Citation of Authority –  Supreme Court Practice Direction No 1 of 2024

Since 2013, there have been Practice Directions in the Supreme, District and Magistrates Courts of Queensland outlining practices for the citation of caselaw. The stated purpose of these Practice Directions was to “ensure that the Court is provided with the most authoritative and functional versions of the relevant authorities” and “to encourage parties to limit their citation of authority to those judgments which are apt to assist the Court materially in resolving the real issues in dispute”.

From 29 January 2024, an updated version of these Practice Directions has come into effect in the Supreme Court.

The Court has confirmed that the purpose of the updated Practice Direction is not to significantly change current practices relating to the citation of authority.  Rather, its purpose is to accommodate the difficulties which some parties (eg self-represented litigants) face in obtaining ready access to all sets of authorised law reports.

Accordingly, under the new Practice Direction:

• the position remains that “unreported judgments should not be cited unless they contain a material statement of legal principle, or a material application of principle, which is not found in reported authority” (para 4(d)).

• where a judgment is reported in the authorised reports (eg  Queensland Reports or Commonwealth Law Reports), it remains the general position that the authorised reports citation should be used – but this requirement now applies only “as far as possible” (para 3).

• for all judgments it is “acceptable to use an available official medium neutral citation for the citing of any authorities” (para 2).

• for all judgments “it is sufficient and appropriate to refer to medium neutral citation paragraph numbers of the judgment rather than page numbers in authorised reports” (para 4(b)).

• for all judgments “reference should also be made to any subsequent judgment which has doubted, or not followed, the cited judgment in a relevant respect” (para 4(c)).

It is important to understand the underlying reasons for these citation practices.  These reasons stem, to a large extent, from the long-standing approach to law reporting in Australia.   Judgments are only selected for inclusion in the Queensland Reports, and other authorised reports, when they contain significant statements of legal principle.   If selected for reporting, the full text of the judgment is then carefully checked, in consultation with the Court, to ensure that it is free from any inadvertent errors.  During this process, changes to the text of a judgment are regularly made – but these changes usually only appear in the authorised reports.   For this reason, it is prudent to rely upon the authorised report of a judgment where it is available.   As the cover pages of all unreported judgments of the High Court of Australia warn: “This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports”.

A ready guide to the best practices in citing caselaw is to be found in the Court’s own judgments.   In judgments of the Supreme Court, where reference is made to a judgment which appears in the authorised reports, the practice is to refer to the judgment: (a) first, by its reported case name (which is often in a shortened form); (b) secondly, by its authorised report citation; and then (c) finally, by its medium neutral citation (eg Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27).

A link to Practice Direction No 1 of 2024 is here.