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Article Excerpt
[Examination of citations contained in the written record of judicial decisions provides used insights into the evolution of the jurisprudence and policy of particular courts, and of the judges who make significant contributions to those courts. This article examines the citation practice of the Supreme Court of Victoria over the century 1905-2005 at 10-year intervals. It employs the McCormick taxonomy of citations, which distinguishes between consistency, hierarchical, coordinate and deference citations and also tracks citations to secondary authorities. The major findings of the study are that the length of judgments and the number of authorities cited by the Court have increased over time, and that consistency and hierarchical citations have been the dominant form of allusion to prior authority.]
CONTENTS
I Introduction II Rationale for Citing Authorities A Consistency Citations B Hierarchical Citations C Coordinate Citations D Deference Citations E Secondary Authorities III Data Collection and Methodology IV Output of the Supreme Court of Victoria V Trends in the Citation Practice of the Supreme Court of Victoria A Consistency and Hierarchical Citations B Coordinate Citations C Deference Citations D Secondary Authorities VI Citation Practice of Individual Judges VII Conclusion
I INTRODUCTION
A defining feature of judicial power in Australia, as throughout most of the common law world, is that appeal court judges are required to give written reasons for their decisions. (1) Lord Denning has stated that giving written reasons is 'the whole difference between a judicial decision and an arbitrary one'. (2) These written reasons are typically supported by citation to previous authorities. Citation to previous authorities provides a means for judges to relate their reasons back to their previous decisions and the decisions of other courts. This practice provides protection against arbitrary decision making. As Lawrence Friedman and his colleagues put it, judges are expected to decide 'according to the law', which means 'they are not free to decide cases as they please, [but instead] are expected to invoke appropriate legal authority for their decisions'. (3) Citations to previous authorities are therefore one way for judges to give their decisions legitimacy. (4) This is important because legitimacy is seen by some as affecting the reactions of the other branches of government to judicial policies. (5)
Judicial citation practice provides a window into the courts--and even the judges--which are making the most important contributions to the evolution of the judicial branch's jurisprudence and policy. (6) In this respect, William M Landes and Richard A Posner postulated that the number and average age of citations are important indicators of a court's use of precedent. (7) Citations have been used to show how judges make law through tracing judicial innovation (8) and communication between courts. (9) An examination of citation practice may also reveal where judges find their cues and what values they seek to promote. (10) 'Citation patterns ... reflect conceptions of role.... These patterns may be clues, too, to the role of courts in society'. (11)
The study of judicial citation practice has gained considerable momentum during the last two decades, particularly in North America. There are studies of citation practice for the Supreme Court of the United States, (12) the US courts of appeals, (13) US state Supreme Courts, (14) the Supreme Court of Canada (15) and the Canadian provincial courts of appeal. (16) A smaller number of studies have considered the citation practice of courts in Australasia. There are, however, studies for the High Court of Australia, (17) Federal Court of Australia, (18) the Australian state Supreme Courts (19) and the New Zealand Court of Appeal. (20) Because of the financial cost of collecting large datasets, most studies have focused on citation practice within a single year or a few select years. There are few studies for North America that examine citation practice over an extended period of time (21) and no such studies for Australasian courts. (22)
This article examines the citation practice of the Supreme Court of Victoria in decisions published in the Victorian Reports at 10-year intervals between 1905 and 2005. (23) The citation practice of an intermediate appellate court such as the Supreme Court of Victoria is instructive for several reasons. (24) First, the Supreme Court of Victoria is an important legal institution. As the highest court in the state, its decisions shape how the law develops in Victoria. Secondly, although the empirical results reported in this article are for one state only, the implications of the analysis extend beyond Victoria. The Supreme Courts of other Australian states and territories--and indeed, intermediate appellate courts in other common law jurisdictions--share many of the same characteristics as the Supreme Court of Victoria, including the requirement to give reasons and justify their decisions through the citation of authority. Thirdly, from a practical perspective, the data should provide useful information to practitioners who wish to know which authorities the Supreme Court considers important, and to libraries--particularly the libraries of the state Supreme Courts--which could fruitfully use the tabulated data as a basis for discussion about which authorities to make available.
There is one existing study of citation practice in the Supreme Court of Victoria, which analyses citation practice in reported decisions published in the Victorian Reports in 1970, 1980 and 1990. (25) Compared with that study, this study examines citation practice over a much longer period. The additional seven decades analysed in this study permit greater richness of interpretation that was not possible in the earlier study. (26) For instance, the longer time span should make it easier to detect temporal trends in citation practice as well as ascertain the ease and extent to which the Court has adopted new and novel types of authority. If citation patterns reflect a court's conception of its role in society, as suggested by Friedman et al, (27) the current study will allow for the detection of changes in the Court's conception of its role in society over a century spanning from the early Edwardian period to the 21st century.
II RATIONALE FOR CITING AUTHORITIES
A Consistency Citations
Peter McCormick suggests that there are several categories of judicial citation. (28) Consistency citations are those referring to previous decisions of the citing court. McCormick suggests that 'the general principles of continuity and consistency and the legal value of predictability in the law require that [previous decisions] carry considerable weight'. (29) John Merryman echoes these sentiments, stating: 'Where the court has spoken the strongest case for stare decisis is presented'. (30) In Nguyen v Nguyen, Dawson, Toohey and McHugh JJ (Brennan and Deane JJ agreeing) stated that, in general, the extent to which a full court of a state supreme court regards itself at liberty to depart from its own previous decisions is for the court itself to determine. (31) In Victoria, the Full Court of the Supreme Court of Victoria reserves to itself the freedom to reverse its own previous decisions. Beginning with Forster v Forster, (32) the usual practice has been for a Full Court of five or more judges to be convened if an earlier decision of a Full Court of three judges is to be reviewed. (33) There have, however, been some exceptional circumstances where an earlier Full Court decision has been reconsidered without a Full Court of five or more judges being convened. In Avco Financial Services Ltd v Abschinski a Full Court of three judges decided not to follow an earlier Full Court decision. (34) In R v Tait, sitting in the Victorian Court of Appeal, Callaway JA (Winneke P and Crockett AJA agreeing) stated: 'It may be that in future we would extend those exceptional circumstances to enable a greater number of Full Court, and in due course some of our own, previous decisions to be reviewed by a court of three.' (35)
A decision of the Full Court or Court of Appeal binds a single judge sitting alone. In Engebretson v Bartlett it was decided that a decision of the Full Court in banc has the same precedential value as a decision of the appellate Full Court. (36) In the absence of a binding decision of a higher court, the practice in state and territory Supreme Courts in Australia is that a judge sitting alone will normally follow the earlier decision of a single judge of the same court sitting alone. (37) This practice is followed in the Supreme Court of Victoria. (38) As Bell J put it in Shaw v Yarranova Pry Ltd, judicial responsibility
is not performed where [a] judge fails to determine the matter personally, preferring instead simply to follow an earlier decision on point of another member of the court. On the other hand, where there is such a decision on point, the judge does not start writing on a blank page. Proper regard must be given to the previous judgment. Considerations of comity require the previous decision to be followed unless the judge attains a higher than usual standard of conviction that his or her contrary conclusion is correct. The interests of justice are not served where different judges come to different conclusions on the same question according to reasoning that appears to be entirely subjective. (39)
B Hierarchical Citations
Hierarchical citations are citations to a court situated above the citing court in the judicial hierarchy. The Full Court of the Supreme Court of Victoria is bound by the ratio decidendi of decisions of the High Court of Australia, while obiter dicta of the High Court will be cited as being highly persuasive. (40) Prior to the enactment of the Australia Acts in 1986, (41) decisions of the Judicial Committee of the Privy Council were also binding upon the Full Court. Since the commencement of the Australia Acts, the state appellate courts are no longer bound to follow decisions of the Judicial Committee. (42)
The position is less clear with respect to decisions of the Judicial Committee made prior to the enactment of the Australia Acts. In Hawkins v Clayton, McHugh JA expressed the view that state Supreme Courts are no longer bound to follow decisions of the Judicial Committee given either before or after the commencement of the Acts. (43) This conclusion relied upon an extrapolation of the High Court's decision in Viro v The Queen. (44) However, academic commentators have questioned this view. Tony Blackshield suggests that the preferable interpretation of Viro v The Queen is that decisions of the Judicial Committee decided prior to 1986 continue to bind the state Supreme Courts until the High Court decides otherwise. (45) In R v Judge Bland," Ex parte Director of Public Prosecutions (Vic) a single judge of the Supreme Court of Victoria followed a decision of the Full Court that had been overruled by a decision of the Judicial Committee decided prior to 1986. (46) The judge considered that the authority of the Full Court decision had been 'revived' by the Australia Acts. (47)
C Coordinate Citations
Coordinate citations are citations to other courts on the same tier in the court hierarchy. These citations are persuasive rather than binding sources of precedent. In the Supreme Court of Victoria, coordinate citations comprise citations to other intermediate appellate courts, such as the Supreme Courts of other Australian states and territories. The accepted position in Australia is that an intermediate appellate court is not bound by the decision of another intermediate appellate court, but will follow the decision of another intermediate appellate court unless convinced the decision is wrong. (48) Two related considerations underpin this principle. (49) First, there is a need for a consistent approach across Australia when decisions concern the effect of a Commonwealth Act or uniform legislation. Secondly, there should be consistency in the development of the common law throughout Australia.
D Deference Citations
Deference citations are citations to decisions of courts that are not part of the immediate judicial hierarchy, but still have persuasive value. Citations to decisions of English courts, including the House of Lords, English Court of Appeal and Judicial Committee after 1986, as well as decisions of courts in other common law jurisdictions such as New Zealand and the US, are examples. For a long time, English decisions were followed as a matter of course by state Supreme Courts. As recently as the mid-1970s, Justices of the High Court asserted that in the absence of High Court authority, the state Supreme Courts should follow decisions of the English Court of Appeal and House of Lords. (50) This situation has since changed; the Australia Acts were the catalysts of efforts to develop an Australian common law that is suited to Australian conditions and circumstances. The relevance of English case law to Australia has been eroded, initially by the United Kingdom's membership of the Council of Europe and European Union, and more recently by the increasing influence of European law on UK cases, in the form of instruments such as the Convention for the Protection of Human Rights and Fundamental Freedoms (51) and its adoption in the Human Rights Act 1998 (UK) c 42. (52) In Cook v Cook, the High Court stated that while 'courts [in Australia] will continue to obtain assistance and guidance from the learning and reasoning of the United Kingdom courts', those decisions 'are useful only to the degree of the persuasiveness of their reasoning'. (53) Writing extra-curially in the wake of the commencement of the Australia Acts, Sir Anthony Mason stated:
There is ... every reason why we should fashion a common law for Australia that is best suited to our conditions and circumstances. In deciding what is law in Australia we should derive such assistance as we can from English authorities. But this does not mean we should account for every English decision as if it were a decision of an Australian court. The value of English judgments, like Canadian, New Zealand and, for that matter, United States judgments, depends on the persuasive force of their reasoning. (54)
This statement reflects the practice in the Supreme Court of Victoria, which regards decisions of courts in the UK as persuasive, but is prepared to depart from them. (55) As Winneke ACJ put it in R v Parsons:
A decision of the House of Lords, although not binding on this court, has none the less always been regarded as highly persuasive. However, unless the court is persuaded they are clearly wrong, it should be prepared to follow its own established authorities and practices even if, by doing so, it might result in a departure from a contrary opinion of the House of Lords. (56)
E Secondary Authorities
Secondary authorities are not binding on any court, but previous studies have identified several reasons why judges refer to them in their written reasons. (57) One reason is convenience. Secondary authorities often contain lists of cases that judges find convenient to adopt. In this manner, journal articles and textbooks act as de facto digests of case law, and citing the secondary authority provides a convenient shorthand alternative to listing the cases. A second reason for citing secondary authorities is to draw on academic opinion expressed in journal articles and learned texts to explore the origins of legal principles. A third reason is to draw on the opinion of academic writers to assist judges in ascertaining what earlier cases decided. A fourth reason is that citing secondary authorities may allow a judge to refer to the views of particularly well-respected academics or even judges writing extra-curially to provide corroborating opinion for the position he or she has reached. Judges will be more likely to adopt this course if there is only scant case law on point. Fifthly, secondary authorities are sometimes cited because they have been approved in previous cases as correctly stating the law. In such cases, 'the fact of citation gives a work authority to some degree and it will thus exert some influence on the way the law grows'. (58) Sixthly, secondary authorities are cited to examine the 'legislative facts' or 'policy rationale' that underpin legal rules. Much citation of social science and other non-legal secondary authorities falls into this category.
Judges differ on how appropriate it is to cite secondary authorities in written reasons. In the US, where citation to secondary authorities in the Courts of Appeal and Supreme Court is prevalent, judges of the stature of Benjamin Cardozo, Charles Hughes and Earl Warren have spoken in glowing terms of the value of legal periodicals and their willingness to draw on them in formulating their opinions. (59) Cardozo J pioneered the citation of law reviews in the US. In the 1920s and 1930s, Cardozo J had over three times as many citations to secondary authorities as his contemporaries on the New York Court of Appeals and his propensity to cite law reviews in his opinions was not rivalled until the 1980s and 1990s. (60)
In the UK, Lord Denning commented favourably six decades ago upon the value of citing academic authorities in written reasons. (61) More recently in the House of Lords in Hunter v Canary Wharf Ltd, (62) Lords Cooke and Goff expressed divergent views on the value of citing secondary authorities. Lord Cooke considered citation to secondary authorities to be useful when the law was unsettled, while Lord Golf found the relevant secondary authorities to be of little or no value. (63)
In Canada, debate on the value of citing legal periodicals was sparked by an article written by G V V Nicholls in 1950 in response to Rinfret CJ's refusal to recognise the Canadian Bar Review as an authority in a hearing in the Supreme Court of Canada. (64) The position of that Court has long since changed and it now readily cites secondary authorities. (65) Canadian judges, such as Justice Michael Bastarache of the Supreme Court of Canada, have argued that widespread citation of academic authorities in judgments is a positive development. (66) However, in a critique of Nicholls' 1950 article, J E Cote, a Judge of the Alberta Court of Appeal, has argued that the Supreme Court of Canada has gone too far in citing academic authority, and that it is not sufficiently selective in weighing up which academic authorities contain analysis worth citing. (67)
Most Australian judges who have expressed a view on citing academic authorities in reasons for decision have been in favour of the practice or at least accepting of it. Several High Court justices have expressed the view that judicial recourse to journal articles and other academic writings is a useful practice, including Sir Owen Dixon, (68) Sir Frank Kitto, (69) Sir Gerard Brennan, (70) Sir Anthony Mason (71) and Michael Kirby. (72) Others, such as Sir Victor Windeyer, while not directly and explicitly commenting on the merits of citing secondary authority, have given the practice their de facto approval by virtue of extensive citation to secondary authorities in their judgments. (73) One 'dissenting' Australian judicial voice is Sir Garfield Barwick, who expressed the extra-curial view that citing academic authors lessened the authority of the judgment and, as such, is a practice to be avoided as much as possible. His Honour's view is that
citation of [academic writers], however eminent and authoritative, might reduce the authority of the judge and present him as a research student recording by citation his research material.... [In these circumstances, written reasons] become an exercise in essay writing rather than the statement of reason for an authoritative judgment. (74)
III DATA COLLECTION AND METHODOLOGY
The cases considered by this article's study are decisions of the Supreme Court of Victoria reported in the Victorian Reports sampled at 10-year intervals from 1905 to 2005. This sample comprises 856 cases. The study does not consider unreported cases. This is consistent with previous studies of the citation practice of courts in Australia, Canada, NZ and the US. In recent years about one-fifth of all Full Court decisions have been reported. (75) Thus, only a relatively small number of cases are actually reported in the Victorian Reports. In Canada, the comparable figure for the provincial courts of appeal is one-sixth. (76) One reason not all cases have been reported in the authorised reports in recent times is the proliferation of specialist report series, which can be more suitable for many cases. One example is the Victorian Administrative Reports. These contain many notable administrative law cases that do not make it into the Victorian Reports. One suspects that the decision to include an administrative law case in the Victorian Reports is influenced by the knowledge that, if it is not, it will certainly be published in the Victorian Administrative Reports. The Australian Criminal Reports serve a similar function for criminal cases.
The main justification for restricting the sample to cases reported in the Victorian Reports is pragmatic in that it ensures the data collection is manageable. Nevertheless, the Council of Law Reporting in Victoria selects cases for inclusion in the Victorian Reports on the basis of their precedential value. Thus, there is also an argument that, subject to the point above about the proliferation of specialist reports, these 'cases probably include a high proportion of all the decisions sufficiently important to call for reasoned judgment based on authority'. (77) Failure to consider unreported cases and cases reported in specialist reports, however, is a limitation. We might miss some important cases reported in the specialist reports and we cannot compare citation practice between reported and unreported cases.
All citations to case law and secondary authorities in the sample cases were counted. Citations to constitutions, regulations and statutes were excluded on the basis that the subject matter of the case dictates the citation of these sources and, as such, it is not an exercise of judicial discretion. (78) If a case or secondary authority received repeat citations in the same paragraph it was counted only once, but if it was cited again in a subsequent paragraph it was counted each time on the basis that the source was being cited for a different proposition and hence had separate significance. (79) The citation counts are weighted in the sense that the number of citations in each joint judgment was multiplied by the number of participating judges when calculating the total citation count. However, if Justice A concurred with Justice B and Justice B cited authorities, Justice A was not attributed with having cited those authorities. (80)
Citations to judgments of lower courts in the same case were not counted. If a judgment was quoted from another case that contained citations, the quoted case was counted as a citation but not the cases cited in the quoted judgment. No distinction was made between citations in the text of a judgment and citations in footnotes to a judgment because this is a matter of reporting convention which has varied over time. No distinction was made between positive and negative citations. One reason for this is that irrespective of whether an authority is cited with approval or disapproval, it is still considered sufficiently important for the judge to cite it. Since citation is an act of judicial discretion, the judge is free not to cite it at all if the authority has no influence on the judge's thinking. (81) Secondly, unlike academic citations, few judicial citations are critical. (82) For example, McCormick found that in the Supreme Court of Canada less than one per cent of judicial citations are negative. (83)
IV OUTPUT OF THE SUPREME COURT OF VICTORIA
Figure 1 shows the number of cases reported in the Victorian Reports at 10-year intervals between 1905 and 2005. In most of the sample years the reports covered between 70 and 100 cases. The largest number of cases were reported in 1905 (104) and 1965 (101) and the smallest number of cases were reported in 1945 (52). Figure 2 shows that the number of judgments traces a scalloped pattern, with the largest numbers of judgments reported at opposite ends of the time spectrum: 1905 (145), 1915 (13), 1995 (144) and 2005 (192). A spike with 136 reports occurred in 1965. The number of single-authored judgments remained fairly steady over the period, in the range of 70-80 per cent of judgments delivered. There has, however, been a sharp increase in the number of short concurring judgments (less than a quarter of a page in length) over the last three decades of the sample period. The proportion of short concurring judgments declined from 7.6 per cent in 1905 to less than 5 per cent in 1935, 1945 and 1955. However, in 1985 that proportion had risen to 12.1 per cent of judgments, and continued to increase sharply to 18.8 per cent in 1995 and further to 31.7 per cent in 2005. The recent increase in concurring judgments has been at the expense of a decline in joint judgments. In 1975, 18.1 per cent of judgments were joint judgments, but three decades later this figure had fallen to 5.7 per cent in 2005.
[FIGURE 1 OMITTED]
[FIGURE 2 OMITTED]
Table 1 shows the case load of the Court over time. The highest proportion of cases heard by the Court dealt with criminal law, evidence and procedure, property law, statutory interpretation and wills and probate. These five areas of law constituted a clear majority of the sampled cases heard by the Supreme Court. Robert Kagan and his colleagues found that the case load of state Supreme Courts in the US changed over the century 1870-1970. (84) In particular, their study observed a substantial increase in administrative, criminal and tort law cases and a decline in commercial and property law cases. (85) Their explanation for this secular change in the composition of the courts' workloads is that the resolution of commercial law matters has shifted from 'the upper reaches of the court system to other branches and levels of government' while there has been an increase in 'the confrontation between citizen and state'. (86) The present data also reveal a sustained increase over the observation period in criminal law matters in the Supreme Court of Victoria, though there is no upward trend in administrative and tort law cases.
The confrontation between citizen and state of which Kagan and his colleagues wrote has not played out in the Supreme Court of Victoria. There has been no increase in administrative law matters for three reasons. First, many such matters come through the Victorian Civil and Administrative Tribunal ('VCAT'), the President of which is a Supreme Court judge. Many decisions of importance in VCAT are decided by the President. They are, therefore, likely to be heard originally by a Supreme Court judge (albeit as President of VCAT). The status of the President may influence...
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