WRITING CASENOTES
Essentially, a casenote is a summary of a case. Christopher Enright,1 as outlined
below, suggests the type of information that should be included in any case
summary. You may wish to use these points as a guide to writing your own
casenote:

Formal particulars, including:
o The name and citation of the case (ie Mabo v Queensland (No.2)
(1992) 175 CLR 1),
o Name of the court and judge(s),
o Name and status of each party, and
o Date of the judgment;

The facts of the case;

The prior history of the case in lower courts (if mentioned in the judgment);

The cause of action or claim involved in the case (for example, the issue on
appeal);

A summary of the judgments, including any dissenting judgments, which
should include:
o The facts that were considered material or relevant,
o The ratio decidendi,
o The arguments considered by the court in support of, or against, the
principle, and
o Any obiter dicta or significant observations by the court;

Commentary on the impact of the decision on the law.
The following pages contain an example of how a casenote can be presented, as well
as a discussion on reading and summarising cases by Richard Krever.
1
Enright C., Studying Law, 5th edn., Federation Press, 1995, pp.461-462.
Casenote example (please note that this is only a suggested format):
Penfold Wines Pty Ltd v Elliott (1946) 74 CLR 204
Date of Judgment: 25 November 1946
FACTS
Penfolds Wines Pty Limited ("Penfolds") was a wine producer and seller. Elliott was
a licensed hotelier carrying on business at an hotel in NSW. Through embossing on
their bottles and notations on their invoices Penfolds informed all those in possession
of its bottles that they were to be used only for the purposes of retailing and
consumption of Penfold's wines and further, that they always remained the property
of Penfolds.
Penfolds asserted that Elliott, without its consent, had been receiving, collecting and
handling their embossed bottles, using them in connection with his business and
delivering to his customers liquids not manufactured or marketed by Penfolds.
Penfolds sought an injunction to have the practice stopped.
TRIAL JUDGE'S DECISION
At the trial, Nicholas CJ found that
(a)
Elliott filled two of Penfolds' bottles with wine other than Penfolds' wine and
delivered them to Moon for a sum of 8 shillings. The bottles were not sold to
Moon.
(b)
Elliott had for years and once subsequently filled Penfolds' bottles with non
Penfolds' wine. Two of these filled bottles were delivered to Elliott's brother.
(c)
Elliott did not sell Penfolds' bottles.
Penfolds asserted that:
(1)
Elliott's activities described in (a) above involved an assumption of
dominion over the bottles which amounted to conversion, and
(2)
Elliott's activities described in (b) above amounted to a use of the bottles
inconsistent with the terms of delivery of the bottles.
The trial judge found that Elliott's conduct amounted to a trespass to goods. His
honour refused to order an injunction because there was inadequate evidence that
Elliott intended to sell the bottles or to keep them if asked by Penfolds to return them.
ISSUE/S ON APPEAL
Penfolds appealed to the High Court seeking an injunction.
THE HIGH COURT
The High Court comprised Latham CJ, Starke, Dixon, McTiernan and Williams JJ.
Latham CJ
Penfolds' branded bottles were bailed to persons who received them. By the terms of
the bailment, the bailee was not entitled to use the bottles for another purpose than
once only for retailing, consuming or using the plaintiff's wine contained in the
bottles, and such a person has no right to authorise any other person to use them for
any other purpose (at 213). A bailment is determined by any act of the bailee which
is wholly repugnant to the holding as bailee, and at that point the bailor has an
immediate right to possession. The delivery of bottles by Elliott's brother to Elliott to
have them filled with wine other than Penfolds' was in breach of the express terms of
the bailment. This ended the bailment and Penfolds as bailor acquired an immediate
right to possession of the bottles (at 214).
A mere taking or asportation of a chattel may be a trespass without the infliction of
any material damage. The handling of a chattel without authority is a trespass.
Unauthorised user of goods is a trespass, eg using a bottle. The normal use of a bottle
is as a container, and the use of it for this purpose is a trespass if it is not authorised
by a person in possession or entitled to immediate possession.
As Elliott obtained the bottles from his brother with the latter's authority then there
can be no trespass against his brother. [His honour then examines authorities that
contend that a plaintiff suing in trespass must have been in possession of the goods at
the time of the trespass, except where the trespass was against the plaintiff’s servant,
agent or bailee under a revocable bailment.]
The possession of a servant is the possession of their master; the possession of an
agent is the possession of their principal. In neither case is it "another's possession".
Therefore, each is regarded as having actual possession (at 216). In relation to a
revocable bailment, the bailor has neither possession nor an immediate right to
possession so long as the bailment remains unrevoked. If the possession of a bailee
holding under such a bailment is violated it is the bailee's possession and not that of
the bailor which is violated. Hence, if the bailor may sue for trespass, then the bailor
is suing for a violation to another's possession.
In this case the bailment expired when brought by Elliott's brother to Elliot to be
filled with wine other than Penfolds'. Penfolds then became immediately entitled to
possession of the bottles. Therefore, Penfolds could sue in trespass although logical
argument tended against this view.
The use of the bottles by Elliott without any regard for Penfolds' rights for the benefit
of Elliott and his brother was a conversion (at 218). Also, Elliott dealt with the
bottles as being a person entitled to dispose of them to Moon, such a disposition
being a conversion.
His honour ordered an injunction restraining Elliott from using Penfolds' bottles for
any purpose other than that of containing liquids manufactured or placed there by
Penfolds.
Starke J
His honour found that trespass did not lie but found conversion of Penfold's bottles.
As Elliott's filling of the bottles was not a systematic practice then Penfolds ought to
be left to their common law remedies of damages and an injunction ought not be
awarded.
Dixon J
The facts reveal no trespass because there is, on Elliott's part, no infringement of
another's possession (at 224).
An immediate right to possession is insufficient to support an action in trespass. If it
were sufficient then conversion would have been an unnecessary remedy. The
correct view is that the right to possession as entitlement for suing in trespass is
merely a right in one person to sue for a trespass done to another's possession: and
this right exists whenever the person whose actual possession was violated held as
servant, agent or bailee under a revocable bailment for or on behalf of the person
having the right to possession (at 227).
The determination of the bailment may enable the bailor to sue in conversion or
detinue but not in trespass. Such determination revests the bailor's right to possession
and therefore the bailor's immediate right to sue in conversion or detinue (at 227).
There is no conversion because on Elliott's part, there is no act and no intent
inconsistent with Penfolds' rights to possession (at 224). The essence of conversion is
a dealing with a chattel in a manner repugnant to the immediate right of possession of
the person who owns the goods. Use of a chattel is not conversion. An intent to do
that which would deprive the "true owner" of their immediate right to possession or
impair it is the essential basis of conversion (at 229). The re-delivery by Elliott of
filled bottles to those who left them with him to be filled involved a transfer of
possession but not for the purpose of conferring any right over the property in the
bottles.
His honour found that there was no basis for an injunction.
McTiernan J
His honour concludes that the only wrong committed by Elliott is a conversion of two
of Penfolds' bottles and that the case is not a proper one for an injunction (at 232).
Williams J
There was no violation by Elliott of his brother's possession of the bottles. There was
therefore no asportation of the bottles from the person in actual possession and so
Penfolds have no case against Elliott in trespass (at 242).
For Elliott to fill the bottles as he did knowing that they were the property of Penfolds
amounted to a conversion (at 243).
His honour granted an injunction.
OUTCOME OF THE APPEAL
Trespass was found only by Latham CJ.
Conversion was found by all except Dixon J.
The appeal was dismissed by Starke, Dixon and McTieman JJ. The appeal was
allowed by Latham CJ and Williams J.
IMPACT ON CURRENT LAW
The majority decision in Penfolds affirmed that only a person in possession can sue
for trespass except where that person is the bailor, master or principal of a person
who, having suffered a violation of actual possession, was a bailee under a revocable
bailment or servant or agent of the former. Further, an unjustified use of goods will
amount to a conversion provided there is an intention to exercise dominion over them.
The case is unfortunate in that there is conflict between opinions supporting an order.
As such, its judicial force may be diminished as it is difficult to distinguish ratio from
obiter: see Paton GW and Sawer G "Ratio Decidendi and Obiter Dictum in Appellate
Courts" [1947] 63 LQR 461.
The extract from Krever on the following page gives a useful introduction on how to
read and summarise cases – what to look for and what to avoid.
Reading and Summarising Cases2
Richard Krever
Law students can usually skip over the first step in finding the common law, that is,
unearthing the relevant cases. In most courses the instructor or casebook editor will have
already assembled those cases for you. Your first task, then, is to prepare a précis of a case,
that is, a short summary of the facts and holding, setting out the rule of law established by the
precedent. The précis will be the building block from which you will construct or neutralise
arguments that can be based on that precedent. As such, it should contain whatever
information is needed to apply or distinguish the holding in future analogous situations.
Determining the Context of the Decision
The initial step to understanding the relevance of a law report is to ascertain who is suing
whom for what. Although this introductory step sounds like an easy mechanical exercise,
often as not it requires a little detective work.
The cases you read are appellate decisions on questions of law. (In some jurisdictions first
instance decisions are reported — these, however, are the exception, not the rule.) The judges
giving the decision have heard counsel for the parties explain in great detail the facts giving
rise to the dispute, the procession of hearings and legal events prior to trial and, often, details
of the original trial itself. The appellate judges then deliver an opinion on their interpretation
of a point of law without necessarily setting out all this background context clearly. It is
important that you carefully read a decision to draw out this information. You cannot
understand the-relevance of a judgment — where it should be applied and where it can be
distinguished — unless you understand the factual basis for the case.
The more times a decision is appealed, the further complicated the task becomes. In some
jurisdictions the names of the parties reverse as one party and then the other appeals — Smith
v Jones becomes Jones v Smith when Mr Jones appeals and then reverts to Smith v Jones
when Ms Smith appeals from that decision. In other jurisdictions, the order of names remains
the same all the way up. Some parties have been joined to the action by an original party and
appear as 'third parties'. And sometimes parties are added or dropped at various appeals.
Acme Pty Ltd may lose a case against the Commonwealth of Australia on constitutional
grounds but be joined by the States of Victoria and Queensland as interveners when the case
is appealed if those States see their powers threatened by the original decision. The labels
attached to the various parties change, too, as decisions proceed through the courts. Plaintiffs
and defendants may become appellants, applicants or respondents. To complicate matters
2
Krever, R., Mastering Law Studies and Law Exam Techinques, 5th edn., Butterworths, 2001, pp. 1322
further, judges will usually refer to parties by their judicial labels (appellant, plaintiff, etc), not
their real names. And to top it off, they will do so inconsistently — one judge might speak of
the appellant while another refers to the same party as the plaintiff, his status in the court
below.
The next step after determining which party is suing which and why they brought the action is
to decide who won. Once again, what sounds like an easy task is sometimes anything but that.
After a long discussion of the precedents and doctrines applicable to the dispute at hand, an
appellate decision may finish with a cursory 'order upheld' or 'order nisi granted'. Who won
and why? To answer that we have to go back to the judgment and underlying dispute and the
exact relief sought in the judgment being appealed.
In many important cases there will be no winner or loser — the appellate court will have been
asked to determine a point of law and not decide the outcome of the case. This was the
situation, for example, in Donoghue v Stevenson, the famous precedent that established the
basis for the modern law of liability for negligent manufacturing. To this day, no one knows
whether there was a snail in the bottle of ginger beer that led to the case. We only know that if
there was and it could be shown the snail got there as a result of the manufacturer's
negligence, the manufacturer could be liable to the consumer.
In Donoghue v Stevenson the facts of the case had not been established by the time the appeal
reached the House of Lords. In most cases there will be a judgment delivered on the basis of
found facts before a question of law reaches the appellate court. Even then, appellate courts
will not deliver a final decision in cases where the final determination may turn on the facts of
the dispute. In these circumstances they may suggest the matter be retried in light of the
statement of law they have handed down or they may send the case back to the trial court to
give a ruling based on the decision they have just delivered. In the end, you will know an
apparent rule of law but have little firm guidance as to where it will or will not apply. Its
ambit must be determined by future courts.
Distinguishing Between the Ratio Decidendi and Obiter Dicta in a Case
The theoretical key to the common law system of precedent is the all important distinction
between the ratio decidendi and obiter dicta in a case. The ratio decidendi is the actual rule of
law stated in the holding of a decision, a rule that will be binding on future courts. An obiter
dictum, on the other hand, is a judicial pronouncement on the law that is not integral to the
holding itself. While it may be considered by a later court, an obiter dictum will not establish
a rule of law that must be followed by any court. Although this distinction is for the most part
merely a legal myth, it is carefully retained by the lawyers who utilise it to formulate legal
arguments. Recognising this fact, you should read and summarise cases in a manner that will
enable you to argue a rule is the ratio decidendi or obiter dictum, as the need arises, when an
analogous hypothetical situation appears in an exam question.
On some rare occasions, judges will assist you to identify the ratio decidendi or an obiter
dictum by couching part of their decision in hypothetical terms. For example, you may come
upon a discussion that reads something like this:
An alternative ground relied on by the appellant was ... and if I were to decide on that basis I
would probably conclude that... However, since I am basing my decision on the first argument
presented by the appellant, I do not have to decide on the basis of this alternative argument.
Presumably, the entire discussion of the alternative argument and the conclusion to which it
would lead are obiter. While they could, and most likely would, be cited by a counsel hoping
to rely on a similar argument in a future case, opposing counsel should be able to present it as
non-binding dicta. This does not mean the argument would fail, of course. An obiter dictum
in one case may become ratio decidendi in the next. The fact that the conclusion was obiter
dictum would be a principal plank in the opposing lawyer's campaign to avoid the application
of the alternative rule in a later case, however.
Another form of hypothetical situation that sometimes appears in reported decisions is the
factual hypothetical. In this situation, a judge explains how she would have decided in the
presence or absence of certain facts unlike those in the actual case. For example, a judge may
explain something along these lines:
The issue is whether the defendant is liable for the injury suffered by the plaintiff as a result of
slipping on the leaves on the defendant's pathway. Had the defendant posted a sign stating
'Caution, path slippery because of leaves', a strong case could be made for relieving the
defendant of liability on the basis of notice to the plaintiff. In this case, however, there was no
sign posted so I cannot use that logic to reach my decision.
The obvious question is what happens in the next case when there is a sign posted. The
discussion in this case is prima facie obiter dicta and would be so presented by counsel for the
plaintiff in the next case. But if the defendant were found liable in the first case, the
defendant's lawyer in the next might be able to use these apparently obiter dicta to help
redefine the ratio to suit his client's case. For example, if the ratio decidendi seemed to be that
a defendant is liable for injuries resulting from his failure to clear pathways on his property,
the defendant's lawyer could recast it in these terms: the defendant is liable for injuries
resulting from his failure to clear pathways on his property unless he notifies visitors of the
danger…
Be Aware of What the Case Doesn't Tell You as Well as What it Does
As you prepare your précis of a case you should note not only the details of the case, but also
their immediate relevance to the holding in the case…The facts that were absent in the
original case are as important as those which were present.
Let's illustrate the later point with another example. This one is based on an actual fact
situation taken from the famous English contract case of Parker v The South Eastern Railway
Co. In Parker, a customer had deposited a bag in a cloak-room at the defendant's railway
station, paid the clerk 2d, and received a paper ticket, on one side of which was printed a
number and a date and the words 'See back'. The reverse side contained a number of clauses
relating to articles left by passengers, the last of which was, 'The company will not be responsible for any package exceeding the value of £10'. A notice to the same effect was printed and
hung up in the cloak-room. The customer, plaintiff in the subsequent case, had left a bag
worth £24 in the cloak-room and sued for compensation when the railway lost the bag. At the
trial he claimed he had not seen the notice in the cloak-room and had not read the front or
back of the ticket. He further claimed he had thought the ticket was simply a receipt for
money paid by him.
It seems intuitive, even to those who have never studied contract law, that the customer
should bear the risk of loss if the railway's disclaimer of liability had been made explicitly
clear to the customer prior to payment and he had explicitly agreed to the conditions before
handing over his 2d and the bag. Most observers would probably agree he should also be
expected to bear the loss even if he did not explicitly agree to the conditions so long as they
were clearly explained to him before he paid and passed over the bag — in those
circumstances it could be presumed that the payment and bag deposit amounted to implicit
agreement with the terms of the contract.
Some might say, of course, that it would be unfair to pass the entire burden of risk to the
customer if he or she had no option but to agree to the railway's terms, as would be the case,
for example, if the railway held a monopoly on the transport of goods between two points.
This may be so, but such policy decisions are usually considered to be within the realm of the
legislature, not the courts. As a matter of pure contract law, we assume parties enjoy equal
bargaining power, however fictitious that assumption may be in the real world, although the
presumption has certainly been tempered by the doctrine of unconscionability in more recent
times.
To return to the case at hand, the issue to be decided in future cases where the facts resemble
those of Parker is at what point the customer will be taken to have agreed to the conditions set
down by the railway as its terms for the unwritten contract to store the customer's goods. If
the railway explicitly read out its conditions of storage prior to acceptance of the customer's
money, those conditions would clearly be considered to have been incorporated into the
contract. The court in Parker suggests a similar result would follow if the customer knew the
railway's conditions were on the ticket but chose not to read them. In fact, the court in Parker
concluded the customer would be bound even if he did not know the railway's conditions
were on the back of the ticket, so long as the ticket was delivered to him with 'reasonable'
notice that the conditions were spelled out on the ticket. Will the railway have given
reasonable notice if it simply erects a notice in the cloak-room setting out its conditions and
prints them on the back of the ticket with a note on the front of the ticket saying 'See back'?
The answer to that question is not to be found in Parker. Although Parker is considered one
of the leading precedents in the area, at the end of the day we don't know if the customer in
that case won or lost. The appellate court that established the rule of law sent the case back
for retrial to see whether there was reasonable notice in that particular case. The results of the
retrial were never reported.
At the retrial, the judge (or jury as was the case in Parker) might conclude one large sign
placed so as to be noticed by anyone in the cloak-room would be sufficient to make the
customer aware of the conditions. But if the room had two dozen posters in it, of which the
notice of conditions was only one, the judge might conclude the company had not done
enough to make the customer aware of the existence of its conditions. Similarly, if the
attendant explicitly commented on the conditions, a judge might be entitled to conclude the
railway had satisfied its obligation in that case. On the other hand, if the attendant said, 'Here's
your claim ticket' when handing the ticket to the customer, he or she might be entitled to
presume the conditions on the back did not form part of the contract, notwithstanding the
notice and 'See back' note which otherwise might be sufficient to make the customer aware of
the existence of the conditions. Or, if the attendant's comments implied conditions different
from those on the back of the ticket, the judge might conclude there was no notice of the
existence of the actual conditions. Alternatively, the judge might conclude the customer was
made aware of the actual conditions, but was entitled to conclude they had been superseded
by the oral conditions.
What would happen if the customer was illiterate? Does the railway have to take each
customer as it finds him or her or can it presume a large notice is sufficient to make the
customer aware of the existence of conditions so that the onus is on the customer to ask what
the conditions are if he or she cannot read the notice or writing on the ticket? What would
happen if the customer knew there were conditions on the back of the ticket but discovered
the writing too small to read? What if the writing was small but could be read by most
customers not suffering from the bad sight which afflicted the particular customer who lost
the bag? Parker doesn't tell us the answers to any of these questions. But the very absence of
definitive answers should show you what can be extracted as the holding of the case and what
issues it raises, issues that should be considered in the context of an exam problem.
In any case following Parker, the customer's lawyer will seize upon all the facts peculiar to
the subsequent case to show why the basic condition stipulated in Parker, making the
customer aware of the existence of the conditions, was not satisfied in his or her client's case.
The process is two-fold. First, she will try to show that the railway's actions were insufficient
in the subsequent case to make customers aware of the existence of its conditions. Second,
and in the alternative, she will argue that even if the railway's actions in the subsequent case
were sufficient to make customers aware of the conditions in ordinary circumstances, the
actions were not sufficient with regard to her particular client. In this case, she will have to
convince the court that the rule in Parker was meant to apply to each individual customer, not
the railway's average customer…
Recording the Relevant Technical Aspects of the Precedent
It is important that you include whatever information may be relevant to any 'technical'
arguments you may wish to raise in favour of or against the application of a precedent. Thus,
your précis should note the jurisdiction of the court, the level of the court and, where
appropriate, the judges responsible for the opinion that counsel would likely cite. Some of the
so-called technical arguments are purely factual, for example: 'This is an English Court of
Appeal decision and of persuasive value only', while others are less tangible and rest more on
conventions and unwritten legal codes. For example, an important factor in many situations is
the respect accorded to the judge delivering a decision. Developing a sense for these codes
takes time but after a few years at law school you will begin to realise which judges command
greater respect in later courts and which do not. Often these intangible factors have quite an
impact on the legal process, though they are not found anywhere in the theoretical framework
for the common law system of precedent. Thus, for example, without knowing how well
respected and often cited Dixon CJ is, you would not think to suggest to a court that a dissent
by Dixon CJ should be followed in preference to the clear majority decision of less respected
judges.
Using Texts and Treatises
At this point a brief interjection on texts and treatises is appropriate. It should be clear that the
facts of the case are essential to its precedential value. It is on the basis of those facts that
lawyers will seek to characterise aspects of a judgment as ratio decidendi or obiter dicta. Not
all lawyers pursue this objective however. While considering, applying and distinguishing
cases on the basis of their facts is the immediate challenge facing the practising lawyer and
examinee law student, others such as the authors of legal texts and treatises rely on precedents
to develop the 'rules of law' — the propositions and doctrines which reconcile all the cases
and fit the pieces into a neat and complete jigsaw puzzle that never exists in the real world of
litigation and appeals. Be sure you remember the role of a text and use it accordingly. Texts
will help you understand an area of law and learn the basic principles and legal doctrines
forming the infrastructure of a legal subject. They will not, however, spell out the many ways
in which precedents and fact situations can be applied or distinguished in an attempt to
achieve the result sought by a client.
Using the Précis
Reading and summarising the cases gives you the knowledge to begin learning the law. You
will become aware of some of the issues that arise in the decisions and recognise arguments
that you can use to apply or distinguish the precedents in analogous situations. Many more
ideas will flow from the lecturer's analysis of the case and classroom discussion. Both will
also be of use in understanding how the decision and arguments arising out of it relate to
those raised in other cases and other areas of law…