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Case Comment

Purpose of a case comment

A case comment requires different information to a case note because it is a critical


review of a case. This means you will need to analyse the case ie analyse the judges’
interpretation of the relevant act in relation to a particular case and then critically
evaluate the judges’ interpretation. You will be given either an essay question which
will guide you to look at certain aspects of the case or you may be asked to give a
case comment. More information about how to read and understand cases and write
comments can be found in the unit Legal Research and Writing (web address).

Questions to use when you a preparing a case comment

• What happened in this case? (Link to Case Notes: Law)


• What was the reasoning used by the judges?
• What policy issues seem to have influenced each of the judges?
• What facts seem to have influenced the judges?
• How was the law used in deciding this case made ie was it based on
legislation or based on case law?
• Did all the judges agree?
• Did all the judges use the same reasoning to reach their conclusions?
• If the decision was not unanimous, what did the dissenting judge say?
• Does this case represent a new interpretation of legislation or case law?
• Would this case stand up as a precedent to guide further decisions ie
would this case be binding on further decisions on that subject or if not
binding would it be persuasive?
• Has the decision in this case been overruled by a later judgement?
• Has this decision been overridden by an Act of Parliament?
• What sorts of ideas or assumptions are reinforced by the decision/s made
in this case?
• What was the time and social situation of this case? Is it still relevant
today?

Learning Assistance/Law @ SCU


Structure of a case comment

Title: Provide the citation of the case.

Introduction: State your position regarding this case together with the main
points to be discussed. Make critical comments about the case as relevant eg Is
it good law? Should it be followed in Australia?

Facts and Decision of the Court


What are the facts? What did the lawyers say? What was decided in previous
hearings? Was this an appeal?

Critical Analysis of the Decision


Focus on critically analysing the way the judges went about making their
decision. In this section you could use sub headings relevant to that case.
Consider questions such as:
• What definitions of important terms did the judges rely upon?
• What authorities did they rely upon?
• How did the judges interpret principles from previous cases?
• What did the judges think was important and what did they discount?
• How did the judges differ in regards to their reasoning and use of
authorities?
• What was the judges’ given reason for the decision (ratio deciendi)?
• Did the judges make any further comments that provide obiter that may
be useful in later cases?
• What were the dissenting judges’ conclusions? Are these obiter?
• What social and policy considerations did the judges seem to promote?
• Does the judges’ reasoning appear to reflect a particular approach to
legal reasoning – for instance, a formalist legal approach?
• What criticisms could be made of the judgements from a theoretical
perspective?

Conclusion
A restatement of your position regarding this case together with a summary of
important points.

Learning Assistance/Law @ SCU