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Law - Subject Guide

About Case Law

About Case Law

Case Law

Case law, also termed ‘common law‘, is distinguished from statute law. 

Case law is a primary source of law, developed over time by judges in superior courts.
Each case or judgment delivered by these superior courts is the solution to the dispute between parties to the case.
According to the doctrine of precedent, or stare decisis, decisions made in superior (higher) courts form precedents and inferior (lower) courts must follow these precedents
Once the judgment is delivered it becomes precedent that future disputes considering similar issues, will be settled based upon the superior court judgment

QUT Law Library video gives a great overview of case law [runtime 10:44min]

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:

 

Common law

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Generally, a statute will not be taken to have repealed the common law unless it explicitly or implicitly shows such an intention: Fuller v R (1994) 34 NSWLR 233; Corporate Affairs Commission (NSW) v Yuill (1991)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.

Precedent

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. 

Stare decisis

Latin – the decision stands.
The doctrine of stare decisis operates to secure certainty in the law by binding a court to follow previous decisions, unless they are inconsistent with a higher court’s decision or wrong in 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.​

Source: Encyclopaedic Australian Legal Dictionary 

 

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.
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>

Understanding the structure of a case enables you to:

  • locate a case
  • locate and assess other relevant information that will assist in determining its relevance to a particular situation
  • locate similar cases of relevance

Note the structure of the Commonwealth Law Reports version of the Spriggs v Commissioner of Taxation (2009) 239 CLR 1; [2009] HCA 22 case.

 

Note the use of cur ad vult.
This is an abbreviation for the Latin curia advisari vult, meaning

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.

Source: Encyclopaedic Australian Legal Dictionary 

 

 Law reports are the written judgments of courts on cases which raise significant points of law or expand upon the current understanding of the law

Since the late 1990s unreported judgments are available for most jurisdictions

Law reports are published for the purpose of being used as precedents, providing consistency in the development of common law by ensuring that like cases are decided in the same manner

Law reports may relate to a particular jurisdiction or to a particular area of law, with almost all reported cases being heard in superior courts (all High Court of Australia decisions are reported)

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

If you want to get more familiar with the anatomy of a law report - take a look at this Talking Essay from LawBore.

Reported Judgments

Authorised Reports

Authorised or official reports are those selected and approved by the judiciary, their nominees, or relevant governments department, containing cases which enunciate a general principle or point of law

An authorised report should always be cited in preference to an unauthorised report, (Rules of the Supreme Court 1971 (WA) 0.34.5.9A)

Unauthorised Reports

Unauthorised series of reports are produced quickly and many are directed towards satisfying the needs of specialist practitioners

Unauthorised series of reports include many reports of cases which may be published later in an authorised series, however they also include reports which may only be of transient interest, or illustrate the application of authoritative cases

Law Reports Generally

Few series are mutually exclusive: cases may appear in several series depending on editorial interest and assessment of the importance of the case.
 For example, significant High Court decisions are reported in the Commonwealth Law Reports (CLR), Australian Law Reports (ALR) and Australian Law Journal Reports (ALJR)

  • The ALR and ALJR are unauthorised series and the CLR authorised
  • The Authorised Report Series is a list of authorised reports of various jurisdictions

Unreported Judgments

When decisions are handed down by a judge or judges they are described as being unreported, thus all judgments start their life as being unreported

Decisions are then selected by the judge or judicial editorial board to be reported in the authorised series, or by publishers for reporting in one of the subject series of reports

Although there is debate about the precedent value of unreported decisions, they are heavily used as they may contain the only statement of the law on a particular subject

Unreported judgments have different citation rules to law reports.

Consideration of Cases

When looking at judicial consideration, cases may be Applied by, Considered by, Distinguished, etc.

Explanations can be found:
Lexis Advance CaseBase Signals Guide
Westlaw Australia Cases KeyCite Status Symbol Guide 

How to Read a Case

Orin Kerr,  ‘How to read a legal opinion: a guide for new law students’ (2007) 11 The Green Bag 51

A series of court reports officially approved by the judiciary or government is known as an authorised or official series of reports.

In each jurisdiction only one series is designated as authorised.

Cases which enunciate a general principle or point of law are usually included in the authorised series of reports.

The Journey of Authorised Law Reports: From the 'Mists of Antiquity' to the Third Millennium  

Australia

Jurisdiction

Series

Citation

Federal Court

Federal Court Reports 1984+

FCR

High Court Commonwealth Law Reports 1903+ CLR

Administrative Appeals Tribunal

Administrative Law Decisions 1976+

ALD

Australian Industrial Relations Commission

Industrial Reports (Authorised reports of the AIRC are included from Vol. 154, 2006+)

IR

Industrial Relations Commission

Commonwealth Arbitration Report(s) 1905-1993

CAR

Veterans Review Board Repatriation Pension Decisions 1985+ RPD

Supreme Court of New South Wales

New South Wales Law Reports 1970+

State Reports NSW 1901 – 1970

New South Wales Law Reports 1825 – 1900

NSWLR

SR NSW

NSWLR

Northern Territory

Northern Territory Law Reports 1991+

NTLR

Queensland

Queensland Reports 1958+

State Reports. Queensland 1902-57

QRQdR

St R Qd

South Australia

South Australian State Reports 1971+

State Reports. South Australia 1921-71

South Australian Law Reports 1865-1920

SASR

SRSA

SALR

Tasmania

Tasmanian Reports 1979+

State Reports Tasmania 1941-1978

Tasmanian Law Reports 1897-1940

Tas R

Tas SR

TLR

Victoria

Victorian Reports 1957+

Victorian Law Reports 1875-1956

VR

VLR

Western Australia

Western Australian Reports 1983+ 

Western Australian Reports 1960-1982 - print only 

Western Australian Law Reports 1898-1959

WAR

WAR

WALR


 

New Zealand

Jurisdiction

Series

Citation

Court of Appeal

High Court

New Zealand Law Reports 1883+

NZLR

England & Wales

The Law Report Series had several title variations between 1866 and 1891.

Since 1891 the following have been established as the current Law Reports Series:

Jurisdiction

Series

Citation

High Court

Chancery Division 1891+

Ch.D or Ch

High Court

Probate, Divorce and Admiralty

P. or P.D.

High Court

Division 1891-1971 Family Division 1972+

Fam

High Court

Queen’s/King’s Bench Division 1891+

QB or KB

House of Lords & Privy Council

Appeal Cases 1891+

A.C.

Government official reports

Reports of Patent, Design & Trade Mark Cases 1884+

RPC

Government official reports Reports of Tax Cases 1875+ TC


 

Northern Ireland

Jurisdiction

Series

Citation

Superior Courts &
Appeals to the House of Lords

Northern Ireland Law Reports 1925 +

NI
or
NILR

Scotland

Jurisdiction

Series

Citation

Court of Appeal

Court of Session &
High Court of Judiciary

Session Cases 1821+

SC

Canada

Jurisdiction

Series

Citation

Supreme Court

Canada Supreme Court Reports 1970+

Canada Law Reports, Supreme Court of Canada 1923-69

Canada Supreme Court Reports 1876-1922

SCR

Exchequer Court

Canada Law Reports, Exchequer Court of Canada 1923-1969

Reports of the Exchequer Court of Canada 1881-1922

Ex.CR

Federal Court

Canada Federal Court Reports 1971

FCR

United States of America

Jurisdiction

Series

Citation

Supreme Court

United States Supreme Court Reports 1790+

USSC.Rep
or
US

AGLC Rule 2.2.2 Law Report Series Hierarchy

The authorised version of the report should always be used where available.

The version of a case to be cited should follow the preference order below (from top to bottom):

Version Examples
Authorised report CLR, FCRNSWLR, VR,WAR
Generalist unauthorised report ALR, AJLR, FLR, ACTR
Subject-specific unauthorised report A Crim R, ACSR, IR, IPR
Unreported (medium neutral citation) HCA, FCA, NSWSC, VSC
Unreported (no medium neutral citation) See rule 2.3.2

 

Reported Cases

The essence of a case citation for a report series is:

Parties' names + year + volume (if any) + series abbreviation + starting page number + pinpoint reference.

Unreported Cases

The essence of a case citation for an unreported judgment in medium neutral format is:

Parties' names + [Year of publication] + Unique court identifier + Judgment no. + [Pinpoint.]

Medium neutral citations are official citations designated by courts, so you can source the case regardless of the publisher/court reporting series.

Each court has an identifier and within each year each judgment is given a running number.
Each paragraph within the case is numbered which increases precision in pinpoint citation within a decision.

Examples:

Singh v Commonwealth of Australia [2004] HCA 43.
Justelle Nominees Pty Ltd v Martin [No 2] [2009] WASC 15, [10].

 

Consult the AGLC Referencing Guide for more specific citation guidelines.

[Square Brackets] and (Parenthenses)

(Parentheses) are used to include the year when a reporting series numbered its volumes starting a 1 (so you would have no idea of the age of the case without this extra information).

[Square Brackets] are used for reporting series that number volumes according to the year.

 

Explanation In Detail

With a few exceptions, the choice of [square brackets] or (parentheses) indicates the manner in which the case series is organised.

Where a law report series uses continuous numbering of its volumes, parentheses are used around the year.

Where there is no volume numbering or the numbering begins from 1 again each year, the year is placed in square brackets.
This places the emphasis on the year for location purposes rather than on a recurring volume number.

Some exceptions to this occur in particular case series where the publisher has chosen not to adhere to standard conventions.
For example:  Corbett v Pallas [1995] Aust Torts Reports 62,236.

For more information on the use of [square brackets] versus (parentheses) see 2.2 of the Australian Guide to Legal Citation.

Legal Abbreviations

The abbreviation for a series of law reports is usually the initial letters of the words in the title. 

Case law and journal citations are made up of the abbreviation for the case report series or journal.
Find the unabbreviated case report series or journal title from:

Cardiff Index to Legal Abbreviations

Raistrick's Index to Legal Citations and Abbreviations

The Australian Guide to Legal Citation (ALGC) Referencing Guide

The La Trobe University Legal Abbreviations Database

When in CaseBase in Lexis Advance you can access an Abbreviation/Subject List from the help menu.

LCANZ - Legal Citations of Aotearoa New Zealand

Case Citators

A case citator is an incredibly useful tool to use for legal research. Case citators are a type of case law index.

Case citators can be useful in helping you determine:

  • The correct citation for a case;
  • If the case has been reported in more than one series of case reports (parallel citations);
  • If the case has been reported in an authorised law report series;
  • Whether any later cases have considered the case;
  • What earlier cases were considered by the case;
  • If the case considered any legislation;
  • If journal articles have considered the case;
  • If the case is still considered good law.

 Students of Murdoch University have access to a number of case citators. For example, Australian Citators include:

Many of the online case citators also provide a case digest feature which provides a summary of the main points of the case. A popular example of this feature is Digest on Westlaw Australia.

 

More help with how to use these citators can be found in the help articles linked, in the help section within each database, or within the Online Lessons for Law & Legal Studies Students.

Once you have located a case, an additional component of legal research can be to find cases that judicially consider the case (or parts of the decision) and journal articles that discuss the case.
Where the case is interpreted or discussed in a court, this is referred to as judicial consideration.
The subsequent discussion of a case in other decisions is evidence of the operation of the doctrine of precedent.
Textbooks and commentary often also provide a valuable discussion of case law where it is relevant to the subject of the textbook or commentary.

The  Case Law Lesson shows in detail how to locate cases, legal encyclopaedias and commentary that are relevant to a particular piece of legislation.

You can use AustLII, Jade, CCH IntelliConnect, LawCite, Lexis Advance CaseBase, Westlaw Australia and a number of other case law databases to find cases that judicially consider a particular case.

 

When looking at judicial consideration, cases may be Applied by, Considered by, Distinguished, etc.

Explanations can be found:
Lexis Advance CaseBase Signals Guide
Westlaw Australia KeyCite Depth of Treatment

Court Annotations

The following is list of annotations used by the court in the subsequent appeal proceedings or in the subsequent case where the primary case has been judicially considered.

  • 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.

The Appeal proceedings section of the CaseBase entry has the following annotations used by the courts:

  • Affirmed The decision in the primary case is upheld on appeal.
  • Reversed The decision in the primary case is overturned on appeal.
  • See The decision in the subsequent case relates in some way to the primary case, but the court in the subsequent case is not assessing the merits of the related primary decision.
  • Varied The decision in the primary case is only partly reversed or partly affirmed by the subsequent case. It is particularly used in circumstances where the court in the subsequent case has altered the quantum of damages awarded or the sentence imposed in the primary case.
  • Related The decision in the subsequent case relates in some way to the primary case, but the court in the primary case is not assessing the merits of the earlier related decision.
  • Special Leave Granted Special leave to appeal the decision in the primary case to the High Court or Privy Council has been granted. There is, therefore, an opportunity for the case itself to be overturned.
  • Special Leave Refused Special leave to appeal the decision in the primary case to the High Court or Privy Council has been refused. Therefore, the case is considered good law.

What do the colours mean?

The colours merely highlight and draw attention to the particular types of treatment.
They do not change or add to the meaning of the annotation.

  • Positive treatments are coloured green. e.g. followed, applied, approved or affirmed
  • Treatments indicating caution required are coloured amber. This can be everything from a distinguishing or explaining treatment (indicating that the law is still good but does not apply in the circumstances), to a varying treatment to a questioning (sometimes called a 'doubting') treatment.
  • Negative treatments are coloured red. e.g. disapproved, not followed, overruled or reversed
  • Neutral treatments are coloured black. e.g. considered or cited

Source: LexisNexisAU Help

Westlaw KeyCite Depth of Treatment bars indicate the extent to which a citing case, administrative decision, or brief discusses the cited case.

Australian Court Forms

Each court has its own set of court documents.
These are set out in the relevant legislation and by the court.

 

The High Court of Australia

 

The Supreme Court of Western Australia

 

The District Court of Western Australia

 

The Magistrates Court of Western Australia

 

Most are also accessible from:

UK Court Forms

UK Civil procedure - Westlaw Classic>Browse>International materials>United Kingdom>Treatises includes:

 

Print Sources

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.

Parallel Citations

Court reporting is a business.

It is like reporting the news - how a news item is reported by the ABC or SBS, compared with 7, 9, or 10 – how there are different versions which emphasise different aspects.

 

Case reporting series are similar, in that there are different versions of a case.

If a subject specialist series reports a case, there will be an emphasis on that subject with a lot more detail.

Additionally, the subject specialist and generalist reporting series are available the day following the judgment.

Authorised versions are only available annually.

There is one authorised case reporting per jurisdiction.

 

References to cases in your textbooks include all of the court reporting series where the case can be sourced.

Listing all case reporting series in which a case can be sourced is called giving parallel citations.

All versions are given because readers may have access to only case reporting series.

 

Parallel citations are listed as a hierarchy, from the most authoritative down.

You should always attempt the most authoritative case reporting service available.

 

When referencing or citing a case in your assignments, you should only include the citation of the version you have accessed – not all of the parallel citations.

e.g. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.

Source, and cite, the most authoritative version of a case.