lecture 2 (part 1) the australian legal system
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BUSL250
THE AUSTRALIAN LEGAL SYSTEM
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The Role of the Courts
BUSL250 Session 1, 2013 1
The courts are involved in the administration of the
law as well as the resolution of disputes.
The courts have a criminal and civil jurisdiction.
- jurisdiction = power and authority conferred upon a court to hear and determine a matter.
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THE AUSTRALIAN COURT SYSTEM
Original and appellate jurisdiction
Original jurisdiction
- hears and decides dispute for the first time
Appellate jurisdiction
- hears and determines an appeal from court lower in
hierarchy
BUSL250 Session 1, 2013 2
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Hierarchy of the Courts
BUSL250 Session 1, 2013 3 Gibson& Fraser, 2012:49
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THE HIGH COURT
Established under Commonwealth Constitution in 1901
Most important and authoritative court in Australia
One court common to both hierarchies
Ultimate court of appeal in both systems
Covers whole range of Australian law
Leave to appeal must be granted
Binding on all other Australian courts
BUSL250 Session 1, 2013 4
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FEDERAL COURTS Three levels:
Federal Court Full Bench Federal Court single judge Federal magistrate
Deal with almost all matters involving Commonwealth civil law - Magistrate family law, bankruptcy - Single judge competition law, unfair trading, corporations
law, industrial law. Appeals from magistrates in all but family law
- Full court hears only appeals from single federal judge decisions and Federal Magistrates Court on non-family matters
ALSO Federal tribunals -Specialist, less formal bodies dealing with a wide range of
federal law matters (e.g. immigration)
All sit in all Australian capital cities BUSL250 Session 1, 2013 5
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State and Territory Court Hierarchies
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High Court
Supreme Court
Intermediate Courts
Lower Courts
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STATE AND TERRITORY COURTS
Deal with - All civil and criminal matters arising under State and
Territory law
- Matters arising under Commonwealth criminal law are
dealt with in state and territory criminal courts
Equivalent court hierarchies in all states and
territories
BUSL250 Session 1, 2013 7
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NSW SUPREME COURT
Highest court in NSW
There are a number of courts under this name which handle various types of legal disputes including:
- Common law (civil matters over $750,000) - Criminal law (the most serious crimes such as murder)
- Equity
- Probate - Matters commence before a single judge and in criminal cases usually before a judge and jury - Can only deal with matters occurring in NSW (State boundaries)
BUSL250 Session 1, 2013 8
High Court
Supreme Court
Intermediate Courts
Lower Courts
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NSW SUPREME COURTS OF APPEAL
Within Supreme Court are also courts of appeal that hear
appeals from the lower State courts and from decisions of the
single judges within the Supreme Court
The courts of appeal comprise 3-5 judges
The Court of Appeal handles appeals in all matters except
criminal offences
The Court of Criminal Appeal hears appeals in criminal matters
Appeals may be made from these courts of appeal to the High
Court of Australia (with leave)
BUSL250 Session 1, 2013 9
High Court
Supreme Court
Intermediate Courts
Lower Courts
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NSW DISTRICT COURTS
Supervised by a judge (your honour)
Jurisdiction limited to cases within NSW
More serious criminal matters (except murder, treason or piracy)
Hears appeals from local court decisions and various tribunals
Appeals can be made against NSW District Court decisions to
NSW Supreme Court (Court of Appeal) or NSW Supreme
Court (Court of Criminal Appeal) depending on type of case
BUSL250 Session 1, 2013 10
High Court
Supreme Court
Intermediate Courts
Lower Courts
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LOCAL COURTS IN NSW
Supervised by Magistrates (your honour),
possessing original jurisdiction only
Geographic limits
In criminal cases, the court in which all offences are first
mentioned thereafter, procedure depends upon
whether matter is dealt with
- summarily
- on indictment
Limited powers to hear family law matters and criminal
matters involving children
All appeals (civil or criminal) go to District Court
BUSL250 Session 1, 2013 11
High Court
Supreme Court
Intermediate Courts
Lower Courts
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Criminal Procedure
BUSL250 Session 1, 2013 12
Proceedings commence by either:
summons or
arrest
For criminal offences a committal hearing determines whether there is sufficient evidence to proceed to trial
For indictable offences a trial takes place in a District or Supreme court
Elements The Crown (R) in establishing the guilt of a person must establish the following elements of the crime:
A wrongful act (the actus reus); and
A guilty mind which may involve intention (mens rea), foresight,
knowledge or awareness.
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Civil and Criminal Trials
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Civil Criminal
Parties Plaintiff & defendant Crown & defendant
Burden of Proof Plaintiff Crown
Standard of Proof Balance of Probabilities Beyond Reasonable Doubt
Juries Sometimes Indictable offences only
Result Proved / not proved Guilty/ not guilty
Outcome Remedy Punishment
13
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PEOPLE IN THE COURT
The judge:
Appointed to all courts above the inferior courts
Is responsible for adjudicating a trial
Their duties include:
- deciding any questions of law
- if there is a jury, instructing the jury on questions of law, deciding
questions of law and summing up arguments impartially
- ensuring rules of evidence and procedure are followed
- passing sentence in criminal cases or determining appropriate
compensation in civil cases
- hearing appeals
BUSL250 Session 1, 2013 14
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PEOPLE IN THE COURT cont
The Jury
- a group of laypersons who decide questions of
fact
- only available in certain courts
- duty is compulsory
- selected randomly from the electoral roll
- challenges
- usually six in civil trial; usually twelve in criminal trial
- charging the jury process
BUSL250 Session 1, 2013 15
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PEOPLE IN THE COURT cont.
The lawyers
- Barristers
- Solicitors
BUSL250 Session 1, 2013 16
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PROCESS OF BRINGING A CIVIL ACTION
Considerations
Commencing proceedings
Pre-trial
Trial
Evidence
Decision
Appeal
BUSL250 Session 1, 2013 17
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EVIDENCE
used to prove the facts in issue in a court proceeding
necessary to back up claim
must be able to prove a case
can take several forms :
documents, sound/video recordings and witness statements
oral statements (testimony) made at court by witnesses
number of rules of evidence established to ensure fairness in the
trial process and to ensure best evidence is admitted.
BUSL250 Session 1, 2013 18
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Alternative Methods to Courts
BUSL250 Session 1, 2013 19 Gibson & Fraser, 2012:61
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RULES OF PRECEDENT
Decisions of higher courts are usually binding authority on lower
courts in the same hierarchy where cases have similar facts
Decisions of judges on the same level are not binding but may be
followed for consistency
Decisions of lower courts or courts outside the hierarchy are
not binding
Superior appeal courts are not required to follow their own
previous decisions (unless obviously wrong) but try to do so for
consistency
Lower courts are not bound by the obiter dicta of a higher
court but may choose to follow it (persuasive precedent)
BUSL250 Session 1, 2013 20
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How Statute Law is Made
BUSL250 Session 1, 2013 21 Gibson & Fraser, 2012:100
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Coming up next
Introduction to Contract Law
BUSL250 Session 1, 2013 22
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