Common(wealth) Knowledge #25: Behind the scenes

A look at how this series is created every single week.

Well, we made it. This is the 25th edition of Common(wealth) Knowledge. To celebrate this milestone, I want to offer some behind-the-scenes insight into the series so far. In this article, I’ll cover some of the legalese and legal writing and research techniques used throughout the series so far, as well as some facts about the legal system, and answer some questions people might have about the articles. I will be referring to Mabo v Queensland (No 2) (1992), arguably the most famous High Court of Australia decision in Australian history, to give examples throughout this article.

Judges’ names

When listing judges in a court case, it is common practice to name them in order of rank and seniority. When it comes to the High Court, the most-cited court in this series because it has constitutional law jurisdiction, if the Chief Justice is one of the judges hearing the case, they will always be listed first. All other Justices are listed afterwards, going from left to right in order of seniority, i.e. how long the judge has been on the bench of (served on) the High Court. If you aren’t sure, the top of each judgment will list the judges in seniority.

Judges’ names are always followed by one or two letters, which are abbreviations of judicial titles. Their title appears after their name just like Order of Australia honours The most common ones in Common(wealth) Knowledge are CJ, J and JJ, which all relate to judges on the High Court. CJ refers to the Chief Justice, while J refers to puisne judges (judges who are inferior to the Chief Justice), known as Justices. JJ is the abbreviation for Justices. This may seem odd, but its not the only time this happens. For example, ‘page’ is abbreviated as ‘p,’ but ‘pages’ becomes ‘pp.’ Similarly, the Bachelor of Laws is referred to as the LLB, with two Ls to represent the plural ‘Laws.’

Although this is the legal style prescribed for lawyers and law students (like me) in the Australian Guide to Legal Citation, 4th edition (AGLC 4), I have started using the full titles of Chief Justice and Justice once per article, where possible, to add context. Similarly, I try to refer to judges by their names when not talking about them in reference to a court case.

Ordinarily, High Court judges are referred to as ‘Surname J’ or ‘Surname CJ.’ The only exception to this is Justice Frank Gavan Duffy, who is known as Gavan Duffy J, and later CJ. This is because of a family tradition, as he comes from a family with many judges. Judges who were both Justice and Chief Justice should be called by the judicial title they held at the time

Different types of judgment

Unless a case is only heard by one judge, there will usually be more than one judgment. This is a list of all the types of judgment.

• Unanimous judgment: All judges ruling together, i.e. there is one ruling that is attributed to all judges. This is also referred to as a per curiam judgment.

• Majority judgment: There is more than one judgment given, but a majority of judges agree on the final verdict. However, the judges disagreed on the legal reasoning of how they came to that conclusion. In Mabo (No 2), the majority consisted of all judges but Dawson J. The simplest majority judgment is where all assenting judges write a single judgment. In that instance, they agree on the final verdict and the reasoning to reach that verdict.

• Plurality judgment: However, the ‘majority’ only relates to the agreement on the final verdict. In a case where the majority does not agree on how they came to that verdict, the plurality judgment refers to the reasoning that most judges agreed on. In Mabo (No 2), 6 judges were in the majority. But when it comes to the reasoning behind the decision, the judgment given the most weight, as the plurality judgment, is the judgment of Brennan J, as Mason CJ and McHugh J agreed with his reasoning (except on one tiny matter). The other three judges in the majority gave two judgments between them, so Mason CJ, Brennan and McHugh JJ are the plurality.

• Joint judgment: A judgment by two or more judges that is not the plurality or majority. It can be either in assent or dissent. In Mabo (No 2), Deane and Gaudron JJ wrote a joint judgment. Technically Mason CJ and McHugh J did too, but they are also part of the plurality. I will concede that Mabo (No 2) is a bit of an odd case when it comes to the plurality, as normally the plurality is one judgment.

• Concurring judgment: Any judgment that agrees with another judgment. Here, the joint judgment of Deane and Gaudron JJ and judgment of Toohey J are concurring with the plurality judgment.

• Dissenting judgment: Any judgment that goes against the judgment of the majority. Michael Kirby is famous for his dissenting judgments, often philosophically at odds with his counterparts. In Mabo (No 2), Dawson J dissented.

As a final note here, this list only relates to the final verdict and the reasoning used to come to that conclusion. But these terms can be used in other ways. For example, in Mabo (No 2), Dawson J joined Mason CJ, Brennan and McHugh JJ in a majority to rule that compensation could be given to Aboriginal groups whose claims to native title had been extinguished by the government. Deane, Toohey and Gaudron JJ, who were otherwise in the majority, dissented on this matter, arguing that they were entitled to compensation.

What is precedent?

A principle of law that results from a case and is binding on all courts lower than the court that heard the case. For example, High Court decisions bind all other courts, but a State/Territory Supreme Court decision will only bind lower courts in that State/Territory. However, decisions from other courts that aren’t binding may still be influential. If lower courts want to get around binding precedent, they must ‘distinguish’ the case at hand by demonstrating that its set of facts is different, and so the law of the precedent doesn’t apply. The High Court is the highest court in Australia, so no other court’s decisions are binding on it; however, its previous decisions will hold significant weight.

Case citations

The two law reports I use are the Commonwealth Law Reports (CLR) and the High Court of Australia records (HCA). These are included in case citations under ‘Sources.’ Below are deconstructed case citations from both reports. CLR is generally preferred by those in the legal profession, but CLR records are usually behind a paywall. Therefore, the websites I use are Jade and AustLII, both of which provide HCA versions of cases. Jade generally publishes HCA versions of recent cases quicker than AustLII, but AustLII also provides a great databank of legal journals. Therefore, I have partnered with Elijah Granet of the Legal Style Blog to bring you a web extension to make reading AustLII articles easier, and offer improved search functions.

Authorised law report series (CLR):

Mabo v Queensland (No 2) (1992) 175 CLR 1: Plaintiff/appellant v defendant/respondent (case number, if there are multiple cases involving the same parties) (year) volume of the report series, name of the law report, starting page number of the case.

Unauthorised law report series (medium neutral citation) (HCA):

Mabo v Queensland (No 2) [1992] HCA 23: Plaintiff/appellant v defendant/respondent (case number, if there are multiple cases involving the same parties) [year] court abbreviation, judgment number.

Pinpoint references

Whenever I quote a case or an important point of law from a case, I always provide a ‘pinpoint reference’ to the relevant page and/or paragraph number of that case, so that those who want to read the case or look at its context can find it. It’s the same reason I provide hyperlinks to decisions. Early CLR decisions only provided page numbers, but more recent ones provide page numbers and paragraph numbers. HCA versions only provide paragraph numbers. HCA versions only go back to 1998, so Jade and AustLII copies of decisions prior to then will be of the CLR version. The pinpoint extensions can then be combined with the search functions of the browser extension on AustLII to find a specific paragraph, by using the ‘find’ function for a paragraph number in brackets: for example, ‘[10],’ thus saving the reader time in finding specific parts of a case.

Australia or Commonwealth?

One question I’ve been asked a couple of times is why I refer to the federal government as the ‘Commonwealth government,’ rather than the ‘Australian government.’ This is mostly a matter of personal preference. I personally use ‘Australia’ to refer to the country as a whole. I use ‘Commonwealth’ to refer specifically to the federal government of Australia, in contrast to the State and Territory governments.

While this article is different from the rest of the Common(wealth) Knowledge, I hope that it has helped explain some language and concepts used in the series, as well as tips for how to reference court cases. If this article is received well, I may do other ones like this that look at specific legal concepts in this format.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Sources:

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.