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Citation of ‘free access’ case law – an Australian perspective

By: Mark Tottenham

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[This article, by Jenny Paglia, was originally published in Law Ireland in December 2018]

In Australian courts there is a longstanding convention (articulated by practice direction or rule in most jurisdictions) that the authorised report of a judgment is the version that must be cited in preference to other versions (such as unauthorised or unreported). But it is questionable whether this convention is justified, when case law is available online in its ‘unreported’ form. A divergence of practice has recently emerged between the Federal Court of Australia, which is the superior court of record, and the Federal Circuit Court, which deals with less complex cases than the Federal Court.

Authorised law reports are published by legal publishers and are only available by subscription. Subscription to authorised reports is expensive and increasingly difficult to justify in the face of:

(a) the often bespoke nature and opaqueness of the cost structure presented by legal publishers;

(b) the proliferation of open publication on the internet - courts can publish their own decisions on the court website as soon as it is delivered; and

(c) 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 subscribes 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 (e.g. AustLII).

The logistical difficulties associated with the use of authorised case law by hyperlinking caused the Federal Court of Australia to provide further guidance in this regard. 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 be able to access hyperlinks to cases from specific subscription-only databases.” (‘Update: Hyperlinks to case citations in Lists of Authorities’, November 2017)

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.” (Emphasis in original.)

The interim arrangements appear to be a retrograde step. Hyperlinking to case law is the way forward, but it is hampered by the continued preference for subscription-only authorised reports, rather than the freely-available versions.

By contrast, the Federal Circuit Court in Australia has explicitly addressed this tension between the continuation of the convention requiring references to authorised reports and the accessibility of accurate and verified case law via the internet.  In 2015, the Chief Judge issued Practice Note 1/2015, which made the following important changes:

1. The parties may rely upon an AustLII version of any judgment when referring a judge of the Federal Circuit Court to an authority.

2. The parties are required to give the media neutral citation; and

3. The court has declared that its own decisions, as published on AustLII, are 'authenticated' decisions.

Under this practice, the ‘neutral citation’ version of a judgment is actually preferred to other citations. Authorised report citations can be provided as an additional citation.

The approach adopted by the Federal Circuit Court is a blueprint for other jurisdictions going forward as it seems to acknowledge the reality of court room practice and the availability of electronic materials that are free to access.

It is also consistent with the notion of the need to 'democratise' the law by making case law readily available at no or minimal cost, where access to authorised versions is becoming a 'rare commodity' only available to the 'upper echelons of the legal profession’.

Jenny Paglia

Jenny Paglia is an Associate with Wallmans Lawyers of Adelaide, South Australia. This is an abridged version of a paper she delivered at the Law via the Internet Conference 2018, in Florence.

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