Early law reports
The present Supreme Court of New South Wales was established in 1824, pursuant to the Third Charter of Justice 1823.1 The first systematic attempt to prepare reports of the Court began in 1828, when James Dowling, a barrister and accomplished law reporter from England, took up an appointment as a judge of the Court.2 Dowling’s nine notebooks contained reports of 465 cases decided during the sixteen years that he served as a judge, and as the second Chief Justice, of the Court. Although his notebooks were available for reference by his two fellow judges and legal practitioners at the time, they were only published in 2005, as Dowling’s Select Cases 1828 – 1844, by the Francis Forbes Society for Australian Legal History, in conjunction with the Council of Law Reporting for NSW and Macquarie University.
Prior to 1862 the only source of court reporting in New South Wales was provided by colonial newspapers,3 with the exception of a volume of judgments of the Supreme Court for 1845 produced by William a’Beckett, then practising as a barrister in Sydney. Upon his subsequent appointment as the resident Judge in Port Phillip, a’Beckett produced a further five volumes of his judgments for the period 1846-1851; these were reprinted and published in 1970 to provide a complete set of law reports for the Victorian Supreme Court.4
Continuous law reporting in New South Wales began in 1863 with reports prepared by two barristers, W H Wilkinson and William Owen.5 In 1896, Gordon Legge, a barrister, produced a two volume set of judgments of the Supreme Court for the period 1830 to 1862, based largely on newspaper reports. For the period prior to 1828, the only readily available source of court reports is the Macquarie University Division of Law website which has extracted and published approximately 1,850 judgments and other court reports, based mainly on newspaper reports, together with explanatory notes for the period 1823 to 1841.
Formation of the Council in 1969
In England during the 1860s, there was a trend away from nominate reports, prepared by individual barristers, to more formal series of authorised reports. In 1867, the Incorporated Council of Law Reporting for England and Wales was formed for the “preparation and publication at a moderate price and under gratuitous professional control of Reports of Judicial Decisions of the Superior and Appellate Courts in England”.7 Although the English lead was not immediately followed in New South Wales, two major series of law reports emerged: the New South Wales Weekly Notes from 1884 and the State Reports, New South Wales from 1901. Both of these series were published by The Law Book Company of Australia Limited, with the former intended to be published quickly and the latter to be based on a selection of the former reports.8 One of the Council’s recent projects is the preparation of an index for the State Reports this will make the enduring judgments from that period more accessible to contemporary practitioners.
The first Council of Law Reporting for New South Wales was established in 1963 on an administrative basis by the Attorney General, at the suggestion of the NSW Bar Association, with funding provided by the Attorney General’s Department (AGD). That first Council took responsibility for editorial decisions in relation to the State Reports and the Weekly Notes, but responsibility for the production and distribution of both series remained with the Law Book Company. In addition, decisions of the Supreme Court and the Land & Valuation Court were published under the title New South Wales Reports from 1960 by Butterworths.
Following further discussion between the Attorney General and the first Council, the current Council of Law Reporting was established by the Council of Law Reporting Act 1969. The then Attorney General, Kenneth McCaw, described the purpose of the Council as four-fold:
First, it must undertake the selection of cases to be reported; second, it must have them reported as speedily as possible; third, it must have regard to the cost of law reporting and law reports to ensure that they are as cheap as possible; and finally, it must ensure – as far as this is possible – efficiency and accuracy of reporting, including the preparation of head notes to reported decisions.9
The AGD provided funding for the Council from 1963 until 1991 and continued to provide the Council’s accommodation and funds for operating expenses until 1994. The Council became fully self-funding from 1994 and moved to its own leased premises. From 2000, the Council began self-publishing, commencing with Volume 51 of the NSWLR. The separation from the AGD, together with the surplus generated by its self-publishing activities, has allowed the Council to operate on a more commercial basis, with direct control over its own finances, operating procedures and staffing.
Production of the NSWLR series by the Council
In 1970 the Council commenced the series titled New South Wales Law Reports (the NSWLR), and, with the cooperation of Butterworths and the Law Book Co Ltd, the parallel series of reports referred to above were discontinued. The Council has always had editorial control over the NSWLR, although the first 50 volumes were produced for the Council by the Law Book Company.
The NSWLR series has always been a high quality publication, both in terms of its editorial selection and its production values, commensurate with its status as a series of authorised reports. Since its inception, it has published soft cover parts of approximately 150 pages, with every five parts being bound in hard cover volumes. Approximately 2.5 volumes are produced each year, thus requiring a careful and rigorous selection process. As use of computer technology became more common in the 1980s, the Council experimented with the use of electronic publication to supplement the hard copy publications.
By the mid-1990s, it became clear that the availability of NSWLR in electronic form was going to be of increasing importance to subscribers and the publishing industry. The Council therefore developed its own electronic publishing strategy that included capturing all NSWLR data in SGML (Standard Generalised Mark-up Language) format. SGML allows automatic conversion of the electronic data for use in both traditional printing and online publication. SGML also has typesetting and printing advantages, including the ability to print small runs of old parts and volumes relatively inexpensively.
The Council committed to building its own database of NSWLR in SGML from Volume 1. An Indian company, Datamatics, was selected through an international tender process to re-key and format all of the NSWLR up to Volume 35 as an accurate representation of the printed volumes. The whole process, including checking and proofreading in Sydney, took almost two years and cost over $400,000. The technology used to produce NSWLR from Volume 36 onwards was already suitable for conversion and inclusion in the database. Subsequent volumes have been produced in SGML from the outset so that no further conversion is required.
The Council continues to publish NSWLR parts and bound volumes for its subscribers in New South Wales, other states in Australia and overseas. In addition, with the growth of electronic databases, and the availability of its reports in SGML, the Council now licenses its NSWLR series to LexisNexis (formerly Butterworths) and Thomson (formerly the Law Book Company), for publication as part of their online services, in a form which allows these publishers to insert their own electronic “hotlinks” to the other online information resources they offer their subscribers.
The present Council structure represents the culmination of a long and successful history of law reporting in New South Wales, which since the mid to late nineteenth century has been overseen by practising members of the legal profession. The support of the AGD for the last forty years has also played a significant role in enabling the Council to achieve its current state of financial independence, while ensuring the high quality and relatively low cost of the publication.
The production and publication strategies developed by the Council, particularly since the advent of self-publishing in 2000, have been successful. While keeping down the prices paid by NSWLR subscribers, the Council has generated a surplus which has enabled it to support special projects to enhance the recording and accessibility of judgments delivered in New South Wales.
The vast number of Supreme Court judgments which can now be accessed on the Caselaw pages of the AGD website, and through other electronic services, has increased the importance of the Council’s role in selecting and publishing the most important judgments of the Court, with appropriate headnotes, in an accurate and readily accessible form through the NSWLR. That is, the aims for the Council articulated by Mr McCaw in 1969, and even earlier in 1867 by the founders of the Incorporated Council of Law Reporting for England and Wales, remain just as relevant to the Council today as in the pre-electronic era.
- Historical Records of Australia, IV, I, p.503.
- T D Castle & B Kercher (eds.) ‘Introduction’, Dowling’s Select Cases 1828 to 1844: Decisions of the Supreme Court of NSW, Sydney, 2005, pp.vii – xxviii.
- J M Bennett & N J Haxton, ‘Law Reporting and Legal Authority’, in G. Lindsay and C. Webster (eds.), No Mere Mouthpiece: Servants of All, Yet of None, Sydney, 2002, pp. 145-150.
- W a’Beckett, Reports of Practice Cases argued and determined in the Supreme Court of New South Wales for the District of Port Phillip during the year 1846 with Notes, Melbourne , 1970.
- Supreme Court Reports, Vol. 1, 1863.
- B Kercher, Publication of Forgotten Case Law of the New South Wales Supreme Court, (1998) 72 ALJ 876.
- W Latey, A Short History of the Law Reports 1869-1965, London , 1965.
- McCaw AG, Council of Law Reporting Bill Second Reading Speech, 9 September 1969, New South Wales Parliamentary Debates 1969-1970 (Hansard), Vol. 80, pp.762-763.
- ibid., pp.761-762.