Case Law & Precedent
LAW100/LLM533 - Foundations of Law
Case Law & Precedent
What is case law?
• Common law, judge-made law, case law = interchangeable
• ‘Developed’ by judges
• Important source of law in common law jurisdictions
• Statute law dominant, but case law important role – statutory
interpretation
• In each decision, courts:
o Resolve disputes
o Can lay down a principle of law to be applied in future cases
• Reactive rather than proactive; resolution of dispute; after incident
Case Law & Precedent
How does case law work?
• Legislation: complete framework of rules
• Cases thought of as ‘building blocks’
• Lays down a principle; a building block -
legal principles evolve over time
• This is the doctrine of precedent
• Court applies principles, or develops them
by analogy
Case Law & Precedent
Finding cases
• Law Libraries - in person and online
• Online: via legal publisher platforms (access via UNE Law Library)
• Westlaw AU, Lexis Advance, CCH IntelliConnect
• Free: Austlii ([Link]) and Jade: ([Link]
• Cases can be reported or unreported (former = print law reports)
• Lower court cases rarely reported
• Authorised and unauthorised series of reports
• Authorised take longer, checked by judges, can be errors with unauthorised
• Cite the most authoritative report series (AGLC r 2.2.2)
• Advent of electronic reporting means most cases of superior courts are available
Case Law & Precedent
Process of publishing court decisions
Judgment handed down
by court
Published with a medium neutral citation
Makes its way quickly online (e.g. Austlii)
Sent to publishers
Publisher creates reported
version of case
Publisher adds info
Reported case published in
Reported case published in authorised unauthorised report series
report series
Not court approved
Court has checked and approved
(e.g. ALR, A Crim R, Aust Torts R)
(e.g. CLR, FCR, NSWLR)
Generalist or subject specific series
Most accurate
Case Law & Precedent
Case citations
The key to finding cases is the citation
1. Catalogued by Volume number 2. Catalogued by Year
Mabo v Queensland [No 2] (1992) 175 CLR 1 Cohen v Sellar [1926] 1 KB 536
• (1992) = year decided (NB: round • [1926] = year decided (NB: square
brackets) brackets) – year is important here
• 175 = volume number • 1 = volume number within year
• CLR = Law Report Series • KB = Law Report Series (Kings Bench)
(Commonwealth Law Reports) • 536 = page number for start of report
• 1 = page number for start of report
Case Law & Precedent
Case citations
3. Medium Neutral Citation See Essential Toolkit D – Laying Down
Momcilovic v The Queen [2011] HCA 34 the Law: abbreviations of courts for
medium neutral citations
• [2011] = year decided (NB: square brackets)
• HCA = High Court of Australia Tips: AGLC:
• 34 = Case number • An authorised version of the
report should always be cited
• The key to spotting a medium neutral citation is where available (r 2.2.2)
recognising the court name (e.g. HCA – High
Court of Australia) rather than a report series (e.g. • Parallel citations should not be
CLR = Commonwealth Law Reports) used in citations to Australian
cases (r 2.2.7)
Case Law & Precedent
Reading & analysing cases
• Cases known by the names of people or parties Tip: ‘v’ is pronounced
• Include companies, reps of the state and individuals ‘and’ in civil matters
• Parties to the dispute or case Never ‘versus’ in
• Essentially two types: civil and criminal Australia (c.f. USA)
Hendron: Plaintiff
commences action
Civil Hendron v Cockburn On appeal the
parties become:
Cockburn: Defendant Appellant (party
action brought against bringing appeal) and
Respondent
Case Law & Precedent
Reading & analysing cases
Tip: ‘v’ is pronounced
‘against’ in criminal
matters
R = Rex or Regina – Crown
Sometimes State or DPP =
Prosecution On appeal: if the
Criminal R v White
Crown is the
Respondent, it=
becomes White v The
White: Accused Queen (or King) rather
than ‘R’
Case Law & Precedent
Judges and Justices
• Convention – write judge’s name followed by his/her title
• Gaudron J = Justice Gaudron
• French CJ = Chief Justice French
• Where there are multiple judges (regardless of how many) it is
usual to write ‘JJ’
• Hayne, McHugh and Bell JJ
• The UK has a variety of different judicial abbreviations and
names
• Lord Denning MR = Lord Denning, Master of the Rolls
• For other abbreviations, see Essential Legal Toolkit D in Laying
Down the Law
Case Law & Precedent
What is found in a case?
1. Simple Method 2. Detailed method
a. Citation a. Citation
b. Brief statement of material facts b. Court
c. Grounds of appeal/issue to be decided c. Brief statement of material facts
d. Reasons for decision – explains how d. Procedural history
laws are applied e. Grounds of appeal/issue to be decided
e. Decision f. Summary of court’s analysis of the law
g. Principle of law to be applied
h. Description of how law was applied to
the facts
i. Decision
j. Orders made
k. Social/cultural context
Case Law & Precedent
Analysis of a case
• See e.g. Warringah Properties v Babij [2006] NSWSC 702
• Laying Down the Law shows a detailed case analysis
• What are the material facts?
• In many cases, the key issue is what happened – the legal principle will be well settled
• In other cases, the legal principle may be in dispute
• Once the principle of law is determined, the application of the principle to the facts
produces the decision
Case Law & Precedent
Material facts
• In any given case; myriad of facts but only some will be material
• Facts crucial (or ‘material’) to the court’s decision; facts important to the court’s reasoning
process
• Nature of issues to be decided will determine the material facts
• If no bearing on the decision of the case = not material
• Appeal case: the outcome of the previous decision is not a material fact, but part of the procedural
history
• Ask yourself: what happened on the day? Tip: Four W’s: who, what, when, where (as relevant)
Case Law & Precedent
Procedural history & grounds of appeal
Procedural history Issues to be decided/grounds of appeal
• Procedural history is essentially a • Questions the court must decide – derived from the
record of the various courts in which the submissions of the parties
case has been heard before
• In some cases, questions purely factual
• Check: is this case being heard for the
first time, or on appeal? • Other times, questions of law, or combination of fact
and law
• Case being heard at first time – said to
be heard ‘at first instance’ • Fact: What happened?
• Law: What are the legal consequences of what
happened? What law applies?
• In criminal cases: questions of fact often for the jury
• On appeal the questions will usually be ones of law or
mix of fact and law
Case Law & Precedent
Court’s analysis of the law
• In many cases the law is not in dispute
• Issue will be what the facts were, and what follows, rather than content of legal principles
• In other cases, the content of legal principles in dispute
• These are the cases which lay down new principles
• Doctrine of precedent
• In this step – important to include the various legal authorities considered by the court
• Legal authorities: primarily case law and statute
Case Law & Precedent
Case analysis continued
Principle of law to be applied How is the law applied to the facts Decision and orders
• The principle of law to be • Once the law has been • Often simply stated, the decision
applied will be decided by decided, the decider of fact is the outcome of the case
the court in its analysis of (judge or jury, if present) must
the law • Orders usually found at the end of
apply this law to the facts
the case report - give effect to the
• Where the law is not in court’s decision
dispute, this will often be
simply stated Social or Cultural Context
Tip: When writing a case note, avoid
reproducing lengthy quotes from the • Judgments may reveal the social
judgment. Instead, explain matters in or cultural context in which they
your own words to demonstrate your were decided
understanding of the concepts and of
the case. • Does this raise the relevance or
applicability of the case for today’s
context?
Case Law & Precedent
Appeals and multiple judges
• Appellate courts, for example:
o NSW Court of Appeal Tip: Judgment = written decision
o NSW Court of Criminal Appeal handed down by the court
o Full Federal Court
In this context, the correct spelling is
o High Court
‘judgment’ not ‘judgement’
• Usually a bench of 3-7 judges
• Decisions are by majority
• Sometimes joint judgments (co-written by several judges)
• Other times judges will simply agree with another judgment (but not joint judgment)
• Sometimes same conclusion but different path
• Other judges might dissent – in whole or part (i.e. not agree with the majority)
• If multiple judgments – will need to repeat some of the steps for each