26 Using Citators to see Judicial Consideration
Always determine whether a case is considered good law. A citator, with its system of flags, symbols, and annotations, will provide extra information about the litigation history of a case, as well as how the case has been treated by subsequent decisions.
Check the flag or signal
In the citator record for a case, look for the symbol or flag appearing next to the party names. The symbol will give an indication of the status of the case.
| Red
|
A red flag or symbol indicates the decision has been reversed on appeal, or subsequently disapproved or overruled on at least one point of law. |
|---|---|
| Yellow
|
A yellow flag or symbol indicates the decision has subsequently been distinguished, explained, not followed. It may have some negative history but has not been reversed or overruled. |
| Green
|
A green symbol indicates the decision has been applied, approved, followed, affirmed or upheld. In Westlaw Australia, an enclosed H symbol indicates the decision has been appealed or has some litigation history, but has not received direct or negative indirect treatment. In Westlaw Australia, an enclosed C symbol indicates the decision has been subsequently considered with no direct or negative treatment indicated. |
| Neutral | The neutral symbol indicates the decision has been considered or cited. |
The flag or signal will give limited information about the status of the case, so always look at the case annotations as well. Annotations are single word descriptors that indicate the litigation history of the case, as well as how the case has been treated in subsequent judgments.
Check the litigation history
The litigation history section of the citator outlines the path of the legal dispute through the appellate hierarchy. This may directly affect the reliability of the case.
| Reversed (Red)
|
Used where the decision has been overturned on appeal. |
|---|---|
| Varied (Yellow)
|
Used where a case on appeal is only partially affirmed or reversed. |
| Affirmed (Green)
|
Used where the decision has been upheld on appeal. |
Subsequent judicial consideration
The doctrine of precedent means that judges are not only bound by decisions of higher courts in the same court hierarchy but very often consider decisions of those lower in the same hierarchy, or decisions produced outside of the hierarchy altogether.
A citator record will provide you with an overview of the subsequent judicial consideration of your case:
- CaseBase (Lexis+) — Cases referring to this case
- Westlaw Australia — Cases citing (KeyCite)
Watch Understanding KeyCite flags in Westlaw Australia (Thompson Reuters, 2m3s)
The most common annotations used to describe the subsequent judicial treatment of a judgment are described below:
| Annotation | Definition |
|---|---|
Disapproved (Red) |
Used when both courts are of coordinate jurisdiction, and the latter court has no power to overrule the earlier decision. A court may disapprove or criticise a previous decision and yet be compelled to follow it. |
| Overruled (Red) |
Used when a court refuses to follow the decision of a court that is equally positioned or lower in the court hierarchy. |
Distinguished (Yellow) |
Used when a court decides that it need not follow a previous case by which it would otherwise be bound because there is some salient difference in facts. |
| Explained (Yellow) |
Used when a court interprets a previous decision and states what it means. |
| Not Followed (Yellow) |
Used in circumstances where both courts are of coordinate jurisdiction, and the latter court has no power to overrule but is also not bound to follow. |
| Questioned (Yellow) |
Used when a later decision questions decision but does not disapprove or overrule it. |
Applied (Green) |
Used when the court is applying the principle of a previous decision to the present case, the facts of which are materially different from those of the earlier case. |
| Approved (Green) |
Used when a superior court approves an earlier decision by a lower court or court of equivalent jurisdiction. |
| Followed (Green) |
Used when a court is bound by the previous decision of a court of superior jurisdiction in a case where the facts were the same or substantially the same. |
| Cited | Used when the primary case is merely mentioned by the court in the subsequent case, without comment. |
| Considered | Used when the court discusses a previous decision but does not actually apply, disapproved, follow etc. |
| Referred | Used when a case is merely referred to but not discussed in any detail. |
