2.3.1 Subsequent references to a cited source
Subsequent references to sources already cited should be given in accordance with the guidance below.
There are two styles. New Zealand’s commercial legal publishers generally use the commercial style. If you are writing an article, book or other piece intended for publication by one of those publishers, use the commercial style. For all other legal writing (including student work, academic work, court submissions and judgments), use the general style.
Both styles assume that footnotes are being used. If in-text citations are used, adapt the styles as appropriate.
(a) General style
The first time a source is cited, provide full citation details. For subsequent references there are two general rules:
(1) If the source being referred to is obvious from the context, it is sufficient simply to refer to the relevant pinpoint reference.
(2) If the source being referred to is not obvious from the context, give an “, above n x,” cross-reference.
Use this method for subsequent references instead of using ibid.
The rules are explained in further detail below.
(i) Cases
The first time a case is cited, provide full citation details in the footnote including the name of the case even if the case name appears in the main text. Thereafter, however, so long as the source being referred to is obvious from the context, it is sufficient simply to refer to the relevant paragraph or page number in a footnote.
Eg In the main text:
In Gibbons Holdings Ltd v Wholesale Distributors Ltd, the Supreme Court held that in interpreting the meaning of a contract a court may receive all cogent evidence, including subsequent conduct evidence, which sheds light on “the parties’ jointly intended meaning”.3 The requirement that the evidence shed light on the parties’ joint intentions was stressed.4 In this way, the admission of subsequent conduct evidence does not involve a departure from the objective approach to contract interpretation taken by the courts.5
In the footnotes:
3 Gibbons Holdings Ltd v Wholesale Distributors Ltd [2007] NZSC 37, [2008] 1 NZLR 277 at [52] per Tipping J.
4 At [52] per Tipping J, [73] per Anderson J and [111] per Thomas J.
5 At [53] per Tipping J.
See also the example given in rule 2.1.2.
For “, above n x,” cross-references, repeat the case name and then write “, above n x,” followed by the pinpoint reference, where “x” is the earlier footnote number. If you prefer, you may use a reference tag to refer to the case: see rule 2.3.2.
Eg 49 R v Wang [1990] 2 NZLR 529 (CA).
…
52 R v Wang, above n 49, at 533.
(ii) Legislation
The first time legislation is referred to in the main text, give it its full reference. For subsequent references, so long as the source being referred to is obvious from the context, it is sufficient simply to refer to the relevant section (or other reference). If the source is not obvious from the context, give the short title again but exclude the year of enactment and jurisdiction identifier (if any) unless it is necessary for clarity to distinguish between two Acts with the same short title.
Eg In the main text:
We now turn to the Electoral Referendum Act 2010. It provides that the referendum is to be held on the same day as the 2011 general election.12 The responsibility for determining the results of the referendum falls on the Electoral Commission.13 The structure of the Act is very similar to the legislation which sanctioned the 1993 referendum on voting systems.14
In the footnotes:
12 Section 8.
13 Section 19.
14 Electoral Referendum Act 1993.
In the above example, there was no need for a footnote after the first reference to the Electoral Referendum Act 2010 because all the relevant information appears in the main text. Only footnote on a first reference if a pinpoint reference is required that is not referred to in the main text or, as in footnote 14, the legislation has not been named in the main text.
In the footnotes, if the source is not obvious from the context, repeat the short title, followed by a comma and the section (or other reference). Do not repeat the year in which the legislation was enacted or the jurisdiction identifier (if any) in subsequent references unless it is necessary for clarity to distinguish between two Acts with the same short title.
Eg 18 Securities Act 1978, s 83.
19 Companies Act 1993, s 131.
…
29 Securities Act, s 63.
30 Companies Act 1955, s 185.
31 Companies Act 1993, s 185.
(iii) Texts and articles
The first time a text or article is cited, provide full citation details. Thereafter, however, so long as the text or article being referred to is obvious from the context, it is sufficient simply to refer to the relevant paragraph or page number.
If the text or article is not obvious from the context, repeat the last name of the author (or authors) and then write “, above n x,” followed by the pinpoint reference, where “x” is the earlier footnote number. In the rare case where the earlier footnote contains more than one work by the same author or works by authors with the same last name, provide in the subsequent footnote not only the author’s last name but also the particular work’s title or an abbreviated form of it.
Eg 21 Peter Spiller The Disputes Tribunals of New Zealand (2nd ed, Brookers,
Wellington, 2003) at 55.
22 At 92.
23 Patricia Londono, David Eady and ATH Smith (eds) Arlidge, Eady & Smith on Contempt (5th ed, Sweet & Maxwell, London, 2017) at [8-6].
24 At [8-20].
25 ATH Smith “Rethinking the Defence of Mistake” (1982) 2 OJLS 429; and ATH Smith Property Offences: The Protection of Property Through the Criminal Law (Sweet & Maxwell, London, 1994).
26 Geoffrey Robertson The Justice Game (Chatto & Windus, London, 1998) at 12; and Bernard Robertson “Editorial: Questions about the Assumptions Underlying Competition Policy” [2008] CSLB 95 at 96.
27 ATH Smith “Judicial Law Making in the Criminal Law” (1984) 100 LQR 46.
…
34 Smith “Rethinking the Defence of Mistake”, above n 25, at 431.
35 Smith, above n 27, at 47.
36 Londono, Eady and Smith, above n 23, at [13-10].
37 Spiller, above n 21, at 70.
38 Robertson The Justice Game, above n 26, at 20.
39 At 22.
In the above example, we have assumed that footnotes 21, 23, 25, 26 and 27 are first time citations, that the source of footnotes 22 (Peter Spiller’s book The Disputes Tribunals of New Zealand), 24 (Patricia Londono, David Eady and ATH Smith’s book Arlidge, Eady & Smith on Contempt) and 39 (Geoffrey Robertson’s book The Justice Game) is obvious from the context, and that the source of footnotes 34, 35, 36, 37 and 38 is not so obvious.
(iv) Essays and chapters in edited books
For subsequent references to the same essay or chapter in an edited book, use the same style as for subsequent references to texts and articles. For references to a different essay or chapter in the same edited book, cite the details of the edited book again in full in accordance with rule 6.2.6(c).
Eg 40 David Mullan “Administrative Law at the Margins” in Michael Taggart (ed) The Province of Administrative Law (Hart Publishing, Oxford, 1997) 134 at 150.
41 At 148.
42 Janet McLean “Intermediate Associations and the State” in Michael Taggart (ed) The Province of Administrative Law (Hart Publishing, Oxford, 1997) 160 at 165.
43 At 169.
…
60 Mullan, above n 40, at 152.
In the above example, we have assumed that footnotes 40 and 42 are first time citations, that the source of footnotes 41 (David Mullan’s essay) and 43 (Janet McLean’s essay) is obvious from the context, and that the source of footnote 60 is not so obvious.
(v) Other uses for “, above n x,”
Where a footnote contains multiple sources and the footnote directly following cites to one of those sources, use “, above n x,” to indicate which source is being cited to rather than repeating the full citation or repeating only the pinpoint reference.
Eg 1 Susan Glazebrook “Academics and the Supreme Court” (2017) 48 VUWLR 237 at 247; and Lord Rodger “Judges and Academics in the United Kingdom” (2010) 29 UQLJ 29 at 36–37.
2 Glazebrook, above n 1, at 249.
However, it is not necessary to use “, above n x,” where it is obvious from the pinpoint reference which source is being referred to.
Eg 29 Land Transfer Act 1952, s 155A; and Westpac New Zealand Ltd v Clark
[2009] NZSC 73, [2010] 1 NZLR 82 at [41].
30 Section 62.
Where two successive footnotes cite to the same source but neither has a pinpoint reference to refer to, use “, above n x,”.
Eg 10 Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900.
11 Rainy Sky SA v Kookmin Bank, above n 10.
(b) Commercial style
As some commercial publishers use this commercial style rather than the general style, contact the publisher to ascertain which style should be used before beginning writing.
When making subsequent references to cases and legislation full citation details must be repeated each time the source is cited. Do not use reference tags.
When making subsequent references to other sources, such as texts and articles, and essays or chapters in edited books, use the general style set out in rule 2.3.1(a)(iii)–(v).
2.3.2 Reference tags for cases
When using the “above n x” format, an easily identifiable reference tag may be used rather than repeating the full case name. The reference tag will generally consist of a shortened version of the case name or the name of one of the parties. If the reference tag is obvious (for example, one of the party’s names), it need not be provided after the first citation. If the reference tag is less obvious (for example, a popular name by which the case is known), provide it after the first citation in square brackets.
When using the reference tag in a subsequent reference, give the reference tag followed by “, above n x,” where “x” is the earlier footnote number.
Eg 4 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case].
5 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (HL).
6 Baigent’s case, above n 4, at 668.
7 Westdeutsche, above n 5, at 698.
For more information on reference tags, see rule 1.1.7(c).