A century of citation practice on the Supreme Court of Victoria.

• Jurisdiction: Australia
• Date: 01 December 2007
• Author: Fausten, Dietrich

[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...