Answers
Booklet 1.1
Unit 4
Civil actions are…
The purpose and aim of civil actions
• Civil actions are disputes between two or more
individuals or groups taking a person to court if they
believe that their rights have been infringed.
• The purpose of civil action is to return the person or
party (plaintiff) to their original position before their
rights had been infringed.
• Civil action can be heard before the courts, tribunals
and through alternative dispute resolution methods.
• Civil action can be taken for torts such as defamation,
nuisance and contract law.
• Judicial determination refers to the judges capacity to
make a decision/ruling on the case before him/her.
Describe five differences between civil
law and criminal law
• There is overlap between criminal law and civil law as actions can give rise
to a criminal prosecution as the action was against the criminal law and
harmed society as a whole as well as a civil action instigated by a victim in
order to return them to the position held before the action.
• A person bringing action in criminal is prosecution whereas person
bringing the civil action to court is the plaintiff.
• In a criminal case, the main aim is to protect society whereas in a civil case
the aim is to regulate the conduct between the parties involved and
provide compensation.
• In criminal law the aim is punish the offender through sanctions such as
jail whereas in a civil case the aim is to restore the person to their original
position through remedies such as monetary compensation.
• In a criminal case, the standard of proof is guilty beyond reasonable doubt
whereas in a civil case the standard of proof is on the balance of
probabilities.
Explain what is meant by original
jurisdiction
• Refers to the power that the courts have to
hear cases arising from particular areas of law.
Jurisdiction also refers to the geographical
boundaries of the courts power.
• Original jurisdiction is where a matter has
been taken to the court for the first time and
the court has the power to hear the case for
the first time.
Explain what is meant by appellate
jurisdiction
• The power of the court has to hear a case on
appeal when a party is not happy with the
decision made by the court with the original
jurisdiction.
• People can appeal on:
- Point of law
- Severity of sentence or remedy awarded
- Conviction
Could a one-court system work? Justify
• Due to the demands of court hearings and appeals with a one court
system there would be an immense backlog of cases and many people’s
cases would not be resolved in a timely way.
• It would prevent the doctrine of precedent from operating. The doctrine
of precedent enables judges to follow decisions made by a higher court,
which allows for consistency in the law in that judges are bound to follow
the legal principles established in cases in the same hierarchy with similar
fact situations. It also allows for predictability in the law as judges tend to
follow past decisions so a party can look to previous cases to
predict/determine the outcome of their case.
• Can’t appeal – decision is final. This undermines the idea of ‘fairness’ in
the legal system.
• Positive – less complicated in that people would know where to go to have
their problem resolved.
• Doesn’t allow for specialisation.
The court hierarchy allows for doctrine
of precedent to operate
• The court hierarchy allows for decisions made
in higher courts to be binding on lower courts
in the same hierarchy. The ratio decidendi
(reason for the decision) must be followed by
courts lower in the court hierarchy and this
establishes a precedent that must be followed
in the future. This establishes
consistency………….. And predictability…………in
the law.
The court hierarchy allows people to
appeal a decision made in court
• When someone is dissatisfied with the
decision and has grounds for appeal the court
hierarchy allows for that decision to be taken
to a higher court and tested in another court
of law. This allows for fairness in the legal
system and for the judiciary to correct any
mistakes in their decision.
The court hierarchy provides for
administrative convenience
• Administrative convenience allows for the
more severe cases (indictable offences)
dealing with complex areas of law to be heard
in the higher courts and less serious cases are
heard in the lower courts. This means that
cases are distributed between the court
hierarchy resulting in less delays in decision
making and reduced administrative burden on
the lower courts.
The court hierarchy allows the courts
to specialise
• The court hierarchy allows the courts to
develop their own area of expertise so that
the lower courts are familiar with less serious
cases and the higher courts are familiar with
dealing with serious and complex cases and
questions of law.
Some advantages/disadvantages of
court hierarchy
Advantages of court hierarchy
Disadvantages of court hierarchy
Allows the doctrine of precedent to
operate, which creates consistency and
predictability in the law.
A precedent from a higher court may be
distinguished from a lower court, or a
binding precedent from a higher court
may not be appropriate to the
circumstances before the lower court.
Allows for the operation of appeals to
superior courts.
Could be said that there are too many
appeals and that this causes
administrative burdens on the legal
system.
Administrative convenience – more
serious and complex cases are heard in
the higher courts by more experienced
judges.
This requires more administrative
personnel to run the different courts, at a
cost to the tax-payer.
Magistrates’ Court criminal
jurisdictions
• The Magistrates’ Court has criminal
jurisdiction over:
• Summary offences
• Indictable offences heard summarily
• Committal hearings
• Issuing warrants
• Bail applications
Magistrates’ Court civil jurisdictions
* The Magistrates’ Court can hear all civil
disputes up to $100,000 (if it is less than
10,000 the Magistrates’ Court can order
complaints to arbitration).
Appeals from the Magistrates’ Court –
criminal cases
• Can appeal to the County Court against a CONVICTION or the SEVERITY OF
A SENTENCE.
•
-
The County Court can:
Reduce the sentence
Increase the sentence
Set conviction aside and dismiss the case.
• Can appeal to the Supreme Court on points of law.
•
-
The Supreme Court can:
Overturn the magistrates’ decision because there was an error in the law
State the law on the issue and send it back to the Magistrates’ Court
Discharge the appeal and allow the decision in the Magistrates’ Court to
stand.
Appeals from Magistrates’ Court – civil
cases
• Cannot appeal to the County Court but can
appeal to the Supreme Court on a point of law.
• The Supreme Court judge may decide to:
- Reverse the decision
- State the law on the issue and send the case back
to the Magistrates’ Court to be dealt with
- Discharge the appeal and allow the decision of
Magistrates’ Court to stand.
Specialist divisions of Magistrates’
Court
• The Drug Court.
- The Drug Court is responsible for supervising
the treatment or support to offenders who
have drug problems, and have committed an
offence while under the influence of drugs or
to support a drug habit. The main aim of the
Drug Court is to rehabilitate offenders from
drug or alcohol addiction and break the cycle
of offending.
The Koori Court Division
• The Koori court was established to provide fair,
equitable and culturally relevant and sensitive
justice services to the Aboriginal community. The
court aims to operate with as little formality and
technicality as possible and must ensure that the
proceedings are able to be clearly understood by
the accused, their family and any member of the
Aboriginal community. This is one way in which
the Koori Court provides culturally relevant
justice services.
The Family Violence Division
• Simplify access to the justice system for
people affected by family violence.
• Juris – over matters to do with civil
proceedings, damages for personal injury.
Criminal proceedings for summary offences
and application for crime compensation,
intervention orders.
Neighborhood Justice Centre
• The NJC is a one stop court that offers access
to legal assistance and services such as drug,
alcohol and mental health assistance, legal
aid, mediations and staff to address the needs
of women, youth and Koori people. It has
shared jurisdiction with the Magistrates’
Court, Children’s Court, Family Violence Court,
Koori Court, VCAT, community corrections.
Sexual Offences List
• Provides specialised approach to these kinds
of cases and the recognition of the difficulties
faced by victims in these kinds of cases.
The County Court – criminal
jurisdiction
• Indictable offences such as: rape and serious
assault. It cannot hear murder, child homicide
attempted murder, treason.
The County Court – civil
jurisdiction
• The County Court has unlimited jurisdiction to
hear all civil disputes, irrespective of the
amount claimed. The County Court can also
hear claims against local councils for loss or
injury sustained while using roads, lands
under the control of the council.
Appeals from County Court
• Can hear appeal from Magist Court for appeals against
severity of sentence or conviction.
• If an appeal against conviction is successful it overturns the
original decision made in the lower courts. The case is
dismissed.
• If an appeal against a penalty is successful the penalty may
be reduced.
• Does the County Court have the jurisdiction to hear appeals
in civil matters? No.
• County Court can appeal to the Court of Appeal for criminal
matters on points of law, severity or leniency of a sanction.
• County Court can appeal to the Court of Appeal on a civil
matter for points of law, questions of fact and damages.
Specialist division of County Court
• Koori County Court
The main aim of the Koori County Court is to
ensure greater participation of the Aboriginal
community in the sentencing process. This is
achieved through Indigenous elders and
others such as Koori Court officer providing
Aboriginal and Torres Strait Islander people
with a more culturally relevant justice process.
The Supreme Court
• Deals with the most serious matters. It is
divided into two divisions – Trial Division and
Court of Appeal.
The Supreme Court – criminal
jurisdiction
• The Supreme Court hears the most serious of
cases such as murder, attempted murder,
defensive homicide, child homicide, treason.
The Supreme Court – civil jurisdiction
• The Supreme Court has unlimited civil
jurisdiction and can hear civil cases claiming
any amount.
Appeals from the Supreme Court
The Court of Appeal
• In criminal cases, the Supreme Court can hear appeals
from the Magistrates’ Court on a point of law.
• In civil cases, the Supreme Court can hear appeals from
the Magistrates’ Court on a point of law.
• In civil matters, the Supreme Court (Trial Division) can
appeal to the Supreme Court of appeal on a point of
law, question of fact and damages sought.
• In criminal matters, the Supreme Court (Trial Division)
can appeal to the Supreme Court of Appeal on points
of law, severity of a crime or leniency of a sentence.
Criminal jurisdiction of The Court of
Appeal
• A person who has been found guilty in the
County Court or Supreme Court may appeal to
the Court of Appeal on:
- A point of law
- A conviction
- The severity of the sanction.
Civil jurisdiction of the Court of Appeal
• The Court of Appeal hears appeals in its civil
jurisdiction from the County Court and a
single judge of the Supreme Court. Grounds
for appeal in a civil matter include:
- A point of law
- A question of fact
- The amount of damages
Case transfers
• Courts normally hear cases in their own
jurisdiction. Occasionally, due to the
complexity or seriousness of a case, or to
spread the workload courts cases can be
transferred between the Magistrates’ Court,
County Court and Supreme Court.
Additional notes