TRENDS IN THE CITATION PRACTICE OF THE SUPREME COURT OF QUEENSLAND OVER THE COURSE OF THE TWENTIETH CENTURY

RUSSELL SMYTH*

I INTRODUCTION

Judicial decision-making is unusual in that it requires judges to explain their reasons for decision and preferably to do so in writing.1 Written judgments typically include citations to case law, secondary authorities, such as journal articles, legal encyclopaedias and learned texts, as well as relevant statutes. As Walsh puts it:

For scholars, citations in [written judgments] are an inviting source of data. Citations are widely available in both published case volumes and on-line legal reporting services [and] they can be counted and readily incorporated into quantitative analyses ... More important than these practical advantages, citations potentially open a window to better understanding of judicial decision making, the development of the law, use of precedent, intercourt communication and the structuring of relations between courts’.2

The pioneer contribution on judicial citation practice was a study by Merryman for the California Supreme Court, published more than five decades ago.3 Over the course of the last half century there have been numerous studies of the citation practice of courts in North America. There are studies for the United States Supreme Court,4 the United States courts of appeals,5 United States State supreme courts,6 the

* BEc(Hons) LLB(Hons) MEc (Monash) Ph.D (London). Professor, Department of Economics, Monash University. Funding for this project was provided by grants from the Department of Economics and the Faculty of Business and Economics, Monash University. I thank Chantelle Casey and Amy Henderson for research assistance and an anonymous referee for helpful comments on an earlier version of this article. 1 See, Michael Kirby, ‘Ex Tempore Reasons’ (1992) 9 Australian Bar Review 93; Michael Kirby, ‘Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory’ (1994) 12 Australian Bar Review 121; Martin Shapiro, ‘The Giving Reasons Requirement’ (1992) University of Chicago Legal Forum 179; Roslyn Atkinson, ‘Judgment Writing’, Paper Delivered to the Australian Institute of Judicial Administration Conference, Brisbane 13 September 2002; Roslyn Atkinson, ‘Decision Making’, Paper Delivered to the Pheonix Programme for the National Judicial College, Gold Coast 11 May 2004; The Hon. P. de Jersey, ‘Contemporary Decision-Making – Courts and Universities’, Paper Delivered to the Third Australasian Conference of Ombuds and Deans of Students in Higher Education, Queensland University of Technology, 14 February, 2002. 2 David Walsh, ‘On the Meaning and Pattern of Legal Citations: Evidence From State Wrongful Discharge Precedent Cases’ (1997) 31 Law & Society Review 337, 338. 3 John Merryman ‘The Authority of Authority: What the California Supreme Court Cited in 1950’ (1954) 6 Stanford Law Review 613. See also, John Merryman, ‘Towards a Theory of Citations: An Empirical Study of the Citation Practice of the California Supreme Court in 1950, 1960 and 1970’ (1977) 50 Southern California Law Review 381. 4 See, e.g., James Ackers, ‘Thirty Years of Social Science in Supreme Court Criminal Cases’ (1990) 12 Law and Policy 1; James Ackers, ‘Social Science in Supreme Court Death Penalty Cases: Citation Practices and their Implications’ (1991) 8 Justice

40 The University of Queensland Law Journal 2009

Supreme Court of Canada7 and the Canadian provincial courts of appeal.8 The study of the citation practice of courts in Australasia is a more recent phenomenon, being restricted to a handful of studies that have been published in the last decade. There

Quarterly 421; Neil Bernstein, ‘The Supreme Court and Secondary Source Material: 1965 Term’ (1968) 57 Georgetown Law Journal 55; Wes Daniels, ‘Far Beyond the Law Reports: Secondary Source Citations in United States Supreme Court Decisions, October Terms 1900, 1948 and 1978’ (1983) 76 Law Library Journal 1; James Fowler and Sangick Jeon, ‘The Authority of Supreme Court Precedent’ (2008) 30 Social Networks 1; James Fowler, Timothy Johnson, James Spriggs, Sangick Jeon and Paul Wahlbeck, ‘Network Analysis and the Law: Measuring the Legal Importance of Precedent at the U.S. Supreme Court’ (2007) 15 Political Analysis 324-346; James Gleicher, ‘The Bard at the Bar: Some Citations of Shakespeare by the United States Supreme Court’ (2001) 26 Oklahoma City University Law Review 327; John Hasko ‘Persuasion in the Court: Non-legal Materials in U.S. Supreme Court Opinions’ (2002) 94 Law Library Journal 427; Charles Johnson, ‘Citations to Authority in Supreme Court Opinions’ (1985) 7 Law & Policy 509; William Manz, ‘Citations in Supreme Court Opinions and Briefs: A Comparative Study’ (2002) 94 Law Library Journal 267; Chester Newland, ‘Legal Periodicals and the United States Supreme Court’ (1959) 7 University of Kansas Law Review 477; Louis Sirico and Jeffrey Marguiles, ‘The Citing of Law Reviews by the Supreme Court: An Empirical Study’ (1986) 34 UCLA Law Review; Louis Sirico. ‘The Citing of Law Reviews by the Supreme Court 1971-1999’ (2000) 75 Indiana Law Journal 1009; Samuel Thumma and Jeffrey Kirchmeier, ‘The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries’ (1999) 47 Buffalo Law Review 227. 5 See, e.g., Robert Schriek, ‘Most Cited U.S. Courts of Appeals Cases From 1932 Until the Late 1980s’ (1991) 83 Law Library Journal 317; Louis Sirico and Beth Drew, ‘The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis’ (1991) 45 University of Miami Law Review 1051. 6 See, e.g., Robert Archibald, ‘Stare Decisis and the Ohio Supreme Court’ (1957) 9 Western Reserve Law Review 23; A. Michael Beaird, ‘Citation to Authorities by the Arkansas Appellate Courts, 1950-2000’ (2003) 25 University of Arkansas Little Rock Law Review 301; Mary Bobinski, ‘Citation Sources and the New York Courts of Appeals’ (1985) 34 Buffalo Law Review 965; Dragomir Cosanici and Chris Evin Long, ‘Recent Citation Practices of the Indiana Supreme Court’ (2005) 24 Legal Reference Services Quarterly 103; Richard Kopf, ‘Do Judges Read the Review? A Citation Counting Study of the Nebraska Law Review and the Nebraska Supreme Court’ (1997) 76 Nebraska Law Review 708; James Leonard, ‘An Analysis of Citations to Authority in Ohio Appellate Decisions Published in 1990’ (1994) 86 Law Library Journal 129; Richard Mann, ‘The North Carolina Supreme Court 1977: A Statistical Analysis’, (1979) 15 Wake Forest Law Review 39; William Manz, ‘The Citation Practices of the New York Courts of Appeals: A Millennium Update’ (2001) 49 Buffalo Law Review 1273; Fritz Snyder, ‘The Citation Practice of the Montana Supreme Court’ (1996) 57 Montana Law Review 453. 7 See, e.g., Vaughn Black and Nicholas Richter, ‘Did She Mention My Name? Citation of Academic Authority by the Supreme Court of Canada 1985-1990’ (1993) 16 Dalhousie Law Journal 377; Peter McCormick, ‘Do Judges Read Books Too? Academic Citations by the Lamer Court 1992-1996’ (1998) 9 Supreme Court Law Review 463; Peter McCormick, ‘Second Thoughts: Supreme Court Citation of Dissents and Separate Concurrences’ (2002) 81 Canadian Bar Review 369. 8 See, e.g., Peter McCormick, ‘Judicial Authority and the Provincial Courts of Appeal: A Statistical Investigation of Citation Practices’ (1993) 22 Manitoba Law Journal 286; Peter McCormick, ‘The Evolution of Coordinate Precedential Citation in Canada: Interprovincial Citations of Judicial Authority, 1922-1992’ (1994) 32 Osgoode Hall Law Journal 271.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 41

are, however, studies for the High Court of Australia,9 Federal Court of Australia,10 the Australian State supreme courts11 and the New Zealand Court of Appeal.12 Most extant studies of the citation practice of courts are for a few select years. There are very few studies that examine citation practice of a single court or series of courts over an extended period of time. In North America the only studies to adopt a long time horizon are a multi-state study of changes in citation practice on the United States state supreme courts over the period 1870 to 1970 by Friedman and colleagues;13 a study of the citation practice of the New York Courts of Appeal over the period 1850 to 1993 by Manz;14 and a study of inter-court citations on the Canadian provincial courts of appeal from 1922 to 1994 by McCormick.15 Recently a series of studies have examined citation practice in the Australian state supreme courts using data collected at decade intervals between 1905 and 2005. The Australian State supreme courts play a significant role in the development of the common law in Australia, particularly since 1984 amendments to the Judiciary Act 1903 (Cth) requiring prospective appellants to the High Court to obtain special leave. As about 80 per cent of applications for special leave are refused, the Court of Appeal, Court of Criminal Appeal and Full Court of a State supreme court are, in

9 See, Rebecca Lefler, ‘A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, the Supreme Court of Canada and the High Court of Australia’ (2001) 11 Southern California Interdisciplinary Law Journal 165; Russell Smyth, ‘Citations by Court’ in Anthony Blackshield, Michael Coper and George Williams (eds) Oxford Companion to the High Court of Australia (2001); Russell Smyth, ‘Other than “Accepted Sources of Law?” A Quantitative Study of Secondary Source Citations in the High Court’ (1999) 22 University of New South Wales Law Journal 19; Russell Smyth, ‘Academic Writing and the Courts: A Quantitative Study of the Influence of Legal and Non-legal Periodicals in the High Court’ (1998) 17 University of Tasmania Law Review 164; Russell Smyth, ‘Law or Economics? An Empirical Investigation of the Impact of Economics on Australian Courts’ (2000) 28 Australian Business Law Review 5; Paul Von Nessen, ‘The Use of American Precedents by the High Court of Australia, 1901-1987’ (1992) 14 Adelaide Law Review 181; Paul Von Nessen, ‘Is There Anything to Fear in the Transnationalist Development of Law? The Australian Experience’ (2006) 33 Pepperdine Law Review 883. 10 Russell Smyth, ‘The Authority of Secondary Authority: A Quantitative Study of Secondary Source Citations in the Federal Court’ (2000) 9 Griffith Law Review 25. 11 Russell Smyth, ‘What do Intermediate Appellate Courts Cite? A Quantitative Study of the Citation Practice of Australian State Supreme Courts’ (1999) 21 Adelaide Law Review 51; Russell Smyth, ‘What do Judges Cite? An Empirical Study of the ‘Authority of Authority’ in the Supreme Court of Victoria’ (1999) 25 Monash University Law Review 29; Russell Smyth, ‘Citation of Judicial and Academic Authority in the Supreme Court of Western Australia’ (2001) 30 University of Western Australia Law Review 1. 12 Russell Smyth, ‘Judicial Citations – An Empirical Study of Citation Practice in the New Zealand Court of Appeal’ (2000) 31 Victoria University of Wellington Law Review 847; Russell Smyth, ‘Judicial Robes or Academic Gowns? – Citations to Secondary Authority and Legal Method in the New Zealand Court of Appeal’ in Rick Bigwood (ed), Legal Method in New Zealand (2001) 101; Sir Ivor Richardson, ‘Trends in Judgment Writing in the New Zealand Court of Appeal’ in Rick Bigwood (ed), Legal Method in New Zealand (2001) 261. 13 Lawrence Friedman, Robert Kagan, Bliss Cartwright and Stanton Wheeler, ‘State Supreme Courts: A Century of Style and Citation’ (1981) 33 Stanford Law Review 773. 14 William Manz, ‘The Citation Practices of the New York Courts of Appeals, 1850-1993’ (1995) 43 Buffalo Law Review 121. 15 McCormick, above n 8.

42 The University of Queensland Law Journal 2009

reality, final courts of appeal for most litigants, making their decision-making patterns worthy of study.16 There are studies of the citation practice of the Supreme Court of Tasmania,17 Supreme Court of Victoria,18 Supreme Court of New South Wales,19 Supreme Court of South Australia20 and Supreme Court of Western Australia21 using a century of data collected in a consistent manner. The objective of this study is to add to the literature on the citation practice of Australian State supreme courts through examining citation practice in the reported decisions of the Supreme Court of Queensland at decade intervals between 1905 and 2005. To this point, although there is a burgeoning literature on the citation practice of other State supreme courts in Australia, little research exists on the citation practice of the Supreme Court of Queensland. A multi-court study of the citation practice of the Australian state supreme courts based on the 50 most recent reported decisions as of June 1999 included Queensland as one of the six states analysed.22 The Supreme Court of Queensland Library surveyed the citation of authority in Queensland Court of Appeal judgments in 1997 and 1998. 23 The Chief Justice of Queensland has examined the Court’s citations to international case law in 176 judgments delivered in the first six months of 2002.24 There are, however, no dedicated studies of the citation practice of the Supreme Court of Queensland over an extended period of time. This is a gap in the literature on judicial citation practice that this study is intended to fill.

II BACKGROUND AND EXISTING LITERATURE

This study follows other recent studies of the citation practice of Australian State supreme courts and adopts the taxonomy for classifying judicial citations suggested by McCormick.25 In this section we outline the types of judicial citations using McCormick’s taxonomy; namely, consistency citations, hierarchical citations,

16 David Malcolm, ‘State Supreme Courts’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (2001). 17 Russell Smyth, ‘The Citation Practices of the Supreme Court of Tasmania, 1905-2005’, 26 University of Tasmania Law Review 34 (in press). 18 Dietrich Fausten, Ingrid Nielsen and Russell Smyth, ‘A Century of Citation Practice on the Supreme Court of Victoria’ (2007) 31 Melbourne University Law Review 733. 19 Ingrid Nielsen and Russell Smyth, ‘One Hundred Years of Citation of Authority on the Supreme Court of New South Wales’ (2008) 31 University of New South Wales Law Journal 189. 20 Russell Smyth, ‘Citation to Authority on the Supreme Court of South Australia: Evidence From a Hundred Years of Data’, 29 Adelaide Law Review 113 (in press). 21 Russell Smyth, ‘A Century of Citation of Case-law and Secondary Authority in the Supreme Court of Western Australia’, 34 University of Western Australia Law Review 145 (in press). 22 Smyth, above n 11. 23 This survey is mentioned in a paper by the current Chief Justice of Queensland, see The Hon. P. de Jersey, ‘The Role of the Supreme Court of Queensland in the Convergence of Legal Systems’, Sixteenth Congress of the International Academy of Comparative Law, University of Queensland, July 2002. 24 Ibid. 25 See, e.g., Peter McCormick, ‘Judicial Citation, the Supreme Court of Canada and the Lower Courts: The Case of Alberta’ (1996) 34 Alberta Law Review 870.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 43

deference citations and coordinate citations, as well as citations to secondary authorities, and examine findings from the existing literature.

A Consistency and Hierarchical Citations

Consistency citations are citations to previous decisions of the citing court. As McCormick puts it, ‘the general principles of continuity and consistency, and the value of predictability in the law, require that [previous decisions of the same court] carry considerable weight’.26 The Queensland Court of Appeal, along with the other intermediate appellate courts in Australia, reserves the right to reconsider its earlier decisions, but will normally not do so unless satisfied that the earlier decision was ‘manifestly wrong’. 27 As the High Court put it in Queensland v The Commonwealth:28

The occasions upon which the departure from previous authority [by an intermediate court] is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law.29

Hierarchical citations are citations to courts above the citing court in the judicial hierarchy. The Supreme Court of Queensland 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.30 Prior to the enactment of the Australia Acts 1986 (UK & Cth), decisions of the Judicial Committee of the Privy Council were also binding on the Supreme Court of Queensland. While the State supreme courts are not required to follow decisions of the Judicial Committee of the Privy Council handed down since 1986, there is some continuing uncertainty as to whether since 1986 the State supreme courts are still required to follow decisions of the Judicial Committee handed down prior to the enactment of the Australia Acts 1986 (UK & Cth).31 Studies for Australia, Canada and New Zealand using data from recent periods have found that hierarchical citations form the highest proportion of judicial citations

26 McCormick, above n 8, 273-274. 27 See Garcia v National Australia Bank (1998) 194 CLR 395; Husher v Husher [1998] QCA 235 per Derrington J (with McPherson and Thomas JJA agreeing); Peter John Sweeney v Volunteer Marine Rescue Currumbin [2000] QCA 455 per McMurdo P (with Cullinane and Wilson JJ agreeing); R v Hood [2005] QCA 159 (13 May 2005) [43]-[45] per Jerrard JA; See also, Michael Kirby, ‘Precedent, Law, Practices and Trends in Australia’ (2007) 28 Australian Bar Review 243, 250; C.J.F. Kidd ‘Stare Decisis in Intermediate Appellate Courts Practice in the English Court of Appeal, the Australian State Full Courts, and the New Zealand Court of Appeal’ (1978) 52 Australian Law Journal 274 at 278 contains a discussion of earlier Queensland cases that appear to have adopted a more restrictive view than is currently adopted by the Court. 28 (1977) 139 CLR 585. 29 Ibid 620 et seq. 30 See, Garcia v National Australia Bank (1998) 194 CLR 395. See also, Kirby, above n 27, 245, 250. 31 See, Hawkins v Clayton (1986) 5 NSWLR 109, 136-137; (1987) VR 225, R v Judge Bland; ex parte Director of Public Prosecutions 230-232; Anthony Blackshield, ‘Precedent’ in Anthony Blackshield, Michael Coper and George Williams (eds) Oxford Companion to the High Court of Australia (2001).

44 The University of Queensland Law Journal 2009

followed by consistency citations.32 Studies over long time periods such as those for the Supreme Courts of Victoria, New South Wales and South Australia over the period 1905 to 2005 have differed on this point. The studies for the Supreme Courts of Victoria and South Australia find that in the early part of the twentieth century, consistency citations formed the highest proportion of judicial citations, but over time hierarchical citations came to form the highest proportion of judicial citations as the stock of decisions of the High Court increased.33 However, the study for the Supreme Court of New South Wales found that while at different points throughout the twentieth century the Court cited the English Court of Appeal and High Court more than its own decisions, since 1985 consistency citations have formed the highest proportion of judicial citations.34 One explanation for why the Supreme Court of New South Wales cites a high proportion of its own cases is that the volume of its own case law that it has to cite is large compared with other intermediate appellate courts in Australia.35 Studies for large states in the United States such as California have also found that consistency citations form the largest share of total citations followed by hierarchical citations.36 Another explanation for the propensity of the Supreme Court of New South Wales to cite its own decisions is that it is recognised as the judicial leader among the State supreme courts in Australia and thus has the maturity to cite more of its own decisions than the decisions of other courts.37

B Deference Citations

Deference citations are citations to courts whose decisions are not binding, but are of persuasive value. 38 In the Australian State supreme courts, citations to decisions of English courts including decisions of the Judicial Committee of the Privy Council decided after 1986 and decisions of courts in countries other than Australia and England are strictly speaking deference citations. The qualification to this statement is that until the 1960s there was High Court authority that the State supreme courts should follow the House of Lords and probably the English Court of Appeal even when faced with a conflicting High Court decision.39 At least until the mid-1970s it was expected that the State supreme courts would follow relevant decisions of the House of Lords and English Court of Appeal in the absence of High Court authority.40 As a former Chief Justice of the High Court has put it, ‘for a

32 For Canada see McCormick, above n 25; McCormick, above n 8. For Australia see above n 11. 33 Fausten, Nielsen and Smyth, above n 18; Smyth, above n 20. 34 Nielsen and Smyth, above n 19. 35 Ibid. 36 See, e.g., Merryman, above n 3. 37 Nielsen and Smyth, above n 19. 38 McCormick, above n 25. 39 For a statement that the High Court should follow the English Court of Appeal see Sexton v Horton (1926) CLR 220, 221 per Knox CJ and Starke J. For the first breaks between the High Court and House of Lords in the 1960s see, Parker v The Queen (1963) 101 CLR 610; Uren v John Fairfax (1966) 111 CLR 118. See also, K.A. Cullinane, ‘An Australian Common Law: The Decolonisation of Australia’s Judge Made Law’, (Paper presented to Law Students at Trinity College, Dublin, March 2000). 40 Public Transport Commission (NSW) v J. Murray-More (NSW) Pty. Ltd. (1975) 132 CLR 336, 341 per Barwick CJ that if there was no High Court decision, a state supreme court should, as a general rule, follow a decision of the English Court of Appeal at first instance and on appeal. Gibbs J. (at 349) went further and stated that the New South

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 45

substantial part of the twentieth century, Australia saw itself as part of the British Empire, and the idea that the common law might vary throughout the Empire was barely contemplated. In terms of judicial authority and leadership, the distinction between the House of Lords and Privy Council was largely technical. They were the same judges, and they declared the law for all those courts from whom appeals might come to them’.41 Thus, until the 1970s citations to the House of Lords and English Court of Appeal in the Australian State supreme courts were really de facto hierarchical citations. However, the status of English case law in Australia has diminished since the commencement of the Australia Acts. While decisions of the House of Lords and English Court of Appeal continue to be given great respect, Australian courts are much less likely to follow them than was once the case. The general rule that a State supreme court, even when sitting on appeal, should follow decisions of the English Court of Appeal if there was no other authority, was abandoned in the High Court in Cook v Cook.42 In that case Mason, Wilson, Brennan and Deane JJ observed:

The history of this country and of the common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of United Kingdom courts just as Australian courts benefit from the learning and reasoning of other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of persuasiveness of their reasoning.43

Writing extra-judicially one year after Cook v Cook was decided, Sir Anthony Mason stated: ‘In deciding what is law in Australia we should derive what assistance we can from English authorities. But this does not mean that we should account for every English judicial decision as if it were a decision of an Australian court’.44 Fifteen years later, the Chief Justice of Queensland echoed these comments, when he stated: ‘Australian courts will look, have looked, increasingly to common law jurisdictions other than England for comparative law precedent’. 45 Since the commencement of the Australia Acts, other developments have hastened the decline in the importance of English authorities in the State Supreme courts. These developments were set in motion by the United Kingdom’s decision to join the European Union and more recently are reflected in the increasing influence of European law on United Kingdom cases in the form of the European Convention of Human Rights and Fundamental Freedoms since the commencement of the Human Rights Act 1998 (UK).46

Wales Court of Appeal should have regarded itself as being bound by a decision of the English Court of Appeal. 41 Murray Gleeson, ‘The Influence of the Privy Council on Australia’ (2007) 29 Australian Bar Review 123, 129. 42 (1986) 162 CLR 376. See also, Australia Estates P/L v Cairns City Council [2005] QCA 328 (2 September 2005) [51] – [52] per Atkinson J (McMurdo P and Jerrard JA agreeing). 43 (1986) 162 CLR 376, 390 (Brennan J agreeing). 44 Sir Anthony Mason, ‘Future Directions in Australian Law’ (1987) 13 Monash University Law Review 149, 154. 45 de Jersey, above n 23, 12. 46 See, Kirby, ‘Precedent, Law, Practice and Trends in Australia’; Gleeson, above 41; de Jersey, above n 23. Sir Ivor Richardson makes a similar point with respect to the decline in importance of English cases in New Zealand – see Richardson, above n 12, 264.

46 The University of Queensland Law Journal 2009

In the Australian State supreme courts the highest proportion of deference citations are to the House of Lords and English Court of Appeal. In the first half of the twentieth century the State supreme courts of New South Wales, Victoria, Tasmania and South Australia cited the House of Lords and English Court of Appeal more than their own decisions or decisions of the High Court. 47 However, the proportion of English cases cited in the State supreme courts has declined over time and the decline has been exponential since the commencement of the Australia Acts.48 Deference citations to courts in countries other than Australia and England in the State supreme courts constitute 2-3 per cent of total citations. 49 This figure has been constant throughout the twentieth century. For example, in the Supreme Court of Victoria citations to courts in countries such as Canada, New Zealand and the United States peaked at 5-6 per cent some years, but was generally in the range 1-2 per cent.50 In the High Court citations to courts in countries other than Australia and England varied between 2.7 per cent and 5.8 per cent over the period 1920 to 1996,51 while the comparable figure for the Supreme Court of Canada was 4.9 per cent in decisions reported between 1984 and 1994.52 The United States federal courts rarely cite foreign cases and when they do, it is only when international issues are squarely presented on the facts.53 The State supreme courts in the United States also cite few foreign cases, including English and Canadian cases.54 For example, the New York Court of Appeals cited just three foreign cases in 1999 and 2000, which were all either eighteenth or nineteenth century English cases,55 while the Arkansas Supreme Court cited nine foreign cases out of 20,000 citations over the period 1950 to 2000.56

C Coordinate Citations

Coordinate citations are citations to other courts in the same tier in the judicial hierarchy.57 In the Supreme Court of Queensland coordinate citations are citations to other Australian State supreme courts. While the decisions of other State supreme courts are not binding on the Supreme Court of Queensland, the accepted position is that State appeal courts are required to follow the decisions of other State appeal courts on the common law unless ‘plainly wrong’.58 The reason is that Australia has a single common law. 59 As stated by the High Court in Lange v Australian Broadcasting Commission,60 ‘the common law as it exists throughout the Australian

47 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19; Smyth, above n 20; Smyth, above n 17. 48 Ibid. 49 See above n 11. 50 Fausten, Nielsen and Smyth, above n 18. 51 Smyth, above n 9. 52 McCormick, above n 25. 53 David Zaring, ‘The Use of Foreign Decisions by Federal Courts: An Empirical Analysis’ (2006) 3 Journal of Empirical Legal Studies 297. 54 See, Manz, above n 14, 132-135; Manz, above n 6, 1280; Friedman, Kagan, Cartwright and Wheeler, above n 13, 799; Merryman, above n 3, 400; Beaird, n 6, 317. 55 Manz, above n 6, 1280. 56 Beaird, above n 6, 317. 57 McCormick, above n 25. 58 Farah Constructions v Say-Dee Pty. Ltd. [2007] HCA 22, [135] 59 R v Morrison [1999] 1 Qd R 397 at 401. 60 [1997] 189 CLR 520 at 563.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 47

States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations’. When State supreme courts across the nation reach the same decision on the facts this supports uniformity in the development of an Australian common law. Coordinate citations as a proportion of total citations have increased in the Australian State supreme courts. Up until the 1980s coordinate citations in the Supreme Courts of New South Wales and Victoria amounted to 5-6 per cent of total citations most years; 61 however, since the commencement of the Australia Acts coordinate citations have increased at the expense of deference citations to English authorities. A study of citations in the Australian State supreme courts based on the 50 most recent reported decisions as of June 1999 found that coordinate citations were 17.8 per cent of total citations.62 Some states are large ‘suppliers’ of coordinate citations, while other states are large ‘consumers’ of coordinate citations. The Supreme Court of New South Wales is a large ‘supplier’ of coordinate citations to other State supreme courts, while coordinate citations are a relatively small proportion of its total citations.63 By contrast, the Supreme Court of Tasmania is a large ‘consumer’ of coordinate citations. In the study of the citation practice of the Supreme Court of Tasmania at decade intervals between 1905 and 2005, in most years the Court cited decisions of the other State supreme courts more often than its own previous decisions.64 One explanation why previous studies suggest that the Supreme Court of New South Wales receives more coordinate citations than other states is that it has a reputation for judicial innovation among the Australian State supreme courts. This is consistent with studies in the United States which have found that the state supreme courts which have reputations for doctrinal leadership, such as California, Massachusetts, New York and Washington, receive more out of court citations than other state supreme courts, holding socio-cultural factors constant.65 McCormick found that in Canada, the Ontario Court of Appeal, whom he described as a ‘mini Supreme Court of Canada’, supplied 40 per cent of coordinate citations among the Canadian provincial courts of appeal while citing other provincial courts relatively infrequently itself.66 Another reason why the Supreme Court of New South Wales is a large ‘supplier’ and a small ‘consumer’ of coordinate citations is that compared with states such as Tasmania it has more of its own case law to cite. Overall, about two thirds of commercial litigation in Australia is commenced in New South Wales.67

61 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19. 62 Smyth, above n 11, 63. 63 Nielsen and Smyth, above n 19. 64 Smyth, above n 17. 65 See, e.g., Gregory Caldeira, ‘On the Reputation of State Supreme Courts’ (1983) 5 Political Behavior 83; Gregory Caldeira, ‘The Transmission of Legal Precedent: A Study of State Supreme Courts’ (1985) 79 American Political Science Review 178; Gregory Caldeira, ‘Legal Precedent: Structures of Communication Between State Courts’ (1988) 10 Social Networks 29; Peter Harris, ‘Ecology and Culture in the Communication of Precedent Among State Supreme Courts 1870-1970’ (1985) 19 Law and Society Review 449 66 McCormick, above n 8. 67 Nielsen and Smyth, above n 19

48 The University of Queensland Law Journal 2009

D Citations to Secondary Authorities

Secondary authorities include dictionaries, journal articles, law reform reports, learned texts and legal encyclopaedias. Secondary authorities are not binding on any court. Nevertheless, various reasons have been offered for citing secondary authorities including that secondary authorities provide a convenient summary of the law, secondary authorities provide a vehicle to explore the origins of legal principles and secondary authorities provide corroborating opinion for the position a judge has reached, particularly where there is conflicting case law.68 Judges have expressed divergent views on the value of citing secondary authorities.69 The difference in opinion is reflected in the House of Lords decision in Hunter v Canary Wharf,70 where Lord Cooke and Lord Goff expressed diverse views on the value of citing secondary authorities. Lord Cooke considered citation to secondary authorities to be useful when the law was unsettled, while Lord Goff found the relevant secondary authorities to be of little or no value.71 In Australia several High Court Justices, including Sir Owen Dixon, Sir Frank Kitto, Sir Gerard Brennan, Sir Anthony Mason and Michael Kirby have expressed the view that judicial recourse to journal articles and other academic writings is a useful practice.72 One senior Australian judge to express a different opinion is Sir Garfield Barwick who has put forward the view extra-judicially that citing academic authors in written reasons lessens the authority of the judgment and, as such, is a practice to be avoided as much as possible.73 Previous studies of the citation practice of the Australian State supreme courts suggest that 6-7 per cent of total citations are to secondary authorities.74 In the High Court, citations to secondary authorities have increased from 3.8 per cent of total citations in 1920 to 10.5 per cent of total citations in 1996.75 Over time there has been a change in the composition of secondary authorities cited with an increase in citation to law reviews at the expense of learned texts and legal encyclopaedias.76 This shift in composition of secondary authorities cited, which has also been observed for the United States Supreme Court77 and the New Zealand Court of Appeal,78 has been attributed to the courts adopting a more policy-oriented role.79 The figure for the Australian State supreme courts is generally consistent with findings for the State supreme courts in the United States. For example, Merryman,

68 For detailed discussion of the rationale for citing secondary authority see Smyth, above n 9; Smyth, above n 10. 69 For example, see Fausten, Nielsen and Smyth, above n 18 for a detailed discussion of the attitudes of various Australian, Canadian and English judges to citing secondary authorities. 70 [1997] AC 655. 71 Ibid 697. 72 See Sir Owen Dixon, Jesting Pilate (2nd ed, 1997) 156; Sir Frank Kitto, ‘Why Write Judgments?’ (1992) 66 Australian Law Journal 787, 797; Sir Gerard Brennan, ‘A Critique of Criticism’ (1993) 19 Monash University Law Review 213, 215; Mason, above 44, 154; Michael Kirby, ‘Welcome to Law Reviews’ (2002) 26 Melbourne University Law Review 1; Michael Kirby, ‘Not Another Law Journal?’ Address to the Launch of the Northern Territory Law Journal, August 2007. 73 Sir Garfield Barwick, A Radical Tory (1995) 223-224. 74 Smyth, above n 11. 75 Smyth, above n 9. 76 Smyth, ‘Other than “Accepted Sources of Law?”’ above n 9. 77 Daniels, above n 4. 78 Smyth, ‘Judicial Robes or Academic Gowns?’ above n 12. 79 Ibid.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 49

in his study of the citation practice of the California Supreme Court in 1950, 1960 and 1970, found that secondary authorities were responsible for 7.5 per cent of total citations.80

III THE DATA BASE

The data base for this study was compiled by counting citations to case law and secondary authorities in all decisions of the Supreme Court of Queensland reported in the authorized state reports at decade intervals commencing in 1905 and finishing in 2005, which gave a total of 584 cases. Covering one year each decade, rather than all ten, is a straight forward and legitimate method of creating a large random sample from a broader universe.81 That unreported decisions and decisions reported in specialized law reports are not included is a limitation in the sense that one cannot draw comparisons between citation practice in reported and unreported cases. It also means a proportion of the Court’s caseload, which is likely to have got bigger over the course of the twentieth century, is not being considered in the study. The rationale for excluding unreported decisions and decisions in specialized reports was fourfold. First, it keeps the data collection process over a century manageable – to employ research assistants to collect all decisions of the Court over a century would be prohibitively expensive. Second, it is difficult to locate unreported decisions from the early part of the twentieth century. To include unreported decisions from recent decades, but not for the earlier time period introduces its own biases. One would expect that the more complicated cases would be reported so that average citation rates in reported cases would be higher than in unreported cases. Thus, including citations in unreported cases for some years and not others would make comparison over time problematic. Third, although not all cases are included, as McCormick has argued: ‘Reported cases probably include a very high proportion of all the decisions sufficiently important to call for a reasoned judgment based on authority’.82 Fourth, in addition to previous studies of the citation practice of courts in North America, recent studies of the citation practice of the other State supreme courts over the last century have also been limited to citations in reported decisions for the reasons outlined here.83 Thus, restricting this study to citations in Supreme Court of Queensland decisions in the authorized state reports facilitates comparison with previous studies. The dataset was collected using the same ‘rules of thumb’ that have governed data collection in previous studies of citation practice of courts in Australasia and North America. The main points can be summarized as follows. First, citations to constitutions, regulations and statutes were excluded on the basis that the subject matter of the case dictates the citation of these sources and, as such, it is not an exercise of judicial discretion.84 Second, references to the case immediately under appeal were excluded on the grounds that this frequency count would be a function

80 Merryman, ‘Toward a Theory of Citations’. 81 A similar approach has been used not only in the previous studies of citation practice on the Australian State supreme courts over long periods, but also in North American studies of citation practice on State supreme courts that have adopted a long timeframe. For example, see Friedman, Kagan, Cartwright and Wheeler, above n 13; Manz, above n 6; McCormick, above n 8. 82 McCormick, above n 8, 277. 83 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19; Smyth, above n 20; Smyth, above n 17. 84 Merryman, above n 3, 652.

50 The University of Queensland Law Journal 2009

less of the Court’s mode of explaining its decision, than the reasoning of the trial judge.85 Third, if a case or secondary authority received repeat citations in the same paragraph it was counted only once, but if it was cited again in a subsequent paragraph it was counted each time on the basis that the source was being cited for a different proposition and hence had separate significance. 86 Fourth, the citation counts are weighted in the sense that the number of citations in each joint judgment was multiplied by the number of participating judges when calculating the total citation count. However, if Justice A concurred with Justice B and Justice B cited authorities, Justice A was not attributed with having cited those authorities.87 Fifth, no distinction is made between positive and negative citations. The reason for not distinguishing between positive and negative citations is twofold. One reason is that what we are interested in is measuring the influence of previous case law and secondary authorities on a judge’s thinking and since citation, at least to non-binding authority, is an act of discretion the judge is free to not cite an authority at all if it has no influence on his or her thinking.88 The other reason is that unlike academic writing where the previous literature is often heavily critiqued, judicial politeness dictates that few judicial citations are actually negative.89 For example, McCormick reports that in the Supreme Court of Canada less than 1 per cent of judicial citations are negative.90

Table 1: Subject Matter of Reported Cases of the Supreme Court of Queensland Dates from 05 15 25 35 45 55 65 75 85 95 05 Total 1905 - 2005 Wills & Probate 3 2 1 1 4 2 8 1 2 24

Criminal Law 6 6 4 2 3 3 10 9 24 46 12 125

Const. Law 2 1 3 1 1 6 14 Property 5 2 4 2 5 3 8 4 8 11 3 55 Contracts 5 2 3 2 3 3 1 13 5 2 39 Evidence & 2 3 5 2 2 3 7 7 27 16 11 85 Procedure

Torts 1 3 1 1 10 4 3 4 27 Taxation 2 1 2 2 1 1 4 2 7 22 Statutory 2 1 1 2 3 4 13 Interpret. Insurance 2 2 1 5 Admin. Law 1 3 3 4 1 3 3 6 8 12 3 47

Family Law 3 5 4 1 9 5 3 4 3 2 1 40

Trusts 3 1 4

85 See also, McCormick, above 25, 874. 86 This is consistent with the approach adopted in the previous studies of the citation practice of Australian courts and most studies of the citation practice of courts in North America. For a clear statement of this rationale see Daniels, above n 4, 3-4. 87 This practice is consistent with the existing studies for Australia and New Zealand. 88 See Richard Posner, ‘An Economic Analysis of the Use of Citations in the Law’ (2000) 2 American Law and Economics Review 381; William Landes and Richard Posner, ‘The Influence of Economics on the Law: A Quantitative Study’ (1993) 36 Journal of Law and Economics 385 at p. 390. 89 See Dennis Kurzon, ‘The Politeness of Judges: American and English Judicial Behaviour’ (2001) 33 Pragmatics 61. 90 McCormick, ‘The Supreme Court Cites the Supreme Court’, 462.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 51

Customs 2 2 Company Law 5 2 3 3 1 1 2 6 7 3 33

Intellectual 1 1 Property Damages 2 2 4 Contempt of 1 1 Court Employ-ment 3 2 1 1 1 1 1 1 11

Local Gov. 1 1 1 1 1 2 2 3 12 Worker’s 1 1 1 5 8 Comp-ensation

Fiduciary Duty 1 1

Insolvency 1 1 2

Bankruptcy 1 1 1 1 4

Costs 1 4 5

Racial Discrim. 1 1

The Police Acts 1 1

Legal 1 1 2 Profession

Total No of 34 31 34 23 30 30 51 46 122 13 53 584 Cases 0 Table 1 breaks the cases in the dataset down according to subject matter. Criminal law accounts for just over one-fifth of the cases (21.4 per cent), evidence and procedure constitutes 14.6 per cent of cases and property law makes up just under 10 per cent of cases. This caseload is similar to the Supreme Court of Victoria where criminal law, evidence and procedure and property law also represented the highest proportion of reported cases over the course of the twentieth century.91 For most criminal procedure cases the State courts of appeal function as a final court of appeal. In its early years, the High Court did not see its role as being one to interfere with the criminal law, which was considered a matter for the State supreme courts.92 This attitude with regard to criminal appeals was maintained well into the 1930s.93 More recently, it reflects the cost and delays involved with criminal appeals to the High Court coupled with the fact that appeal to the High Court is by special leave where a question of law of general importance is involved.94 Criminal law has also been a staple, and increasing proportion of the caseload of the State supreme courts in the United States since the second half of the nineteenth century, reflecting an increase in the crime rate and the ‘due process revolution’ instigated by the Warren

91 See Fausten, Nielsen and Smyth, above n 18. 92 Michael Kirby, ‘Why has the High Court Become More Involved in Criminal Appeals?’ (2003) 23 Australian Bar Review 23. See also, David Malcolm, ‘The High Court on Crime in Western Australia’, (Paper presented to Western Australia and the High Court Centenary: A Reason to Celebrate? Constitutional Centre of Western Australia, Perth, 29 November 2003) 5-6. 93 Sodeman v R (1936) 55 CLR 192, 207 per Starke J. 94 Russell Hogg, ‘Criminal Procedure’ in Anthony Blackshield, Michael Coper and George Williams (eds) Oxford Companion to the High Court of Australia (2001).

52 The University of Queensland Law Journal 2009

Court, which extended the constitutional rights of criminal defendants including the right to free counsel in the 1950s and 1960s.95 By analogy with the United States, in Queensland, the increase in criminal cases since the mid-1960s, partly reflects an increase in the incidence of serious crime such as homicide96 and partly reflects the introduction of the Legal Assistance Committee of Queensland which operated from 1965 to December 1979, at which time it was replaced by the Legal Aid Office (Queensland).97 Figure 1:

Average Length of Case 14 12 P 10 a 8 g 6 e 4 s 2 0 1905 1915 1925 1935 1945 1955 1965 1975 1985 1995 2005

Figure 2: Average Length of Judgments 6 5 P 4 a 3 g 2 e 1 s 0 1905 1915 1925 1935 1945 1955 1965 1975 1985 1995 2005 Time

Figures 1 and 2 show the average length of cases and judgments in the sample at decade intervals from 1905 to 2005. Previous studies for other State supreme courts suggest an increase in the average length of reported cases and judgments since at least the middle of the twentieth century.98 An increase in the average length of cases

95 Robert Kagan, Bliss Cartwright, Lawrence Friedman and Stanton Wheeler, ‘The Business of State Supreme Courts 1870-1970’ (1977) 30 Stanford Law Review 121; Herbet Kritzer, Paul Brace, Melinda Gann Hall and Brent Boyea, ‘The Business of State Supreme Courts, Revisited’ (2007) 4 Journal of Empirical Legal Studies 427. 96 For example, homicide and related offences such as attempted murder in Queensland increased from 4.2 per 100,000 people in 1940 to 6.9 per 100,000 in 2000 – Satyanshu Mukherjee, Anita Scandia, Dianne Dagger and Wendy Mathews, Source Book of Australian Criminal and Social Statistics 1804-1988 (Canberra: Australian Institute of Criminology, 1988) and Australian Bureau of Statistics, Recorded Crime – Victims Australia, 2006, No. 4510. 97 History of Legal Aid (2008) Legal Aid Queensland at March 2, 2008. 98 See Fausten, Nielsen and Smyth, above n 18; Smyth, above n 20.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 53

and judgments has also been observed in decisions of the High Court,99 the English Court of Appeal,100 and the United States State supreme courts.101 However, in the Supreme Court of Queensland there is no clear upward trend in the average case and judgment length; rather average case and judgment length is cyclical with spikes in 1925 and 1955 and troughs in 1945 and 1975. This cyclical pattern may reflect the judgment writing style of a specific judge or judges that have been on the Bench in particular years and is an issue that we consider more closely in Section 6 below.

IV OVERALL TRENDS IN CITATION TO AUTHORITY

Figure 3 shows average citations per case and average citations per judgment over the course of the twentieth century at decade intervals. There has been an upward trend in average citations per case and average citations per judgment, with troughs in 1945 and 1975. In 1905 the Court cited 2.8 authorities per case and 1.5 authorities per judgment. In 2005, the Court cited 16.2 authorities per case and 6.8 authorities per judgment. This suggests a cumulative increase of 480 per cent in average citations per case and a 350 per cent cumulative increase in average citations per judgment over the century under consideration. The troughs in 1945 and 1975 correspond to the shorter length of reported cases and judgments in those two years as per Figures 1 and 2. The results reported here are consistent with previous studies for the High Court,102 Australian State supreme courts103 and State supreme courts in the United States104 which have also observed an increase in average citation rates over time. Figure 3:

Average Citation C 20 i t 15 A a Av e Citations v t 10 per Case e i o n 5 s 0 190 5 1925 1945 1965 1985 2005 Time

Previous studies have offered several explanations for the increase in citation rate over time, which are applicable to differing degrees to the Supreme Court of

99 Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001’ (2004) 32 Federal Law Review 255. 100 Charles Goutal, ‘Characteristics of Judicial Style in France, Britain and the USA’, (1976) 24 American Journal of Comparative Law 43. 101 Friedman, Kagan, Cartwright and Wheeler, above n 13. 102 Smyth, above n 9. 103 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19; Smyth, above n 20; Smyth, above n 17. 104 Friedman, Kagan, Cartwright and Wheeler, above n 13; Manz, above n 6.

54 The University of Queensland Law Journal 2009

Queensland.105 One explanation is that over time the Court has a larger stock of precedents to cite. However, previous studies suggest that precedent has a citation half-life, meaning that the courts predominantly cite more recent authorities at the expense of older authorities.106 Thus, having a large stock of older decisions will not necessarily be positively correlated with higher citation rates. Another explanation is that from a broader policy perspective, the acceleration in socio-economic change has intensified the struggle between competing interest groups and increased demands on the courts to be seen to be administering due process. This socio- economic change has resulted in an increase in citation to authorities as judges have sought legitimization in the eyes of competing interests.107 Third, developments in information technology have made it much easier for judges (or their associates) to locate case law and this has contributed to an increase in the citation rate over the last two decades. Finally, it has been suggested that the creation of a permanent Court of Appeal in Victoria in 1995 contributed to an increase in average citation rates in that state because the Court of Appeal has more resources to devote to dedicated researchers. 108 The creation of a permanent Court of Appeal in Queensland in 1991, however, has not had any discernable effect on citation rates. Between 1985 and 2005 average citations per case increased slightly, but average citations per judgment exhibited a slight fall.

V TRENDS IN THE TYPES OF AUTHORITIES WHICH GET CITED

Table 2 shows citations in reported cases in the Supreme Court of Queensland at decade intervals over the period 1905 to 2005. There are several observations worth noting in relation to Table 2. The first is the decline in deference citations to English authorities over the course of the twentieth century. In 1905 citations to English authorities constituted 72 per cent of total citations and in 1915 to 1935 as well as 1955 citations to English cases represented in excess of 50 per cent of the Court’s total citations. The decline in citations to secondary authorities began as early as 1965 when citations to English authorities fell to 46.8 per cent of total citations, down from 58.9 per cent a decade earlier. The decline continues in earnest in 1975 and 1985 when citations to secondary authorities fell below 35 per cent of total citations for the first time and accelerated in 1995 and 2005 when citations to

105 See Fausten, Nielsen and Smyth, above n 18; Friedman, Kagan, Cartwright and Wheeler, above n 13, 777-778; Goutal, above n 100, 61-64.; Groves and Smyth, above n 99, 265-266; Manz, above n 6, 125-127. 106 Put formally, the citation half-life is the statistical probability that citation of a case by the Court is reduced by 50 per cent every x years. The notion that precedent possesses a half-life was first discussed in the seminal judicial citation practice study by Merryman, ‘The Authority of Authority’ and elaborated on in his later study, Merryman, ‘Towards a Theory of Citations’, see above n 3. For a detailed statistical study of the half-life of precedent see William Landes and Richard Posner ‘Legal Precedent: A Theoretical and Empirical Analysis’ (1977) 19 Journal of Law and Economics 249. 107 See Robert Cooter, ‘The Objectives of Private and Public Judges’ (1983) 41 Public Choice 107, 129 (arguing that judges seek prestige among the lawyers and litigants who bring cases before them). However, contrast, Richard Posner, ‘What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does)’ (1993) 3 Supreme Court Economic Review 1, 13 (arguing that judges care about how they are viewed by lawyers, but not litigants, who appear before them). 108 Fausten, Nielsen and Smyth, above n 18.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 55

English authorities represented just 16.7 per cent and 15.9 per cent of total citations respectively.

Table 2: Citations in Reported Cases in the Supreme Court of Queensland Dates from 1905- 05 15 25 35 45 55 65 75 85 95 05 2005 Total No of Cases 34 31 34 23 30 30 51 46 122 130 53 Total No of Judgments 66 84 84 52 77 73 127 81 240 296 126

HIGH COURT 1903-1919 13 47 16 10 3 9 10 27 36 14 1920-1939 16 11 21 15 19 4 32 38 7 1940-1959 10 16 60 13 66 79 20 1960-1979 39 16 161 178 35 1980-1999 115 596 110 2000- 45

Subtotal 13 63 27 41 34 127 43 401 927 231 Ave per case

2.38 1.85 1.17 1.37 1.13 2.49 0.93 3.29 7.13 4.36 Ave Per Judgement

3.7 1.09 0.55 0.53 0.47 1 0.53 1.67 3.13 1.83

FEDERAL/ FAMILY COURT 24 73 28 Queensland SC 6 21 39 28 42 75 131 51 348 475 285 Ave per case 0.18 0.67 1.14 1.21 1.4 2.5 2.57 1.11 2.85 3.65 5.38 Ave Per Judgement 0.09 0.25 0.46 0.54 0.54 1.03 1.03 0.63 1.45 1.6 2.26

Tasmania SC 1 5 2 1 2 Victoria SC 1 3 5 12 10 13 21 9 97 84 35 NSW SC 5 9 9 6 19 21 24 13 131 180 68 Western Australia SC 2 9 2 22 20 12 South Australia SC 1 6 16 3 6 62 77 10

Subtotal 6 13 14 26 54 37 54 27 314 362 127 OTHER AUST. COURTS 1 17 38 7 ENGLISH COURTS House of Lords 7 10 28 24 13 42 59 12 89 57 46 Judicial Committee 2 3 27 18 9 13 29 6 40 53 4 English CA 28 12 49 39 36 101 77 33 294 181 67 Lower English Courts 37 36 60 68 42 96 158 29 166 114 20

Subtotal 74 61 164 149 100 252 323 80 589 405 137 Ave per case 2.17 1.97 4.82 6.47 3.33 8.4 6.33 1.74 4.83 3.12 2.58 Ave per judgement 1.12 0.72 1.95 2.87 1.3 3.45 2.54 0.99 2.45 1.37 1.09

OTHER COUNTRIES 9 3 12 12 5 4 14 8 17 53 23

56 The University of Queensland Law Journal 2009

SECOND. AUTHORIT. LEGAL Books 4 4 5 23 2 13 29 15 87 53 4 Periodicals 1 6 1 6 16 4 Encycl. 1 5 10 3 3 2 2 21 3 1 Law Reform Reports 2 Dictionaries 3 1 Other 1 2 6 5

Subtotal 4 5 10 33 5 17 38 21 114 78 17

NON-LEGAL

Books 5 1 4 Periodicals 3 1 Dictionaries 1 2 1 10 9 4 Other

Subtotal 9 3 1 10 14 4

TOTAL 102 117 302 275 248 428 690 232 1834 2425 859 AVE CITATIONS PER CASE 2.82 3.77 8.88 12 8.27 14.3 13.5 5.04 15 18.7 16.2 AVE CITATIONS PER JUDGEMENT

1.54 1.39 3.59 5.52 3.22 5.86 5.43 2.86 7.64 8.19 6.82 The decline in citation to English cases from 1965 is similar to what occurred in the Supreme Court of New South Wales.109 As suggested in that earlier study, while the English courts clearly remained near the apex of the court hierarchy for the State supreme courts in the mid-1960s, the High Court’s refusal in Parker v The Queen,110 to follow the objective test of murder stated in the House of Lords in D.P.P. v Smith,111 may have had a subtle signalling effect on the State courts as marking the beginning of an Australian jurisprudence that is distinct from English case law.112 As discussed above, the rapid decline in citation to English cases in 1995 and 2005 reflects the commencement of the Australia Acts and emerging national legal identity from the mid-1980s as well as the impact of European law on jurisprudence in the United Kingdom, which has made English cases less relevant to Australia. Former Chief Justice, Murray Gleeson has also noted that another reason for the decline in citations to English cases in Australia is the increasing ‘localisation of statute law’.113 His Honour states: ‘Australian legislation, state and federal, on a wide range of topics affecting trade practices, commercial law, contracts, tort law and criminal law, is now different from English law; and such legislation occupies much of the field that in earlier times was the province of the common law’.114 Sir Ivor Richardson, past President of the New Zealand Court of Appeal, has offered the same explanation for the decline in citations to English authorities in that court, noting ‘there are many New Zealand statutes that have drawn on legislation in

109 Nielsen and Smyth, above n 19. 110 (1963) 111 CLR 610. 111 [1961] A.C. 290. 112 Nielsen and Smyth, above n 19. See also Mason, above 44; Cullinane, above n 39. 113 Gleeson, above 41, 134. 114 Ibid.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 57

countries other than the United Kingdom. ... In many cases, in which these statutes are invoked, reference to English common law cases is ordinarily unnecessary’.115 A second point worth noting about Table 2 is that from 1905 to 1975 there was generally an inverse pyramid where the lower English courts were cited the most followed by the English Court of Appeal, while the House of Lords and Judicial Committee were cited the least of the English courts. An inverse pyramid in citation to English case law has also been observed in the citation practice of the other State supreme courts over most of the twentieth century.116 It reflects the fact that although the House of Lords and Judicial Committee sat at, or next to, the apex of the court hierarchy over this period, the English High Court and English Court of Appeal have traditionally heard most criminal law, probate and trust matters; areas that have been mainstays of the jurisdiction of the Australian State supreme courts. 117 These decisions of the English Court of Appeal, Queens Bench and Chancery Division constitute what Sir Anthony Mason has termed the vast body of English common law lying beneath the surface of the Privy Council common law iceberg.118 A third observation on Table 2 is that deference citations to courts in countries other than Australia and England as a proportion of total citations have been small, even after the commencement of the Australia Acts. Casual observation suggests that over the last decade the High Court has increased the proportion of deference citations it makes to courts in countries other than Australia and England. The current Chief Justice of Queensland refers to one such instance.119 In R v Swaffield; Pavic v R,120 in a case concerned with admission of covertly recorded admissions in a criminal trial, the High Court preferred the North American authorities to the English position reflected in R v P.121 The results in this study, however, suggest that the Supreme Court of Queensland does not get the same assistance from Canadian, New Zealand, United States cases and the like as the High Court. Studies for the other State supreme courts have reached the same conclusion.122 After referring to the High Court’s citation to North American cases in R v Swaffield; Pavic v R, the Chief Justice continued to say: ‘On the other hand, we have not always recently, in Queensland, found North American authority necessarily of persuasive assistance: an example is Bowditch v McEwan & Ors,123 where the Court of Appeal declined, with some considerable conviction, to follow a decision of the Supreme Court of Canada’.124 A point worth noting about the results presented in Table 2 is that deference citations to English courts and courts in countries other than Australia and England for 1995 and 2005 are much lower than suggested by the Queensland Supreme Court Library study of reported judgments of the Queensland Court of Appeal over calendar years 1997 and 1998. That study found that approximately 40 per cent of citations were to courts in overseas jurisdictions and half of these were from the

115 Richardson, above n 12, 264. 116 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19; Smyth, above n 20; Smyth, above n 17. 117 See Fausten, Nielsen and Smyth, above n 18. 118 Mason, above 44, 154. 119 de Jersey, above n 23, 16. 120 (1997) 192 CLR 159 121 [2001] 2 WLR 463. 122 See Russell Smyth, ‘Citations of Foreign Decisions in Australian State Supreme Courts Over the Course of the Twentieth Century: An Empirical Analysis’, Temple International & Comparative Law Journal (in press). 123 [2002] QCA 158. 124 de Jersey, above n 23, 16.

58 The University of Queensland Law Journal 2009

United Kingdom. 125 The results reported here suggest that in 1995 and 2005 deference citations to courts in overseas jurisdictions represented 18.9 per cent and 18.8 per cent of total citations respectively; of which citations to courts in countries other than England constituted less than 3 per cent in both decades. Thus, while the findings reported here for citations to English cases is similar to the Supreme Court Library study, this study suggests that the Court has far fewer deference citations to courts in countries other than England than the Supreme Court Library study found.126 The results reported here, though, are fairly consistent with the findings from the study of the 50 most recent reported decisions as of June 1999 which found that deference citations to English authorities in the Supreme Court of Queensland constituted 18.8 per cent of total citations and deference citations to courts in countries other than Australia and England were responsible for 4.7 per cent of total citations.127 The results presented here are also more in line with the finding of the Chief Justice that the Queensland Court of Appeal cited English and other foreign case law in 20 out of 176 judgments, equating to 11 per cent of total judgments delivered in the first six months of 2002.128 A fourth observation on Table 2 is that the decline in deference citations to English authorities has been replaced by an increase in consistency citations to the Court’s own previous decisions and hierarchical citations to the High Court. By 1995 consistency citations and hierarchical citations to the High Court as a proportion of total citations were both larger than either deference citations to English authorities or coordinate citations to the decisions of other State supreme courts combined. Consistency citations to the Court’s own previous decisions and hierarchical citations to the High Court as a proportion of total citations in most years have been fairly similar. Exceptions were 1915 and 1925 in the early time period of the study and in 1995 and 2005 toward the end of the study. In 1925 and 1995 hierarchical citations to the High Court were larger than consistency citations, while in 1915 and 2005 consistency citations were greater than hierarchical citations to the High Court. That consistency citations to the Court’s own decisions and hierarchical citations to decisions of the High Court have become the most common form of citations is consistent with the findings of previous studies. On a practical level, this result reflects the increase in the stock of recent local case law which is available for counsel to cite as well as the growth in local statute law and commensurate increase in Australian case law interpreting the legislation. At a more conceptual level, this result reflects the heightened sense of independent nationhood which has honed the desire to further forge a ‘distinct Australian law’129 that is suited to Australia’s needs. A fifth feature of Table 2 is that coordinate citations as a proportion of total citations has fluctuated over time, with no clear trend. Coordinate citations by the Court for 1995 and 2005 (just under 15 per cent of total citations) are slightly less than coordinate citations by the Court suggested in another study based on the 50

125 These results are reported in de Jersey, above n 23, 18. 126 It is likely that the difference in findings reflects different methodologies employed in the two studies. However, this has proved impossible to confirm. The Supreme Court of Queensland library has a copy of the study in its catalogue, but it is listed as missing. Inquiries with the library confirmed that the study has indeed been misplaced and no other copies seem to be available. 127 Smyth, above n 11 (calculated from results presented in Table 2 of that article). 128 de Jersey, above n 23, 16-17. 129 Mason, above 44, 149.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 59

most recent reported decisions as at June 1999 (18.9 per cent of total citations).130 Most coordinate citations have been to the Supreme Court of New South Wales or the Supreme Court of Victoria. In 1905, 1915 and 1925, the Supreme Court of New South Wales and the Supreme Court of Victoria were the only other State supreme courts the Court cited. As recently as 2005, the Supreme Court of New South Wales and the Supreme Court of Victoria accounted for in excess of 80 per cent of coordinate citations with the Supreme Court of New South Wales alone accounting for more than half of the Court’s coordinate citations. This finding is consistent with previous studies, as discussed earlier, which suggest that the Supreme Court of New South Wales and, to a lesser extent, the Supreme Court of Victoria are large ‘suppliers’ of coordinate citations. That New South Wales and Victoria are large suppliers of coordinate citations reflects their relatively large population bases, the volume of litigation that is commenced in these states, the strength of the Bar in these states and the reputation of the Bench in these states for exercising judicial leadership.131 A sixth feature of Table 2 is that in most years citations to secondary authorities have constituted less than 5 per cent of total citations. Exceptions are 1935 and 1975 when citations to secondary authorities made up approximately 10 per cent of total citations. In 1935 citations to secondary authorities were actually higher than citations to the High Court, citations to the Court’s own previous decisions and coordinate citations. Most citations to secondary authorities have been to legal secondary authorities. Until World War II, the Court did not cite any non-legal secondary authorities at all in the sampled cases. Following World War II, in most years legal secondary authorities made up more than 80 per cent of citations to secondary authorities. This figure is similar to the Federal Court and New Zealand Court of Appeal where just over 80 per cent of citations to secondary authorities were to legal sources and the High Court where legal sources constitute 86 per cent of citations to secondary authorities.132 Most citations to legal secondary authorities are citations to learned texts. In most years citations to legal texts have been in excess of 75 per cent of citations to secondary authorities, which is higher than the New Zealand Court of Appeal where the comparable figure is about 45 per cent, the High Court where the comparable figure is about 40 per cent and the United States Supreme Court where the comparable figure is just over 30 per cent.133 However, these findings are consistent with the results of previous studies which found that the other State supreme courts, including the Supreme Court of New South Wales, cite far more textbooks than law reviews.134 This result is likely to reflect the fact that law reviews typically contain articles containing normative statements about ‘what the law should be’, while textbooks contain positive statements of ‘what the law is’. This makes law reviews more suited to the caseload of final appellate courts such as the High Court and less

130 Smyth, above n 11 (calculated from results presented in Table 2). 131 See generally, Russell Smyth and Dietrich Fausten, ‘Coordinate Citations Between Australian State Supreme Courts Over the Twentieth Century’ (2008) 34 Monash University Law Review 53. 132 For the Federal Court see Smyth, ‘The Authority of Secondary Authority’; for the New Zealand Court of Appeal see Smyth, ‘Judicial Robes or Academic Gowns?’ above n 12, see Smyth, ‘Other than Accepted Sources of Law?’ above n 9. 133 For the New Zealand Court of Appeal see, Smyth, ‘Judicial Robes or Academic Gowns?’ above n 12; Smyth, ‘Other than Accepted Sources of Law?’ above n 9; Daniels, above n 4. 134 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19; Nielsen and Smyth, above n 19; Smyth, above n 17.

60 The University of Queensland Law Journal 2009

relevant to intermediate appellate courts which tend to cite academic authorities for statements of what the law is, rather than how it should be changed.135

VI INDIVIDUAL JUDGES

Tables 3A-3K show the citation practice of each judge in reported decisions of the Supreme Court of Queensland over the period 1905-2005. Conclusions about the citation practices of individual judges are more difficult to draw than for the Court as a whole because the number of reported judgements for each judge is much smaller. Some judges appear in only one sample year, while others who appear in one or more sample years only write a small number of judgments in each year making it impossible to draw reliable conclusions about their citation practices. 136 This problem increases in the latter years of the study as the size of the Bench has increased with a commensurate increase in the number of judges with reported judgments.

Table 3A: Citation Practice of Judges in the Supreme Court of Queensland in 1905 Chubb Real Power Cooper TOTAL No of Judgment 17 20 18 11 66 HIGH COURT 1903-1919 1920-1939 1940-1959 1960-1979 1980-1999 2000- Subtotal Ave Per Judgement FEDERAL/FAMILY COURT Queensland SC 6 6 Ave Per Judgement .35 .10

Tasmania SC Victoria SC 1 1 NSW SC 3 3 2 8 Western Australia SC South Australia SC Subtotal 4 3 2 9

OTHER AUST. COURTS

ENGLISH COURTS House of Lords 2 5 7 Judicial Committee 1 1 2 English CA 20 7 1 28 Lower English Courts 22 12 3 37 Subtotal 45 25 1 3 74 Ave per judgement 2.64 1.25 .06 .27 1.12

OTHER COUNTRIES 7 1 1 9 Ave per judgement .41 .05 .06 .14

SECONDARY AUTHORITIES LEGAL Books 1 3 4

135 Black and Richter, above n 7, 391. 136 This problem is not unique to this study. It is apposite to all of the previous studies for Australian and North American courts hat have attempted to draw conclusions about the citation practices of individual judges; see Manz, above n 6, 146-147.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 61

Periodicals Encyclopaedias Law Reform Reports Dictionaries Other Subtotal 1 3 4 Ave per judgement .09 .12 .06 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement

TOTAL 63 32 2 5 102 AVE PER JUDGEMENT 3.71 1.6 .11 .45 1.54

Table 3B: Citation Practice of Judges in the Supreme Court of Queensland in 1915 Lukin Chubb Cooper Real Shand TOTAL No of Judgment 25 22 13 5 19 84 HIGH COURT 1903-1919 5 5 3 13 1920-1939 1940-1959 1960-1979 1980-1999 2000- Subtotal 5 5 3 13 Ave Per Judgement .20 .23 .23 .15

FEDERAL/FAMILY COURT

Queensland SC 2 18 1 21 Ave Per Judgement .08 .82 .2 .25

Tasmania SC Victoria SC 1 2 3 NSW SC 9 9 Western Australia SC South Australia SC 1 1 Subtotal 2 11 11

OTHER AUST. COURTS

ENGLISH COURTS House of Lords 8 2 10 Judicial Committee 2 1 3 English CA 7 5 12 Lower English Courts 13 21 2 36 Subtotal 30 28 3 61 Ave per judgement 1.2 1.3 .23 .73

OTHER COUNTRIES 1 2 3 Ave per judgement .04 .15 .04

SECONDARY AUTHORITIES LEGAL Books 1 1 Periodicals Encyclopaedias Law Reform Reports Dictionaries Other Subtotal 1 1 Ave per judgement .45 .01 NON-LEGAL Books 4 4 Periodicals Dictionaries

62 The University of Queensland Law Journal 2009

Encyclopaedia 1 1 Other Subtotal 5 5 Ave per judgement .2 .06

TOTAL 45 63 8 1 117 AVE PER JUDGEMENT 1.8 2.86 .62 .2 1.40

Table 3C: Citation Practice of Judges in the Supreme Court of Queensland in 1925 Macnaughton Douglas Brennan Blair O’Sullivan Webb McCawley Lukin TOTAL No of Judgment 29 1 3 20 23 2 4 4 84 HIGH COURT 1903-1919 30 2 13 2 47 1920-1939 11 1 2 2 16 1940-1959 1960-1979 1980-1999 2000- Subtotal 41 3 15 4 63 Ave Per 1.41 3 .75 1 .75 Judgement FEDERAL/ FAMILY COURT Queensland SC 19 2 3 23 11 1 2 1 39 Ave Per .66 2 1 1.15 .48 .5 .5 .25 .46 Judgement Tasmania SC Victoria SC 3 1 1 5 NSW SC 3 1 2 2 1 9 Western

Australia SC South Australia

SC Subtotal 6 1 2 3 2 14 OTHER AUST.

COURTS ENGLISH

COURTS House of Lords 10 8 6 2 2 28 Judicial 14 4 1 27 Committee English CA 32 2 2 8 5 3 49 Lower English 27 3 3 18 4 3 2 60 Courts Subtotal 83 5 17 26 11 10 7 164 Ave per 2.86 5 5.67 1.3 .48 2.5 1.75 .195 judgement OTHER COUNTRIES 4 5 1 2 12

Ave per .14 1.67 .5 .5 .14 judgement SECONDARY

AUTHORITIES LEGAL Books 2 1 1 1 5 Periodicals Encyclopaedias 3 1 1 5 Law Reform

Reports Dictionaries Other Subtotal 5 2 1 1 1 10 Ave per .17 .1 .04 .5 .25 .12 judgement NON-LEGAL Books Periodicals

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 63

Dictionaries Other Subtotal Ave per judgement TOTAL 158 11 25 68 26 3 21 8 302 AVE PER 5.45 11 8.33 3.4 1.13 1.5 5.25 2 3.59 JUDGEMENT

Table 3D: Citation Practice of Judges in the Supreme Court of Queensland in 1935 RJ EA Webb Hart Henchman Brennan Macrossan Blair TOTAL Douglas Douglas No of Judgment 2 14 7 8 9 3 6 3 52 HIGH COURT 1903-1919 4 3 2 3 1 1 2 16 1920-1939 2 3 2 2 1 1 11 1940-1959 1960-1979 1980-1999 2000- Subtotal 4 5 5 5 3 2 3 27 Ave Per Judgement 2 .36 .71 .63 .33 .33 1 .52 FEDERAL/ FAMILY COURT Queensland SC 4 6 5 6 4 3 28 Ave Per Judgement .29 .86 .63 .67 .67 1 .54 Tasmania SC Victoria SC 5 2 5 12 NSW SC 1 1 1 1 2 6 Western Australia SC 2 2 South Australia SC 4 2 6 Subtotal 12 1 3 8 2 26 OTHER AUST. COURTS ENGLISH COURTS House of Lords 3 3 11 6 1 24 Judicial Committee 2 4 2 18 English CA 2 6 9 3 2 5 5 39 Lower English Courts 7 15 22 20 4 5 12 68 Subtotal 12 26 46 29 8 11 17 149 Ave per judgement 6 1.86 6.57 3.63 .89 1.83 5.67 2.87 OTHER COUNTRIES 1 4 1 1 3 2 12 Ave per judgement .5 .29 .14 .13 .23 SECONDARY AUTHORITIES LEGAL Books 1 3 7 8 3 1 23 Periodicals Encyclopaedias 1 5 2 1 1 10 Law Reform Reports Dictionaries Other Subtotal 1 4 7 13 5 1 2 23 Ave per judgement .5 .29 1 1.63 .56 .17 .67 .44 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement TOTAL 18 55 66 56 30 23 27 287 AVE PER JUDGEMENT .11 3.93 9.43 7 3.33 3.83 9 5.52

Table 3E: Citation Practice of Judges in the Supreme Court of Queensland in 1945 EA Philip Stanley Macrossan Webb Brennan Mansfield TOTAL Douglas No of Judgment 12 19 8 19 8 1 10 77 HIGH COURT 1903-1919 2 2 1 5 10 1920-1939 1 5 4 5 4 2 21

64 The University of Queensland Law Journal 2009

1940-1959 2 3 1 2 2 10 1960-1979 1980-1999 2000- Subtotal 5 10 5 8 11 2 41 Ave Per Judgement .42 .53 .63 .42 1.38 .2 .53 FEDERAL/ FAMILY COURT Queensland SC 14 21 11 13 3 2 42 Ave Per Judgement 1.17 1.12 1.38 .68 .38 .2 .55 Tasmania SC Victoria SC 1 5 2 2 10 NSW SC 2 7 1 4 19 Western Australia SC 7 1 2 1 9 South Australia SC 2 16 Subtotal 3 21 4 6 2 1 54 OTHER AUST. COURTS ENGLISH COURTS House of Lords 1 5 2 4 1 13 Judicial Committee 2 3 2 2 9 English CA 7 9 6 9 2 3 36 Lower English Courts 2 12 7 13 3 5 42 Subtotal 10 28 18 28 8 8 100 Ave per judgement .83 1.47 2.25 1.47 1 .8 1.30 OTHER COUNTRIES 2 1 1 1 6 Ave per judgement .12 .13 .05 .13 .01 SECONDARY AUTHORITIES LEGAL Books 1 1 2 Periodicals Encyclopaedias 1 1 1 3 Law Reform Reports Dictionaries Other Subtotal 1 2 2 5 Ave per judgement .05 .25 .2 .07 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement TOTAL 32 82 39 57 27 15 248 AVE PER JUDGEMENT 2.67 4.32 4.88 3 3.34 1.5 3.22

Table 3F: Citation Practice of Judges in the Supreme Court of Queensland in 1955 Stanley Mack Bradford Macrossan Mansfield Hanger No of Judgment 11 9 2 10 10 9 HIGH COURT 1903-1919 3 1920-1939 4 1 1 1 1940-1959 2 1960-1979 1980-1999 2000- Subtotal 7 1 3 1 Ave Per Judgement .64 .11 .30 .11 FEDERAL/

FAMILY COURT Queensland SC 17 20 4 5 9 Ave Per Judgement 1.55 2.22 2 .5 1 Tasmania SC Victoria SC 4 1 1 3 NSW SC 1

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 65

WA SC South Australia SC 3 Subtotal 8 1 1 3 OTHER AUST.

COURTS ENGLISH COURTS House of Lords 20 8 4 Judicial Committee 3 2 3 English CA 10 2 5 6 4 34 Lower English Courts 5 1 27 11 6 19 Subtotal 35 11 35 21 12 56 Ave per judgement 3.18 1.22 17.5 2.10 1.20 6.22 OTHER COUNTRIES 1 2 Ave per judgement .09 .20 SECONDARY

AUTHORITIES LEGAL Books 2 1 5 Periodicals 1 Encyclopaedias 2 Law Reform Reports Dictionaries Other Subtotal 2 1 8 Ave per judgement .22 .50 .89 NON-LEGAL Books 2 3 Periodicals 3 Dictionaries 1 Other Subtotal 3 6 Ave per judgement 1.5 .67 TOTAL 68 35 44 29 14 83 AVE PER 6.18 3.89 22 2.9 1.4 9.22 JUDGEMENT

Table 3F: Citation Practice of Judges in the Supreme Court of Queensland in 1955 (cont.) Philip Townley Jeffriess Matthews TOTAL No of Judgment 4 8 7 3 73 HIGH COURT 1903-1919 3 1920-1939 8 15 1940-1959 2 12 16 1960-1979 1980-1999 2000- Subtotal 2 20 34 Ave Per Judgement .5 2.5 .47 FEDERAL/

FAMILY COURT Queensland SC 75 Ave Per Judgement 1.03 Tasmania SC Victoria SC 2 2 13 NSW SC 2 6 12 21 Western Australia SC South Australia SC 3 Subtotal 2 6 14 2 37 OTHER AUST. COURTS ENGLISH COURTS House of Lords 3 4 3 42 Judicial Committee 4 1 13

66 The University of Queensland Law Journal 2009

English CA 6 5 29 101 Lower English Courts 10 17 96 Subtotal 20 8 51 3 252 Ave per judgement 5 1 7.29 1 3.45 OTHER COUNTRIES 1 4 Ave per judgement .14 .05 SECONDARY

AUTHORITIES LEGAL Books 5 13 Periodicals 1 Encyclopaedias 1 3 Law Reform Reports Dictionaries Other Subtotal 6 17 Ave per judgement 1.5 .23 NON-LEGAL Books 5 Periodicals 3 Dictionaries 1 Other Subtotal Ave per judgement TOTAL 30 34 66 5 428 AVE PER JUDGEMENT 7.5 4.25 9.43 1.67 5.86

Table 3G: Citation Practice of Judges in the Supreme Court of Queensland in 1965 Douglas Stable Gibbs Hart Sheehy Jeffriess Lucas No of Judgment 10 17 21 12 11 2 12 HIGH COURT 1903-1919 2 1 2 1 1 1920-1939 2 2 7 4 1 1940-1959 4 13 3 1 1 1960-1979 3 8 3 1 1980-1999 2000- Subtotal 4 10 28 12 3 3 Ave Per Judgement .4 .59 1.33 1 .27 .25 FEDERAL/FAMILY COURT Queensland SC 8 30 31 16 6 11 Ave Per Judgement .8 1.76 1.48 1.33 .55 .92 Tasmania SC Victoria SC 2 1 13 3 NSW SC 8 1 9 1 1 WA SC 2 South Australia SC 6 Subtotal 10 2 30 3 1 1 OTHER AUST. COURTS ENGLISH COURTS House of Lords 3 2 4 4 2 Judicial Committee 2 6 16 1 English CA 4 12 17 22 4 Lower English Courts 19 15 24 78 5 Subtotal 26 31 51 120 1 11 Ave per judgement 2.6 1.82 2.43 10 .09 .92 OTHER COUNTRIES 2 1 3 5 Ave per judgement .2 .06 .14 .42 SECONDARY AUTHORITIES LEGAL Books 2 3 17 2 1 Periodicals 5 Encyclopaedias 1 Law Reform Reports Dictionaries Other 1 Subtotal 2 3 24 2 1 Ave per judgement .2 .14 2 .18 .08

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 67

NON-LEGAL Books Periodicals Dictionaries 2 Other Subtotal 2 Ave per judgement .17 TOTAL 52 74 146 180 13 29 AVE PER JUDGEMENT 5.2 4.35 6.95 15 1.18 2.42

Table 3G: Citation Practice of Judges in the Supreme Court of Queensland in 1965 (cont.) Mack Hanger Wanstall Mansfield Campbell Skerman TOTAL No of Judgment 9 14 13 4 1 1 127 HIGH COURT 1903-1919 2 9 1920-1939 1 2 19 1940-1959 8 4 19 7 60 1960-1979 22 2 39 1980-1999 2000- Subtotal 8 29 23 7 127 Ave Per Judgement .89 2.07 1.77 1.75 1 FEDERAL/ FAMILY COURT Queensland SC 3 14 7 1 1 3 131 Ave Per Judgement .33 1 .54 .25 1 3 1.03 Tasmania SC 1 1 Victoria SC 2 21 NSW SC 3 1 24 Western Australia SC 2 South Australia SC 6 Subtotal 2 3 1 1 54 OTHER AUST. COURTS 22 .23 .25 1 .43 ENGLISH COURTS House of Lords 9 3 26 3 59 Judicial Committee 1 3 29 English CA 6 8 2 1 77 Lower English Courts 3 10 4 1 158 Subtotal 9 13 47 9 1 1 323 Ave per judgement 1 .93 3.62 2.25 1 1 2.54 OTHER COUNTRIES 1 3 14 Ave per judgement .11 .23 .11 SECONDARY AUTHORITIES LEGAL Books 2 2 29 Periodicals 1 1 6 Encyclopaedias 1 2 Law Reform Reports Dictionaries Other 1 Subtotal 3 2 1 1 38 Ave per judgement .33 .14 .25 1 .30 NON-LEGAL Books 1 1 Periodicals Dictionaries 2 Other Subtotal 1 3 Ave per judgement .08 .02 TOTAL 26 58 84 19 2 6 690 AVE PER JUDGEMENT 2.89 4.14 6.46 4.75 2 6 5.43

Table 3H: Citation Practice of Judges in the Supreme Court of Queensland in 1975 DM Hanger Stable Kneipp Andrews Dunn Matthews Campbell No of Judgment 9 7 4 4 5 15 8 HIGH COURT

68 The University of Queensland Law Journal 2009

1903-1919 2 1 2 1920-1939 1940-1959 1 1 3 1 1 1960-1979 5 1 4 2 1980-1999 2000- Subtotal 8 1 2 3 7 3 Ave Per Judgement FEDERAL/ FAMILY

COURT Queensland SC 9 9 2 3 5 2 Ave Per Judgement 1 1.29 .5 .75 Tasmania SC 1 Victoria SC 1 4 1 3 NSW SC 1 1 4 1 3 WA SC SA SC 1 Subtotal 1 3 8 1 1 7 OTHER AUST. 1 COURTS ENGLISH COURTS House of Lords 1 3 1 2 1 Judicial Committee 1 1 1 English CA 7 3 3 2 6 2 Lower English Courts 2 4 2 1 13 4 Subtotal 10 4 10 3 3 22 8 Ave per judgement 1.11 .57 2.5 .75 .6 1.47 1 OTHER COUNTRIES 2 3 Ave per judgement .5 .6 SECOND. AUTHORIT. LEGAL Books 2 2 3 Periodicals 1 Encyclopae-dias Law Reform Reports Dictionaries 1 Other Subtotal 2 2 4 Ave per judgement .22 .29 1 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement TOTAL 23 23 20 18 10 35 20 AVE PER JUDGE- 2.56 3.29 5 4.5 2 2.33 2.5 MENT

Table 3H: Citation Practice of Judges in the Supreme Court of Queensland in 1975 (cont’) Williams Wantstall Kelly Douglas Hoare Lucas Campbell TOTAL No of Judgment 2 5 3 8 6 4 1 81 HIGH COURT 1903-1919 1 1 3 10 1920-1939 2 1 1 4 1940-1959 1 4 1 13 1960-1979 3 1 16 1980-1999 2000- Subtotal 5 6 2 3 3 43 Ave Per Judgement 2.5 1.2 .25 .5 .75 .53 FEDERAL/

FAMILY COURT Queensland SC 5 2 5 7 2 51

Ave Per Judgement 2.5 .4 .63 1.17 2 .63

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 69

Tasmania SC 4 5 Victoria SC 9 NSW SC 3 13 WA SC South Australia SC 5 Subtotal 4 5 3 27 OTHER AUST. 1 COURTS ENGLISH COURTS House of Lords 3 2 12 Judicial Committee 3 1 2 6 English CA 6 1 1 33 Lower English Courts 2 29 Subtotal 11 6 2 2 80 Ave per judgement 5.5 1.2 .25 .66 .99 OTHER COUNTRIES 1 8 Ave per judgement .13 .10 SECONDARY

AUTHORIT. LEGAL Books 4 1 15 Periodicals 1 Encyclopaedias 2 Law Reform Reports Dictionaries 3 3 Other Subtotal 7 1 21 Ave per judgement 3.5 .17 .26 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement

TOTAL 32 19 10 13 6 2 232 AVE PER 16 3.8 1.25 2.17 1 .5 2.86 JUDGEMENT

Table 3I: Citation Practice of Judges in the Supreme Court of Queensland in 1985 Dowsett Williams Master Weld Demack Carter Kelly Ryan No of Judgment 15 1 5 7 17 12 HIGH COURT 1903-1919 5 11 1 1 1 1920-1939 5 1 1 2 1940-1959 9 13 4 2 1960-1979 18 33 3 10 1 1980-1999 7 29 1 5 2000- Subtotal 44 87 1 5 17 9 Ave Per Judgement 11 5.8 1 .71 1 .75 FEDERAL/ 12 FAMILY COURT Queensland SC 6 1 33 17 4 Ave Per Judgement 1.5 .07 4.71 1 .33 Tasmania SC 1 Victoria SC 13 9 9 2 NSW SC 15 75 6 7 1 6 WA SC 1 5 SA SC Subtotal 15 89 6 17 15 8 OTHER AUST. COURTS 1 1 6 2 ENGLISH COURTS House of Lords 3 9 4 Judicial Committee 3 6 English CA 2 30 4 6 4 2 Lower English Courts 5 1 Subtotal 8 45 5 6 9 7 Ave per judgement 2 3 5 .86 .53 .58

70 The University of Queensland Law Journal 2009

OTHER COUNTRIES 2

Ave per judgement .29 SECONDARY AUTHORIT. LEGAL Books 2 11 3 3 1 1 Periodicals Encyclopaedia 1 Law Reform Reports Dictionaries Other Subtotal 2 12 3 3 1 1 Ave per judgement .5 .8 .6 .43 .06 .08 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement

TOTAL 76 235 6 9 84 61 29 AVE PER JUDGEMENT 19 15.67 6 1.8 12 3.59 2.42

Table 3I: Citation Practice of Judges in the Supreme Court of Queensland in 1985 (cont.) de Derrington Ambrose Thomas Connolly Macrossan Jersey No of Judgment 10 1 18 16 9 9 HIGH COURT 1903-1919 2 2 1920-1939 4 4 3 2 1940-1959 6 4 4 5 2 1960-1979 5 24 18 3 2 1980-1999 8 13 7 2 2000- Subtotal 25 47 32 10 6 Ave Per Judgement 2.5 2.61 2 1.11 .67 FEDERAL/ 4 FAMILY COURT Queensland SC 9 46 15 4 7 Ave Per Judgement .9 2.56 .94 .44 .78 Tasmania SC Victoria SC 7 15 8 1 2 NSW SC 5 18 1 3 4 WA SC 1 6 SA SC 2 15 Subtotal 15 54 9 4 6 OTHER AUST. 4 1 COURTS ENGLISH COURTS House of Lords 17 15 12 3 3 Judicial Committee 2 3 8 1 English CA 17 1 68 6 54 17 Lower English Courts 11 27 2 40 Subtotal 47 1 113 20 105 21 Ave per judgement 4.7 1 6.28 1.25 11.67 2.33 OTHER COUNTRIES 3 1 3 3 Ave per judgement .3 1 .17 .33 SECONDARY

AUTHORIT. LEGAL Books 10 15 2 16 Periodicals 1 4 1 Encyclopaedia 1 4 8 Law Reform Reports Dictionaries Other 2 Subtotal 12 23 2 27 Ave per judgement 1.2 1.28 .13 3

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 71

NON-LEGAL Books Periodicals Dictionaries 1 2 Other 1 Subtotal 1 1 2 Ave per judgement .1 .06 .22 TOTAL 110 2 287 78 159 41 AVE PER 11 2 15.94 4.88 17.67 4.56 JUDGEMENT

Table 3I: Citation Practice of Judges in the Supreme Court of Queensland in 1985 (cont.) Vasta Moynihan Campbell Matthews McPherson Andrews No of Judgment 12 12 19 9 26 18 HIGH COURT 1903-1919 3 1920-1939 1 1 7 1940-1959 1 2 8 3 1960-1979 1 7 7 17 1 1980-1999 2 2 2 9 4 2000-

Subtotal 4 12 10 44 8 Ave Per Judgement .33 1 .53 1.70 .44 FEDERAL/ 2 4 1 FAMILY COURT Queensland SC 5 1 18 1 40 13 Ave Per Judgement .42 .08 .95 .11 1.54 .72 Tasmania SC Victoria SC 1 5 2 11 2 NSW SC 1 1 17 9 WA SC 3 4 SA SC 1 4 Subtotal 2 1 13 2 32 11 OTHER AUST. COURTS 1 1 2 ENGLISH COURTS House of Lords 2 3 8 26 4 Judicial Committee 6 1 2 5 English CA 1 6 55 8 5 4 Lower English Courts 1 6 19 13 16 7 Subtotal 4 21 83 23 52 15 Ave per judgement .33 1.75 4.37 2.56 2 .83 OTHER COUNTRIES 1 1 2 Ave per judgement .08 .05 .22 SECONDARY AUTHORIT. LEGAL Books 1 5 8 3 4 Periodicals Encyclopaedia 6 1 Dictionaries Other Subtotal 1 11 9 3 4 Ave per judgement .08 .58 1 .16 .22 NON-LEGAL Books Periodicals Dictionaries 1 5 Other Subtotal 1 5 Ave per judgement .11 .19 TOTAL 16 40 142 38 177 51 AVE PER JUDGEMENT 1.33 3.33 7.47 4.22 6.81 2.83

Table 3I: Citation Practice of Judges in the Supreme Court of Queensland in 1985 (cont.) Kneipp Shepherdson Master Lee TOTAL No of Judgment 5 12 3 240 HIGH COURT 1903-1919 1 27 1920-1939 1 32 1940-1959 6 1 66

72 The University of Queensland Law Journal 2009

1960-1979 1 16 161 1980-1999 11 3 115 2000- Subtotal 2 34 4 401 Ave Per Judgement .4 2.83 1.33 1.67 FEDERAL/ 1 24 FAMILY COURT Queensland SC 1 29 34 348 Ave Per Judgement .2 2.42 11.33 1.45 Tasmania SC 1 2 Victoria SC 2 8 97 NSW SC 2 30 131 WA SC 5 22 SA SC 62 Subtotal 4 44 314 OTHER AUST. COURTS 17 ENGLISH COURTS House of Lords 2 8 89 Judicial Committee 1 1 1 40 English CA 1 2 8 294 Lower English Courts 1 4 166 Subtotal 3 5 21 589 Ave per judgement .6 .42 7 2.45 OTHER COUNTRIES 16 Ave per judgement .07 SECONDARY AUTHORITIES

LEGAL Books 1 2 87 Periodicals 6 Encyclopaedia 21 Law Reform Reports Dictionaries Other 2 Subtotal 1 2 116 Ave per judgement .2 .67 .48 NON-LEGAL Books Periodicals Dictionaries 10 Other Subtotal .04 Ave per judgement TOTAL 20 112 61 1834 AVE PER JUDGEMENT 4 9.33 20.3 7.64

Table 3J: Citation Practice of Judges in the Supreme Court of Queensland in 1995 Macrossan Pincus Davies Fitzgerald McPherson Fryberg Byrne No of Judgment 18 43 38 32 37 5 2 HIGH COURT 1903-1919 4 3 2 1920-1939 3 7 2 3 5 1940-1959 3 6 1 42 8 1960-1979 22 12 15 52 20 4 1980-1999 41 63 16 319 33 6 2000- Subtotal 69 88 38 419 68 10 Ave Per Judge. 3.83 2.05 1 13.09 1.84 2 FEDERAL/ 3 3 2 27 4 1 1 FAMILY COURT Queensland SC 27 49 30 147 51 21 2 Ave Per Judgement 1.50 1.14 .79 4.59 1.38 4.20 1 Tasmania SC Victoria SC 2 14 2 19 6 NSW SC 7 30 7 52 37 WA SC 5 6 4 South Australia SC 3 10 1 31 3 Subtotal 12 59 10 108 50 OTHER AUST. COURTS 9 16 1

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 73

ENGLISH COURTS House of Lords 4 5 29 5 1 Judicial Committee 7 5 2 13 7 English CA 13 8 5 39 38 1 Lower English Courts 7 11 2 12 16 Subtotal 31 29 9 93 66 2 Ave per judgement 1.72 .67 .24 2.91 1.78 .40 OTHER COUNTRIES 5 2 17 21 Ave per judgement .12 .05 .53 .57 SECONDARY AUTHORIT. LEGAL Books 2 Periodicals 1 Encyclopaedias 2 Law Reform Reports Dictionary 1 Other Subtotal 2 1 2 1 Ave per judgement .05 .03 .05 .20 NON-LEGAL Books Periodicals Dictionaries Other Subtotal Ave per judgement TOTAL 142 244 91 828 262 42 3 AVE PER JUDGEMENT 7.89 5.67 .42 25.86 1.08 8.40 1.50

Table 3J: Citation Practice of Judges in the Supreme Court of Queensland in 1995 (cont.) Thomas Dowsett Moynihan Lee Shepherson Derrington White No of Judgment 21 9 14 6 5 5 8 HIGH COURT 1903-1919 3 4 1920-1939 2 6 3 1940-1959 1 8 1 1960-1979 16 5 6 1 1980-1999 17 14 1 10 3 8 2000- Subtotal 39 24 6 27 4 9 Ave Per Judgement 1.86 2.67 .43 4.50 .80 1.80 FEDERAL/ 2 4 2 7 2 FAMILY COURT Queensland SC 31 10 6 18 11 18 7 Ave Per Judgement 1.48 1.11 .43 3 2.20 3.60 .88 Tasmania SC 1 Victoria SC 10 1 2 10 1 NSW SC 12 2 1 4 1 WA SC 2 South Australia SC 5 14 1 Subtotal 30 16 1 4 14 2 OTHER AUST. 2 1 COURTS ENGLISH COURTS House of Lords 3 1 5 2 Judicial Committee 5 2 English CA 13 11 6 4 8 Lower English Courts 6 4 6 2 1 Subtotal 27 16 19 8 9 Ave per judgement 3.17 1.60 1.13 OTHER COUNTRY 1 1 Ave per judgement .11 .20 SECOND. AUTHORIT. LEGAL Books 1 1 1 1 1 Periodicals 1 Encycl. 1 Law Reform Reports

74 The University of Queensland Law Journal 2009

Dictionaries Other Subtotal 1 1 2 1 2 Ave per judgement .05 .11 .33 .20 .25 NON-LEGAL Books 2 Periodicals Dictionaries 1 1 3 Other Subtotal 2 1 1 3 Ave per judgement .10 .11 .17 .38 TOTAL 132 75 13 74 15 58 25 AVE PER 6.29 8.33 .93 12.33 3 11.60 3.13 JUDGEMENT

Table 3J: Citation Practice of Judges in the Supreme Court of Queensland in 1995 (cont.) de Demack Cullinane Williams Ambrose Helman Mackenzie TOTAL Jersey No of Judgment 8 1 17 13 4 6 4 296 HIGH COURT 1903-1919 2 1 17 36 1920-1939 5 1 1 38 1940-1959 4 2 1 1 1 79 1960-1979 3 14 7 1 178 1980-1999 18 3 21 3 6 14 596 2000- Subtotal 32 5 38 29 8 14 927 Ave Per Judgement 4 5 2.24 2.23 1.33 3.5 3.13 FEDERAL/ 1 7 3 4 73 FAMILY COURT Queensland SC 7 24 8 4 3 475 Ave Per Judgement .88 1.41 .62 1 .50 1.60 Tasmania SC 1 Victoria SC 1 2 1 11 2 84 NSW SC 1 9 1 5 11 180 WA SC 7 2 20 South Australia SC 5 1 77 Subtotal 8 1 18 2 17 13 362 OTHER AUST. 9 38 COURTS ENGLISH COURTS House of Lords 4 1 1 1 57 Judicial Committee 3 3 5 1 53 English CA 4 7 13 8 3 181 Lower English 11 6 26 4 114 Courts Subtotal 22 3 14 45 14 3 405 Ave per judgement 2.75 3 .82 3.46 2.33 .75 1.37 OTHER COUNTR- 1 2 2 53 IES Ave per judgement .13 .18 .15 SECOND. AUTHOR-ITIES LEGAL Books 1 2 53 Periodicals 2 16 Encycl. 3 Law Reform Reports Dictionaries Other 6 Subtotal 1 4 78 Ave per judgement .13 .24 .26 NON-LEGAL Books 4 Periodicals 1 Dictionaries 1 1 9

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 75

Other Subtotal 1 1 14 Ave per judgement .13 .06 .05 TOTAL 72 9 108 98 4 46 30 2425 AVE PER JUDGE- 9 9 6.35 7.54 1 7.67 7.5 18.19 MENT

Table 3K: Citation Practice of Judges in the Supreme Court of Queensland in 2005 Chesterman McPherson Keane Philippides McMurdo de Jersey Muir No of Judgment 2 14 11 6 18 2 6 HIGH COURT 1903-1919 8 1 1 1920-1939 1 2 1 2 1 1940-1959 3 4 3 1 1 1960-1979 3 2 5 8 1980-1999 1 13 15 11 2 13 2000- 6 2 6 1 Subtotal 8 27 34 29 4 15 Ave Per Judgement 4 1.93 3.01 1.61 2 2.5

FEDERAL/ 3 10 4 FAMILY COURT Qld SC 22 13 28 27 3 2 Ave Per Judgement 11 .93 2.55 1.50 1.5 .33 Tas SC 1 Victoria SC 2 23 4 NSW SC 4 6 15 19 1 WA SC 1 4 5 SA SC 2 2 2 Subtotal 8 7 45 30 1 OTHER AUST. COURTS ENGLISH COURTS House of Lords 2 15 1 2 2 Judicial Committee 1 1 2 English CA 5 12 10 18 5 Lower English Courts 3 5 1 1 5 Subtotal 10 33 13 23 12 Ave per judgement 5 2.36 1.18 1.28 2 OTHER COUNTRIES 2 3 4 1 7 Ave per judgement .14 .27 .22 .5 1.17 SECONDARY

AUTHORITIES LEGAL Books 1 1 Periodicals 1 2 Encyclopaedias Law Reform Reports Dictionaries 1 1 Other 1 2 Subtotal 1 3 1 4 1 Ave per judgement .5 .21 .09 .22 .5 NON-LEGAL Books Periodicals Dictionaries 1 Other Subtotal 1 Ave per judgement .06

TOTAL 49 88 134 122 9 37 AVE PER JUDGEMENT 24.5 6.29 12.18 6.78 4.5 6.17

Table 3K: Citation Practice of Judges in the Supreme Court of Queensland in 2005 (cont.) Williams White Jerrard Wilson Mullins Mackenzie No of Judgment 13 7 13 3 7 2 HIGH COURT 1903-1919 1 2 1920-1939

76 The University of Queensland Law Journal 2009

1940-1959 1 6 1960-1979 3 10 1980-1999 7 7 22 5 2000- 3 6 13 2 Subtotal 19 18 53 7 Ave Per Judgement 1.46 2.57 4.01 2.33

FEDERAL/ 5 1 1 FAMILY COURT Qld SC 9 14 121 5 2 7 Ave Per Judgement .69 2 9.31 1.67 .29 3.5

Tas SC Victoria SC 2 1 1 NSW SC 1 5 1 WA SC SA SC 2 2 Subtotal 2 3 6 2 2

OTHER AUST. COURTS 2 2 1 ENGLISH COURTS House of Lords 4 1 9 2 5 Judicial Committee 6 7 English CA 1 2 2 Lower English Courts Subtotal 11 3 18 2 5 Ave per judgement .85 .43 1.38 .67 2.5 OTHER COUNTRIES 1 1 1 2 Ave per judgement .08 .14 .08 .67 SECONDARY AUTHORITIES LEGAL Books 1 Periodicals 1 Encyclopaedias Law Reform Reports 2 Dictionaries Other 1 Subtotal 1 4 Ave per judgement .08 1.33 NON-LEGAL Books Periodicals Dictionaries 1 Other Subtotal 1 Ave per judgement .08

TOTAL 46 41 205 23 5 12 AVE PER JUDGEMENT 3.54 5.86 15.77 7.67 .71 6

Table 3K: Citation Practice of Judges in the Supreme Court of Queensland in 2005 (cont.) Douglas Fryberg Jones Holmes Atkinson Davies Helman TOTAL No of Judgments 7 3 2 4 1 1 1 126 HIGH COURT 1903-1919 1 14 1920-1939 7 1940-1959 1 20 1960-1979 1 1 1 1 35 1980-1999 10 3 1 110 2000- 4 2 45 Subtotal 2 15 3 3 1 2 231 Ave Per Judgement .29 5 1.5 .75 1 2 1.83 FEDERAL/ 2 1 1 28 FAMILY COURT Qld SC 10 3 13 6 285 Ave Per Judgement 1.43 1 3.25 6 2.26

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 77

Tas SC 1 2 Victoria SC 1 2 35 NSW SC 3 8 5 68 WA SC 1 12 SA SC 10 Subtotal 4 1 10 6 127 OTHER AUST. COURTS 2 7 ENGLISH COURTS House of Lords 3 46 Judicial Committee 4 English CA 1 2 1 67 Lower English Courts 20 Subtotal 1 3 2 1 137 Ave per judgement .14 1 1 1 1.10

OTHER COUNTRIES 1 23 Ave per judgement .14 .18 SECOND. AUTHOR- ITIES LEGAL Books 1 4 Periodicals 4 Encycl. 1 1 Law Reform Reports 2 Dictionaries 1 Other 1 5 Subtotal 1 1 1 17 Ave per judgement .14 .33 .25 .13 NON-LEGAL Books Periodicals Dictionaries 1 4 Other Subtotal 1 4 Ave per judgement .25 .03 TOTAL 21 25 16 25 2 8 859 AVE PER JUDGEMENT 3 8.33 8 6.25 2 8 6.82

With these provisos in mind, some general observations are possible. The first observation is that the judges who were the biggest citers in the early decades of the twentieth century (Chubb in 1915 and 1925; Macnaughton in 1925) would have been regarded as small to moderate citers in 1995 and 2005. This is a direct reflection at the individual level that the Court at the end of the twentieth century cited more authorities on a per case and per judgment basis, than it did at the beginning of the twentieth century. A second observation is that in most years, and in particular in the earlier years of the study, there are one or two judges who are large citers of authority relative to their contemporaries who drag the annual average up. In the two troughs in Figure 3 in 1945 and 1975 this does not occur. This may just reflect the fact that there were small citers on the Court in each of those two years. Of the judges who were on the Bench in 1945, E.A. Douglas was also a small citer in 1935, while Macrossan and Mansfield were also small citers in 1955. Philp and Stanley were bigger citers in 1955, although Philp did not have enough reported judgments in 1955 to draw reliable conclusions. Of the judges who were on the Bench in 1975, Campbell and Hanger were bigger citers in other decades in which they were on the Bench, while the citation rates for Andrews, Kneipp and Stable were similar in other decades. A third observation, and a qualification to the second observation, is that over time the distance between the biggest and smaller citers on the Court in a given year has reduced. For example in 1905 and 1915 Chubb alone was responsible for in excess of 50 per cent of citations in reported decisions. In 1995 Fitzgerald P., who was the biggest citer on the Court, was responsible for 34 per cent of the Court’s

78 The University of Queensland Law Journal 2009

citations and in 2005, Jerrard, who was the biggest citer on the Court, was responsible for 24 per cent of the Court’s citations. Fourth, Posner has hypothesised that there is a positive correlation between the reputation of a judge and his or her propensity to cite authorities. In the United States two of the judicial giants – Learned Hand and Cardozo – were big citers of authority.137 In 1920 and 1930 on the New York Court of Appeals Cardozo cited twice as much case law and three times as much secondary authorities as any of his contemporaries.138 The study of the citation practice of the Supreme Court of New South Wales examined Posner’s hypothesis by considering whether judges of that Court who were later elevated to the High Court cite more authority on a per case and per judgment basis.139 That study found mixed support for the hypothesis with Kirby, McHugh and Walsh having above average citation rates, while Gleeson was a ‘middle of the road’ citer when sitting on the Supreme Court of New South Wales. There is mixed support for this hypothesis for the two judges who served on the Supreme Court of Queensland who were later elevated to the High Court for whom we have data.140 Gibbs was the biggest citer on the Court in 1965; however, Webb was a relatively small citer in each of 1925, 1935 and 1945.

VII LIMITATIONS AND SUGGESTIONS FOR FUTURE RESEARCH

This study has examined the citation practice of the Supreme Court of Queensland over the course of a century using cases sampled at decade intervals. The results are generally consistent with the findings of other recent studies of the citation practices of the State supreme courts over a similar time frame.141 They suggest that overall there has been a trend towards citing more authorities on a per case and per judgment basis. In terms of which authorities get cited there has been a decline in deference citations to English authorities, which have been replaced by an increase in consistency citations to the Court’s own decisions and hierarchical citations to the High Court. There has been no clear trend in the number of coordinate citations, although the Supreme Court of New South Wales and Supreme Court of Victoria have been the biggest ‘suppliers’ of coordinate citations to the Court. Citation to secondary authorities has remained small throughout the period studied and when the Court does cite secondary authorities, it typically cites legal texts. The major limitation of the study is that to make the data collection manageable over such a long timeframe it is restricted to reported decisions. As it is likely that the more complex cases get reported, it is reasonable to expect that citations on a per case and per judgment basis are higher in reported cases than unreported cases. Thus, the average citation rates reported here should be seen as representing an upper bound on the Court’s citation practice. One avenue for future research would be to compare citation rates in reported and unreported decisions on the State

137 Richard Posner, ‘The Learned Hand Biography and the Question of Judicial Greatness’ (1994) 104 Yale Law Journal 511; Richard Posner, Cardozo: A Study in Reputation (1990). 138 Manz, above n 6, 147. 139 Nielsen and Smyth, above n 19. 140 The study begins after Griffith CJ sat on the Supreme Court of Queensland and does not include data for the year Kiefel J sat on the Supreme Court of Queensland. 141 See Fausten, Nielsen and Smyth, above n 18; Nielsen and Smyth, above n 19; Smyth, above n 20; Smyth, above n 17.

Vol 28 (1) Citation Practice of the Supreme Court of Queensland 79

supreme courts using a shorter time frame.142 Another limitation of this study is that it does not consider the role of counsel in citing authority to the Court. Another direction for future research could be to compare the authorities cited by counsel in argument or written submissions with the authorities cited in judgments. 143 Increasingly both case law from a range of jurisdictions as well as non-case law material that would otherwise be impossible to obtain is becoming available through databases such as Dialog, Lexis, Nexis and Westlaw as well as over the internet from web sources such as Austlii.144 The extent to which counsel will cite such sources in written submissions and whether the Court will be receptive to such sources is an interesting topic to investigate. The encroachment of foreign case law in the United States, made more accessible by access to databases, is a hotly contested topic.145 One suspects that to the extent Australian courts will be more receptive to secondary authorities and case law from a range of jurisdictions it will be in the High Court and not the State courts.146 What can a study such as this tell us (and by the same token what can it not tell us)? What a study such as this cannot tell us is all the influences on a judge’s thinking. Susan Kenny points out that ‘there is more to influence than calculating the number of times [a journal article] is mentioned in a judgment’.147 Judges may read cases or journal articles which influence their thinking, but not cite them in their judgments. The extent to which this occurs is likely to reflect judicial style. For example, after emphasising the importance of reading widely, Sir Gregory Gowans, a former judge of the Supreme Court of Victoria, has observed: ‘The elaboration [by way of the historical narrative] of the research undertaken and of the process of reasoning adopted can sometimes only be explained on the basis of a narcissistic interest on the part of the author of the judgment in the extent of [the judge’s] own

142 On the benefits of utilizing reported and unreported cases, albeit in a different context, see Orley Ashenfelter, Theodore Eisenberg and Stewart Schwab, ‘Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes’ (1995) 24 Journal of Legal Studies 257. 143 For a study along these lines for the United States Supreme Court see, Manz, above n 4. 144 Austlii, University of Technology, Science and University of New South Wales Faculties of Law 145 See generally Richard Posner, ‘Could I Interest You in Some Foreign Law? No Thanks, We Already Have Our Own Laws’ (2004) August Legal Affairs 40. For a discussion of the United States Supreme Court's increasingly controversial use of international and foreign human rights law in its death penalty jurisprudence, particularly with respect to the Eighth Amendment, see Bharat Malkani ‘The Judicial Use of International and Foreign Law in Death Penalty Cases: A Poisoned Chalice’ (2007) 42 Studies in Law, Politics and Society 161. For a study of citation of foreign law in the Australian State supreme courts see Smyth, above n 122. 146 Even in the High Court use of international legal materials is contentious, particularly when used in constitutional interpretation and in relation to human rights. See the opposing views of McHugh and Kirby JJ expressed in Al-Kateb v Godwin (2004) 219 CLR 562. See also the discussion of developing technologies and precedent in Kirby, above n 27. 147 Susan Kenny, ‘The Melbourne University Law Review: 45 Years On’, (Address to the 2001 Annual Dinner of the Melbourne University Law Review). The address is reproduced in The Melbourne University Law Review Alumni Association Newsletter No. 1, November 2001, 3, at January 16, 2008.

80 The University of Queensland Law Journal 2009

industry and erudition. It is not part of the function entrusted to [the judge] to do that’. 148 Nevertheless, returning to the quotation from Walsh reproduced in the introduction to this article, studying judicial citations potentially opens a window to better understanding of judicial decision making. The judgments contained in the law reports are the best guides we have as to what constitutes sound legal reasoning over time. As Friedman and his colleagues put it: ‘Everybody knows – at least since the realists hammered home the point – that a judicial opinion does not tell us what went on in judges’ minds. It may be mere rationalization. But we can say, with some certainty, that the opinion and its reasoning show what judges think is legitimate argument and legitimate authority, justifying their behaviour’.149 Utilizing a long time frame, such as in this study, allows us to track changes in what judges think is legitimate argument and legitimate authority over time. In doing so, this tracks the courts and secondary authorities which influence the evolution of the common law.

148 Sir Gregory Gowans, ‘Reflections on the Role of a Judge’ (1980) Summons (annual magazine of the law students society, University of Melbourne) 66. 149 Friedman, Kagan, Cartwright and Wheeler, above n 13, 794.