legal unit 4 aos2 Flashcards
Reasons for a court hierarchy
Doctrine of precedent:
- Court hierarchy allows for doctrine of precedent
- Higher court makes a decision that’s binding on lower courts in the same hierarchy
- Ratio decidendi establishes precedent to be followed
- Provides consistency and predictability be ensuring similar cases are treated in a similar way
- Precedent not possible without a court hierarchy
Appeals:
- If dissatisfied with a decision, can appeal to a higher court
- Provides fairness and allows for mistakes to be corrected
- Not possible without court hierarchy
Specialisation
- Courts develop expertise in their jurisdiction
- Lower courts familiar with minor cases that need to be dealt with efficiently
- Higher courts are expert in hearing complex cases
- Specialist courts such as children’s court and family court deal with specialised areas of law
Administrative convenience
- Court hierarchy allows for the distribution of cases according to their seriousness
- More serious and complex cases heard in higher courts
- Minor cases can be heard quickly and cheaply in lower courts
- Hierarchy allows judges and legal personnel to be allocated to courts according to level of expertise
Problems with a court hierarchy:
- Can be confusing as to which court the case should be heard in
- Duplication of administration increases costs
- Too many appeals – people can appeal in attempt to delay justice
- Everyone should have access to the best judges
Evaluation:
- Having one court may reduce these problems, but would create difficulties mixing minor cases with more complex issues
- Overall, while some problems exist, the court hierarchy works well and should be retained.
Court jurisdictions: Magistrates court
Overview:
- Lowest court in the hierarchy
- State court
- Can be convened anywhere any time
- Magistrate decides on the facts and law
- Decides the case and determines appropriate sanction or remedy
- Cases heard by one magistrate, no jury
Function:
- Deals with small civil disputes and minor crimes
Deals with 90% of court appearances in victoria
Criminal jurisdiction
Original jurisdiction (cases heard for the first time):
- Summary offences
- Indictable offences heard summarily
- Committal proceedings
- Bail applications
Issuing warrants
Appellate jurisdiction (cases heard on appeal):
- No appellate jurisdiction
Civil jurisdiction
Original jurisdiction:
- Hears all civil disputes up to $100,000
Including: motor vehicle accident claims, contract disputes, claims under torts, personal injury claims, work cover and industrial relations claims
* Matters less than $10,000 are automatically referred to arbitration
Can operate as a family court in certain matters:
Child support, Urgent injunctions to remove a child from a family or for personal safety of one party to a marriage
Appellate jurisdiction:
- No appellate jurisdiction
court jurisdiction: County court
Criminal jurisdiction:
Original jurisdiction:
- Serious indictable offences
- Not murder, certain conspiracies and corporate offences
Appellate jurisdiction:
- Appeals on conviction or sentence from magistrates court
Civil jurisdiction
Original jurisdiction:
- Unlimited
Appellate jurisdiction:
- No appellate jurisdiction, unless specified in an act.
Court jurisdiction: Supreme court - trial division
Criminal jurisdiction
Original jurisdiction:
- Serious indictable offences
- Including murder, attempted murder, certain conspiracies and corporate offences
Appellate jurisdiction:
- Appeals on point of law from magistrates’ court and VCAT
Civil jurisdiction:
Original jurisdiction:
- Unlimited
Appellate jurisdiction:
- Appeals on point of law from magistrates’ and VCAT
Court jurisdiction: Supreme court - Appeals division
Criminal and civil jurisdiction
Original:
- No original jurisdiction
Appellate:
- On points of law, fact, sanction or remedy from county or supreme
Summary offences:
- Minor crimes
- Heard in Magistrates’ court
- Magistrate hears the case and decides the outcome
- No jury
- E.g.: traffic offences, failing to answer bail, serving liquor to minors, subordinate or local law
Indictable offences:
- More serious crimes
- Heard in county or supreme court
- Heard by a judge and jury of 2 – jury decides guilt and judge decides sanction
- E.g.: murder, manslaughter, culpable driving, rape
Indictable offences heard summarily: advantages and disadvantages
- Some indictable offences can be heard summarily in the magistrates’ court
- E.g.:
Obtaining property by deception <$40k,
Minor thefts, robbery, burglary <$25k,
Assault or intentionally or recklessly causing injury
Advantages:
- Faster and cheaper as heard in magistrates’ court
- Maximum jail term likely less
- Less formal the county or supreme
- Duty lawyer is available to give legal advice
Disadvantages:
- No jury
- May increase chances of a guilty verdict
Role of VCAT
- Provides a low cost avenue of dispute resolution for small civil disputes
Low cost dispute resolution:
- Only a nominal fee
- No need for legal representation
Timely resolution:
- Disputes generally resolved in less than a day
- Reduces the stress of delays
Accessible and informal:
- No strict rules of evidence and procedure
- Less intimidating
- Increases access for ordinary people
Expert bodies:
- Has specialised lists
- Develop expertise in their areas of law
- E.g. Anti-discrimination list
Dispute resolutions: Judicial determination:
- Judge, magistrate, VCAT member decides a case
- More formal
- Rules of evidence and procedure
- Legal representation generally required
- Decisions reached are binding
Dispute resolutions: Mediation
- Cooperate method of dispute resolution
- Mediator facilitates discussion
- Does not offer suggestions, solutions
- Decisions reached aren’t binding
Dispute resolutions:Conciliation
- Similar to mediation
- Conciliator facilitates discussion
- DOES offer suggestions, solutions
- Has specialist knowledge
- Not binding
Dispute resolutions:Arbitration
- More formal than mediation and conciliation
- Arbitrator hears both sides
- Helps parties negotiate
- Offers suggestions, solutions
- Makes a binding decision
Evaluating dispute resolution methods Strengths and weaknesses: ADR (mediation, conciliation, arbitration)
Much less formal:
- No strict rules
- Less intimidating for the parties
- Focus on resolving the dispute and moving on rather than assigning blame
- However, if parties not equal of bargaining power:
One party may exert influence over the other; or
One party may compromise too much
May lead to an unfair result
Faster and cheaper than litigation:
- Due to lower fees and no legal representation
- Allows more people to have their disputes resolved in a timely manner
- Increases access and reduces the burden on the courts
- However, if a decision cannot be reached:
The matter may still need to go to court,
Increases costs and delays final resolution
Not adversarial
- Parties come to an agreement themselves,
- More likely to abide by the decision and be satisfies with the outcome
- Rather than having a decision imposed by a court where one party will feel like they’ve lost
- However, as agreement reached isn’t binding (except for arbitration) it cannot be ensured that the parties will honour the decision
Evaluating dispute resolution methods Strengths and weaknesses: Judicial determination:
Binding and enforceable
- The decision is binding and enforceable through the courts
- However:
- May be appealed against, increasing costs and delays
It’s a win-loss situation, one party may feel dissatisfied with the decision
Greater formality
- Parties may be more comfortable with greater formality (particularly for more serious cases)
- Appropriate for all types of disputes (both criminal and civil)
- However, strict rules of evidence and procedure may be intimidating and lead to an unjust outcome
Expertise
- Judicial officers are experienced legal professionals with expertise in the law
- However, usually expensive due to high court fees and need for legal representation
