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National Competition Policy Review Discussion Paper
Council of Law Reporting Act 1969
4. Background to Law Reporting
Originally, all judgments were delivered by judges, but reported by barristers. Law reporting was “a private venture… When a judgment was delivered extempore … the reporter was the only channel through which it could reach the legal public.”1 Barristers originally made reports for their own use, but later published them commercially.
In the eighteenth century some of the reports were “authorised”, which meant that judges gave reporters access to the manuscripts of their judgments and corrected their reports. The chaotic nature of reporting led to demands for reform and, in 1866, the first Law Reports appeared, published by the Council of Law Reporting in England.
The method of law reporting in both Britain and Australia has remained essentially the same since, except that, in addition to the authorised reports, specialist law reports are published which contain case law that is of particular relevance to specialist areas of legal practice, for example, family law or Corporations law.
Authorised reports continue the tradition of publishing cases which accord with the established principle of precedent and stare decisis. This expression encapsulates the established policy of the courts to abide by, or adhere to legally significant, decided cases. The doctrine is grounded on the theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognised and followed, unless subsequently found to be not legally sound, or against public policy.2 In carrying out its role in reporting cases, the Council of Law Reporting consults with the judiciary and experienced members of the legal profession regarding which cases should be reported in accordance with the principle of precedent and stare decisis.
An example of the operation of the doctrine of stare decisis or precedent is the case of Donoghue v Stevenson.3 The facts of that case revolved around an action brought by a woman who had become ill after consuming ginger beer from a bottle which also contained a decomposed snail. Lord Aitken, who sat in judgment on the case, stated that:
“…The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are in question.”4
The case established the general principle of negligence, that is, that persons who have some relation or proximity owe a duty of care to each other. Since it was established, this precedent has been further refined and applied and referred to in thousands of fact situations where a person complains of physical harm to their person or property.
Prior to 1971, and the establishment of the Council, there were three series of general law reports in New South Wales, all of which were recognised by the courts as “authorised” reports. However, by the consensus of the publishers, these series ceased publication after the State Government of the day introduced the legislation which established the Council and empowered it to publish law reports. The Act does not state that the NSWLR are the legally “authorised” reports in this State. However, by virtue of the Government’s decision to legislate in respect of law reporting, the continuing legal tradition of “authorised” reports, and the recognition of such reports by the courts, the NSWLR have become accepted as the “authorised” reports, and are seen by many as the “official” reports for the purposes of NSW law.
Apart from the “authorised” reports, specialist series are published which report cases that are of relevance to a particular area of legal practice, such as torts or criminal law. Unlike the “authorised” reports, specialist series are not published under the auspices of the Council of Law Reporting. Cases reported in specialised series may contain some cases that are also included in the authorised reports and other, unreported judgments. Cases reported in specialist series are considered by the publishers to be of relevance to practitioners in a specialised field of legal practice. Specialised series may, for example, contain cases which assist the practitioner to predict the likely outcome of a particular case in which they are advising or instituting proceedings, by seeing how previous cases in which the facts were similar, were decided.
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1 Lord Develin, The Judge, 1979, Oxford University Press, p.180 quoted in an article by Mark Duckworth, “Clarity and the Rule of Law: The Role of Plain Judicial Language”.
2 Black’s Law Dictionary, 6th ed.,1990, West Publishing Co., St Paul, Minn., at p.1406.
3 [1932] AC 562
4 ibid., Lord Aitkin at p.580.
5 The State Reports, New South Wales Reports, and the Weekly Notes.
6 Lord Diplock in Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 1 All ER 564, 567, quoted in “Law Reporting - A Comment”, Art.14, Australian Current Law Articles, July 1983.
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