BUSL250

THE AUSTRALIAN LEGAL SYSTEM

The Role of the Courts
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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.


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

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Hierarchy of the Courts
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Gibson& Fraser, 2012:49
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

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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
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State and Territory Court Hierarchies
6

High
Court
Supreme Court
Intermediate Courts
Lower Courts
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

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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)
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High
Court
Supreme Court
Intermediate Courts
Lower Courts
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)


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High
Court
Supreme
Court
Intermediate Courts
Lower Courts
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
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High
Court
Supreme
Court
Intermediate Courts
Lower Courts
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






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High
Court
Supreme Court
Intermediate Courts
Lower Courts
Criminal Procedure
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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.

Civil and Criminal Trials
0
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
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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



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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

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PEOPLE IN THE COURT cont.

The lawyers

- Barristers



- Solicitors

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PROCESS OF BRINGING A CIVIL ACTION

Considerations
Commencing proceedings
Pre-trial
Trial
Evidence
Decision
Appeal

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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.
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Alternative Methods to Courts
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Gibson & Fraser, 2012:61
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)

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How Statute Law is Made
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Gibson & Fraser, 2012:100
Coming up next
Introduction to Contract Law
BUSL250 Session 1, 2013 22