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The Federal Circuit Court and Authorised Reports

The Federal Circuit Court and Authorised Reports

As a busy trial court, the Federal Circuit Court has no authorised reports for its judgments, nor would one expect there to be a set of ‘authorised reports’ for a busy trial court of broad jurisdiction.  However, since its commencement in 2001 the court has published around 28,000 judgments on AustLII.  This remains only a subset of the total number of judgments as most family law judgments are not published on AustLII due to the lack of resources necessary to fund the anonymising of the reasons: the balance the court has struck is selecting some family law judgments for internet publication, as well as anonymising and publishing any family law decisions that a party or member of the public requests.

Whilst the Federal Circuit Court is not an appellate court (save with respect to various tribunals) there are nonetheless judgments that are significant, hence there are a large number of decisions published in subject area reports.

In order to deal with the uncertainty as to the requirement for an authorised version of a report to be used in court (which sometimes led to dry legal arguments wasting much time) the court has approached the problem as a ‘digital native’ and embraced the internet as the primary means of disseminating reliable versions of its decisions.

Thus, in April 2015, the Chief Judge issued the Practice Note 1/2015:

Citations of decisions of Australian Courts and Tribunals – AustLII

  1. When citing a judgment to the Federal Circuit Court, the neutral citation for the judgment must be provided, if the judgment has such a citation.  Other citations for the judgment may be provided in addition.  If the judgment is included in a series of authorised reports, the authorised report citation should be provided as an additional citation.
  2. Where a judgment is by the Federal Circuit Court, any copy provided to the Federal Circuit Court may be a copy of:
    1. The version of the judgment available from AustLII in the ‘Signed by AustLII’ format.
    2. A version of the judgment published in a series of law reports by a commercial publisher or a council of law reporting.
    3. Versions from other sources and in such other formats as the Federal Circuit Court decides to accept.
  3. Where a judgment is by any other Court or Tribunal, any copy provided to the Federal Circuit Court may be a copy of:
    1. The version of the judgment available from AustLII in the ‘Signed by AustLII’ format.
    2. A version of the judgment published in a series of law reports by a commercial publisher or a council of law reporting.
    3. Versions from other sources and in such other formats as the Federal Circuit Court decides to accept.
  4. When providing a copy of a judgment to the Federal Circuit Court, parties are required to check that the copy provided has not been replaced by any more recent copy of the judgment.  This may be achieved by use of the updating facility provided in electronic copies of the ‘Signed by AustLII’ judgments, or by equivalent means.
  5. The decisions of the Federal Circuit Court (formerly the Federal Magistrates Court) as published on AustLII are authenticated reports of the decisions of the Court and may be relied upon as such.

Explanatory Notes:

  1. By ‘neutral citation’ is meant a citation in the style adopted by Australian courts and tribunals since 1998.
  2. Citations should be as in this example, for a hypothetical 5th decision made by the High Court in 2015, subsequently published in the authorised reports, and in other reports: Smith v Jones [2015] HCA 5; (2016) 245 CLR 532; (2015) 101 ALJR 454 where HCA is the agreed designator for ‘High Court of Australia.

The effect of this practice note is to implement three important changes to court practice:

  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 its ‘authenticated’ decisions.

These changes are primarily aimed at ensuring that all litigants have access to the law in its written form.  All of the judgments on AustLII are available without charge, and may now be used, as of right, when arguing cases in the Federal Circuit Court.  The potential barrier of having access to expensive report series, or subscription data bases is no long in place for those without such resources.

The purpose of requiring the media neutral citation also enhances access to justice and fair hearings.  If an un-represented party receives written submissions with case references, they will include citations that can be used to access the material on the free AustLII database.

Finally, the court’s decision to treat the AustLII versions of its own decisions as ‘authenticated’ means that they can be used in any other court as an ‘authorised’ version of the decision.

So far as I am aware, the Federal Circuit Court is the first court to take this step of effecting such a structural change to facilitate full and open access to case law in Australia, by allowing the use of free legal databases to their maximum potential for all citizens.

Read more from Judge Grant Riethmuller

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