Case Law: Common Law / Jurisdiction / Stare Decisis and Precedent / The Australian Court System / Law Reports / Authorised Reports / Format of Law Reports / Finding Cases / Updating Cases / Unreported Judgments / Popular Case Names

The term "common law" is used to describe the body of legal principles that has been developed by the courts. This area of law is also referred to as "case law" or "judge-made" law.

"Jurisdiction is the power, or the extent of the power, of a court to hear cases." (Enright C, Studying Law, 5th ed, Leichhardt, 1995, 37). Generally, jurisdiction may be limited in a number of ways, for example by:

For a detailed discussion on jurisdiction in the Australian legal system, see Crawford J and Opeskin B, Australian Courts of Law, 4th ed, South Melbourne, OUP, 2004 (L/KL216/C1/4).

Nearly all legal systems abide by some form of the doctrine of precedent. In common law systems, legal principles or decisions established in earlier cases are followed in later cases.

The doctrine of stare decisis means to stand or abide by a precedent (i.e. courts usually abide by their own earlier decisions). Courts must follow decisions of superior courts in the same hierarchy, which may overturn a decision of a lower court. For example, the Supreme Court of New South Wales is bound by a decision of the High Court of Australia, but not by a decision of the Supreme Court of Victoria.

For a detailed discussion on precedent in the Australian legal system, see Cook et al, Laying Down the Law, 5th ed, Sydney, Butterworths, 2001 (L/KL176/L1/5-5C).

Within Australia, two hierarchical court systems are in operation, one at the Federal level and the other at the State level. The court structure of the States are similar but there are slight variations. This summary of the court system shall concentrate on the NSW and Federal systems.

Local Courts:
These courts are presided over by a magistrate and deal with both criminal and civil matters.

Minor (summary) criminal matters that do not require a jury are heard along with committal hearings. Committal hearings are for more serious offences where Magistrates determine if there is enough evidence for a possible conviction in a higher court.

In dealing with civil matters, Local Courts have jurisdiction where the amount claimed is not more than $40,000. This court does not hear appeals from other courts.

District Courts:
District Courts are presided over by a judge. In criminal matters, this Court deals with indictable offences (usually before a jury). In civil matters, the Court has jurisdiction where the amount claimed does not exceed $750,000 (or greater with the consent of the parties). The Court also hears appeals from decisions of the Local Court.

Supreme Court:
The Supreme Court of New South Wales has a divisional level and an appellate level. At Divisional level both civil and criminal cases are presided over by a single judge. Cases heard under the original jurisdiction of the Supreme Court are the most serious criminal or civil cases.

The Appellate level consists of two courts, the Court of Criminal Appeal and the Court of Appeal. These courts are presided over by three or more judges. The Court of Criminal Appeal reviews decisions in criminal matters from the lower courts. The Court of Appeal reviews decisions of single Supreme Court judges, the lower courts and state tribunals.

The Supreme Court has jurisdiction over some Federal matters, which have been conferred on the Court by Federal legislation.

Family Court of Australia:
This court deals with all areas of family law. It has two levels. The first, where matters are heard by a single judge, and the second, known as the Full Court, hears appeals on matters of family law. There are no juries.

Family Court of Australia Cases (via AustLII)
CCH Family Law via CCH Library

Federal Court of Australia:
This court was originally established to enable the High Court to concentrate on its appellate jurisdiction. The Federal Court's jurisdiction covers almost all civil matters arising under Australian federal law.

The Full Court, or the appellate level, hears appeals from decisions of single judges of the Federal Court and from State courts on matters such as copyright, patents and taxation. It also hears appeals from tribunals such as the Administrative Appeals Tribunal.

Federal Court Cases (via AustLII)

Federal Magistrates Court:
This court was established in 2000 to deal with less complex federal matters, previously dealt with by the Federal Court and the Family Court.

Federal Magistrates Court of Australia Decisions (via AustLII)
Federal Magistrates Court of Australia - Family Law Decisions (via AustLII)

The High Court of Australia:
This is the highest court in the Australian legal system. It has some original jurisdiction, but its two main functions are to:

There are no appeals from this Court.

High Court of Australia Cases (via AustLII)
High Court of Australia Transcripts (via AustLII)
High Court of Australia Bulletin (via AustLII)

Tribunals offer a less formal, less expensive and often quicker way to deal with matters such as consumer complaints and community matters. Tribunals are established by Statute (e.g. Administrative Appeals Tribunal Act 1975 (Cth)).

Appeals from tribunals are uncommon. If a tribunal does make an error in law, the State Supreme Court, Federal Court or High Court can review these decisions. The ability to appeal from tribunals to the courts depends upon statutory provisions of the legislation that established the tribunal.

AustLII provides decisions of the following Commonwealth tribunals listed below:

Administrative Appeals Tribunal
Human Rights and Equal Opportunity Commission
Migration Review Tribunal
National Native Title Tribunal

Decisions from the following major New South Wales tribunals are listed below:

Industrial Relations Tribunal
Administrative Decisions Tribunal

Law reports are the published judgments of court cases. Cases that are published are those that raise, or expand upon, significant points of law. For this reason, only a small proportion of cases are ever reported and they are almost exclusively decisions of appellate courts, such as the NSW Court of Appeal and the High Court of Australia. Law reports are published to provide consistency in the development of the common law, that is, cases which are alike should be decided in the same way.

In Australia there are official law reporting councils which authorise the publication of law reports for their jurisdiction (e.g. The Council of Law Reporting for New South Wales). They are responsible for the production of law reports and appointment of editorial and reporting staff, within their jurisdiction. These reports are usually reviewed by the presiding judge. Authorised reports can take several months to be published.

There are other law reporting series which are produced by commercial publishers such as Butterworths LexisNexis or the Law Book Company. Law reports from these sources usually appear more quickly than the authorised versions and often deal with a particular area of law (e.g. Intellectual Property Reports).

A case may be reported in a number of law report series. When submitting cases to a court, it is essential to provide a print copy as reported in the authorised series.

Most law reports are published as a series of loose parts that are replaced by bound volumes. Each volume usually has:

A published law report will usually contain this information, but not necessarily in this order:

The purpose of a case citation is to provide the information required to locate a particular case. Unfortunately, you may not always have a complete or correct citation. If you have the name of the parties involved, it is possible to find the correct citation.

The titles listed below will provide you with citations and additional information on the case you are looking for:

Australian Case Citator
This is an exhaustive alphabetical listing of all reported Australian cases from 1825. It is in multiple volumes, the latest one being in looseleaf format to allow for easy updating. After the name of each case, all known citations are given along with subsequent judicial consideration, references to case notes and journal articles.
Print:
L/KH51/A6 (in the UNSW Freehills Law Library, 1st Floor Digest Area)
Also available via Complete Legal Research System.

CaseBase
CaseBase is an online case citator and index to Australian case law, with selective indexing for other common law jurisdictions. It can be searched by legislation judicially considered, words & phrases judicially defined, catchwords, annotations, etc. It also includes references to journal articles.
CaseBase is only available online.

Australian Legal Monthly Digest (ALMD)
Recently reported cases are digested in the Australian Legal Monthly Digest. Consult the "Cumulative Table of Cases" in the latest issue. It will provide you with a paragraph number that refers to the digest (a short summary) of your case. Paragraph numbers cumulate over issues for each year. ALMD is itself updated by ALMD Advance.
Print:
L/KH51/A5 (in the UNSW Freehills Law Library, 1st Floor Digest Area)
Also available online via Complete Legal Research.

Australian Current Law, Reporter
The "Consolidated Tables" contains a "Cumulative Table of Cases" which lists cases alphabetically. Then consult the latest issue, as the "Consolidated Tables" may not cover this release. The Tables usually only refer to a digest of a case that is unreported. However, if the case has been reported a citation is provided. The reference given is to the subject number, the court, the number of the digest and issue number. For example:

[1996] ACL Rep (Iss 1) 325 FC 6
325 = subject number
FC = the court
6 = number of the digest

Print:
L/KH51/A10 (in the UNSW Freehills Law Library, 1st Floor Digest Area)
Australian Current Law, Reporter is also available online.

By looking in the above sources, you should be able to find any reported case. If not, check your original information. The case may not be reported as yet or may not be Australian. To find unreported cases, see the Unreported Judgments section of this page.

Having located a case, it is important to ensure that it is still "good law". This is done by researching the subsequent judicial history of a case (i.e. finding later cases which discuss your case). This is usually referred to as noting up.

Noting up Australian cases can be done by using the case citators and digests referred in the Finding Cases section of this guide. A case citator will provide citations to later cases in which the original case is followed, considered, applied, overruled etc.

When using the Australian Case Citator in print, find the volume that covers the year the case was heard. You must then check in each subsequent volume for your original case to locate references to others that have considered it.

When using CaseBase, the record for your case will list its subsequent judicial history under "Cases referring to this case".

The Australian and New Zealand Citator to the UK Reports is useful for finding the history of British decisions in Australasian courts. It is an alphabetical listing of cases that have been affirmed, applied, distinguished and so forth, in Australian and New Zealand.
Print:
L/KF80/A1 (in the UNSW Freehills Law Library, 1st Floor Digest Area)

The print version of Australian Current Law, Reporter can be used to check whether a case has been judicially considered. Locate your case in the "Table of Cases Judicially Considered". You will be referred to a digests of cases that consider your case.
Print: L/KH51/A10 (in the UNSW Freehills Law Library, 1st Floor Digest Area)

Most cases are not published in a law report series. They may still be referred to in legal publications and in the courts. These unreported judgments are usually only available from superior courts (i.e. state Supreme Courts, the Federal Court and from specialist courts such as the Family Court). Unreported decisions of the High Court do arise but they will eventually all appear in the Commonwealth Law Reports.

LexisNexis AU is the most comprehensive source of Australian unreported judgments.

AustLII and SCALEplus also provide access to all decisions of superior courts.

Quite often a case is known by its "popular" name, that is, as unofficial title such as the "Franklin Dam case". Popular Australian and English case names by Colin Fong and John Rodwell (LREF/K114/F1/1) lists cases alphabetically by their popular name and provides full citations. CaseBase also allows you to search for a case by its popular name.