How to find case law

Something interesting has happened in legal education.  When I started my degree back in the mid-1990s, one of the first things covered was how to find a case in published law reports.  Somewhere along the line this seems to have dropped off the curriculum in favour of wholesale use of online databases like Austlii.  This is a shame, because while electronic resources are very convenient, not everything has been digitised.  British case law, in particular, is gathered at Bailii but includes old cases only in a very scrappy manner.  In addition, online cases very seldom include a headnote – the case summary that is a gift to time-poor lawyers who need to get a handle on something quickly.  If you’ve never seen a headnote, take a look at this website, for which I wrote dozens of them.

Because this has become a bit of a gap in the legal skill set, I ran a quick course for my colleagues Amila, Sarah and Tremayne today up at the Supreme Court Library.  This post is mainly the notes of that course: I thought they might be useful for other lawyers out there.

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Supreme Court Library, Melbourne, Australia

This note covers the two most commonly used Anglo-Australian systems of case citation. American, Canadian and South African cases use somewhat different systems, and there’s a special system for English cases from before 1873.

First System

The first system we’ll talk about tends to be preferred by Australian report series.  A case citation will look like this –

Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387

The key thing is that if the year is written in round brackets, then you don’t need to know it: it’s there only to tell you the year the case was decided.  The details you really need to know are are –

50           The volume in of the series of law reports

CLR      The series of law reports.  In this case, the Commonwealth Law Reports, covering the reports of the High Court of Australia and (occasionally in the past) Privy Council appeals from Australia.

387         The page of the reports where the report begins.

The case referred to, incidentally, is sometimes called the Woolen Underwear Case.

Second System

The second system tends to be used for British cases.  It looks like this –

McLoughlin v O’Brian [1983] 1 AC 410

If the year is in square brackets, you need to know it.  The key details are –

[1983]  The year the case was reported.  This will be how the volume of cases is identified.

1              If there were several volumes of that report series that year, this is the number of the volume.

AC         The series of law reports.  AC stands for Appeals Cases and covers reports of the House of Lords (now the UK Supreme Court) and Privy Council.

410        The page on which the report starts

Amila chasing The Winkfield [1902] P 42

Common series of law reports

Some of the most common series of reports for Australian lawyers are –

AC         Appeals Cases.  House of Lords (now the UK Supreme Court) and Privy Council

ALR      Australian Law Reports.  High Court and other cases mainly concerning Federal law.

CLR      Commonwealth Law Reports.  High Court of Australia and (occasionally formerly) the Privy Council

FLR      Federal Law Reports.  Self explanatory.

QB         Queen’s Bench. Reports of the English Court of Appeal.  (KB – King’s Bench – before 1952)

SASR   South Australian State Reports

TLR      Times Law Reports.  A bit of a grab bag of old cases reported over the years by the Times of London.

VR         Victorian Reports.  Supreme Court and Court of Appeal.  Previously VLR (Victorian Law Reports)

WLR    Weekly Law Reports.  Decisions of English courts at all levels

All ER  All England Reports.  Decisions of English courts at all levels

Sarah finding Hill v CCWY [1989] AC 53

Challenge

If you’re training younger staff, you might like to set them the task of finding cases within a time limit and sharing a photograph of the first page of the judgment.  This list used in this exercise was

  • Duke of Wellington Gold Mining Company NL v Armstrong (1906) 3 CLR 1028

  • Hill v Chief Constable of West Yorkshire [1989] AC 53
  • Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

  • National & General Insurance Co Limited v Chick (1984) 2 NSWLR 86

  • R v Pittwood [1902] TLR 37
  • R v Russell [1933] VLR 59

  • R v Smith [1959] 2 QB 35
  • The Winkfield [1902] P 42

I was a little bit surprised by how competitive my colleagues were over this!

If you’re planning to run this exercise, it takes about an hour.  It should count for one CPD unit (Professional Skills).

Happy researching!

Everyone in the Gallery is a Lawyer

Arguments in the matter of Pell v R were completed today in the Court of Appeal here in Melbourne.  As one might expect, they’ve been followed closely by journalists and the public at large.  The court has reserved its decision.  My profoundest sense at this moment, however, is annoyance at the criticisms being leveled against Counsel for the Crown, Mr Chris Boyce SC.

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I have difficulty commenting on Mr Boyce’s performance.  I’m remarkably ignorant when it comes to things I know nothing about.  I’m an occasionally-competent litigation solicitor.  I’ve appeared in any number of procedural applications but have never run a trial.  It’s unthinkable that I’ll ever appear in an appeal.  And for that reason I don’t seel I’m qualified to assess anyone else’s performance.

Not everyone agrees, of course.

I have a major difficulty in matters of public importance: I’m aware of being ignorant when it comes to things I know nothing about.  I’ve certainly had a few dreadful times on my feet in court.  I’ve had a few of my submissions described as “remarkable” or “interesting” by the Bench ( “remarkable” and “interesting” are not words of praise). And on one memorable occasion in the County Court I heard a rambling incoherent voice droning on and then realised it was mine.  I certainly know that it’s no easy job.

You feel like critiquing an expert?  Fair enough.  Go get your law degree, qualify, join the Bar, reach its highest levels and run a couple of hundred appeals and trials and then you might be qualified to be an armchair quarterback.  Until then, you’re just another 130kg asthmatic sitting in the grandstand at the MCG shouting useful advice to professional athletes.

A case I regret

I long ago lost track of the number of cases I’ve handled or been otherwise involved in.  Some stick in your mind for one reason or another.  The facts may have been unusual, or the outcome particularly good.  One has stayed with me because I regret it despite getting a good outcome.

I had a brief and inglorious career as a defence lawyer in the workers’ compensation system.  A large part of my work involved opposing claims for weekly payments and medical expenses by injured workers.  In the case I am thinking of, the plaintiff was a fellow who was in his late 20s at the time of the hearing.  He had broken one ankle in a work accident and been on payments for some years.  The ankle had lead to other problems due to the change in his gait, and so he had progressed from an ankle fusion to multiple other fusions of the bones in his foot.  I can’t remember now, but I expect he would have been developing problems in his knee, hip and back for the same reason.

The workers’ compensation insurer (my client) had stopped his weekly payments on the basis that he could return to some form of work.  I found that implausible: he had left school early and had shown no aptitude for retraining.  It was difficult to see him in any line of work that didn’t involve having a sound body.  Moreover, his accident had involved no negligence and so he could not sue for common law damages.  Weekly payments would be his only form of recompense.

Despite all of this, my client’s instructions were clear: we could negotiate a further limited period of payments, failing which he would have to run his case.  So, off I went to court on the hearing day.  I expect we made some trifling offer to begin with.  Eventually we offered the limit of our instructions.  Now, I was secretly hoping his lawyers would tell us to get knotted.  If they’d run the case, I had no doubt we would have lost, have lost badly, and would have deserved to lose badly.  To my amazement, however, our offer was accepted and the case settled.

I’ve always regretted this outcome.  Yes, I know the justifications: I was there to carry out my client’s instructions.  He was represented by an experienced barrister and competent solicitors. And it was the plaintiff’s case to fight or compromise.  I don’t find any of those terribly satisfactory.  No matter how you gloss it over, there’s no honour in ripping off an injured worker.

What didn’t you expect?

It’s Friday, and so I’m posting something a bit lighter than my usual casenotes for a change.

The other day, Nikki, who blogs at My Life to Our Life, put up a post comparing what she’s working at now to what she planned to do when she was a child.  This sort of thing has quite a bit of meaning for me given my four year employment farrago prior to coming back to the law, in which the previous installment looked like this –


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Huge Billboard in the making 💥 . . . . #sigmakers #signwriting #gvsignmakers #goulburnvalley #signs #billboard #wedoitall

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Anyway, this got me to thinking about things in your job you didn’t expect when you went into it (or in my case, came back to it).  Something I didn’t expect on returning to the law was how often I’d find myself drinking cold tea and coffee.

I should explain.

I love what I do, and because of that, I get a bit focussed on it, especially if it’s a challenging file.  I also drink a lot of tea through the day.  This is a poor combination.  At least once a morning and a couple of times each afternoon I go and make myself a mug of extra-strong Tetley and then come back to my desk.  As soon as I do I find myself caught up by the current legal problem that I need to unpick.  Meanwhile, my mug sits there thus…

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A mug of tea in its natural habitat

By the time I remember it, the tea is feeling unloved and (like any things that feel unloved) it’s having trouble staying excited about its job, which is to be hot and bracing.

I’m sure this isn’t a rare problem.  My friend Allie, for instance, at Living My Full Life, recently posted about how much she’s enjoying a line of seasonal teas.  She has a newborn baby, and I’m guessing from experience that she drinks a lot of it fairly lukewarm.  Anyway, it seemed to me that my experience now contrasts radically with my not-too-distant work as a factory hand or gardener or labourer when the tea break/smoko was close to sacred and was rarely-if-ever disturbed.  I suppose it’s because the five minutes of peace and quiet for a hot cup of tea or coffee made a welcome break from sun and dust and power tools and physical labour.

What do you find about your current work that you didn’t expect?