Case Law
What is Case Law?
Case law, or common law is the law developed over time by judges in the superior courts. Each case or judgment is the solution to a dispute between two parties that has been determined by the trial judge or bench of court judges. These decisions become the precedent on which further court disputes will be settled.
Case law is a major source of law even in areas governed by legislation. Case law research involves reading judgments and understanding the reasons behind how the law has been applied by the judge.
Significant case law is published in law reports, or may be made available in unreported formats, for more information on Case Reporting, see the Law Library Guide.
Note: An unreported citation should only be used when a case has not been included in a reported series.
Structure of a Case
As a primary source of law, understanding the structure of a case and the identifying elements will be most beneficial. Not only will you be able to locate a case but, additional information to assess its relevance to a particular situation as well as locating other similar cases.
Australian Court Hierarchy
The common law doctrine of precedent is established on the hierarchical structure of the court system. Different elements of the hierarchy and how they relate to each court must be considered when establishing the precedent.
Case Citators
Find the judicial history of a case
Fundamentally, a case citator is a tool for discovering the judicial history of a case. That is, it lists all subsequent cases that cited this decision as a precedent since it was first delivered. By use of flags or other symbols, the citator indicates whether the original case and each subsequent case citing it are still ‘good law’.
Finding tool for cases
Case citators also provide basic data on cases, such as the jurisdiction, name of judge/s, date decision was handed down, full names of the parties, and all the law reports where it can be found (parallel citations), etc. The case citators, FirstPoint and CaseBase, also usually contain a digest of the case, which is a short analysis of the important points of law it addresses.
- CaseBase (Lexis Advance)An Australian case citator that provides details of where a case has been reported and where the main case has been considered. Also provides subject access to cases and journal articles which discuss a specific case
- FirstPoint (Westlaw AU)Combining the Australian Case Citator Plus and The Australian Digest, FirstPoint cites Australian reported cases and summarises Australian case law developments
Finding a Case
Case Law Databases
There are a number of free and paid databases that contain Australian case law. If you have a case citation, you can use check the abbreviation in the Cardiff Index of Legal Abbreviations and then do a Journal Search using the full unabbreviated title of the report series to see if we hold that report series.
Alternatively you can search the following databases for Australian Case Law:
- AustLIINote the site provides free access to legislation and case law but, please remember that it is not an official site and legislation may not be as current as on official websites)
- JadeOpen Law - latest decisions of selected Australian and International Courts and Tribunals, and Australian legislation. Some Magistrates' Court decisions from 2006.
- Lexis Advance (formerly LexisNexis AU)Has information on workplace, employment & industrial law.
Unreported Cases
Note: Where possible, use the Reported form of a case from one of the Law Report Series. See the list of (Authorised) Law Report Series on the AGLC Referencing Page
Many cases from the courts are not published in a series of law reports. Unreported cases can be recognized by the use of a medium neutral citation (meaning the citation or reference does not point to a site of "publication," only case details.) This citation is assigned by the court and includes the year of hearing, court heard and a judgment number.
Use the Cardiff Index to Legal Abbreviations for Court Name Abbreviations,
Unreported cases are freely available via court websites, Austlii, Jade as well as ECU databases.
Finding a Case Considering Legislation
Using AustLII (Australasian Legal Information Institute)
Locate and open the section of the Act you wish to find case law on.
Select the NoteUp option from the top of the screen.
This will retrieve all related documents (including legislation, case law, journal articles and even law reform).
Note: By definition, every case in AustLII is 'unreported', since its case material is sourced directly from the courts, it is a great source in terms of breadth, but make sure to follow up on whether a case has been (subsequently) reported.
Using Westlaw AU (and FirstPoint)
Westlaw AU and FirstPoint are good resources for finding unknown Cases via a subject search.
Using Lexis Advance (previously LexisNexis AU)
A great resource for either known Cases, or when looking for Cases on a known piece of Legislation.
Use the ‘Legislation Title' field of the Advanced Search form to enter the name of the legislation as a phrase, eg. “Trade Practices Act 1974”
A section number can be added, but don't use any punctuation, eg. “Trade Practices Act 1974” AND 52
Use the truncation symbol to locate all subsections, eg. Constitution and 128*
Note: the truncation symbol is different in different databases.
Note: Lexis Advance has a good listing of Unreported Judgments, narrow down to these from the filters to the left of the results list.