Learning Objectives

This module deals with the role of law reports in legal research. By the end of this module, you will be able to:

• identify the parts of a printed law report
• distinguish between authorised and unauthorised law reports
• explain the difference between reported and unreported judgments
• locate law reports for different Australian jurisdictions.

The format of law reports

Most reports are initially published as a series of loose leaf parts which are periodically replaced by bound volumes. Individual volumes usually contain:

• a Table of Cases reported in that volume
• a Table of Cases Affirmed, Reversed, Overruled, Applied or Judicially considered. This sets out how previously reported decisions have been treated in the cases reported in the current volume.
• a Table of Statutes and Rules judicially considered. This sets out the legislation which referred to or interpreted in the cases reported in the current volume. This table does not appear in all law reports.

A report of an individual case will usually contain (although not necessarily in this order):

• name of the plaintiff or appellant
• name of the defendant or respondent
• the court and the composition of the bench
whether the case is first instance or on appeal
• the names of the judges or justices hearing the case
• hearing and judgment dates
• catchwords. These are keywords which describe the subject matter of the case and legal issues raised. The catchwords will usually include any relevant legislation considered or touched upon in the decision.
• headnotes. The headnotes provide a summary of the case and the decision along with cases cited in the judgment.
• the full text of the court's decision
• any orders made by the court.

When researching a case, there is always the temptation to simply read the headnotes. Although headnotes are useful, they are not always reliable. Editorial staff make mistakes. The best advice is to read the judgment itself.

Authorised and unauthorised reports

Authorised reports are the law reports which provide the preferred or authoritative source of case law. At the Federal level, there are two authorised report series: the Commonwealth Law Reports (CLR) and the Federal Court Reports (FCR). The former is the authorised report series for the High Court. The latter is serves the same function for the Federal Court. At the State and Territory levels, there are authorised reports for each jurisdiction: the New South Wales Law Reports (NSWLR), the Victorian Reports (VR), Queensland Reports (Qd.R), South Australian State Reports (SASR), Western Australia Reports (WAR), Tasmanian Reports (Tas R) and the Northern Territory Law Reports (NTLR). In the past, there were a number of unauthorised report series for the States and Territories. Most of these are no longer published.

Most authorised report series are produced by the Councils of Law Reporting in the relevant State or Territory. Unauthorised reports are produced by private publishing firms. Well-known unauthorised reports series include Australian Law Reports (ALR), Australian Law Journal Reports (ALJR) and Federal Law Reports (FLR). Loose-leaf services and specialist reports also fall under the category of unauthorised reports.

In practical terms, the differences between authorised and unauthorised law report series relate to the processes of production. Authorised reports go through a careful process of annotation and review. The editorial staff for each report series include headnotes and other material, such as indices and tables of cited cases. Each citation and cross-reference is carefully checked. This painstaking process takes time. This means that judgements generally appear first in unauthorised report series.

If a decision is included in both and authorised and unauthorised report series, it is good practice to cite the authorised report series.

How does a series become authorised? It is often stated that an authorised law report series is one that has been published by the Council of Law Reporting in the relevant jurisdiction. This is clearly not the case. There is no Council of Law Reporting at the Federal level, and none in South Australia or the Northern Territory. The actual process by which a law report series achieves authorised status can also be surprisingly obscure. The New South Wales Law Reports (NSWLR) are sometimes said to have aquired authorised status through long usage. However, the NSWLR do not predate the establishment of the current Council of Law Reporting in NSW, an event which occurred as recently as 1971. Nor does the Council of Law Reporting Act 1969 (NSW) state that the NSWLR are the only legally "authorised" reports in this State, although they have been treated as such since their inception. The Council of Law Reporting in NSW states only that the NSWLR is authorised by the "judges whose judgements have been reported" in the series.

Reported and unreported judgments

Reported judgments

Reported judgments are those included in the authorised law report series for the States, Territories and Commonwealth. The judgements published in these series are those which the editors of the law reports believe to be significant in terms of their precedential value.

What are the criteria for reportability? In the main, reportable judgments are those which the editors of law reports believe: introduce a new principle or rule of law significantly modify an existing principle of law or settle a doubtful question of law apply an established principle in a new area provide a definitive interpretation for the language used in legislation provide a definitive interpretation for the meaning of clauses, phrases or words in common use in legal documents are particularly instructive for any reason. In these terms it is not surprising why reported judgments form such a small proportion of the total (10% of the total in NSW). After reading this list, what conclusions can you draw regarding the judgments omitted from the authorised report series? Are they any less likely than the judgments in the authorised reports to be "good law"?

Unreported judgments

The great majority of judgments are not reported in the authorised series, on the grounds that they are not worth the time and editorial trouble to write up for inclusion in an authorised law report series. In the jargon of legal publishing, these judgments are unreported and not reportable.

Not reportable decisions may be included in pleadings to bolster an argument or as a guide to the approach taken by the courts over time.

It is worth remembering that the editors of law reports are not infallible. The reportable status of some unreported decisions is not recognised until later. Omission from the authorised report series does not mean that a decision is not "good law", simply that the decision breaks no new ground.

The meanings of unreported The distinction between reported and unreported judgments seems simple. Unfortunately, the term unreported can be used in a number of contradictory contexts. It can, for example, refer to decisions that are likely to be reported in an authorised report series, but which have not yet appeared due to the delay in editing and publishing the decision. These decisions are termed "reportable but unreported".

Sources of unreported judgments

Unreported judgments are available from a number of sources, both online and in leaf-loose or bound format.

Online sources

The following provide online access to unreported judgements from a range of jurisdictions:

• AustLII. AustLII provides access to unreported judgments of the High Court of Australia, the Federal Court and many State and Territory courts, including inferior courts.
• LexisNexis.AU. LexisNexis.AU provides unreported judgments from the High Court, Federal Court, Federal Magistrates Court, Administrative Appeals Tribunal, Takeovers Panel, NSW Land & Environment Court, and the Supreme Courts in the States and Territories.
• Westlaw. Westlaw provides a unreported judgments for the High Court of Australia and Federal Court as well as unreported judgments from State and Territory Supreme Courts (Full Bench only). In addition, it offers unreported judgements from appellate courts in the States and Territories.

Court and Tribunal sites

Federal, State and Territory Courts are now making unreported judgments available on the Web. These sites are listed in the module on the Australian court system.

Loose-leaf services

These report judgements faster than the authorised law reports and will often report within weeks of the decision being handed down. Many are now available also in electronic format, which results in even more rapid publication.

Specialist reports

Commercial publishers produce a a number of specialist reports covering specific areas of law. This type of publication regularly include decisions omitted from authorised report series. Inclusion of such decisions is essential if legal practitioners are to provide reliable advice to their clients on the likely outcome of cases.

Summary

This module covered the following topics:

• the different parts of a law report
• the distinction between authorised and unauthorised law reports
• the difference between reported and unreported judgments
• locating judgements for different Australian jurisdictions.