Date: Tue, 25 Jul 2006 18:40:54 +1000

From: Neil Foster

Subject: Extreme prolixity of the High Court of Australia

Dear Colleagues;

I intended to send this to the whole list earlier today but I see I only sent it to David (hope he enjoyed it!) I now see from Jane's later email that other people also chose Perre and Catternach but I may perhaps claim Brodie as a reasonable member of the class.

Dear Jane, David, et al;

The first case I thought of when Jane asked about prolix HCA tort decisions was Perre v Apand [1999] HCA 36, which I think would be one of the longest and most impenetrable judgements most Australian torts lawyers have had to wrestle with. I see on my copy that it extends to footnote 539 so I thought perhaps this is the one Jane was thinking of. But on browsing through my folder of tort cases I now see that Brodie v Singleton Shire Council [2001] HCA 29 goes to 599! And Cattanach v Melchior [2003] HCA 38 to 606! Interesting, however, that Harriton v Stephens [2006] HCA 15, to some extent a "companion" decision to Catternach, only (!) runs to 459 notes, despite being perhaps a harder case. That may signal a desire to reduce the number of separate judgements, or it may simply be that the issues in the case were so difficult that most of the majority were content to sit back and let Crennan J take the flack!

(Of course using the number of footnotes as a "proxy" for "prolixity" has problems in comparing across jurisdictions, given different judicial "styles", but it is probably valid within the one court.)

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> DAVID CHEIFETZ 25/07/06 1:59 >>>

Fortunately, the Supreme Court of Canada no longer issues serial opinions so that tends to cut down on the prolixity and it doesn't use footnotes very often.

Off hand, the longest set of reasons (including a dissent is) in a tort case that I recall is London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299 (here and here).

London Drugs is about 54,000 words including cases names - it's 102 pages in MS Word using 12 point Times New Roman - and 298 "numbered" paragraphs in the version of the reasons produced by Carswell/Thompson. The official version doesn't have numbered paragraphs. There are more prolix trial judgments, of course, which we will attribute the need to review the evidence adequately.

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