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28 Cards in this Set

  • Front
  • Back
Reasons for court hierarchy.

- Specialisation: allows each court to develop the skills, expertise and processes to deal with specific types of disputes.


- Precedent: court hierarchy is necessary for the doctrine of precedent to operate.


- Appeals: provides for a system of review.


- Administrative convenience: proves for the most effective use of court resources and avoids delays.


- Time/money: allows minor cases to be heard relatively quickly and in a less costly manner.

Supreme Court of Victoria - Court of Appeal

Role: highest appeal court in Victorian court hierarchy. Presided over by three to five judges, who are referred to as 'Justice'. No jury present. - Original jurisdiction: none for criminal and civil


- Appellate jurisdiction (criminal): appeals on a point of law, conviction or sanction from a single judge of the County or Supreme courts (trial division), provide that leave to appeal has been given. Heard by 3-5 judges. - Civil: appeals on a point of law, decisions as to facts or amount of damages from a single judge of County, Supreme or VCAT. (3 judges)

Supreme Court - Trial Division
- highest court in the Victorian court hierarchy and deals with the most serious matters. Presided over by a judge, who is referred to as 'Justice'. A jury may be present.

- Original criminal jurisdiction: serious indictable offences such as murder, attempted murder, manslaughter, treason. Heard by a single judge and jury of 12 (usually) when a peal of 'not guilty' is entered.


- original civil jurisdiction: unlimited jurisdiction ie. can hear cases claiming any amount. Heard by a single judge and optional jury of six.

- Appellate criminal jurisdiction: appeals on points of law from the Magistrates' Court and VCAT. Heard by a single judge. No jury. May return case to Magistrates to be reheard to apply la correctly in both areas of law.


- Appellate civil jurisdiction: appeals on points of law from the Magistrates' Court and VCAT. Heard by a single judge. No jury.

County Court

- the middle court of the Victorian court hierarchy. Hears a range of civil and criminal matters and come criminal appeals. Presided over by a judge. A jury may be present.



- Original criminal jurisdiction: indictable (serious) offences such as drug trafficking, sexual offences, serious assault, manslaughter and homicide-related offences, treason or corporate offences. Heard just a single judge and jury of 12 when a plea of 'not guilty' is entered.


- Civil: all civil claims of an unlimited amount. Heard by a single judge and optional jury of 6.

- Appellate criminal jurisdiction: appeals from the Magistrates' Court against conviction and/or sentence and WorkCover matters. Appeals from the Children's Court against sentence. Appeal is heard as a rehearing. Heard by a single judge and no jury.


- Civil: no appellate civil jurisdiction.


Magistrates Court
- lowest court in the Victorian court hierarchy. Hears minor criminal and civil cases. Presided over by a single Magistrate. No jury present.

- Original criminal jurisdiction: summary offences (traffic offences, shoplifiting). Indictable offences heard summarily (theft, assault). Committal hearings (issuing warrants, bail applications).


- Civil: matters where up to $100,000 is claimed, for either personal or property claims (under $10,000 sent to arbitration).

- no appellate jurisdiction


- magistrate will preside over committal hearings to determine if there is enough evidence for a superior court to find an accused guilty of a more substantial crime.


- hears applications for bail & for a variety of warrants & some family law issues for maintenance.

What is the role of VCAT? (Victorian Civil & Administrative Tribunal 1998)

- provide Victorians with low-cost, accessible, efficient and independent tribunal delivering high quality dispute resolution.


- 3 divisions: Civil (civil claims list, domestic building list), Administrative (legal practice list, review and regulation list) & Human Rights (guardianship list, human rights list)


- aim = mutually acceptable agreement


- uses mediation, conciliation, arbitration & judicial determination


- decisions are binding

What is specialisation in relation to the existence of the court hierarchy? ?
- a court hierarchy allows for court workloads to be divided into specific areas of jurisdiction. Courts then develop expertise and become specialist in legal personnel and in legal procedures. A magistrate or judge can develop expert knowledge in the law that relates to the types of cases determined in a particular court. For example, Children's Court judge will become an expert on the law and its relationship to minors.
What is precedent in relation to the existence of the court hierarchy?
- as precedents are established in superior courts, the doctrine is reliant on the existence of the court hierarchy. Lower courts are bound to follow the decisions of higher courts and this provides consistency in the law (an advantage). This would not be possible without court hierarchy.
What is appeals in relation to the existence of the court hierarchy?
- would not be possible without a court hierarchy. Appeals are basic in the concept of justice and allows parties to have a review of decisions by a more superior court with a judge with special knowledge and expertise. The doctrine of precedent would not operate without higher courts hearing appeals from lower court and establishing decisions that must be followed.

What is judicial determination?
- is the legal process for resolving a dispute. This is a formal process that occurs in a court with a judge or magistrate. All criminal disputes must be resolved in this manner. In civil cases the parties may choose from a number of dispute resolution methods as an alternative to court action. When resolving a dispute the judge or magistrate will listen to the evidence, determine the facts and apply the appropriate law. This result will be in favour of one of the parties and is legally binding.
What is mediation?
- a neutral third party (mediator) assists parties to resolve the dispute with a fair and acceptable outcome. That parties identify the disputed issues, develop options and consider alternatives through effective communication. The final agreement is made by the parties themselves but is not legally binding on the parties, unless the sign a written contract.
What is conciliation?
- as an alternative to judicial determination, an impartial third party (conciliator) tries to get the disputing parties to reach an agreement. The conciliator will listen to evidence and the arguments of each party and may suggest a resolution, but ultimately the parties will agree to a solution. This is not legally binding unless conciliation was order by the court or a tribunal.
What is arbitration?
- the arbitrator (third party) will resolve the dispute by listening to the views of both parties and making a decision in favour of one of the parties. Whilst these decisions are legally binding, thee are some avenues for appeal.
What are the strengths of the operation of VCAT?

- less formal method of dispute resolution compared to courts, due to the absence of strict rules of evidence and procedure in tribunals; this may fit parties who find formality intimidating.


- low-cost method as application fees to most VCAT lists for small claims are $37; parties can represent themselves and for not require legal representation.

- faster dispute resolution, as parties avoid the delays associated with going to court. 80% of cases are resolved by VCAT within 9 weeks from date of application, with the average being 5 weeks.


- each list of VCAT operates within its own specialised jurisdiction, resulting in the tribunal personnel developing expertise in resolving disputes in that particular area.

- the decisions of VCAT are binding and legally enforceable on the parties.


- tribunals help relieve the strain on the court system by resolving many civil claims, allowing the courts to hear more complex cases.



What are the weaknesses of the operation of VCAT?

- the cost of tribunal hearings has escalated in recent times as there has been an increase in parties using legal representation.


- dispute resolution has become fragmented, which may add to confusion experienced by parties about where a dispute would best be resolved.



- tribunals have eroded the importance of the courts as more and more disputes are resolved through VCAT.
- avenues for appeal are limited to only those relating to a question of law.
What are the strengths of the operation of courts in dispute resolution?

- courts can adjudicate on a range of disputes and cases, whether criminal or civil, minor or major.


- the doctrine of precedent that applies in courts brings a sense of predictability, certainty and consistency to the way in which disputes are resolved.

- the use of legal representation ensure that both parties are on an equal footing, as they both have expert representatives who understand the legal system as their advocates of the court.


- the strict rules of evidence and procedure that are observed in a courtroom result in both parties being treated equally and fairly.


- there is an opportunity to have your cases decided by a jury of your peers if the case is a major civil dispute, or involving an indictable criminal offence.

- the decision reached by the court system (whether a trial or appeal) is final and is legally enforceable.


- courts have appeal processed which allows for parties who may be dissatisfied with the decision of their case, provided that they can establish grounds for an appeal, to appeal to an higher, more superior court to revise their case. Incorrect or inappropriate decisions may be reversed.

What are the strengths of mediation, conciliation and arbitration?

- less formal and intimidating compared to courts, due to absence of strict rules of evidence and procedure in ADR.


- costs less; parties don't require legal reps and fees are lower than court fees.


- more timely resolution as parties avoid delays associated with going to court.

- parties more likely to be satisfied with decisions and are likely to follow decisions made as it was made by them (except arbitration) and more likely to have a win-win situation.


- confidential - not open to public unlike courts.


- each case is judged on its individual merits; there is no doctrine of precedent operating in ADR

- helps to preserve the relationship between the parties as there is reduced animosity due to the absence of a winner and loser, as there would be with JD. Emphasis is placed on preserving the r'ship between parties, which is why it is an appropriate method of dispute resolution for people who have an ongoing relationship.
What are the weaknesses of mediation, conciliation and arbitration?

- decisions made are not legally binding (except arbitration) so the dispute may need to be resolved by the courts anyway. This increases delays experiences before the final resolution.


- not appropriate when parties are not of equal bargaining strength, or when one party may exert influence over the other party.

- one party may compromise too much in effort to cooperate and try to resolve the dispute, thereby agreeing to a resolution that they are not actually happy with,


- ADR is often a voluntary resolution process - one party may refuse to attend or may withdraw at any time.

- there is not avenue for appeal in ADR, although parties are not generally legally bound by the decision reached.
What are the strengths of judicial determination?

- legally binding and can be enforced by courts.


- judicial officers are experience legal pros with experience and skills in the law, legal process, legal disputes and their resolution.


- formal nature suits some parties & element of fairness as parties to the same case are subject to the same rules of evidence and procedure.


- suitable for all types of disputes (crim/civil)

What are the weaknesses of judicial determination?

- expensive due to fees associated with courts and the need to engage legal representation.


- judicial officers are bound by formality in their trials/hearings and are not able to assist unrepresented parties.


- judicial officers find for either one party or the other, which usually leads to at least one of the parties feeling dissatisfied. They are also limited in the order they can make (by legislation), whereas mediation and conciliation there is more flexibility of the outcome.