TOPIC 2 Continued - Vict Crt Hierarchy

Question 1

In each state and territory there are two sets of courts

Answer 1

Federal Courts and State Courts

Question 2

Two types of jurisdiction

Answer 2

1. Subject matter jurisdiction, which refers to the nature of the dispute which may be adjudicated upon by the particular court; 2l Territorial jurisdiction: which refers to the person or bodies over whom the court may exercise jurisdiction.

Question 3

SUBJECT MATTER JURISDICTION: The High Court

Answer 3

s71 Australian Constitution: The judicial pwr of cth shall be vested in a Federal Suypreme Couyrt to be called High Court of Australia, and in such other federal courts as the Parliament creates, and in such other federal courts as it invests witgh federak hyrusductuib,

Question 4

High Court (s71 Constitution)

Answer 4

Shall consist of a Chief Justice and so many other justices, not less than two , as parlkiament prescribes

Question 5

s38 JUudiciary Act 1903 Cth: Matters in which jurisdiction of HC exclusive

Answer 5

matters arising: under any treaty, suits between states or between persons suing or being sued on behalf of different states or beteen state and a person; or between Commonwealth against a State or any person… mayters in which a writ of mandamus or prohibition is sought against an officer of commonwealth or a federal court (when gone beyond their power)

Question 6

Subject Matter Jurisdiction: The Federal Court

Answer 6

s19 of Federal Court of Australia Act 1976 (Cth)

Question 7

Acccrued jurisdiction of Federal Court

Answer 7

enables that court to determine claims which arise under c/law or state legislation but only if they are part of the ‘same matter’ as the claim within the Federal Court’s jurisdiction

Question 8

s22 Federal Court Act 1976 (Cth)

Answer 8

Determination of matter completely and finally: The court shall in ev ery mater before the court grant either absolutely or on such terms & condit as Ct thinks just, all remedies to which any of the parties appears to be entitled..so that..be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided

Question 9

Fencott v Muller (1983) 152 CLR 570 at 608 High Court said:

Answer 9

‘in the end, it is a matter of impression and of practical judgement whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a mater’ (i.e. a single matter)

Question 10

re Wakim; Ex parte McNally (1999) 198 CLR 511 High Court gave some definitions of what may constitute a ‘matter’

Answer 10

common transactions and facts; where different claims are so related; not disparate or separate and distinct

Question 11

If proceedings were tried in diferent courts, there would be conflicting findings made on one or more issues comn to the two proceedings

Answer 11

By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter

Question 12

Subject matter jurisdiction: The Supreme Court: Laurie v Carroll (1958) 98 CLR 310

Answer 12

The principles of law that emerge from Laurie: In actions in personam, SERVICE FOUNDS THE COURT’S JURISDICTION. It will not exercise any of the powers if it has no jurisdiction over the defendant or if it has a doubt about its jurisdiction (Cairns p 147)

Question 13

Ss 12 & 15 Service and Execution of Process Act 1992 (Cth)

Answer 13

s12. Effect of service Subject to this Act, service of a process under this Act: (a) has the same effect; and (b) may give rise to the same proceedings; as if the process had been served in the place of issue

Question 14

Service and Execution of Process Act 1992 Cth s 15

Answer 14

15 Initiatinbg process may be served in any part of Australia (1) ..in another State (2)Service on an individual must be effected in the same way as service of such an initiating process in the place of issue; (3) “Service on a company or reg body must be effected in accord with s9

Question 15

Service and Execution of Process Act 1992 Cth s 15 (continued)

Answer 15

(4) Service on any other body corporate must be effected in accordance with s10 (5) Service on a body politic (eg Cth or State) must be effected in the same way in whcih process of the Supreme Court of the State in which serv ice is to be effected may be served on the body politic

Question 16

High Court

Answer 16

Also has appellate jurisdiction; and additional jurisdiction (s76 Constitut) Parliament may confer on HC; interpretation; arising out of any laws; of Admiralty or maritime; relating to subject matter of Constitution

Question 17

‘Matter’ means the subject matter for determination

Answer 17

must be a right, duty or obligation needing determination re the subject matter

Question 18

Cross-vesting of Jurisdiction

Answer 18

Despite the federal court having “accrued” jurisdiction to hear some common law matters and despite with State courts having invested in them federal jurisdiction, there was still much argument as to which court had “subject matter jurisdiction” to hear and determine;

Question 19

Is it possible for a defendant to voluntarily submit to the jurisdiction of the Supreme Court?

Answer 19

A party will be taken to have submitted to the jurisdiction of a court, in circumstances where its conduct is inconsisten with the maintenance of an objection to the court’s jurisdiction. eg if he or she enters an unconditional appearance at least where it is possible to test the jurisdiction of the court without entering such an appearance (Perkins v Williams) No submission, however, if a defendant protests jurisdiction of the court.

Question 20

Broad aims of original cross-vesting schemes

Answer 20

to establish cross=vesting but without detracting from the jurisdiction of the existing courts; as far as possible to ensure matters are commenced; and to permit the transfer to the proper court of a proceeding commenbced in an inappropriate court

Question 21

Which part of the cross-vesting scheme was declared to be constitutionally invalid by the High Court in Re Wakim (1999) 198 CLR 511?

Answer 21

HC decided cross-vesting laws purporting to confer State jurisdiction on the Federal Court were invalid; Following Wakim states passed the Federal Courts (State Jurisdiction) Act 1999.

Question 22

Which part of cross-vesting scheme was left intact?

Answer 22

Those that confer federal jurisdiction on State and Territory Supreme Courts, and cross-vesting in State and Territory Supreme Courts of each other’s jurisdiction in civil matters.

Question 23

When can a case be transferred to a more appropriate court?

Answer 23

If P sues in an inappropriate court, normally defendant applies to transfer, though either party may do so. Decision is not based solely on interests of justice (Cairns p 30); proceeding arises out of or is related to a prceeding in the other court; or

Question 24

having regard to (a) 1st court would have been incapable of beinbg instituted in the first court

Answer 24

(b) the extent to which the matter is not within jurisdiction of the first court except for cross-vesting and; ( c) in the interests of justice

Question 25

(3) It is otherise in the interests of justice for first court to trnsfer

Answer 25

BHP Billiton Ltd v Schulz (2004) 221 CLR 400

Question 26

forum non conveniens test means?

Answer 26

“forum not agreeing” common law legal doctrine whereby courts may refuse to take jurisdictionb over matters where there is a mnore appropriate forum available to the parties – between courts in different countries and between courts in different jurisdictions in the same country.

Question 27

MAGISTRATES’ COURT

Answer 27

estd Magistrates’ Court Act 1999; civil jurisdiction rcently increased to $100,000; damages debt, or liquidated demand.

Question 28

MAGISTRATES COURT Procedure:

Answer 28

Magistrates Court General Civil procedure Rules 2010 similar to Supreme Ct Rules

Question 29

MAGISTRATES appointed from Barristers and Solicitors Has various divisions

Answer 29

Courts Legislaytion (Neighbourhood Justice Centre) Act 2006 (Vic) Neighbourhood Justice division of Mag Ct - as little formality and technicality and as much expedition.. Magistrates Court Act 1989 s4M(6)

Question 30

MAGISTRATES COURT : Jurisdiction

Answer 30

s100 Magistates Court Act.

Question 31

MAGISTRATES COURT Appeals

Answer 31

s109 Magistrates Court Act, the only avenue for appeals from anb order made in civil proceedings is to the Supreme Court, and such an appeal is confined to a question of law.

Question 32

V ICTORIAN CIVIL AND ADMINISTATIVE TRIBUNAL

Answer 32

VCAT hears: Anti discrimination, Pur chase and supply of goods; Domest building works; Guardianship and administration; Legal professional services; Consumer Credit

Question 33

VCAT also hears: Planning and lanbd valuation, Retail and residential tenancy, Licensing for busineses

Answer 33

State Taxation, Transport accident commission; freedom from information decisions; Small claims disputes (include consumer law and ACL) Property division claims.

Question 34

VCAT has 3 divisions

Answer 34

Administrative, Civil and Human Rights

Question 35

VCAT Members of Tribunal (not judges) plus

Answer 35

if expertise is required, a County Court or Supreme Court Judge may sit at hearing

Question 36

VCAT appeals possible, can be made to Supreme Court on questions of law only

Answer 36

Must request reasons for decision before Member leaves the court, o/wise can’t appeal as won’t have reasons in writing

Question 37

THE COUNTY COURT

Answer 37

Courtys Legislationb (Jurisdiction) Act 2006 (Vic) gives CC unlimited civil jurisdiction by removing previous monetary limit

Question 38

COUNTY COURT Constitution

Answer 38

s4 (1A) of the County Court Act provides that the court consists of judges as are from time to time appted; Associates and the Registrar. Courty presided over by Chief Judge of County Court

Question 39

COUNTY COURT Jurisdiction

Answer 39

s35(2) of County Court Act states CC is a court of record. This mens it has power to fine or imprison for abuse of its own procedure.

Question 40

COUNTY COURT Jurisdiction: s36 of County Court Act

Answer 40

Power to har and determine every proceeding in respect of which jurisdiction is conferred on itn/wthstanding that part iof the cause of action arose outside Vic, provided that a material part of action arose w/in Vic. Also pwr to hear and determine every such n/withstanding whole cause of action arose outside Vic, provided Defendant resided w/in Vic at the time of the servie of the originating process upon such defendant.

Question 41

COUNTY COURT: s37(1) CC Act jurisdiction to hear and determine all applications claims and disputes and civil proceedings regardless of relief sought

Answer 41

To hear all proceedings aghainst municipal councils in respect of loss or injury (slipping and tripping); All other civil proceedings in respect of which j/diction is given to the court by this or any other Act

Question 42

COUNTY COURT by Courts Amendment Act 1985

Answer 42

any dispute involving land or property or an interest in same can be heard in CC (rather than Supreme, as previously)

Question 43

THE SUPREME COURT jurisdiction unlimited; s85 of the Constitution Act 1975 (Vic)

Answer 43

SC also vested with federal jurisdiction under various federal acts, eg. Competition and Consumer Act 2010 (Cth) s138B

Question 44

SUPREME COURT Jurisdiction over the person

Answer 44

in personam jurisdiction - where there has been due service of the originating process on the defendant (Laurie v Carroll (1957) 98 CLR 310)

Question 45

SUPREME COURT Jurisdiction over property or thing

Answer 45

where action concerns property located in Victoria (in rem) ; an action quasi in rem may arise where any property or thing belonging to a defendant is found w/in Vic (but limited to the monetary value of the res)

Question 46

SUPREME COURT By whom is jurisdiction exercised?

Answer 46

The Constitution (Court of Appeal) Act 1994 amended SCA 1986 to establish a Trial Division of the Supreme Court and a separate Court of Appeal.

Question 47

SUPREME COURT; COURT OF APPEAL jurisdiction to hear and determine

Answer 47

All appeals from Trial Division constituted by a judge; All applications for new trials; All appeals from the CC constituted by a judge; All appeals, applications, questions and other matters, whether civil or criminal which, by or under any act are referred to or reserved for the consideration or directed to be brought before the Court of Appeal.

Question 48

SUPREME COURT PRACTICE COURT

Answer 48

deals with ancillary matters of the court; Interlocutory matters such as applications for amendments, discovery, substituted service, injunctions and other matters dealt with by this court.

Question 49

SUPREME COURT: Associate Judges

Answer 49

perform adjuncative functions and assist judges. They usually hear interlocutory matters Order 77 of the Supreme Court Rules deatils authority of Associate Judges

Question 50

SUPREME COURT Procedure

Answer 50

Supreme Court Rules. Have force of statute. SC hgas inherent juridiction to regulate its own procedure and to prevent abuse of its process (Jago v District Court of NSW (1989)( 168 CLR 23 per Gaudron.

Question 51

The Courts (Case Transfer) Act 1991 for all Victorian Courts

Answer 51

Another way to tansfer apart from cross=vesting; transfer up or down for purpose of adjusting case loads of the courts; regard is to gravity, difficulty and importance (s16(1) of Act sets out criteria for transfers

Question 52

MODE OF TRIAL Two methods of trial are prescribed uin both the Supreme Court and County Court

Answer 52

Judge sitting alone; Trial by judge sitting with jury. IMPORTANT: see r47.02 and r5.08 of SCR STUDY** and MAKE REFERENCE TO: provisions of Juries Act 2000 (Vic)