Trends in the Citation Practice of the Supreme Court of Queensland over the Course of the Twentieth Century

By Smyth, Russell | University of Queensland Law Journal, July 2009 | Go to article overview

Trends in the Citation Practice of the Supreme Court of Queensland over the Course of the Twentieth Century


Smyth, Russell, University of Queensland Law Journal


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 Supreme Court of Canada (7) 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 are, however, studies for the High Court of Australia, (9) Federal Court of Australia, (10) the Australian State supreme courts (11) 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 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 Australia (20) and Supreme Court of Western Australia (21) 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. …

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