Anaya Nolan
Case law in Australia is law developed by judges in courts. Reading case law involves understanding the reasons behind a judge's decision and how they have interpreted the law. Case law is equally important to understanding how the law is applied as it is to interpreting the law. Case citations are an important part of case law research. These citations are explained in the Australian Guide to Legal Citation (AGLC). Case law databases, such as AustLII, contain the decisions of judges in matters before a court or tribunal and include hypertext links to most relevant material.
| Characteristics | Values |
|---|---|
| Case law databases | Contain decisions of judges in matters before a court or tribunal |
| Judge's decision | Explains whether the judge has interpreted the law made in Parliament and/or followed a precedent |
| Judge's decision | May also refer to relevant legislation (laws or "acts" passed by parliament), regulations, or international treaties |
| Case citations | Refer to the Australian Guide to Legal Citation (AGLC) |
| Case citations | Use square brackets where the year is necessary for identification of the volume of a law report |
| Case citations | Use round brackets when the reference to the year is not necessary to identify the volume or report |
| Case citations | Use a comma and page number, e.g., Mabo v Queensland (1992) 175 CLR 1, 9 |
| Case citations | Medium neutral citations should be used when a court or tribunal allocates the medium neutral citation |
| Case citations | Judgments are arranged by judgment number, not by page |
| Case law research | Involves reading legal judgments and understanding the reasons behind them |
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What You'll Learn
Understand the reasons behind a judgement
Understanding the reasons behind a judgement is a key part of case law research. Case law is law developed by judges in courts, and it is important to understand how the law has been interpreted by a judge.
Judgements are the decisions of the Court in a particular case. They typically include a statement of the facts, an analysis of the relevant law, and the application of the law to the facts. In some cases, a judge may also apply a new meaning to an area of law. Judges in lower courts must follow the decisions of higher courts, which is known as the doctrine of precedent. This is a key marker of the common law system.
Judgements may be given orally or in writing, although complex matters coming before the Federal Court tend to result in written judgements. When a judge gives an oral judgement immediately after a hearing, it is called 'ex tempore'. This usually happens when the matter is simple or urgent.
When a Full Court publishes a judgement, it may include more than one set of reasons. If all judges agree, they may publish joint reasons, or they may publish individual reasons. If the judges do not agree, the case is decided by a majority, and the judgement will include the majority and dissenting reasons.
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Know how to cite a case
Case citation is a system used by legal professionals to identify past court case decisions. In Australia, the "conventional format" for citing legal materials is the Australian Guide to Legal Citation (AGLC4).
The case name should be left out of a footnote citation if it appears in full in the sentence accompanying the footnote. In subsequent references, the case name (or short title) should always appear in the footnote. A reported version of a case should always be cited over an unreported version. Always use the authorised report where available.
For reported cases, the details required are:
- Case name (italicised)
- Year
- Volume number
- Abbreviation of the law report
- Starting page number
- Pinpoint page number
For example: *Harriton v Stephens (2006) 226 CLR 52, 78*.
Square brackets are used around the year if the year is essential to finding the case. If the year is not essential, round brackets are used.
For unreported cases, the details required are:
- Case name (italicised)
- Year
- Abbreviation of the court
- Judgment number
- Pinpoint
For example: *Kadir v The Queen [2020] HCA 1, [14]*.
In Australia, the 'v' between party names is not pronounced. Instead, use 'Against' for criminal matters or 'And' for civil cases. For instance, 'Kadir and The Queen'.
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Understand the doctrine of precedent
The doctrine of precedent is a fundamental constraint on judicial decision-making in Australia. It is the rule that a legal principle established by a superior court should be followed in similar cases by that court and other courts. The doctrine of precedent was developed to promote consistency in decision-making by judges, ensuring that like cases are determined in a like manner.
There are two kinds of precedent: binding and persuasive. A precedent is binding on a court if it was made by a superior court higher in the hierarchy. A binding precedent must be followed if it is relevant and the circumstances of the cases are sufficiently similar. For example, decisions of the High Court of Australia are binding on all courts in the country, but a decision of the Supreme Court is not binding on the High Court.
A precedent is persuasive if it was established by a superior court that is not higher in the hierarchy. This means that the precedent should be seriously considered, but is not required to be followed. For example, a precedent established by the Supreme Court of New South Wales is persuasive but not binding on the Supreme Court of Victoria, as these courts are of equal authority. Decisions of superior overseas courts, such as those in the United Kingdom, are also considered persuasive precedents in Australia.
There are two important parts to a judicial decision in the context of the doctrine of precedent: the ratio decidendi and the obiter dicta. The ratio decidendi is the decision of the case, or the ruling on the point of law, and is binding on courts lower in the hierarchy. The obiter dicta are the rest of the things said by the justices in the judgment, which are not binding but may be relevant to future cases.
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Learn how to search for a case
There are several ways to search for a case in Australia. One of the easiest ways to find a case is by its citation, a unique identifier. Cases may have multiple citations if they have been reported in different law report series. You can use any of the citations to find a copy of the case.
If you are searching for a case by subject, rather than a specific case, case citators are useful. You can type your search term(s) or phrase into the free text search. You can also use the KeyCite citation research service to help verify whether the case is still good law and to find citing references by using KeyCite Flags, KeyCite History and KeyCite Citing References.
You can also search for a case by title or party name. Sometimes, the only information you have about a case is one or both of the party names. When searching by party name, omit articles such as 'a' and 'the' in names, as well as terms such as 'Pty Ltd' in a company name.
Another way to find cases is by browsing a case law database. For example, in Australian Current Law (ACL) Reporter on LexisNexis AU (LNau), you can browse for cases on a topic by expanding the Table of Contents. You can also use the database 'help' pages and guides for database-specific browsing instructions.
Finally, you can use specific search terms that are closely related to the subject matter. For example, malpractice or negligence, or use abbreviations or buzzwords, such as Freedom of Information Act or FOI.
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Know the difference between reported and unreported cases
Reported and unreported cases differ in their significance, availability, and citation requirements.
Reported cases are those judgments deemed significant enough to be published in law reports, often because they deal with important points of law or establish precedents. These cases are available on Lexis+ Australia, Westlaw Australia, and CCH iKnowConnect. Reported cases are also known as authorised reports, as they are officially approved by the judiciary. Only certain courts, such as the High Court and Federal Court, have authorised report series. When citing a reported case, the citation will include the case name and an abbreviated form of the court or publication details. The year is placed in square brackets, followed by the unique court identifier and judgment number.
Unreported cases, on the other hand, are those that are not considered to establish significant precedents or may be too recent to be included in a law report series. Unreported judgments are handed down by judges in court and are often available on court websites or free databases like AustLII or BarNet Jade. They can also be found on subscription databases such as Lexis+ Australia and Westlaw Australia. It is important to check if an unreported case has subsequently been reported, as the reported version should be cited in academic work. Unreported cases can be cited using medium neutral citations, which include the party names, year, court identifier, and judgment number.
The distinction between reported and unreported cases is essential in case law research, as it determines the availability and citation of cases. Reported cases are more readily accessible through established databases and law reports, while unreported cases may require searching through court websites or free databases. Additionally, the citation format differs between the two types, with reported cases using standardised case citations and unreported cases employing medium neutral citations.
Understanding the difference between reported and unreported cases is crucial for comprehensive case law research in Australia. Researchers should be adept at identifying the type of case they are dealing with to ensure proper citation and access to the necessary information.
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Frequently asked questions
Case law is law developed by judges in courts. It involves reading legal judgments and understanding the reasons behind a judgment and how the law has been interpreted by a judge.
There are several databases and search tools that can be used to find case law in Australia. AustLII is one such database, which includes hypertext links to most relevant materials. The University of Melbourne also provides an online guide to Australian case law, with links to case law resources across different jurisdictions.
Case citations are structured as follows: [Party 1] v [Party 2] ( [Year]) [Volume] [Law Report Abbreviation] [Page Number], [Pinpoint Reference]. For example, Mabo v Queensland (1992) 175 CLR 1, 9. Square brackets are used when the year is necessary for the identification of the volume of a law report, and round brackets are used when it is not.
Reported cases are those that deal with significant points of law and are considered valuable precedents. Unreported cases are either too recent to be reported or are not considered important enough. If a case is available in both formats, the reported version should be used.
