1.6.4 When would you refer to case law in your role?
You may need to refer to case law where it:
- is relevant to the application
- relates to the grounds for any agency opposition or public objection
- has been referred to in an application, an agency report, submissions or a public objection.
In every case, it is important to keep any reference to case law relevant to the issue. If an opposition has been lodged because of an applicant's character, only refer to case law on character as a basis of opposition.
When considering the impact of case law on your decision you should ask:
- Is the issue for determination factually and legally similar to one that has already been made? The more similar the decision, the more you have to follow the case law.
- Is the case law relevant to this case? What are the implications for this case?
If you are referring to case law, ensure you have read the whole case rather than referring to other people’s summaries of those cases. While there are cases that have general statements of law, there may be other cases that are relevant only on their own particular facts. These are known as being ‘distinguishable’; that is, the reasoning of the case will not apply due to materially different facts between the cases.
If you are citing case law, be wary of paraphrasing in case you inadvertently change the meaning. It is usually better to quote the words of the case directly.