What is the 'it'?

Your judge has found a footnote in a High Court judgment which they would like to cite. Like most High Court judgments, this one has been reported in the Commonwealth Law Reports. The judge cites the CLR version of the case and the footnote number as it appears there. And that’s the end of the story.

Except that it isn’t the end of the story.

One of the “value adds” of the CLRs is that the editors provide a detailed summary of the arguments that the parties presented to the court. This appears in the report immediately before the judgment itself. For reasons that are probably lost to history, the editors of the CLRs have long adopted the practice of adding footnotes to the summary of argument.

More problematically, they have also adopted the practice of continuing the footnote numbering once they move from the summary of argument to the judgment itself. In other words, the first footnote in the judgment – as it appears in the CLR – won’t be footnote 1.

Historically, this wasn’t a problem. The only version of a High Court judgment that most people would have had access to – and almost certainly the only version that was ever going to be used in a court or even a legal practice – was the CLR version. Hence, whatever the footnote numbering might have been in the CLR version of a case, that’s the footnote numbering that anyone looking at that case would have had in front of them.

At the start of 1998, the High Court adopted the use of medium neutral citations for its judgments (paragraph numbers were added at the same time – it is going to be necessary to circle back to that shortly) and started providing its judgments to AustLII. From that point on, there have been two alternative versions of High Court judgments in public circulation: the CLR (which is the “authorised” version) and the Court’s own pamphlet, published via AustLII – and, latterly, also Jade and the Court’s own website – and freely available to all. The CLR is still the version likely to be bandied around in the higher echelons of the legal profession (especially the courts). But I would wager that there are young practising lawyers out there – some of whom might even be working as associates to judges – who have never so much as laid eyes on a law report. (I mean, why would they? Most of the rest of their life is lived online, after all.) If they see a citation to a footnote in a CLR version of a High Court judgment, they are going to go to the corresponding footnote in whatever version of that judgment they have in front of them. Hint: that may well not be the CLR.

And therein lies a problem.

It seems that in 1998 nobody turned their minds to the possibility that it might not be ideal for footnote 1 of the High Court’s published pamphlet to appear as something other than footnote 1 in the judgment as it appears in the CLR.

Let’s say your judge wants to cite footnote 145 of the Court’s judgment in Ha v New South Wales. There is substantive content in that footnote, so it’s plausible that your judge might want to refer to the footnote itself, not just the text to which the footnote attaches.

When I say footnote 145, that is the number of the footnote as it appears in the CLR version of the case. But a lot of the people who see that reference won’t have access to the CLRs. Those people are going to look on AustLII or Jade, where they will find a judgment that only has 125 footnotes. This makes it a bit difficult to locate footnote 145.

If the reader is really clued in, they might then have a look at the High Court’s own website. Yes, the case of Ha does appear there. But footnote 145, alas, does not. Does the High Court’s own version of the judgment have 125 footnotes, like AustLII and Jade? Alas upon alas, it does not. It has 113. One might ask: if the High Court is the horse’s mouth when it comes to the court’s own judgments, how can its footnote numbers differ not only from the “authorised” (CLR) version of the same case, but also, and differently (assuming it is possible to differ differently), from the other third-party versions? We might just park that thought for now.

The relevant footnote – footnote 145 in the CLR – appears as footnote 77 on AustLII and Jade, and as footnote 71 in the version on the High Court website.

What is the poor judge’s associate supposed to do? Whichever footnote number you decide to use, someone is going to go to a version of the judgment where that will be either the wrong footnote or a footnote that doesn’t exist.

That’s not what we want.

But I am not sure how it can be avoided.

Rules are rules, and you should be citing whichever version of the judgment your house rules stipulate – which will most likely be the CLR – and the footnote number as it appears in that version. And if you cite the CLR, and nine in every ten readers look the judgment up on AustLII or Jade rather than in the CLR, and find that there is no footnote 145, well, there really isn’t any way to stop that from happening.

I suppose you could engineer a citation that reflected all of the different numbers, but you would end up with a long and convoluted citation that may well leave the reader no less confused than if you had only included the one.

I picked on Ha because it is from 1997 – ie, just before the High Court adopted paragraph numbering. I’m not sure how far back the problem goes. I kind of don’t want to look. Importantly, though, from 1998 you can include a paragraph number in your citation as well as the footnote number. And I would argue that you should. While the footnote numbers might differ between versions of a judgment, the paragraph numbers do not. Thus, the reader will at least be able to find the paragraph that the relevant footnote resides in, and – unless your judge happens to be referring to a footnote that lies within a paragraph that contains a large number of footnotes (give me a moment; I’m having Vanderstock flashbacks*) – they shouldn’t then have too much trouble identifying the footnote your judge was looking at, notwithstanding that it might not bear the number they were expecting to see.

This is not a perfect solution. (It’s not a perfect world.) But it does give the reader a clue that simply isn’t available if the judgment is from longer ago than 1998. For that, I don’t think anybody can help you.

*Specifically, paragraph [651].