Not exactly bedtime reading, but still a fascinating way to delve into the strange world of—humans. This week we’re checking out case law. Come along to taste the magic sauce of law land!
(P.s. I may have oversold you on the magic sauce.)
Case law is an important-sounding word for what is a very simple concept. It’s a method of organising our knowledge on how judges have decided questions of law over time.
Hidden histories
Case law, as we know it today, didn’t always exist. In the earliest days, with records dating back to the mid-13th century, the English courts kept minimal records in the form of “Rolls” and “Yearbooks”.
“Rolls” were court records containing notes of the disputing parties and the final outcome of cases. However, they did not record the reasoning of judges. “Yearbooks” were unofficial records produced by private individuals which—unlike the “Rolls”—recorded judges’ reasons.
In the 1500s, the Yearbooks became more formal (but still privately written) reports published by individual reporters under their own name, known as the “Nominate Reports”. A famous reporter included Sir William Blackstone (author of the famous Commentaries on the Laws of England).
It was only in 1865 that case reporting became more systematic. The Nominate Reports were replaced by officially-sanctioned reports still used in the UK today.
How about Australia?
Australia’s modern legal tradition started with Federation in 1901. While Section 71 of the Constitution established the High Court of Australia in that year, the first judges were only appointed in 1903 after the Judiciary Act was passed.
The first High Court case reported in the Commonwealth Law Reports was Dalgarno v Hannah (1903) 1 CLR 1. It was an appeal from the Full Court of the Supreme Court of New South Wales about a cab driver (plaintiff) who sued the Commonwealth government (defendant) after he was injured by falling telephone wires. Amusingly, a Dr Sly appeared for the cab driver and a Mr Bernhard Wise KC represented the Commonwealth. The High Court, in a single judgment delivered by Chief Justice Griffith on behalf of all three judges, agreed that the cab driver should be entitled to £200 in damages.
How to find cases
There are two online sources of case law—paid and free. These days we’ve ditched the bound copies.
Paid sources are from LexisNexis® and Westlaw, which publish “authorised” versions of cases as found in official law reports. We’ll get to this in a second. They offer a fancier way of finding cases through case analytics, basic bar charts, and what law students know as “breadcrumbs”. Lesser-used is CCH IntelliConnect®, which tax lawyers favour.
Free sources, which anyone can access, are Austlii and Jade. Both are great resources for research and give you the word-for-word version of cases, but don’t offer you the “authorised” versions.
So, when would you need to use the paid sources? Well, if you intend to turn up to court and refer to a case to support your argument. A judge will require that you produce the “authorised” version of the case. When a case is first published, it first goes up onto Austlii and Jade. Over the course of the year, editors of law reports pick up on important cases that have significant legal value and add it to their law report. Before hitting the print button on those law reports, judges or judge’s associates check every word and footnote in the judgment to make sure it’s all accurate.
There is certainly a longstanding question on whether anyone should be allowed to profit from what is essentially a publicly-funded resource (i.e. the judicial system). That is a question for everyone to think about.
How to cite cases
Let’s take the significant Aboriginal native title case of Mabo (No. 2) relating to the land rights of the Meriam people, which the High Court handed down on 3 June 1992.
Doing a search on Jade, for example, leads you to the case.
On the right-hand corner, you spot a string of citations “[1992] HCA 23; 175 CLR 1; 66 ALJR 408; 107 ALR 1; 42 FLR 32”.
It’s enough to make anyone go cross-eyed. But not if you know what to look for.
The citations are each separated by a semi-colon (;) and tell you all the reports, in abbreviations, that the case appeared in. But first, the bit in the square brackets, [1992] HCA 23, is what we lawyers call the “medium neutral” citation. It took me quite some years to understand this concept, but the medium neutral citation basically tells you the year the court made (i.e. handed down) its decision and the first-in-time electronic version. Most cases will only ever have a medium neutral citation because—while they are important for the parties themselves—they do not have wider legal significance. As a general rule, the higher up the court hierarchy you go, the more likely a case will be reported. Makes sense.
So how do you cite Mabo (No. 2)? You should always refer to the latest place the case was reported, being the first citation in the string (aside from the medium neutral). Yes, it’s the CLR or Commonwealth Law Reports for High Court cases:
Eddie Mabo was the lead plaintiff (and the words “others” or “ors”—or “anor” or “another”, signifying the existence of other plaintiffs, are usually dropped off the citation).
And how do you say this in speech? Well, “Mabo and Queensland (No 2)”. It’s only in the US that they say “versus” for “v”.
Historically, there were various ways lawyers cited cases in Australia. Since 1998, the Melbourne University Law Review has been publishing the “gold standard” for legal citation. The Australian Guide to Legal Citation is now in its fourth iteration as the AGLC4, also known as the citation bible.
How to read cases
Well, this is a bigger-than-Ben-Hur topic.
Let’s skim the surface. Cases have become lengthier over time, with some of the more recent landmark Corporations or Administrative Law cases spanning 200-500+ pages. It gets more complicated when every judge (anywhere between three and seven) decides to write a separate judgment. In comparison, the early High Court cases were often delivered by the Chief Justice on behalf of the other judges and rarely dissented (i.e. disagreed with each other).
The growth in the number of pages is due in part to the increasing number of cases over time, but also the FOMO-ness (fear of missing out) from lawyers who can’t help but throw every case and comma at the judicial bench in case they might have “missed something”.
For law students or early-career lawyers struggling to figure out to deal with this—always start with a good textbook or commentary. This sharpens your thinking and avoids you having to trawl through 50 indexed pages of case law.
If you really have to go through a bunch of cases for specific facts, then always start by scanning the headnotes. (Lecturers take a deep breath here.) While headnotes are not always accurate because they are sometimes written by law reporters, they are the fastest way that lawyers can identify the potentially relevant cases. Then, do your reading.
Back to basics on how cases are generally look and feel:
We won’t get into how to analyse a case, but a thing to remember is the one concept that drives all case law in the Australian and common law tradition—stare decisis. It’s from the Latin phrase “stare decisis et non quieta movere” which means “stand by the thing decided and do not disturb the calm”. In effect, it means that all lower courts are bound by the decisions of higher courts, and the decisions that came before. Now, wonder why the law moves so slowly?
Then there are the two concepts of:
- “ratio decidendi” or “ratio” meaning “the reason for the decision”; and
- “obiter dicta” or “obiter” meaning “remarks in passing”.
What lawyers look for when reading cases is the ratio of the majority of judges (which is why there is usually an odd number of judges deciding the case). The obiter gives us interesting perspectives and quips from judges, including how a factually different but similar matter might be decided in the future, but isn’t what the case ultimately turns on.
Ahoy there over the seas!
How about cases from other jurisdictions?
Many older English cases and some contemporary Canadian and New Zealand cases can become part of Australian case law. This happens when a higher court (Supreme Courts for the State, or the High Court for Australia) cites that overseas case as “good law”.
So there you have it, a Legal Brew Basics for Case Law!
Further reading:
- Anthony Mason, “The High Court of Australia: A Personal Impression of Its First 100 Years” (2003) 27(3) Melbourne University Law Review 864.
- Catriona Cook, Robin Creyke, Robert Geddes, David Hamer, Laying Down the Law (2009, LexisNexis Butterworths).
- High Court of Australia, “History of the High Court” (accessed 3 May 2020).
- Melbourne University Law Review, Australian Guide to Legal Citation (2018).
- Melbourne University Library, “Authorised Law Reports: What are Authorised Reports?” (29 April 2020).