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Case Law
Case Law
Case law is an important source of law in all areas, even those heavily legislated.
Case law is a primary source of law.
Being able to identify, read and understand case law is integral to successful legal research.
Case law is a central component to understanding and interpreting the law of a common law jurisdiction.
It is law which has developed over time by judges in superior courts.
Each case or judgment delivered by superior courts is used to solve disputes between parties.
Once a judgment is delivered it becomes precedent that future disputes will be settled based upon.
Precedent is one of the core principles underpinning case law.,br>It is based upon the hierarchy of courts which gives hierarchy in authority to judgments delivered by those courts.
Decisions made in superior (higher) courts form precedents which inferior (lower) courts are bound to follow.
This is called the doctrine of precedent, or stare decisis.
Court Hierarchy
The common law doctrine of precedent is premised upon the hierarchical structure of the court system.
This means that an understanding of the different elements of the hierarchy and how they relate to each other is an important component of case law research.
In Australia, there is a court hierarchy for each element of the federal system.
Each state and territory has its own court hierarchy and each of these courts deal with matters that arise out of the state or territorial jurisdiction, as well as some federal matters conferred by Commonwealth statute.
Federal courts have their own court hierarchy and deal with matters arising out of Commonwealth or national scheme legislation (section 77(iii) Commonwealth Constitution, and the Judiciary Act 1903 (Cth)).
Tribunals, such as the Administrative Appeals Tribunal (Cth) and the State Administrative Tribunal (WA) are not courts, but provide a 'quasi-judicial' function and have the task of making decisions in disputes.
Appeals from tribunals to courts are binding and tribunals must follow the precedent of the court decision.
The diagram below shows an outline of the Australian courts and tribunals hierarchy.
Australian Bureau of Statistics, Image 11.17 Hierarchy of Courts, Crime and Justice: Courts (2005), 2005 Year Book Australia <http://www.swtafe.vic.edu.au/lrc/abs/publication/content/wcd00002/wcd00206.htm>
Reported cases and unreported judgments
When a decision is handed down, it is in an unreported format, i.e. it has not been selected to go into any of the report series.
In senior courts such as the High Court of Australia most decisions will end up in an authorised (officially sanctioned) report series such as the Commonwealth Law Reports (CLR), as well as in general series such as the Australian Law Reports (ALR) or subject specialist series, such as the Intellectual Property Reports (IPR) or Industrial Reports (IR).
Although the Supreme Court of WA is a senior court, the publishers are not as eager to invest in publishing all of these judgments.
While this means that most Supreme Court of Western Australia (SCWA) judgments will remain forever "unreported", it does not mean that these decisions are not used (cited) in other cases.
Sourcing unreported judgments will be covered by another topic in this Lesson, and the correct way of citing them was covered in the Legal Citation Lesson: Primary Materials - Cases.
Most of the discussion in the following topics will refer to reported decisions, but the principles and approaches are similar when finding, updating and looking at unreported decisions.
Reported Cases
Law reports are the written judgments of courts on points of law.
Not all cases heard are reported.
Only those cases which raise significant points of law or expand on the understanding of the law are published.
Almost all reported cases are heard in superior courts. All High Court of Australia decisions are reported.
Since the late 1990s unreported judgments are available for most jurisdictions.
Law reports are published for the purpose of being used as precedents.
They provide consistency in the development of common law, ensuring that like cases are decided in the same manner.
Courts are bound by decisions of higher courts in the same hierarchy.
For example, the Supreme Court of Western Australia is bound by a decision of the High Court of Australia. Decisions made in equivalent courts are not binding, but would have considerable persuasive force.
Law reports are generally published as a series of bound volumes.
A series of law reports may report cases decided in one particular court, a number of courts exercising the same kind of jurisdiction, or cases decided on a particular subject.
For example, the Commonwealth Law Reports only report cases decided in the High Court of Australia, while the Federal Law Reports cover cases decided in courts of federal jurisdiction, other than the High Court.
Law report series may authorised or unauthorised and may relate to jurisdiction or subjects and decisions may be found in more than one law report series.
Authorised versions of cases should always be cited, unless one is not available.
Authorised reports can be sourced from Westlaw Australia.
You can find many law report series online through a variety of databases or on shelf in the Law Library.
If you want to get more familiar with the anatomy of a law report - take a look at this Talking Essay from LawBore.
The 'Authorised reports of judgments of the courts of NSW' article explains the selection process for authorised reports in more detail.
V
The written v between party names in a case title is derived from the Latin word 'versus', meaning against.
In speaking of a case, most Commonwealth countries, including Australia, follow the English common law tradition of saying:
- 'and' in the case of civil action eg: Mabo v Queensland
- 'against' in the case of criminal actions eg Tuting v The Queen
See AGLC Rule 2.1.11 for further explanation.
This rhyme may help you remember:
and or against in court
versus only in sport
R
In writing, where the Queen or King is the first named party, it is written as R eg R v Reid.
R is derived from the Latin Rex (King) or Regina (Queen).
In speech, R is spoken as 'The Queen' or 'The King'.
R is typically used in criminal matters where the Crown is a party.
In writing, when the Queen or King is the respondent, R is not used. It is written The Queen or The King eg Honeysett v The Queen
See AGLC Rule 2.1.4 for further explanation.
Source: Gardner, Robin. 'How To You Say 'V' and 'R'' (2021) 29(2) Australian Law Librarian, 173
Brackets
In an Australian case citation, the year can be enclosed by either (round) or [square] brackets.
Round Brackets
Round brackets are used when the year is not an essential component of the citation.
This is when a case can be identified by a volume number alone.
For example:
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
The Commonwealth Law Reports ('CLR') volumes are numbers sequentially, from number 1 onwards.
This volume number is only used once, and is thus unique, so the case can be found without reference to a year.
So the year is not necessary to identify the correct volume.
Cases reported in a volume are not necessarily from one year - they can span years, depending on th enumber of cases reported.
For example: volume 172 contains cases from 1991, volume 173 contains cases from 1991-1992, as does volume 174.
Square Brackets
Square brackets are used when the year is an essential component of the citation.
For example:
Byrne v Australian Airlines Ltd [1995] HCA 24
Square brackets are regularly seen in unreported judgments.
See AGLC Rule 2.2.1 for further explanation.
Source: Gardner, Robin. 'Square Brackets vs Round Brackets' (2021) 29(1) Australian Law Librarian, 73
Definitions
The Encyclopaedic Australian Legal Dictionary (available through Lexis Advance) provides a number of relevant definitions that should help expand your understanding of case law:
Case law
Practice and procedure
The principles of law arising from judicial decisions. Case law is distinguished from statute law. Also termed ‘common law‘.
See also common law; precedent.
Common law
Legal terminology
The unwritten law derived from the traditional law of England as developed by judicial precedence, interpretation, expansion and modification: Dietrich v R (1992) 177 CLR 292; 109 ALR 385.
There is a single common law of Australia: Lipohar v R (1999) 200 CLR 485; 168 ALR 8; [1999] HCA 65.
The common law creates specific criminal offences, contains rules of evidence and practice and procedure, and sets out the rights and privileges of citizens.
Generally, a statute will not be taken to have repealed the common law unless it explicitly or implicitly shows such an intention: Fuller v R (1994) 34 NSWLR 233; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; 100 ALR 609.
A law interfering with a common law right of a citizen will generally be taken to be consistent with the common law so far as possible unless there is a clear legislative intention to abolish or limit the common law right: Coco v R (1994) 179 CLR 427; 120 ALR 415.
See also case law; code jurisdictions; doctrine of precedent; legislation.
Precedent
Courts and judicial system
A judgment that is authority for later cases with similar facts; a case that is authority for the legal principle contained in its decision.
The doctrine of precedent means that the decision of a court on a matter of law is binding on all courts lower in the judicial hierarchy. The doctrine of precedent plays an important part in preserving a stable legal framework and promoting respect for law: Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49; 40 ALR 673.
The High Court of Australia, whilst adhering to the doctrine of precedent, has always held itself able to depart from its own decisions where required for the proper exposition and development of the law: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; 80 ALR 574.
See also International Court of Justice; jurisdiction; stare decisis.
Stare decisis
Lat – the decision stands. The doctrine under which a court is bound to follow previous decisions, unless they are inconsistent with a higher court’s decision or wrong in law. Stare decisis operates to secure certainty in the law.
The High Court is not strictly bound by its own decisions (Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237) although continuity and coherence in the law require that stare decisis will ordinarily apply (Jones v Commonwealth (1987) 71 ALR 497; 26 A Crim R 153).
Different considerations may apply to the interpretation of statutes (Ogden Industries Pty Ltd v Lucas (1968) 118 CLR 32; [1970] AC 113; [1969] 1 All ER 121) and the Commonwealth Constitution in that, although courts should be guided by earlier decisions, previous interpretations are no substitute for the original text of the statute or Constitution (Damjanovic & Sons Pty Ltd v Commonwealth (1968) 117 CLR 390).
The High Court has been prepared to depart from the doctrine of stare decisis where the case being reviewed ‘did not rest on a principle carefully worked out in a significant succession of cases’ and the justices constituting the majority had different reasons for their decisions: John v FCT (1989) 166 CLR 417; 83 ALR 606.
See also common law; precedent; ratio decidendi.
curia advisari vult
cur ad vult.
This is an abbreviation for the Latin curia advisari vult.
The Encyclopaedic Australian Legal Dictionary available through Lexis Advance) provides a definition of this term:
Latin words and phrases
Abbrv - – cur adv vult; cav
Lat – the court wishes to be advised; the court wishes to consider its decision. Used in law reports to signify that the judgment was not delivered immediately.
Case Annotations & Descriptions
Annotation |
Description |
| Applied | A principle of law articulated in the primary case is applied to a new set of facts by the court in the subsequent case. |
| Approved | The court in the subsequent case has approved the way the court in the primary case, being a court of inferior jurisdiction, has articulated a principle of law. |
| Cited | The primary case is merely cited by the court in the subsequent case, without comment. |
| Considered | The legal principles articulated in the primary case are considered or discussed without adverse reflection in the subsequent case. |
| Disapproved | The decision in the primary case is criticised by the court in the subsequent case. |
| Distinguished | The court in the subsequent case holds that the legal principles articulated by the primary case (usually otherwise persuasive or binding authority) do not apply because of some essential difference between the two cases in fact or law. |
| Explained | The decision reached in the primary case is justified by the court in the subsequent case, drawing attention to some feature of the primary case that may not be immediately obvious on its face. |
| Followed | This annotation is similar to "applied" but is used in circumstances where the facts in the primary case resemble reasonably closely the facts in the subsequent consideration case. |
| Not followed | The court in the subsequent case has declined to apply the principles of law articulated in the primary case. |
| Overruled | The legal principles articulated in the primary case are held to be incorrect by the court in the subsequent case, which is a court of superior or equivalent jurisdiction. |
| Questioned | The court in the subsequent case has expressed doubt about the decision in the primary case but does not actually determine that the principles of law in the primary case are incorrect. |
Note:
Different principles in the primary case may be treated differently in the subsequent case, so that combinations such as Applied/Distinguished are possible (indicating that one principle was applied and another distinguished).
Case Annotations & Descriptions in Case History
Annotation |
Description |
| Abrogated | The rule of law in the cited case is no longer good law, but the court does not expressly use the term “overruled”. |
| Affirmed | The decision in the primary case is upheld on appeal or the primary case itself has affirmed an earlier decision. |
| Distinguished | There is a difference in facts, procedural posture, or law between the two cases that compels the citing court to reach a different result than the cited case |
| Related | The decision in the subsequent or earlier case relates in some way to the primary case, but the court in the primary case is not assessing the merits of the related decision. |
| Reversed | The decision in the primary case is overturned on appeal or the primary case itself has overturned an earlier decision. |
| Special Leave Granted | Special leave to appeal the decision in the primary case to the High Court or Privy Council has been granted or the primary case is a decision granting special leave to appeal against an earlier decision. |
| Special Leave Refused | Special leave to appeal the decision in the primary case to the High Court or Privy Council has been refused or the primary case is a decision refusing special leave to appeal against an earlier decision. |
| Varied | The decision in the primary case is only partly reversed or partly affirmed by the subsequent case, or the primary case itself has partly reversed or partly affirmed an earlier decision. |
Sentencing Decisions
Australian Sentencing details the range of mitigating and aggravating considerations that can impact on a sentence.
Judge for Yourself: A Guide to Sentencing in Australia
The District Court of Western Australia:
Sentencing Remarks
Sentencing Remarks are the reasons given, either orally or in writing, by a judge as to why a particular sentence is passed on an offender. Sentencing remarks are often published on Australian court websites.
Search the Australian Current Law Reporter database for superior court cases.
For Western Australian Courts, select sentencing remarks are publicly available:
Supreme Court
Supreme Court Sentencing Remarks remain on the website for 28 days and can be accessed from the Law Library at the David Malcolm Justice Centre.
Interested Parties may inspect the copy retained by the Law Library at the David Malcolm Justice Centre after obtaining permission of the Principal Registrar.*
*See: The Supreme Court of Western Australia, Consolidated Practice Directions 2009 (updated 18 June 2021) 5.7
Legal practitioners have access to more sentencing remarks through a specific database that is not accessible by students.
The Supreme Court offers a subscription service, providing automatic notification of sentencing remarks.
District Court
The District Court does not routinely publish the reasons given by Judges in sentencing offenders.
However, you can search the District Court of Western Australia Sentencing Decisions.
The Court makes a transcript of the reasons given by a Judge in sentencing each offender (the offender is given a copy).
Members of the public may request a copy of a sentencing transcript by written application to the Principal Registrar setting out the reasons why they want a copy.
If the sentencing judge determines that the reasons for sentencing to be of particular significance or public interest they will be published on the website once edited and validated by the judge.
The sentencing remarks are edited to prevent identification of victims.
Comparative Sentencing Tables
The Comparative Sentencing Tables from the Office of the Director of Public Prosecutions for Western Australia outline decisions of appeal hearings that consider the sentences imposed for various criminal offences.
Summary of the research process
The following research pathway will take you through the process of finding out about case law.
- Read about the area of law, including commentary, that puts the case in context, using tools such as legal dictionaries, encyclopaedias, text books and journal articles:
- Find commentary about the general topic you are looking at by consulting books and encyclopaedias.
Within the commentary you will find references to relevant primary materials (cases and legislation) in the text and in the footnotes. - Consult legal dictionaries to clarify the legal meaning of unfamiliar words, or familiar words used in an unusual manner.
- Examine judicial consideration of cases (where a case has been considered in other cases), using case citators such as FirstPoint and CaseBase.
- Find commentary about the general topic you are looking at by consulting books and encyclopaedias.
- Examine the status of the decision:
- Is the precedent in the decision still good law?
When you have found and read a relevant case you will need to establish its current standing. - How has the decision been applied in more recent decisions?
New developments in case law can occur whenever a case is decided (the decision is "handed down").
This means that when you have found and read relevant cases you then need to find out how the decision has been applied in more recent decisions. - Other terminology used in relation to this task: "noting up cases", "status" or "standing".
- Is the precedent in the decision still good law?
- Finally you may wish to read more journal articles discussing the particular point of law, case or legislation.