LLB 100 Lecture Notes - Lecture 5: Summary Jurisdiction, Conveyancing, Federal Circuit Court Of Australia
Week 5 – The adversarial system
• Two opposing sides who argue their case in a court presided over by a neutral third
party (e.g. a judge)
• Oe side ill i; oe side ill lose
• In a civil case one party proves their case on the balance of probabilities
• In a criminal case the Crown proves the case beyond reasonable doubt
• Decision maker is passive, objective and impartial
• Judge has no control over evidence produced and witnesses called
• The emphasis is on the oral argument of the lawyers for each party
• The truth ill eerge as a result of this proess
• Balancing public v private rights
• Procedural protections important
• Impartial decision makers
• Emphasis and value on presumption of innocence
• High standards of proof
The Hierarchy of the Courts
• Parliament is the principal source of law and courts perform the role of interpreting
the legislation
• Superior courts have a law making role through the development and application of
common law
• Hierarchy allows for a system of appeals from lower courts to the higher ones
• Crucial to the operation of the doctrine of precedent
• Courts lower in the hierarchy are obliged to follow the legal rules laid down by
higher courts in the same appellate structure
Jurisdiction
Each court has a jurisdiction limited by subject matter and the type of penalty it can impose
Either general or limited:
• General – hear all matters subject only to express legislative restriction
• Limited – power to hear only those matters in relation to which to which jurisdiction
it has been conferred by statute or the Constitution (High Court)
Federal and State Jurisdiction
• Australians subject to both Commonwealth and State laws because the Constitution
creates a federal system
• Two distinct hierarchies: Commonwealth and State
• The High Court is at the apex
• Commonwealth courts interpret federal legislation; State courts apply State laws
• All courts apply common law → same throughout Australia
• Commonwealth Parliament can legislate to give state courts power to determine
matters arising under federal laws – s 77(iii) of Constitution
• High Court has determined State jurisdiction cant be determined in federal courts –
Re Walkim; Ex parte McNally (1999) 198 CLR 511
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Original and Appellate Jurisdiction
• Original jurisdiction: is the authority to hear a case when the case is first bought
before a court
• Appellate jurisdiction: the authority of a court to hear appeals from decisions of
courts of a lower level in the same court hierarchy
• The superior courts have power at common law to review the decisions of inferior
courts and tribunals on questions of law only
State court hierarchies – NSW
Inferior Courts
• Local court
• Since 1955 – only lawyers have been appointed as magistrates
• Addressed as Your Hoour
• Exercise summary jurisdiction – determine questions of fact and law without a jury
• Criminal jurisdiction – summary offences – e.g. drugs, traffi, AVOs – maximum
penalties that magistrates can impose are prescribed by statute. Maximum terms of
imprisonment are 2 years
• Conduct committal hearings – establish whether there is a sufficient case for the
matter to go to trial in a higher court
• Civil jurisdiction – up to $100,000, other than claims for personal injury or death
where the limit is $60,000 (Local Court Act 2007 (NSW) s 29)
• Small claims division - $10,000
• No appellate jurisdiction
Intermediate Courts
TAS, ACT, NT have no intermediate court
• District court
• Presided over by a judge, assisted in most criminal cases by a jury
• Judges determine questions of law; juries determine questions of fact
• Judges are responsible for sentencing
• Addressed as our hoour
• Civil jurisdiction – up to $750,000
• Criminal jurisdiction – indictable offences – all but the most serious offences
• Appeals from the local court
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 5 the adversarial system: two opposing sides who argue their case in a court presided over by a neutral third party (e. g. a judge) In a civil case one party proves their case on the balance of probabilities. In a criminal case the crown proves the case beyond reasonable doubt: o(cid:374)e side (cid:449)ill (cid:862)(cid:449)i(cid:374)(cid:863); o(cid:374)e side (cid:449)ill (cid:862)lose(cid:863, decision maker is passive, objective and impartial. Each court has a jurisdiction limited by subject matter and the type of penalty it can impose. Re walkim; ex parte mcnally (1999) 198 clr 511. Judges determine questions of law; juries determine questions of fact. Superior courts: nsw supreme court, may be comprised of divisions, original jurisdiction exercised by a single judge. Equity division: appellate jurisdiction appeals from decisions of a single judge are heard by several judges may be exercised by the full court of the nsw supreme court. Court of criminal appeal hears appeals from district court and single judge.
