Case law (also known as common law), as opposed to statue law, arise from judicial decisions made by the Courts through the application of legal reasoning to relevant facts. Case law is also determined in accordance with a hierarchy, i.e. superior courts will set precedent over inferior courts.[1]

Consequently, reported case law is important as it provides guidelines and an interpretation of the legislation. But what about unauthorised or unreported judgments?

WHAT ARE THEY?

Unreported judgments, like reported judgments, form part of the common law system – a part that comprises the Australian legal system (the other being statute law).[2] Unreported judgments are decisions that have not been published in an official law report.[3] Despite this, unreported judgments are useful as they may provide commentary by the Courts on unique issues that have not been discussed in reported judgments. To assist in narrowing the scope of the argument, and for the purposes of this article, the focus will be on the practice of relying on unreported decisions within the jurisdiction of Victoria, however, parallels and inferences can be drawn to other Australian jurisdictions.

RELIANCE - ETHICALLY

Legal practitioners in Victoria have overarching obligations to act and behave in a manner that will facilitate the just, efficient, timely and cost-effective resolution of the issues in dispute.[4] In light of these overarching purposes, reliance on judgments that have not been reported must therefore fit within the ambit of the overarching purposes, namely, legal practitioners are required to engage in conduct that is both honest, fair and not misleading. It is generally accepted that it may be unfair to rely on an unreported judgment without first bringing it to the attention of the other party until the moment of reliance.[5]

Further, it comes as no surprise that practitioners are required to inform and bring to the attention of the opposing party the use and reliance on an unreported judgment, and to provide a copy of the judgment with sufficient time for proper consideration of it.[6] The primary reason for this is to ensure that parties are given full opportunity to consider all arguments and contemplate the primary issues in dispute.

RELIANCE - PRACTICALLY

The practice in the Supreme Court of Victoria when practitioners choose to rely on unreported judgments, appears to be guarded at best. This appears to be evident having regard to Practice Note 4 of 1986,[7] whereby ‘leave should be obtained first before a party cites an unreported judgment. Furthermore, an unreported decision should ‘contain some statement of principle relevant to an issue in the matter before the Court that is either:

  1. binding on the Court; or

  2. entitled to special consideration and of which the substance, as distinct from mere choice of phraseology, is not to be found in any reported judgment.[8] (emphasis added)

The wording of the Practice Note implies that there needs to be something unique about the unreported judgment that would have a material consequence or effect on the facts of a matter before the Court.

FINAL COMMENTS

What we can infer and take away from the above is that:

1. unreported judgments are useful in that they can contain decisions or commentary on issues that are not reflected in reported judgments;

2. Court’s prefer reported judgments over unreported judgments;

3. reliance on an unreported judgment as a form of precedent must assist and add value to the current proceeding; and

4. litigants should fully disclose any unreported judgment on which that they seek to rely.