courts to take this step.

Suggested changes

How would I like to see cases cited? I think our model could be the English Reports. This 178 volume series contains reprints of the most significant pre 1865 nominate reports. They were published between 1900 and 1930, with most volumes appearing before the First World War. Amazingly the earliest reference to them that I can find in the Commonwealth Law Reports is in 1953.[10] I am sure the English Reports were used extensively long before this time even if they were not cited. I have heard of judges preferring to read the original version because the ER version might have a mistake, but I think the chance of this happening in a way that could make any material difference is improbable in the extreme. Over time people have accepted that the ER version is as authoritative as the old version. They are often cited as, for instance:

Warrington v Furbor (1807) 8 East 242 at 245 [103 ER 334 at 335-336].

The way that I prefer, however, is also frequently used. The following example comes from a recent NSW Supreme Court decision on contempt of court which cited numerous ER references:

Holbrooke v Cracroft (1795) 5 Ves Jun 706; 31 ER 816[11].

I think the NSW version could be our model. A modern example might be:

Dow Jones v Gutnick 210 CLR 575; [2002] HCA 65.

Very soon most users would accept the medium neutral version as the equivalent of the authorised version.

I cannot say if authorised reports will survive. There is a great reluctance to give them up. The two most used reasons are that authorised reports can be a corrected version and that there needs to be a filtering process to weed out unimportant cases. How can we address these concerns?

Although judgments can have corrections they are unlikely to make any material difference to the case. On the contrary we are getting a more accurate version of the case than we previously had with edited law reports. These days reporters are less likely than they once were to edit out sections of the judgment, such as criticism of lawyers. It is, of course, easy for an official website to cope with corrections as in this example from Lawlink[12]:

Leaway v Newcastle City Council (No.2) [2005] NSWSC 826

This decision has been amended. Please see the end of the judgment for a list of the amendments.

The AustLII version has a “last updated” note but it is not clear if this means it is an amended version. The amendments are so trivial it hardly matters.

The bigger problem is filtering out cases that have little precedent value. I am not advocating that they be filtered from the web because people want access to judgments for all sorts of reasons, so called “unreported” cases are still frequently cited in courts, and it is very frustrating if a case turns out to be unavailable. Researchers do, however, have trouble working out what are the significant cases when they retrieve large numbers of results on a particular point and this cannot all be laid at the door of poor searching technique. At the moment the filter tends to be if the case has been reported or not. The ability to do this makes FirstPoint[13] a particularly valuable commercial service. There could, however, be other ways of indicating significant cases. It could be done by the court themselves. Family Court decisions on AustLII sometimes have the annotation “reportable” and that is some help. It could also be done by the commercial publishers by concentrating their efforts on their headnoting, digesting and indexing services and less on actually publishing the reports.

Academic writing

So far I have concentrated on the courts but academics can be as slow to change as anyone else. Academic writing is ruled by style guides that are quite conservative. There are a number of Australian guides but the major one is the well respected Australian Guide to Legal Citations[14]. It was last updated in 2002, is behind the courts in its citation style, and is ripe for an update. It still refers to “unreported decisions” and suggests that, if they are from a court which has adopted medium neutral citation, they be cited as:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (unreported, Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ, 15 November 2001) [40] (Gleeson CJ).[15]

It makes no mention of using paragraph numbers for pinpointing references in “reported” decisions. It advises against parallel citations[16] however all is not lost because it does recommend them for the English Reports[17] and I am sure they could use this as a precedent for a modern approach to medium neutral citations.

The Australian Guide to Legal Citations is particularly important because it is used with Endnote for reference management purposes and would need to be updated before the academic community revised its writing style.

Conclusion

Before free law on the web is regarded as the equivalent of traditional law reports it has to be recognised to be so by judges and academic writers. Providing parallel medium neutral citations in judgments and academic writing will go a long way towards greater acceptance. Australian courts are nearly at that point and with a bit of encouragement could be nudged over the line. Some progressive judges are already there. In a recent sexual assault case[18] Associate Justice Harrison cited State of NSW v Moss [2000] NSWCA 133 and provided no other citation, even though it had been reported in the NSWLR. Maybe this will be “corrected” later. Academic writers need rather more encouragement to change but would probably follow the courts provided the citation guides are updated. There would be many benefits. The first is the cost and this is obviously important for libraries. Published law reports will probably survive but if it is acceptable to use a medium neutral citation maybe we don’t have to buy so many series. The second is easier access to the reports of other jurisdictions and consequently a wider view of the world. We are already seeing this and it has the potential to improve the quality of justice in small and large jurisdictions.

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[1] The interpretation and citation of Australian Commonwealth Acts are governed by the Acts Citation Act 1976, the Amendments Incorporation Act 1905 and the Acts Interpretation Act 1901. The States have similar legislation.

[2] That is not to say that all versions are equally up to date, but a good researcher knows and checks this.

[3] On 19 August 2005 the defendants were given leave to appeal against the decision in Islamic Council of Victoria v Catch the Fire Ministries Inc [2004] VCAT 2510 and the only version of the 19 August decision is on the Catch the Fire website. I don’t know that I would be standing by that version.

[4] For those who don’t share my interest in Australian politics, Bob Hawke was Prime Minister from 1983-1991. He made the statement in 1987 and it hasn’t happened yet.

[5] For the High Court see http://www.austlii.edu.au/au/cases/cth/HCA/medium.html; for the Federal Court see http://www.fedcourt.gov.au/searchjudgments.html; for NSW courts see http://www.lawlink.nsw.gov.au

[6] http://www.austlii.edu.au/au/cases/cth/HCA/medium.html

[7] In ZH & N [2005] FamCA 828 the case JEL v DDF No 2 is cited as (2001) FLC 93-013 not as [2001]FamCA 907.

[8] R v Bilal Skaf [2005] NSWCCA 297

[9] Footnote [29] in York v The Queen [2005] HCA 60

[10] Federal Commissioner of Taxation v Silverton Tramway Company [1953] HCA 79; (1953) 88 CLR 559

[11] Cited in Leaway v Newcastle City Council (No.2) [2005] NSWSC 826

[12] http://www.lawlink.nsw.gov.au

[13] http://www.firstpoint.thomson.com.au

[14] 2nd ed, Melbourne University Law Review Association Inc, 2002. Also available at http://mulr.law.unimelb.edu.au/aglc.asp

[15] Ibid 38

[16] Ibid 36

[17] Ibid 97

[18] "AM" v KW" [2005] NSWSC 876