Citation of Australian legal cases

 

Cases: General Rules

Case Names (AGLC4: 2.1)

A citation to an Australian legal case should include the parties' names in italics, separated by a 'v'

• Cite only their surnames for individual parties, eg Kramer v Kramer
• Cite only first plaintiff and first defendant if there are multiple parties
• Use Commonwealth, New South Wales, Queensland, etc for the Commonwealth and the states or territories
• Use 'R' to abbreviate the Crown as the first-named party; use The Queen or The King when the Crown is the respondent, eg

R v Reid [2007] 1 Qd R 64 

Honeysett v The Queen (2014) 253 CLR 122

• Use the name of the ship in an admiralty case
• Include the decision no in square brackets for multiple proceedings under the same name, eg  Bahr v Nicolay [No 2]
• Use full case citations in subsequent references except for popular cases (eg ‘Tasmanian Dam Case’) or other shortened case names
• Use ‘Ibid’ to refer to a source in the immediately preceding footnote, including any pinpoints
• The case name should be omitted in a footnote citation if the case name appears in full in the sentence accompanying the footnotes

 

Law Report Series and Citing Order(AGLC4: 2.2.2)

• The authorised version of the report should always be used where available.
• The version of a case to be cited should follow the preference order below (from top to bottom):

	Version	Examples
	Authorised report	CLR, FCR, NSWLR, VR,WAR
	Generalist unauthorised report	ALR, AJLR, FLR, ACTR
	Subject-specific unauthorised report	A Crim R, ACSR, IR, IPR
	Unreported (medium neutral citation)	HCA, FCA, NSWSC, VSC
	Unreported (no medium neutral citation)	See rule 2.3.2

 

 

Pinpoint References (AGLC4: 2.2.5)

• Where a report has both page numbers and paragraph numbers, page numbers should always be included in a pinpoint reference
• Where pages and paragraph numbers are included in pinpoint  references, both a page number and a paragraph number should be included after ‘ibid’ unless the same page(s) and paragraph(s) are referred to in the ‘ibid’ citation, eg Ibid 404 [32].
• For reported decisions, pinpoint references should adhere to rules  1.1.6–1.1.7

 

Parallel citations  (AGLC4: 2.2.7)

• Parallel citations should not be used in citations to Australian cases

Preparing a Legal Memorandum

 A legal memorandum presents research and analysis, and applies the research and analysis to particular facts. A legal memorandum follows a general structure and follows certain conventions. 

Because each legal problem is distinct, no two memoranda will be organised in precisely the same way. Do not slavishly follow the sample memorandum and feel free to incorporate your own style where appropriate. The goal of this guide is to help you learn about the general structure and components of this form of writing, and apply them to your research assignment in the most effective way for your particular problem.

A legal memorandum is comprised of certain standard elements:

•        heading

•        succinct identification of the legal issue(s)

•        short summary of your conclusion

•        review of relevant facts

•        discussion of the law relevant to the legal issues, and application of that law to the facts

•        ultimate conclusion that is responsive to the legal issues

Each of these elements is discussed in greater detail below.

1      The heading

The heading should identify the author and recipient of the memorandum, and include the date, client identification, and subject matter. 

2      Issues

The issues portion of the memorandum is crucial. You must succinctly identify the pertinent legal issues within the context of the facts of your case. Include legal elements that are essential to resolution of the issues.

The more narrow and descriptive your issue statement is, the more effective it will be:

#1	Is the security enforceable?
#2	Will security documents signed and registered using the debtor’s common law name be enforceable against the debtor and the debtor’s creditors if the debtor later changes to using his legal name?
#3	Will personal property security documents granted in favour of the Bank, signed and registered in British Columbia using the Debtor’s common law name David Black, be enforceable against the Debtor and the Debtor’s creditors now that the Debtor has changed to using his legal name David Brown?

#1 asks the basic question that needs to be answered. However, when compared to #2 and #3, it is clearly inadequate. It provides no context for anyone who is not immediately familiar with the case, and does not add value to the memorandum as a precedent for future cases.

#2 is a good issue statement. It provides a concise summary of the legal issue and includes the essential elements. It is less wordy than #3, making it easier to read and understand. However, it is less complete than #3, because it does not incorporate the specific facts of the case.

#3 is an excellent issue statement. It sets out the precise legal issue to be resolved. Just as each legal case is decided within the confines of the facts of that case, a legal memorandum is intended to address the narrow legal issue raised by a particular problem.

If there is more than one issue to be addressed, list the issues in the order in which you will be discussing them in the memorandum.

Here, you can provide a brief, up-front statement of your conclusion(s).

Remember that your reader does not want to be kept in suspense. 

• do not write your memorandum like a mystery novel in which the conclusion is revealed only in the final paragraph, if at all. 
• A crisp, clear, responsive answer must be provided as near the beginning of your memorandum as possible. 
• Short Conclusion portion of a legal memorandum.

4      Facts

The facts portion should list the relevant facts on which you have relied in researching and preparing the memorandum. If you have made assumptions, indicate this. If you have relied on any documentation (e.g. from the client), indicate that too.

State the facts objectively and clearly. Usually this will be in chronological order. Use definitions to standardize terminology for persons and things that will be referred to frequently in the memorandum. This prevents clutter and inconsistent references to the same thing.

If your matter relates to litigation, make sure to review the key parts of the procedural history, and note the current stage of proceedings.

The facts portion can either precede or follow the issues section of the memorandum. Various formats are listed below. If the issues will not make sense without reference to the facts, then put the facts first. Alternatively, if the facts portion of the memorandum is quite lengthy, your reader may want to see the issues first. (You may have cited some facts already, in your Short Conclusion section.)

5      Which format?

There are various ways of dealing with conclusions in a legal memorandum:

Format 1	Format 2	Format 3	Format 4
Facts	Issues	Facts	Issues
Issues	Conclusions	Issues	Brief answer
Conclusions	Facts	Brief answer	Facts
Discussion	Discussion	Discussion	Discussion
		Conclusion	Conclusion

If you follow the model of including your Short Conclusion early in the memorandum, keep that section extremely brief, three to four sentences, maximum. You can then provide a more detailed conclusion at the end. If your short conclusion and your conclusion sections are likely to be identical, use Format 1.

12.6      Equivocation / opinion

One of the hardest parts of writing a legal memorandum is to reach a defensible conclusion when the law is uncertain generally, or as it applies to your facts. Since the purpose of the memorandum is to answer the legal question posed, you cannot simply say that the law is unclear and leave it at that. You have to trust that your research and analytical skills enable you to provide a reasonable answer.

In some circumstances there may be a practical solution that enables you to avoid confronting the uncertainty in the law. However, usually you have to make a decision about what a court or other decision-maker would likely do if faced with your fact situation.

Do not hesitate to offer your own opinions, as long as they are well-grounded in the law and facts.

Try to avoid using equivocal language in your memorandum where possible. This is particularly important in the conclusion section. Sentences that begin with the phrase “It would appear that” or “It seems that” should alert you to equivocation.

By all means indicate where the law is unclear and state the risks of the client’s position, but also state what you think is the better view or probable outcome, and if applicable the client’s chances of success.

7      Analysis and discussion

The discussion section is the heart of the memorandum. It provides the venue for explaining and analysing the law, and applying it to your facts. Let the word “synthesis” guide your approach to this section.

The discussion section should be broken down into a separate part for each discrete legal issue covered in the memorandum—subheadings are helpful here. The discussion of each issue should include an introduction, an explanation of the applicable legal rule, an application of the rule to the legal problem, and a conclusion in respect of that issue. The classic formulation for this is known as IRAC:

I	The first step is to state the legal issue. This can be done in a couple of ways. You can summarize the issue in the form of a topic sentence or question. The most effective style is to use a thesis sentence or paragraph that not only indicates what the issue is, but tells the reader briefly what your conclusion is on the issue. The issue can also be referred to in the heading for this part of the discussion section.
R	The second step is to determine the applicable legal rule. This involves a review and analysis of the relevant cases, statutes, and secondary sources. It is sometimes referred to as rule explanation. Depending on the nature of the legal rule, you may need to review the history of the rule and consider the policy rationale for the rule. You may find there are different lines of cases, each resulting in a different formulation of the rule. Try to approach this section using rules synthesized from the cases, rather than simply listing a series of individual cases. Avoid lengthy quotations from cases. This section includes analysis of the rule, but does not include application of the rule to your facts.
A	The third step is to apply the legal rule to your facts. This involves further analysis and weighing of individual cases, distinguishing cases, making counter-arguments, and considering policy issues. Do not be so concerned about advancing a particular position that you forget to consider and weigh the other side(s) of the argument.
C	The last step is to state your conclusion on the legal issue being discussed. Though you will include overall conclusions elsewhere in your memorandum, it is also important to reach a conclusion on each legal issue as it is dealt with in turn.

IRAC need not be applied rigidly as long as all the elements are covered. Your decision about how to divide up the legal issues will influence the way that you apply IRAC.

For example, if you are dealing with cases from a number of different jurisdictions you can structure your discussion separately for each jurisdiction, or cover all jurisdictions when you deal with a particular issue.

You may want to discuss each sub-issue separately. However, if that would result in repetitive discussion of the same cases in different sections of the memo, it might be better to combine your discussion of some of the sub-issues.

8      A note on citations

Your memorandum may be used to draft a letter to the client or a brief for the court, so it is extremely important to cite all your sources and pinpoint to paragraph or page numbers as much as possible. It is better to err on the side of providing too many citations than not providing enough. Remember that the ultimate goal of legal citations is to ensure your reader can easily find any of the material you reference.

You may choose (or be asked) to use footnotes instead. Unless you are specifically asked to do so, do not use endnotes, as it is annoying to have to constantly flip to the end of the memorandum to follow references. It is important to adopt a consistent style throughout your memorandum, rather than switching between in-text citations and footnotes. You may also wish to include hyperlinks in your citations, where appropriate.

Please see also the part dedicated to legal citation.

9      A note on bibliographies

If your memorandum is especially long or complex, you may wish to provide a bibliography at the end, listing all of the authorities you have cited. This bibliography can be divided into sub-sections for legislation; jurisprudence; and secondary materials, like textbooks and journal articles. The items in each section should be listed in alphabetical order.

In situations where you have been unable to locate any relevant resources on your topic, it is helpful to include a list of all the resources you consulted or to append your research log, so the recipient of your memorandum can review your research process and satisfy themselves regarding the thoroughness of your research.

Example of how to write a well structured Case analysis

 To learn how to write a well structured Case analysis,

CASE ANALYSIS EXAMPLE

The following analysis of the FCT v. Dixon case is intended as an example of how you might go about the analysis of a case report using the framework suggested in class. This is not a crimnal case but a good example of a brief case report (as a guide to use the same style/structure to write your own case report)

Introduction

in this case it was decided by a 3:2 majority of the High Court in four separate judgments. The two judgments which comprise the majority – the joint judgment of Dixon CJ and Williams J and the judgment of Fullagar J – will be considered in this example.

FCT v. Dixon (1952) 86 CLR 540

The facts

The facts in some detail may be found in the ‘Case Stated’ for the Full High Court at the beginning of the report (at 540-3). The more material of these facts are also repeated in the judgments themselves, and these will be the source of the facts in many other case reports. The facts, with an eye to their materiality, may be summarised thus:

1.      The taxpayer respondent was an employed person who enlisted in the armed forces, thus ceasing his employment with his former employer. (Note that facts such as the name of the employer and the nature of the taxpayer’s duties with that employer are not material for the purposes of this analysis.)

2.      The former employer had a policy of making up the difference in pay between their former wages and those paid by the armed forces for those of its staff who enlisted.

3.      For the income year in question, the former employer paid the taxpayer a total of 104 pounds in accordance with its policy. (While it might be mentioned in your analysis, the actual income year has no relevance in this case. The same might be said also for the actual amount which should not have a bearing on the decision.)

4.      At no time did the taxpayer give an undertaking to return to employment with the former employer on completion of his war service; nor did the former employer give an undertaking to re-employ him. (In other words, re-employment was not a condition of the ‘make-up’ payment.)

The issue

The question of law to be decided by the Full High Court was whether the sum (of 104 pounds) was assessable income of the taxpayer respondent for the year in question. (The relevant assessing provisions argued before the Court were s. 25 and s. 26(e) of the Income Tax Assessment Act 1936.)    

The legal reasoning

Dixon CJ and Williams J

Their Honours found that s. 26(e) had no application in this case because they were ‘not prepared to give [that provision] a construction which makes it unnecessary that the allowance … shall in any sense be a recompense or consequence of the continued or contemporaneous existence of the relation of employer and employee or a reward for services rendered given either during the employment or at or in consequence of its termination’ (at 554). In other words, for s. 26(e) to be applicable they considered that there needed to be a suitable relationship between the payments and the employment of the recipient, even if that relationship was not a direct employment relationship but simply a relationship that contributed to causing the payments to be made. They found that such a relationship between the taxpayer and the former employer did not exist.

However, they took a different view of s. 25, applicable to income under ordinary concepts, in holding that it applied to the sum in question. On this question their Honours said (at 555-7):

In the present case we think the total situation of the taxpayer must be looked at to see whether the receipts of the taxpayer from [the former employer] are of an income character. … from his point of view, the contributions made by [his former employer] meant that the periodical receipts upon which he depended for the maintenance of himself and his dependants remained at the same level as his civilian employment would have given. From his point of view therefore the word ‘income’ would be clearly applicable to the total receipts from his military pay and allowances and from his civilian employers. It does not seem to matter whether these employers are regarded as his former employers, as his future employers or as the other party to a suspended employment. … it is clear that if payments are really incidental to an employment, it is unimportant whether they come from the employer or from somebody else and are obtained as of right or merely as a recognised incident of the employment or work. … (Emphasis added.)

In the present case the employment or service … is that of a soldier. … Because the [amount of 104 pounds] was an expected periodical payment arising out of circumstances which attended the war service undertaken by the taxpayer and because it formed part of the receipts upon which he depended for the regular expenditure upon himself and his dependants and was paid to him for that purpose, it appears to us to have the character of income, and therefore to form part of the gross income within the meaning of s. 25 … .

Thus their Honours decided that the amount was ordinary income because they found it to be incidental to employment and in such circumstances it is irrelevant whether the person paying is the employer or someone else. This is the key part of their ratio. They were also persuaded by the fact that the receipts were regular and that they were used by the taxpayer to support himself and his dependants. Regularity of receipt and the use to which the receipts are put are not necessarily determinative of the question, but may be relevant in looking at ‘the total situation of the taxpayer … to see whether the receipts of the taxpayer … are of an income character’ (see above).

Fullagar J

His Honour also dismissed the application of s. 26(e) in holding that ‘the receipts in question are not so related to any employment of the respondent as to fall … within the terms of s. 26(e) … The payments were made irrespective of any services given by an employee as employee’ (at 563-4).

However, as with Dixon CJ and Williams J, Fullagar J held that the payments constituted ordinary income assessable under s. 25, but by taking a different approach based on what might be styled a ‘substitution’ argument. He said (at 567-8):

It seems to me that the … receipts … must be regarded as having the character of income. They were regular periodical payments … . This consideration, while not unimportant, is not decisive. What is, to my mind, decisive is that the expressed object and the actual effect of the payments made was to make an addition to the earnings, the undoubted income, of the respondent. … What is paid is not salary or remuneration, and it is not paid in respect of or in relation to any employment of the recipient. But it is intended to be, and is in fact, a substitute for … the salary or wages which would have been earned and paid if the enlistment had not taken place. As such, it must be income, even though paid voluntarily … . It acquires the character of that for which it is substituted and that to which it is added.  (Emphasis added.)   

The decision

By majority, the Full High Court held that the payments received by the taxpayer constituted ordinary income assessable under s. 25.

   

Native Title- History

Before 1788

Aboriginal people and Torres Strait Islanders occupied Australia for at least 40,000 to 60,000 before the first British colony was established in Australia.

They spoke their own languages and had their own laws and customs. Those laws and customs were characterised by a strong spiritual connection to 'country'.

Traditional laws and customs cover things like:

·      caring for the natural environment and for places of significance

·      performing ceremonies and rituals

·      collecting food by hunting, fishing and gathering

·      providing education and passing on law and custom through stories, art, song and dance.

After 1788

The British claimed sovereignty over part of Australia in 1788 and established a colony. In 1889, the British courts applied the doctrine of terra nullius to Australia, finding that it a territory that was ‘practically unoccupied’. In 1979, the High Court of Australia did the same, saying that Australia was a territory which, ‘by European standards, had no civilised inhabitants or settled law’. It was thought that, in these circumstances, the common law doctrine of native title did not apply to Australia.

1992

In 1992, nearly 200 years after the arrival of the British, the High Court of Australia made an historic decision. In Mabo (No 2), the Court decided that the doctrine of terra nullius should not have been applied to Australia and that the common law of Australia would recognise native title.

Native Title Act 1993

The landmark Mabo (No 2) decision led to the Australian Parliament passing the Native Title Act 1993 (Cwlth).

Native title rights and interests

Native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs.

The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor.

Native title rights and interests may include rights to:

·      live on the area

·      access the area for traditional purposes, like camping or to do ceremonies

·      visit and protect important places and sites

·      hunt, fish and gather food or traditional resources like water, wood and ochre

·      teach law and custom on country.

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.

Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.

Native Title Act 1993 (Cwlth) Section 223

Native title

Common law rights and interests

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and c) the rights and interests are recognised by the common law of Australia.

The Sentencing Process

Factors Affecting the Decision:

Circumstances of the offence: objective features:

These are very important. Clearly the nature of the crime and how serious it is will play a large role in informing the final decision on punishment e.g. was the crime of a violent or non-violent nature?

As all crimes are not the same and they have different circumstances, they must be treated individually taking into account the objective features (or circumstances) of the crime. The prosecution uses these objective features throughout the trial and sentencing to stress the seriousness of the crime, and push for a suitable penalty.

These features include:

·      The degree of planning

·      The motive for the crime

·      The use of threat of violence

·      Whether there was aggravating factors

·      Whether the crime is becoming more common in society

·      The pleas that the defendant entered at the start of the trial