Sac 6 (40 marks)

Question 1

What are the four reasons for a court hierarchy

Answer 1

Specialisation
Appeals
Administrative Convenience
Doctrine of Precedent

Question 2

Explain specialisation

Answer 2

• each court in the hierarchy becomes familiar with the types of cases heard in their jurisdiction
• results in legal personnel developing expertise to the type of cases they would hear, which is more efficient
• without the hierarchy, all courts would hear all types of cases without developing expertise

Question 3

Explain appeals

Answer 3

• hierarchy allows a party to appeal to a superior court, providing they establish grounds for appeal
• provides for fairness, unjust decisions are corrected
• without the hierarchy appeals to a higher court wouldn’t exist

Question 4

Explain administrative-convenience

Answer 4

• allows higher courts to hear more serious, lengthy cases
• lower courts hear minor, shorter cases
• helps reduce delays in lower courts, allowing minor cases to be dealt with quickly

Question 5

Explain the doctrine of precedent

Answer 5

• allows decisions go higher courts to be binding on lower courts
• precedents in higher courts create predictability, fairness and consistency like cases heard in same manner
• no hierarchy the D.O.P couldn’t operate as no lower courts

Question 6

State 3 problems with a court hierarchy

Answer 6

Possible confusion relating to the court in which a particular case would be heard

appeals add to the cost of cases for both the individuals involved and the legal system

more administration and court personnel required overall to run the court system

Question 7

State 4 strengths of a court hierarchy

Answer 7

Allows the doctrine of precedent to operate, which creates consistency and predictability

Allows the operation of appeals to superior courts

Administrative convenience - more - serious and complex cases heard in higher courts by more experienced judges

Specialisation - the courts are able to specialise in their particular area of law

Question 8

state 4 weaknesses of a court hierarchy

Answer 8

A precedent from a higher court may be distinguished by a lower court, or a binding precedent from a higher court may not be appropriate to the circumstances before the lower court

It could be said that there are too many appeals

More administrative personnel needed to run the different courts

There are more courts - a single court would be easier for people to find, as all matters would be heard at the same place

Question 9

Magistrate’s original CIVIL jurisdiction

Answer 9

Civil
Up to $100,000 for all civil mattes including personal injury; civil claims less than $100,000 go to Arbitration (one magistrate)

Question 10

Magistrate’s original CRIMINAL jurisdiction

Answer 10

Criminal
Summary offences (minor offences)
Indictable offences heard summarily (more serious offences)
Committal proceedings (pre-trial procedure)
Bail applicants (released on conditions before going to trial)
Issuing warrants (usually for arrest or search) one magistrate

Question 11

Magistrate’s APPELLATE jurisdiction

Answer 11

No appellate jurisdiction

Rehearings can take place in some cases, such as one of the parties not appearing

Question 12

County original CIVIL jurisdiction

Answer 12

Civil

Unlimited in all civil matters (one judge with an optional jury of 6)

Question 13

County original CRIMINAL jurisdiction

Answer 13

Criminal
Indictable offences, except murder, attempted murder, certain conspiracies, operate offences (one judge and a jury off 12 when the plea is ‘not guilty’)

Question 14

County APPELLATE CIVIL jurisdiction

Answer 14

Civil

no appeals, unless under a specific ACT

Question 15

County APPELLATE CRIMINAL jurisdiction

Answer 15

Criminal

From the Magistrate’s Court against conviction or sentence (one judge)

Question 16

Supreme Court (trial division) CIVL original

Answer 16

Civil

Unlimited in all civil matters (one justice with an optional jury of six)

Question 17

Supreme Court (trial division) CRIMINAL original

Answer 17

Criminal

Most serious indictable offences (one justice and a jury of 12 when the plea is ‘not guilty’)

Question 18

Supreme Court (trial division) CIVIL APPELLATE

Answer 18

Civil

On points of law from the Magistrate’s Court and from the Victorian Civil and Administrative Tribunal (one justice)

Question 19

Supreme Court (trial division) CRIMINAL APPELLATE

Answer 19

Criminal

On points of law from the Magistrate’s Court (one justice)

Question 20

Supreme Court (of appeal) original jurisdiction

Answer 20

No original

Question 21

Supreme Court (of appeal) APPELLATE CIVIL

Answer 21

Civil with leave
on points of law
on a question of fact
on an amount of damages

Question 22

Supreme Court (of appeal) APPELLATE CRIMINAL

Answer 22

Criminal with leave
on points of law
conviction
on severity of leniency of sanction

Question 23

VCAT: general ideas

Answer 23

provide cheaper, quicker less formal method of dispute resolution.

4 divisions:
civil divison
human rights division
administrative division
residential tenancies division

eg: tenant and landlord, trader and consumer

Question 24

Reasons of VCAT

Answer 24

accessible and informal: not bound by strict rules of evidence and procedure. can be directed to mediation

timely resolution of disputes: a matter heard in weeks rather than months and duration go hearing is shorter, minimal pre-trial process

expertise: personnel have expertise in dealing with specific laws and related disputes

low cost: usually low cost, although have been increasing, low cost because usually doesn’t require legal representation + small application fee

Question 25

Orders of VCAT

Answer 25

party to pay more money party to do something restrict from doing something

Question 26

Appeals of VCAT

Answer 26

can on appeal ON POINT OF LAW. appeals are heard in the supreme court trial division, unless heard by president or vice president, then appeals are heard in court of appeal

Question 27

Name the four ADR (alternative dispute resolution methods)

Answer 27

Mediation Conciliation Arbitration Judicial Determination

Question 28

Evaluate Mediation

Answer 28

``` a method of dispute resolution for civil disputes using an independent third party to help the disputing parties reach resolution. do not make suggestions, help parties negotiate themselves. mediator doesn't interfere, allows parties to have control of dispute. not binding (unless parties enter terms of agreement) ``` strengths: confidential cheaper/quicker than JD preserves ongoing relationships weaknesses: no appeals possible imbalance of power (unfair outcome) not binding so one party may ignore agreement overall: mediation is an effective way of dispute resolution as it is quicker and cheaper than JD, however lack of party participation may result in an unjust outcome.

Question 29

Evaluate Conciliation

Answer 29

a method of dispute resolution for civil disputes using a third party to help disputing parties reach a resolution. third party: make suggestions, but parties have to reach decision themselves. decision is normally not binding, unless sign a deed of settlement. > then binding differs from mediation: a conciliator takes a more active role in dispute resolution by making suggestions compared to a mediator, and is usually an expert. strengths: confidential> avoid public scrutiny, more likely to be honest. cheaper/quicker than JD preserves relationships weaknesses: non binding, one party may ignore agreement no appeals voluntary> one party may not attend

Question 30

Evaluate Arbitration

Answer 30

method of dispute resolution for civil disputes, where a third party is appointed to listen to both sides of the dispute and make a decision that is binding on the parties. strengths: binding > enforceable confidential > likely to be honest usually cheaper than JD but binding decision weaknesses: parties are told the decision >win/lose more formal/ thus intimidating reluctant to pursue

Question 31

Evaluate Judicial Determination

Answer 31

``` a method of dispute resolution which involves the parties to the case presenting arguments and evidence to a judicial officer, who then makes a binding decision. (NOT an ADR) involves two parties judicial officer makes a resolution binding ``` strengths: binding, enforceable decision can appeal if provide grounds will have an outcome weaknesses: costly not confidential time consuming decision made for the parties

Question 32

similarities/differences between mediation and conciliation

Answer 32

sim: - involve a third party to facilitate discussion - any decision made is not binding unless a deed of settlements is drawn up differences: - mediator cannot make suggestions regarding resolution, conciliator can - independent third party has specialised knowledge in the area in conciliation

Question 33

sim/diff between mediation and arbitration

Answer 33

sim: - independent third party - less reliance on legal representation/cheaper than JD diff: -decisions made by arbitrator is binding unlike mediation -resolution is made by arbitrator, whereas mediation it is made by the parties arb is legally binding

Question 34

sim/diff between mediation and JD

Answer 34

sim: - both involve independent third party - both appropriate for civil law diff: - JD follows strict rules of evidence and procedure, mediation is more relaxed - decision in JD is usually binding

Question 35

sim/diff between conciliation and arbitration

Answer 35

sim: - both involve and independent third party - both third parties can offer suggestions diff: - third party makes final decision in arbitration whereas in conciliation the parties come to an agreement - decision is binding on arbitration however not for conciliation

Question 36

sim/diff between conciliation and JD

Answer 36

sim: - both have independent third party - both suitable for civil cases diff: - jd follows strict rules of evidence and procedure, whereas conciliation doesn't - third party makes the decision in jd, whereas in conciliation the parties come to an agreement

Question 37

sim/diff between arbitration and JD

Answer 37

sim: - both give legally binding evidence - both involve and independent third party diff: - arb will initially give suggestions before giving a legally binding outcome - JD is moer formal, with strict rules of evidence and procedure