What is the 'it'?

(With apologies to David Bowie. Or, if you prefer, Flight of the Conchords.)

This is a story about the name of a case.

In 2020, the High Court handed down its decision in an appeal matter called Mondelez Australia. The fixed and immutable practice of the Court in an appeal – except when it isn’t – is to give the matter a name that accurately reflects two things (which should be identical): the names of the parties as they appear on the notice of appeal filed in the Court; and the names of the parties as they appear on the formal orders of the court below. In accordance with that practice, Mondelez was given the following title:

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU)

That is what we might call – accurately in this instance – the “long name” of the case. When the Court publishes a judgment, it also gives the case a “short name”. (That is the name that appears in italics on the front page of the Court pamphlet.) The usual methodology with short names is to leave the long name mostly intact, but to omit what might be called “additional information” in a party name: things like “as trustee for”, “trading as”, “formerly known as”. Thus, the short name appears as:

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

A lot of words, but it is what it is.

The editors of the Commonwealth Law Reports, publishers of the authorised reports of High Court judgments, are not constrained in the construction of a case name in the way that the Court itself is. The name given to the CLR version of Mondelez – (2020) 271 CLR 495 – is its full name, including the “known as” part. Perhaps in anticipated response to the “that’s a lot of words” argument, the editors went with “Mondelez Australia Pty Ltd v Australian Manufacturing Workers Union” in the table of cases for the volume.

That, you will have noticed, is not the same as the short name the Court gave to the case. Also, “Australian Manufacturing Workers Union” is not the name of the respondent; it is only what the respondent is “known as”. (See also “Katy Perry”.)

The upshot of the editors’ decision is that any judge who wants to cite Mondelez in a later case has to make their own call as to what name to give it.

The High Court has a “soft” rule to follow what is in the table of cases. The problem with that rule, in practice, is that anyone looking at the CLR online won’t have access to that. And – importantly – the name appearing at the start of the report of the case itself is the full name, ie, “Automotive etc” as well as the “known as” part.

So I can’t really tell a judge that either name is “wrong”.

And that, perhaps, is how it has come to pass that the Court, on the two occasions it has cited Mondelez, has adopted a different name each time.

Footnote 124 of La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd has it as:

Mondelez Australia Pty Ltd v Australian Manufacturing Workers Union

(In other words, the judge followed the table of cases.)

Footnote 173 of Ravbar v The Commonwealth has it as:

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

(In other words, the judge used the actual title of the case and omitted the “known as” part; this, possibly not coincidentally, is also the short name given to the case by the Court.)

The Court has given what might be called “mixed signals” as to what to call the case. That isn’t ideal. But, again, it is what it is.

But wait; there’s more.

The Australian Law Journal Reports exists as a quick and dirty report series for High Court decisions; its historical role was to get a version of the Court’s judgments into the public domain during the unavoidable delay between delivery of a judgment and its publication in the CLR, which might not happen for a year or two after the judgment is handed down. (Now that the Court’s own judgments are published online within minutes of delivery, that historical purpose no longer exists. But the ALJR endures.)

Both La Perouse and Ravbar have been published in the ALJR. Hmmm. I wonder what approach they took.

The person responsible for the footnotes in the ALJR changed the name in footnote 124 of La Perouse to:

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

And then, the person responsible for the footnotes in the ALJR changed the name in footnote 173 of Ravbar to:

Mondelez Australia Pty Ltd v Australian Manufacturing Workers Union

Well.

Maybe whoever was responsible for these cases looked at the footnotes, saw that another name was available, and, each time, made a unilateral decision to change the name from the one a High Court judge had decided upon to the other one (which the judge, by inference, must have decided not to use). That’s their call, of course; the ALJR is published by an independent commercial publisher. But to do it twice, and in different directions, suggests either someone with an overactive human impulse to change something simply for the sake of changing it, or just the left hand not knowing what the right hand is doing.

In any event, the mixing of signals has been compounded.

I will be watching for the day when La Perouse and Ravbar appear in the CLR. Will the editors follow their own lead and standardise both footnotes to “Australian Manufacturing Workers Union” in accordance with the CLR table of cases? Will they leave the Court’s own footnotes, inconsistent as they may be, intact? Or will the instinct to change overwhelm them each time, as it appears to have overwhelmed those responsible for the ALJR (which, I should add, is published by the same company that publishes the CLR)? I am actually somewhat excited to see how this plays out. That possibly says more about me than I should be owning up to, but here we are.

All of which is to say that if the CLR editors had gone with the short name that the Court had given to the case, I suspect that none of this inconsistency or confusion would ever have arisen.

Decisions – and particularly decisions to change something that someone else has, for reasons, decided to do in a particular way – can have consequences, including unintended consequences. This is something I have grappled with over the many years that I have been editing High Court judgments for a living. Where is the line between things that are wrong (and therefore have to be changed) and things that could be done differently (and therefore can, and perhaps should, be left alone)?

In part, this is a fight against human nature – a fight that, in this case, the editors of the ALJR would appear to have lost. It is understandable: if I have to decide whether to change something or to leave it alone – especially in a situation where I might want the judge to know that I have been engaging with what they have written (ie, what I am paid to do) – it is a natural instinct to want to do something, rather than nothing. There might be another word for it, though: interfering.