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The Law of Australia: Case Law

A guide to researching the law of Australia

Court System

Australia is a federal jurisdiction with six states, two Commonwealth Territories (Northern Territory and Australian Capitol Territory) and three external territories (Norfolk Island, Christmas Island, and Cocos (Keeling) Islands.

In general, at the state level there are three levels of courts. At the lowest level is the Magistrates Court, which deals with minor civil disputes and minor criminal cases such as theft and drunk-driving. There are also special Magistrates Courts, such as Children's Court (for offenders under 17), the Minor Debts court, Small Claims Tribunal, etc. There is no jury in the Magistrate's Court.

The District Court (County Court in Victoria) sits at the next level above the Magistrate's Court, exercising appellate jurisdiction from the Magistrate's Court as well as original jurisdiction in more serious civil cases and in some criminal cases, e.g., involving fraud, armed robbery, and rape. There may be a jury at the District level.

The  Supreme Court is the highest state court. It has two divisions, the Trial Division and the Court of Appeal. The Trial Division handles civil cases over $250,000 and serious criminal cases, e.g., involving murder, manslaughter, and serious drug offenses. The Court of Appeals, comprising panels of three or five judges, hears appeals from the lower courts.

In Tasmania and the two mainland territories, there is only a Magistrates Court below the Supreme Court.

In the three external territories there is a Supreme Court and a Magistrates Court or Court of Petty Sessions. The Supreme Courts are mostly staffed by judges of other courts, usually the Federal Court. Appeals from territorial courts lie to the full Federal  Court.

State and  territory courts can sometimes exercise federal jurisdiction. Both state and federal courts can exercise "accrued jurisdiction," which allows them to hear all issues arising from a single set of facts, providing the particular court has jurisdiction to hear the principal cause of action.

There are also three levels of federal courts. The lowest level is the Federal Circuit Court of Australia, created in 1999 as the Federal Magistrates Court. Next in line is the Federal Court. The Federal Court was originally created by the Judiciary Act of 1903. The Federal Court primarily hears matters relating to corporations, trade practices, industrial relations, bankruptcy, customs, immigration and other areas of federal law. The court has both original jurisdiction, and power to hear appeals from a number of other specialized tribunals (and in cases not involving family law, from the Federal Circuit Court of Australia). There is an appeal level of the Federal Court (the "full court"), which consists of several judges, usually three but occasionally five in very significant cases.

The Family Court has jurisdiction over family law matters. It is a superior court of limited jurisdiction and was established in 1975 by the Family Law Act (1975). The Commonwealth has power over marriage and divorce under the Constitution. It deals with parental disputes, matrimonial property, child support, and other family-related laws. Uniquely among states, Western Australia took up the option of establishing its own Family Court in 1975, and in that state all jurisdiction under the Family Law Act 1975 is exercised by the Family Court of Western Australia.

The High Court is the highest court in Australia. It was created by section 71 of the Constitution. It has appellate jurisdiction over all other courts. It also  has some original jurisdiction, and the power of constitutional review. The High Court is superior to all other federal courts and is also the final route of appeal from the state and territory high courts. Appeal to the High Court is by special leave only, which is rarely granted. Therefore, in most instances the appellate divisions of the state Supreme Courts and the Federal Court are the ultimate appellate courts.

It used to be possible to appeal High Court decisions to the Privy Council. However, the Privy Council (Limitation of  Appeals) Act of 1968 closed off all appeals to the Privy Council in matters involving federal legislation. Appeal was further limited by the Privy Council (Appeals from the High Court) Act 1975. The Australia Act 1986 eliminated appeals from state Supreme Courts. Although appeals to the Privy Council are still theoretically possible in inter se matters by leave of the High Court under section 74 of the Constitution, the High Court has indicated it will not grant such leave in the future, so that appeal to the Privy Council is now effectively closed off in all situations.

The various state and territorial courts are listed in the following table:

 

Electronic Access to Cases

A great deal of Australian federal case law is available electronically. The open source web site, the Australian Legal Information Institute (AustLII) has High Court decisions since 1903, Privy Council Appeals 1903-1980, Family Court of Australia decisions 1982 -, Full Court decisions 2008 -, and Federal Magistrates Court of Australia Family Law decisions 2000-2013. It also contains Federal Court decisions 1977 -, and Full Court decisions 2002 -, as well as Federal Magistrates Court of Australia (Federal Circuit Court of Australia 2013 -) 2000 - 2013.

AustLII also has a great deal of state and territorial case law. (Supreme Court of New South Wales, 1993 -; Tasmanian Supreme Court, 1985 -;Victorian Supreme Court, 1994 -, and  Supreme Court of Victoria Court of Appeal, 1998 -Western Australia Supreme Court, 1996 -; South Australian Supreme Court, 1989 -; Northern Territory Supreme Court, 1986 -; Australian Capital Territory Supreme Court, 1986 -, and ACT Supreme Court of Appeal, 1986 -; Supreme Court of Queensland, 1994 -., and Supreme Court of Queensland - Court of  Appeal, 1992 -).

Westlaw has the Commonwealth Law Reports, which contains High Court of Australia decisions, 1903 -, as well as a separate  file of reported High Court decisions. West also has the Federal Law Reports, 1956 -, which contains decisions of the Federal Court, Family Court, and state and territorial courts exercising federal jurisdiction, the Federal Court Reports, reporting Federal Court decisions, 1984 -, and the South Australian state reports.

Lexis+ has the Australian Law Reports, which contains all High Court decisions as well as those of some lesser federal courts and state/territorial courts exercising federal jurisdiction, 1973 -. It also includes law reports of several states/territories (Australian Capitol Territory, New South Wales, Northern Territory, Tasmania, and Victoria), and several topical reporters.

Both West and Lexis.com included unreported judgments. In Lexis the Australian Unreported Judgments, Combined file (UNRPT file) contains full text unreported judgments of the Supreme Court of the Australian Capital Territory, Federal Court of Australia, High Court of Australia, Supreme Court of New South Wales, and Supreme Court of Tasmania. Lexis also has unreported judgments of the Supreme Court of Victoria. West contains unreported decisions of the High Court, Federal Court, and all states and territories.

Several significant databases of state reports are available in LLMC Digital, including The State Reports of New South Wales, 1901-1970, Victorian Reports 1875-1944, and Western Australian Law Reports, 1899-1959.

Access to Printed Cases

The Law Library has at one time been subscribed to three different series worth mentioning--the Commonwealth Law Reports from 1903-2009 (KU18 .A2 1904), the Federal Law Reports, 1956 - 2009 (KU19 .A2 1961), and the Federal Court Reports, 1992-2009 (KU18 .A2 1984). All three series have multi-volume indexes, and are available at the ALF.

The Library also subscribed to case reports for most of the Australian states until they became available electronically, including the following:

  • State Reports of New South Wales (1901-1970) (KUC2.2 .A21901)
  • New South Wales Law Reports, 1971-2009) (KUC2.2 .A21971)
  • Tasmania Law Reports 1905-1940 (KUF2.2 .A21905)
  • Tasmanian State Reports, 1954-1978 (KUF2.2 .A21905)
  • Tasmanian Reports, 1979-2009 (KUF2.2 .A21979)
  • Victorian Reports, 1957-2009 (KUG2.2 .A21957)
  • Western Australian Law Reports, 1898-1958 (KUH2.2 .A2 1899)
  • Western Australia Reports, 1960-1971 (KUH2.2 .A21960)
  • South Australian Law Reports, 1867-1920 (KUE2.2 .A21867)
  • State Reports, South Australia, 1921-1970 (KUE2.2 .A21921)
  • South Australian State Reports, 1971-2005 (KUE2.2 .A21971).

All of these reports are now at the ALF.