Now you are able to find cases, you need to be able to find other cases which have considered that precedent.
This is the process of precedent in action: how case law responds to decisions from the past, and develops the law for application in the future.
Once you have established that there is a link between cases, you then need to examine the application of the precedent over time. A case citator is a specialist tool which indexes and annotates cases within a jurisdiction. The two main subscription Australian case citators are CaseBase (found on Lexis Advance) and KeyCite (found on Westlaw Australia). Free Australian case citators include AustLII and LawCite.
Editors at CaseBase or the KeyCite use different words to describe the application of precedent:
· positive: used to describe a case which follows or applies a previous decision;
· negative: used to describe a case which overturns or does not follow a previous decision;
· neutral: used to describe a case which the judges have considered but decided either that:
o The matter before them is different enough that they are not bound to follow it; or
o It is interesting, but again they are not bound by the earlier decision which they have considered or cited.
There are many words used to describe the nature of the relationship between one case and how it is used in subsequent cases. Every citator has some sort of glossary or list of terms used and their meaning.
Editors use notations to show how earlier case precedent has been used. Remember, cases may establish precedent on several points of law. Editors may select different precedents to link to new cases. Researchers however are expected to verify the use of precedent by reviewing the cases.
Precedent is an essential part of the Australian legal system and being able to find links between cases is an essential legal skill.
In a later topic of this Lesson you will look more closely at the status of a case which is determined by the application of precedent over time.
FirstPoint on Westlaw Australia and CaseBase on Lexis Advance are case citators and digests.
They provide valuable sources of information regarding judicial consideration of cases, along with information about legislation cited and journal articles that discuss particular cases.
After completing this topic, you should be able to search for a case on FirstPoint or CaseBase and see what cases were considered by this case, and what cases have subsequently cited this case.
Following Precedent using CaseBase on Lexis Advance
Source the case on Lexis Advance.
CaseBase can be accessed once you have found a case report, as shown below:
When you have clicked on CaseBase, you will see the following:
CaseBase provides, amongst others, the following information:
- Cases referring to this case: Cases which in more recent times have referred back to this case.
This is also called "cases judicially considered". - Cases considered by this case: Cases which were cited in the judgment of this case. This is the process of looking at old decisions and then seeing how they were applied in a case.
Finding citing cases and tracking precedent
i.e. cited, considered, followed, applied, disapproved, etc.
- Find the case.
- Look at the cases referring to this case.
There are various ways of sorting this list - by date, by parties' names, or by annotation.
Annotation refers to the editor's terms for arranging similar application of the precedent.
This means all those cases which followed, applied, or distinguished the precedent will be listed together.
CaseBase has the following additional editorial information, much of which will be discussed in other topics in this Lesson:
- Catchwords & Digest details
- Publications referring to this case - this includes journal articles - some articles will be in full text, others will only have abstracts and references
- Words and Phrases judicially defined in the case
- Legislation considered by this case
- Find references to this case (right-hand side of the page under About This Document) - this is not as effective as the FirstPoint digest system of linked subject/classification headings, but it might develop over time
For more details about using Lexis Advance and CaseBase, click on the Help tab at the top right-hand side of the page. This will give you access to tutorials.
Using the same tools you can go "back in time" to find cases from which precedent has been applied in more recent times. In the databases this is referred to as cases cited or cases considered by this case.
If you look at a case such as Mabo v The State of Queensland (No 2) 175 CLR 1, you will see that the judges based their decision on previous precedent that included cases from the 1600s and 1700s.
You have access to those early cases from the English Reports on HeinOnline, as well as in print.
How to tell if a case is Cited or Citing - Look at the Date!
Look at the date of your case.
If the case you want to know about is earlier than your case it has been Cited by your case.
If the date is later, it is Citing your case.
Judicial Consideration of a Case on Westlaw Australia
aka following precedent
Source cases that have referred to / cited a given case in their argument (cases citing).
Source the case on Westlaw Australia.
The Digest can be accessed once you have found a case report.
Global Search |
Advanced Search |
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Step 1. Search by case citation in the global search box Example: 128 CLR 557 WAIT FOR SUGGESTIONS
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Step 1. Select Content type - Cases
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Step 2. From the drop down suggestions, select the linked case name
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Step 2. Select Advanced Search
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Step 3. Select Cases from the Citing References tab
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Step 3. Complete Cases Cited field with the case citation "128 CLR 557" |
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Look at the Cases Citing to get a list of cases in which the judges have looked back at your case. Note how the initial case has been used in more recent cases. Cases have been categorised applying the precedent in a similar way together in an easy-to-follow list. Look at the Depth column. The greater number of green bars, the more in depth the discussion of the initial case. Look at the Treatment column. This explains how the case was used in a subsequent case. |
Step 4. Click on the magnifying glass icon to Search
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Step 5. Results can be filtered. Example: Expand Practice Area + Check the box for Employment
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Digest: This gives you a synopsis of the case including relevant subject headings, a history of the case and the decision reached by the judges of the case.
Litigation History: Any previous cases or more recent cases between these parties on the same matter.
Cases Citing: Cases which, in more recent times, have referred back to this case.
Cases Cited: Cases which were cited in the judgment of this case. This is the process of looking at old decisions and then seeing how they were applied in a case.
NB: If you are unsure about Cases citing and Cases cited, check the date. Cases citing the case in which you are interested will have been heard after the case in which you are interested whilst cases cited by the case in which you are interested will have been heard before the case in which you are interested.
Journal articles: Many of the articles listed on KeyCite are not on Westlaw Australia. You will have to find the article by using the Library Catalogue or the Citation Linker. For more details about using KeyCite click on the Help button, found at the top of the page on Westlaw Australia.
Words and Phrases: Judicially defined by the case.
Other Tabs are available including the full text of the case and a list of cited documents and related documents. These don't form part of the KeyCite citator entry, but they can provide useful information for your research.
Finding citing cases and tracking precedent
Look at the Cases Citing to get a list of cases in which the judges have looked back at your case.
Note how the initial case has been used in more recent cases. Westlaw editors have categorised cases applying the precedent in a similar way together in an easy-to-follow list. Those that applied precedent are listed together, as are those that are categorised as having followed, not-followed, cited and considered the points of law from the preceding (earlier) case. You might see that some cases are listed in several categories. This is because judges are not bound to follow precedent from a whole case but from the relevant points of law within a case.
AustLII
AustLII is one of the LII (Legal Information Institutes) that aim to provide free access to primary legal materials.
AustLII contains Australian primary materials (cases and legislation) as well as a growing body of journal articles and other secondary materials.
While you should always get your Australian legislation from the primary (authoritative) source rather than AustLII, their case databases are the most comprehensive and up to date source in Australia.
The following information supports the Library Research Tests.
For more information the AustLII help information is invaluable and worth becoming familiar with during later stages of your legal research.
Finding the Judicial Consideration of a Case on AustLII
The example for these shots is the case Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 3
Once you have followed these 4 steps you will have a list of cases and journal articles which have cited this case.
The default display is By Relevance. In most circumstances relevance will be the most useful list along with Citation Frequency.
Note the relevance figure in the square bracket at the end of the citation.
This simply gives an indication of how frequently the "search term" (in this instance citation) is mentioned within the citing case.
This screen shows the By Database display which shows where results come from.
You might only need to refer to cases from a particular court, for example the High Court of Australia, or the Supreme Court of Western Australia.
This option is particularly useful if you want to find journal articles about a case as each journal is called a "database".
For the purpose of the Library Research Tests sorting By Title will be useful for finding specific cases.
Note: AustLII has recently introduced "court ready pdfs" - AustLII watermarked .pdf versions of the cases found on AustLII in html format.
You will be able to find a case on AustLII in html and then click through to the .pdf version.
For the purposes of the tests, do not answer based on a .pdf version.
For some older cases, this .pdf file can be the CLR version not the HCA version of a case.
It is important to note that not all CLRs will be available on AustLII and you should use the Westlaw databases to access these as this is the official publisher.
LawCite
LawCite is a companion to AustLII with a different search engine presenting information in a different way.
AustLII is limited to Australian legal materials while LawCite searches across the common law world.
All the results on LawCite are presented on a single screen.
Try searching LawCite for your family name. Then sort the jurisdiction column!
