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Updating cases
Learning objectives
By the end of this module, you will be able to
- explain the concept of noting-up
- describe the function of a case citator
- note-up a decision using the Australian Case Citator or CaseBase.
What is noting-up?
Finding a decision relevant to your research is only the first step. The essential next step is to note-up the case. This involves:
- checking that the case has not been reversed on appeal or subsequently overruled by a superior court
- determining whether, and in what manner, the case was considered in subsequent decisions.
To note-up a case, you will generally require access to a good case citator. Case citators provide:
- listings of cases and their correct citations
- indications of when and where a case has been reported
- listings of subsequent cases in which a case has been considered
- how the case has been treated in the courts.
Case citators will generally include case notes which will refer to academic commentary on a case, such as journal articles or book chapters.
Online case citators
When dealing with Australian cases, there are two main online case citators:
- Australian Case Citator. The Australian Case Citator covers Australian cases from 1825and a comprehensive range of unreported cases after1999. For a long time Australia Case Citator was available only in print. It is now also accessible online to subscribers as part of FirstPoint. In this form, the Australian Case Citator is combined with the Australian Digest to include case summaries and access to some full text. The publishers of First Point have provided an online tutorial which shows you how to use this source.
- CaseBase. CaseBase is part of LexisNexis.AU. CaseBase includes cases from over 60 Australian and overseas report series, as well as unreported decisions of the High Court, the Federal Court and the Supreme Courts of all States and Territories. CaseBase also includes over 40,000 annotated and digested article entries covering over 100 Australian and overseas legal journals. Like First Point, LexisNexis.AU is a subscription-only service.
Noting up terminology
Both the Australian Case Citator and Case Base differ in their terminology. There is considerable overlap, but also some important differences.
Australian Case Citator
Annotation |
Meaning |
| Affrirmed (Affd) | Means that the decision in the primary case has been upheld on appeal. |
| Affirming (Affg) | Means that the decision in the primary case upholds a previous decision on appeal. |
| Applied (Appl) | Means that the principle in the primary case has been applied to a fresh set of facts and circumstances. |
| Approved (Appr) | Means that principles in the primary case have been held to be good law in a subsequent case. |
| Considered (Cons) |
Means that consideration was given to the primary case. |
| Disapproved (Disapp) | Means that the priciple in the primary case has been held not to be good law in a subsequent case. |
| Distinguished (Dist) | Means that the court in a subsequent case held that the precedent set in the primary case did not apply because of some salient difference between the two cases. |
| Explained (Ex) |
Means that the principle in the primary case has not been applied on the basis of some difference in terms of material facts or a point a law. |
| Followed (Foll) | Means that the principle in the primary case has been followed in the subsequent case. |
| Leave to appeal granted (LG) | Means that leave to appeal from the decision in the primary case has been granted. |
| Leave to appeal refused or rescinded (LR) | Means that leave to appeal from the decision in the primary case has been refused or rescinded. |
| Not followed (Not Foll) | Means that the court has refused to apply the precedent set in the primary case. |
| Overruled | Means that the court has stated that the principle of law in the primary case was wrongly decided. |
| Questioned (Quest) | Means that the court has not actually stated that the principle of law in the primary case was incorrectly decided, but has asserted that the principles were stated inaccurately |
| Referred to (Ref) | Means that the primary case was mentioned in a subsequent case |
| Restored (Rest) | Means that the decision in the primary case has been reversed or varied on appeal and then subsequently upheld by a higher court. |
| Reversed (Revd) | Means that the decision in the primary case has been reversed or varied on appeal |
| Revg (Reversing) | Means that a decision by a court of appeal in relation to the primary case lead to a reversal of the decision. |
| Special leave to appeal (SLG) | Means that application for special leave to appeal from the decision in the primary case has been granted. |
| Special leave to appeal refused or rescinded (SLR) | Means that application for special leave to appeal from the decision in the primary case has been refused or rescinded. |
| Varied | Means that a decision in the primary case has been partly affirmed and partly reversed or that a subsequent case has led to a variation in the order of the court in the primary case. |
CaseBase
Annotation |
Meaning |
| Applied (Appl) | Means that a principle of law articulated in the primary case has been applied to a new set of facts by a subsequent court. |
| Approved (Appr) | Means that the court in the subsequent case has approved the manner in which the inferior court in the primary case has articulated a principle of law. |
| Cited | Means that the legal principle in the primary case has been cited by the court in a subsequent case, but without comment |
| Considered (Cons) | Means that the legal principles in the primary case have been considered or discussed without adverse comment by a subsequent court. |
| Disapproved (Disap) | Means that the decision in the primary case was criticised by the court in the subsequent case. |
| Distinguished (Dist) | Means that the court in a subsequent case held that the legal principles in the primary case do not apply because of some salient difference between the two cases. |
| Explained (Expl) | Means that the court in a subsequent case followed the primary case, but also drew attention to some feature of the earlier decision that may not be immediately obvious. |
| Followed (Foll) | Means that the principle of law articulated in the primary case has been applied in circumstances where the facts in the primary case closely resemble the facts in the subsequent case. |
| Not Followed (Not foll) | Means that the the court in the subsequent case declined to apply the principles of law articulated in the primary case. |
| Overruled (Ovrr) | Means that the legal principles 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 (Qstd) | Means that the court in the subsequent case has expressed doubt about the decision in the primary case, but does not actually determine that the principle of law in the primary case was incorrect |
| See | Denotes a subsequent case in which the court noted the primary case but did not assess the merits of the primary decision. See was used in the past where 'cited' would now be used. |
CaseBase also uses colours to highlight the annotations. The colour scheme is as follows:
- negative treatments (Disapp, Not foll, Ovrr): red
- positive treatments (Foll, Appl, Appr): green
- treatments requiring caution as the law is not applicable in the circumstances
(Dist, Expl, Qstd): orange - neutral treatments (Cons, cited): black.
Summary
This module covered the following:
- the concept of noting-up
- the function of a case citator
- how to note-up a decision using the Australian Case Citator or CaseBase.