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Case Law: Judicially considered cases

Cases judicially considered

Use case citators to find out if

  • a case that interests you has been considered by later cases, or
  • to check which earlier cases have been considered by your case

Cases Judicially Considered

When you look up cases, it is recommended that you check to see how those cases have been treated by subsequent cases - that is citing cases or cases referring to a case.

This is what judicial consideration is all about. This is where you check to see what has happened to a case since it was heard by the court. You can see how a case has been treated by subsequent cases: has it been considered, applied, overruled etc? You will also be able to see if the case is still good law and carries with it good precedential value!

The built in case Citators in each database, can help you do this:

Lexis Advance:

  • Casebase is Lexis Advance's citator - you will need to look out for the "Cases referring to this case" link

Westlaw AU:

  • KeyCite is Westlaw AU's citator - you will need to look out for the KeyCite link
  • In Westlaw AU you can also look out for the  Citing References link

The tabs that follow, will show how to perform this research task. 

 

Example: Let's assume you would like to know if any subsequent cases have referred to the Andrew Mallard appeal case of 2005.
Mallard v R (2005) 224 CLR 125
  1. Search for the Mallard case either by citation or case name and select the record of interest.
  2. By clicking on the link to the record, you display the Casebase citator record for this case.
  3. Click on the link to Cases referring to this case link,

you will be directed to a list of later cases that have considered the Mallard case. Note that the graph and signal icons provides a very broad indication of the subsequent treatment. These signals should be approached with caution as they are general in nature and may not represent specific aspects of the case.

You will be then be taken to a list of later cases that have referred to the Mallard case in various ways: in this context Cited, Applied and Distinguished. The graph provides a very broad indication of the various kinds of subsequent treatment. You can click on the different coloured blocks to limit to each type of case treatment. The signal icons also provide a very broad indication of the various kinds of subsequent treatment. These signals should be approached with caution as they are general in nature and may not represent specific aspects of the case.

To see earlier cases used to support the legal position taken in the Mallard appeal case, click on the Cases considered by this case link.

 

Like the Cases referring to this case link, the graph provides a very broad indication of the various cases this case used. You can also click on the different coloured blocks to limit to each case. The signal icons also provide a very broad indication of the various kinds of case treatment. These signals should be approached with caution as they are general in nature and may not represent specific aspects of the case.

The best way to check how cases have been subsequently treated in Westlaw AU, is to use their built in citator entitled KeyCite. 

Please watch the following video below (by clicking on the image) to find how to perform this legal research task in Westlaw AU, using KeyCite. 

(Please note: after you click on the image you will be taken to Westlaw AU's Training and Support page.  To watch the video, click the white play button). 

For more information, you can also check out Westlaw's Guide in relation to judicial consideration of cases. 

In Westlaw AU you can also see what cases have cited a case, by using the Citing References link:

Top tip:

To see how subsequent cases have treated a case, use the Depth of Treatment filter - this will let you know if the case has been Considered, Applied etc. 

Find Australian cases

Banner images: Image 1 retrieved from Pixabay. Image 2 by UWA Library. Image 3 retrieved from SBS. Image 4 retrieved from SL Blogs. Image 5 retrieved from Wikimedia.

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