What is the 'it'?

[No, that is not a misplaced apostrophe. All of my questions seem to come from one reader. They know who they are.]

Not long before I disappeared for eye surgery – which has gone very well, thank you for asking – I found myself fielding some citation questions concerning a High Court case called New South Wales v Bardolph (1934) 52 CLR 455. One question, in particular, seemed worth teasing out here, as a matter of general citational “interest”.

Bardolph is one of many cases from the pre-Federal Court era in which both the trial and the appeal were heard in the High Court. In accordance with what was the usual Commonwealth Law Reports practice, the judgment of the primary judge (Evatt J) and that of the Full Court on appeal are reported together, under the name the case was given on the appeal. The potential complication with this particular example – but which is not confined to this example – is that the name of the case on appeal is the reverse of the name the primary judgment would have borne, which, by inference, would be Bardolph v New South Wales, Mr Bardolph being the plaintiff in the action.

The question is this. If your judge wanted to cite the judgment of Evatt J – ie, the primary judge – what name should they give to the case?

If, as a statement of fact, the name of the case before Evatt J would have been Bardolph v New South Wales, then, the question goes, wouldn’t citing it as New South Wales v Bardolph (the name it appears under in the CLR) be wrong?

I hear you.

The problem I have is that nowhere in the CLR does the name “Bardolph v New South Wales” appear. Nowhere. Not in the report of the case itself, not on the side title, and not in the table of cases. In other words, on the face of the report, to cite the case under the name “Bardolph v New South Wales” would be to make stuff up. And you know how I feel about that.

The CLR publishes a consolidated table of cases from time to time. “Bardolph v New South Wales” doesn’t appear there, either.

Nor does it appear in the online citators that I use. One of them, as far as I can see, doesn’t have the Evatt J judgment at all. The other has Evatt J and the Full Court as two separate cases, but even then the Evatt J judgment is also given the name “New South Wales v Bardolph”.

“Bardolph v New South Wales” also doesn’t appear as a case name on AustLII or Jade.

I had five minutes to spare, so I dug a little deeper. The Australian Law Journal had a “note” of the case: “New South Wales v Bardolph”. The Argus Law Reports, like the CLR, rolled both the primary and appeal judgments into the one report: “New South Wales v Bardolph”.

A search of “Bardolph” does, unsurprisingly, bring up the case, but only because “Bardolph” appears in the case name at both levels. And that won’t always be the case; often enough, for example, an appeal is brought by a second or later defendant – which is, I think, another argument against a rule that would adopt the name the case had at trial.

The Court’s written judgments didn’t start to be readily available to the public outside of the law reports until many decades after Bardolph was decided, meaning that there is no version of the Evatt J judgment floating around which bears the name “Bardolph v New South Wales”. (There will be a typed and signed original judgment sitting in the archives somewhere, but the average punter would have a much easier time finding a copy of the CLR report itself, which is freely accessible on the High Court website, on AustLII and on Jade. And anyway, even if the original judgment could be found, the usual rule for a judgment that appears in the CLR is to cite the CLR.)

If the situation were to arise now (the Full High Court does occasionally – very occasionally – hear an appeal from a single Justice) my answer might have to be different, as there would be a published judgment under the name the case had before the single Justice. And it would have its own medium neutral citation. How would the CLR report such a case today? We will have to wait and see.

And so, reluctant as I am to support the appearance of anything in a judgment which is not factually correct, that would appear to be exactly what I am doing here. I will just have to find a way to live with myself.