LLH201 Week 4 Workbook PDF

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LLH201 LEGAL RESEARCH WEEK 4 WORKSHOP Case law research OBJECTIVES In this workshop you will:  Build on your existing understanding of case law research tasks and sources for conducting research into both Australian and foreign case law  Practise searching for case law relevant to the workshop research problem  Undertake case law research for your Research Task problem MATERIALS  

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QUT Library Subject Guides – Caselaw Research (Australia) http://libguides.library.qut.edu.au/caselaw QUT Library Subject Guides – Guide to Free Legal Sites (Other Common Law Jurisdictions Sites) http://libguides.library.qut.edu.au/content.php? pid=550358&sid=5014935 Sanderson, Jay, (2017). Chapter 3: Case Law. In Sanderson, Jay and Kelly, Kim, A Practical guide to legal research, (pp.77 - 121). Sydney: Lawbook Co.

INTRODUCTION You have been conducting research using the three-way search method which you will need for your Research Task assessment item. So far you have undertaken topic/subject searching (Week 2 Workshop), legislation searching (Week 3 Workshop). This week we will consider case law searching. There are two main reasons why we need to conduct case law research: A. There is no legislation on the subject and so the area is covered by the common law B. You need to determine whether the legislation that does apply to the area has been interpreted by the courts (i.e. judicial consideration of legislation – covered in the Week 3 Workshop)

The 4 main case law research tasks are: 1. Locating a case by name; 2. Locating cases on a particular topic/subject;

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3. Determining whether a case has been subsequently considered by other cases (“updating” cases); 4. Determining if there are cases on particular legislation (judicial consideration of legislation – as noted, covered in the Week 3 Workshop). CASE LAW RESEARCH SOURCES You should already be familiar with using the sources listed in the following table:

Source

Index

Full text

Subscripti on

Firstpoint (WestlawAU)

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Some links

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Some links

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Some links

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Case law (WestlawAU)

Casebase (Lexis Advance)

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Cases (Lexis Advance)

Queensland Legal Indices (QLI)

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Free Internet

AustLII

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Courts home pages

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CaseBase and FirstPoint are often good starting points as indexes with some full text links. CaseBase Search Tips: Pay particular attention to whether you are on “CaseBase Cases” or “Cases” Note the ‘Use Connector’ tips on the right hand side. -

“Case name” for case retrieval and judicial consideration “Terms” for broad subject searching “Catchwords/summary” for searching case summaries and the catchword section “Legislation title” and “provision number” for cases on legislation Use the “jurisdiction” limits so that your results are relevant

FirstPoint search tips: Note the ‘Terms & Connectors’ link on the right hand side (above the “search” button) “Case title/party name” to retrieve case by name and judicial consideration (“Cases citing”)

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“Free text” for broadest subject searching (default operator ‘and’, remember phrases and proximity) “Case summary/digest” field for searching case summaries “Legislation Cited (Title)” and “Legislation Cited (Provision)” for cases on legislation Select your relevant “jurisdiction” from the drop down menu Note: hovering your cursor over the title of each search field provides information on that field

QLI Judgments Service is useful for researching Queensland cases on a topic. You can do a keyword search or use the advanced search option to search for subject headings. AustLII can be a valuable source of case law – particularly if you are looking for examples of the application of legal principles in the lower courts. However, AustLII is a very large database and searches need to be as focused (i.e. use narrow or very well-defined search terms) as possible to obtain useful results. Some things to consider when you are using AustLII: 4

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o Are you looking for law relevant to a particular jurisdiction? – if so, use the “Advanced Search” to limit your search to cases in that jurisdiction o Are there any specific terms that relate to your search? o Do you only need recent (i.e. past 15 years or so) case law? Be aware that AustLII may not have extensive coverage of earlier materials (although these are being progressively added to the site) Search tips are available at: http://www.austlii.edu.au/austlii/help/cases.html

CASES FROM FOREIGN JURISDICTIONS You may need to locate case law from foreign jurisdictions. The following resources may be useful (note: some relate to foreign legislation in addition to foreign case law): United Kingdom Resources United Kingdom Legislation - official government site for UK Legislation House of Lords Judgments (up to 30 July 2009) Supreme Court Scottish Courts BAILII (British and Irish Legal Information Institute). Gives access to case law and legislation from Britain and Ireland.

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Most of the information here is generally from recent years. BAILII uses the same search engine as AustLII so the same search syntax can be used on each site. While it cannot be used as a comprehensive search for the UK jurisdiction, it may be useful for easy access to newer materials, particularly if you do not have access to subscription services such as Westlaw or Lexis Advance.

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New Zealand Resources New Zealand Legislation - Published by Parliamentary Counsel Office. Courts of New Zealand Judicial Decisions Online - Published by the Ministry of Justice New Zealand Legal Information Institute (NZLII) United States Resources THOMAS - Library of Congress site giving access to US Federal legislative materials. Guide to Law Online - U.S. Federal - from the Law Library of Congress Guide to Law Online - U.S. States and Territories - from the Law Library of Congress LII (Legal Information Institute). Maintained by Cornell University Law School Supreme Court of the United States Government Printing Office - Federal Digital System (FDsys) - Official publications of the Federal Government

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1. FINDING CASES BY NAME/CITATION From your secondary source research on the workshop research problem involving Jemima you should already have found references or “signposts” to case law which you think could be relevant. In this context, your next step is to locate those cases either by NAME or by CITATION - using specific search fields [see Casebase and Firstpoint Search Tips above] Casebase and Firstpoint are usually good starting points. However, for recent unreported case law you may need to look on the relevant court or tribunal website: -

Queensland Courts website http://www.courts.qld.gov.au/ High Court of Australia http://www.hcourt.gov.au/ Federal Court of Australia http://www.fedcourt.gov.au

Note: AustLII http://www.austlii.edu.au can also be beneficial for accessing the decisions of a wide range of courts and bodies. This includes lower courts and tribunals and commissions.

Exercise 1: Practise locating a particular case on privacy either by its name or citation using a range of different sources (e.g. Casebase, Firstpoint and QLI/AustLII). Read the case quickly and briefly note how it is relevant to Jemima’s legal issues. Do you have a preference for using a particular source? [Remember: to ensure you have comprehensive coverage of case law you should always use more than 1 source]

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2. FINDING CASES ON A TOPIC If you do not know the name or citation of a relevant case, you will need to search for cases on a particular topic or subject area. This requires you to generate and then use appropriate search terms. Search tips:    

Identify issues and sub-issues from your problem and use them to generate keywords Avoid terms that are too general, such as 'duty of care' or tort, or combine broad general terms with more specific keywords The terms should reflect ideas essential to your research topic, such as application, liability, or sentence Look at the database Help for database specific keyword instructions

Develop multiple search terms to conduct research, as shown below:

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Exercise 2: Search for relevant case law on the privacy issue in the tutorial problem concerning Jemima. Fill in the table below:

Case law research task

Workshop research problem area

Source

Search terms

Search strategy

Examples of relevant results

Relevance of information located (e.g. brief principle from case)

Topic searching

Privacy

CaseBase

FirstPoint

QLI

AustLII

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Search tip: Remember that secondary sources (e.g. journal articles, case notes) might provide analysis or critique of important cases that you know are relevant to your research problem. Consulting these secondary sources can help you to understand these cases better. When you locate a case record in Casebase or Firstpoint, check the case record for information about any journal articles that refer to that case.

3. UPDATING CASES (Judicial consideration of cases) When researching case law, it is important to determine the currency of the case law that you are applying to your legal problem. For example, have there been subsequent decisions that affirm or apply the case law you have located? If so, you can use these cases to support your argument. Have there been decisions that overrule or distinguish the case law you have located? If so, then the case law that you are relying on might not be applicable any longer. Information about judicial consideration of a case is located in the case record under the headings “Cases referring to this case” (on Casebase) or “Cases Citing” (on Firstpoint). Note: Be careful with the terminology used in the case records! “Cases considered by this case” (on Casebase) and “Cases Cited” (on Firstpoint) refer to cases mentioned in that case (i.e. earlier cases, not subsequent cases that have considered that case). When looking at subsequent case law, it is important to remember that courts do not necessarily deal with every issue arising in a given case. Therefore, when updating case law you need to consider both the subsequent treatment of the decision (i.e. was the case approved, affirmed, cited only etc.) and also the particular issue of law that the subsequent decision was considering. Some subsequent cases which cite your main case may have dealt with a different issue and therefore might not be relevant to your legal problem. Exercise 3: Choose one relevant case on privacy that you identified in Exercise 1 or 2 above. Compare the case records for that case on both Casebase and Firstpoint and complete the table on the next page. Is the information about judicial consideration the same in the case records of both sources?

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Source

Relevant case

Cases citing/ Case referring to treatment this case

e.g. approved, affirmed, cited only etc.)

Relevance of subsequen t cases to workshop research problem?

Casebase

Firstpoint

Exercise 4: Use the remaining time to carry out case law research on the Research Task problem. Make sure you use a range of appropriate sources, depending on the relevant jurisdiction.

NEXT WORKSHOP The Week 5 Workshop is a “preparation and troubleshooting” session in which you will have an opportunity to apply your legal research skills to your Research Task (Assessment Item 2) which is due in Week 6. Your tutor will be available to provide general guidance.

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