Language please….!

“Finally on the subject of language, the Commission staff are not to be blamed for the archaic forms of syntax “a number of people was” and use of the subjunctive “if he were” throughout the report. That is my doing; my staff did their best to correct what they were convinced were errors, only to have me stubbornly reinsert them. (I have grudgingly succumbed to the use of “their” in the singular”[)].

These words appear in the Report of the Royal Commission into the Robodebt Scheme,[1] of Commissioner Catherine Holmes, setting the record straight as to what some, including her staff, might find as grammatical oddities in the Report – for example, “a number of decisions was made by AAT members”. 

Grammar and expression can be contestable.  While “a number of people was”, or “a number of decisions was made” might be grammatically correct, the words do not sound right, and that is a valid reason, in some cases, for ignoring the grammatical rules – just as we don’t say “this is something up with which I will not put”.  Likewise, “the Commission staff [is] not to be blamed” does not sound right. 

On the other hand, as to collective nouns or phrases, each of the ‘ATO is’ and ‘ASIC is’ is grammatically correct and sounds better than ‘the ATO are’ or ‘ASIC are’.

The Report uses the singular ‘their’ – “determining whether the prospective recipient’s ordinary income exceeds their ordinary income-free area”. 

I do also: “a creditor may lodge their proof of debt with the liquidator. They may challenge the liquidator’s ruling”. 

The alternative is that “a creditor may lodge her, his or its proof of debt with the liquidator.  She, he or it may challenge the liquidator’s ruling”. Although generally, I refer to a creditor as it.

See also s 180 Corporations Act “(1) A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they: (a) were a director or officer of a corporation in the corporation’s circumstance …”

I agree with the subjunctive generally following if, “… if that were the case, then …”. Section 180 goes to support that: “… if they were a director …. “

Other rules

As to some other of my rules:

• Judges are Judge, Justice X, Justice Ella X or ‘the Court’.  Leave ‘her/his Honour’ for the courtroom: “Justice Smith granted leave under s 123.  She also ordered the plaintiff to pay costs …”. 
• Sorry accountants but it is ‘fourteen’ or ’14’ not ‘fourteen (14)’. ….
• Under way not ‘underway’.
• ‘Must not’, rather than ‘shall not’.
• While not whilst, use not utilise.

Law and case references

And I don’t go overboard in statute references – Corporations Act 2001 (Cth), once, is enough, though often too much, but no more after that.  Academics also please note. 

As to case citations, I use only or also the medium neutral citations of AustLII – [2017] FCA 23. It is a matter of allowing access to justice.  The Big Firms, universities and others might subscribe to the paid reporting –the FCRs, the ACLCs, the FLRs – but many don’t. 

As to paid case law reporting, at the risk of offending law publishers and librarians, [as I have done before], I think its days are numbered.  There is no real significance that a publisher has decided that a matter should be published in the NSWLRs, many months after the decision has been given.

Though it would help if judges were to issue headnotes, like those of the NSW Court of Appeal: Mao v Bao [2023] NSWCA 278 (21 November 2023) (austlii.edu.au).  

In most respects, I aspire to abide by rules of grammar, and spelling, and if I breach them, I usually know I am doing so, and why. 

Comments/corrections to michael@murrayslegalcom.au 

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[1] Royal Commission into the Robodebt Scheme – Full Report