ONLY NEED TO DO QUESTION 5) A,B & C AND Q6) A NOTES FROM MY TUTOR Q 5, a, I need more information than what you have provided regarding the facts, exactly what was Mrs K doing when she got hurt. You have not given me sufficient detail at present. Further,

TASK2 x1.2019ManualParts1_2Identify_ApplytheLegalFramework-12 x

ONLY NEED TO DO QUESTION 5) A,B & C AND Q6) A NOTES FROM MY TUTOR Q 5, a, I need more information than what you have provided regarding the facts, exactly what was Mrs K doing when she got hurt. You have not given me sufficient detail at present. Further, why did Mrs K commence these proceedings at VCAT & how did the case get to the Supreme Court? Q 5 b, a significant issue in the case was whether the driver of the bus was actually driving the bus at this time. Tell me what were the legal arguments of both the lawyer for Mrs K & also the TAC. Q 5 c, your comments here do not advise me as to your understanding of the decision made by the court. Was the appeal successful or not and what were the reasons? Q 6 a your response has been improved but I need you to actually identify what you see as the purpose of the legislation as determined by Parliament when assessing what Sir Ben Small was doing & whether you think that the intention of parliament was to prosecute people like Sir Ben in these circumstances. I have attached my assignment please add more information, for Q5 Please research the case of “Koutroulis v Transport Accident Commission [2011] VSC 159 (28 April 2011) You will be able to locate this case using Austlii. only read paragraphs 1 – 16 and paragraphs 36 – 41 of the judgement

STUDENT

STUDENT ASSESSMENT TASK- PROJECT TASK

Task Number

2 of 2

Task Name

Assessment Task 2 – Case Study

National unit(s) code

BSBLEG413

National unit(s) title

Identify and apply the legal framework

National qualification code

BSB61115

National qualification title

Advanced Diploma of Conveyancing

RMIT Program code

C6164

RMIT Course code

LAW5745C

Section A – Assessment Information

Duration and/or due date:

Submit electronically via Canvas by 5.30 pm on Friday 29 March 2019.

Task Instructions

Summary and Purpose of Assessment

This assessment is the first of two assessments students need to complete satisfactorily in order to be deemed competent in the course LAW 5745C Identify and apply the legal framework. Please note the task instructions below for completing this task.
This assessment task allows students to demonstrate their knowledge of the Australian legal system and processes in particular:
· Researching sources of Australian Law
· The adversary trial system
· The elements of precedent
· The principles for reading and interpreting legislation
Assessment Instructions to students:

What:
This is an individual Task. For this assessment students are required to answer six questions which relate to the Australian legal system and processes. Please answer all questions using full sentences (not dot points). Please download the assessment task and type your answers to the questions in the space provided.

Where
An explanation of this task will be provided by your teacher to the class in class however students will need to complete this assessment outside of class time. Students should refer to the course materials on Canvas to assist them with this assessment.

How
You will be assessed against the criteria listed in the marking guide in Section B of this task. To achieve a satisfactory result, you will need to address all criteria satisfactorily. If assessed as satisfactory, this assessment will form part of your overall grading for this course.
To be deemed satisfactory, you must demonstrate knowledge of the main features of the Adversary Trial system, the features of and application of the principles of precedent and the principles of reading and interpreting legislation.

Assessment questions below, please answer all questions

Question One
Please comment upon the following statements in relation to the adversary system:
a) When hearing civil cases, all courts and tribunals in Victoria use the adversarial system.
Adversary system in Australian is used in administering justice for both criminal and civil cases. The system has basis in the common law kind of system (English). Civil cases entail the disputes that occur between individuals whereby one sues another for the claim of violation of their rights. Victorian courts use the adversary system since it allows the person hearing about the dispute (member) to ask any questions they feel relevant to the case. It also allows the parties involved to give their own versions over an independent or impartial judge. Evidences and procedures provide useful insights during the passing of judgement. At the end of the case, the jury or judge delivers a ruling. In Victoria, VCAT uses the inquisitorial system inorder to resolve issues between parties with the use of mediation. When these cases are being heard VCAT can exclude the legal representatives, ensuring the parties can have a discussion themselves.
b) Explain the expression Alternative Dispute Resolution (ADR) and briefly compare any two (2) different methods of ADR.
Alternative Dispute Resolution (ADR) is a conflict resolution mechanism that doesn’t involve litigation processes in courts. It offers an alternative process of resolving conflicts. This method empowers the parties involved to resolve disputes. The involved individuals come to a compromise with the involvement of a third neutral person. Some of the ADR mechanisms include: mediation, conciliation, use of collaborative law, and arbitration. Mediation for instance involves a structured kind of negotiation process conducted by a mediator who is a third party. Mediator helps in defining issues and providing options to be used in the resolution process. Arbitration on the other hand entails the use of an arbitrator who is the third party to conduct a formal kind of arbitration of listening to the parties involved and assisting them to come to an agreement. If an agreement can’t be reached, the arbitrator makes a ruling to determine the dispute. Identify the distinction between Alternative Dispute Resolution and Collaborative Law

ADR

Collaborative Law

– It is informal, less complicated and less costly

– It is formal and involves the use of lawyers

– It involves the two disputing parties and a third party who assist in the conflict resolution process.

– Each party engages a lawyer to assist in the dispute resolution process

– it is quick and less complicated

– it takes time and a bit complicated

– Can be used for disputes involving individuals, families, companies, and even

– popular for family and company dispute resolution

Question Two: In relation to precedent:
a) Identify, with reference to an example, the difference between a binding precedent and a persuasive precedent.
Binding Precedent
This occurs when the court decision is made in the similar hierarchy of the courts. The decision must come from courts of higher ranking or same ranking provided that they follow their decisions made previously. For instance a high court ruling must not be in line with their previous rulings unless for cases of good law or in a bid to promote consistency. A case can only be binding if the facts are identical or similar in the case being heard. Ratio decidendi outlines the legal principle and reason for the court’s decision, and this is the part of the decision which is binding on lower courts.
Persuasive Precedent
This kind of precedent happens when judge is not coerced or obliged to follow, however is crucial for passing of judgment compared to the binding precedent. The judge is assisted in making decisions for the case. Foreign and lower courts can be part of the persuasive precedents.
b) When a court lower in a court hierarchy is able to avoid an otherwise binding precedent by finding some difference between the facts of the case it is hearing from the facts of that earlier precedent, so that it can then make a different decision, what is the lower court doing in respect of that earlier judgement?
The lower court is adapting a persuasive kind of precedent and the judge is not obliged to follow the decisions from the earlier judgement.

Question Three
Please answer the following questions in relation to the Acts Interpretation Acts which have been enacted by both Federal and State Parliaments as follows:
·
Acts Interpretation Act 1901 (Cth)

·
Interpretation of Legislation Act 1984 (Vic).

a) Both statutes are stated to have several purposes. Identify what you believe is the most important of these purposes.
The above acts serves the following main purposes:
· They help in shortening the contents of different Acts through the prescription of meaning for terms that are frequently used.
· They provide clear directions that the courts follow in solving particular ambiguities.
· They provide a mandate to the courts to read the Act thus creating a purpose and policy effective in the legislation process.
b) In no more than 50 words, explain the meaning of S 2CA of the Commonwealth Act
S 2CA of the Commonwealth Act means a guideline that assists courts to determine the policy and purpose on the laws that the courts are able to link to the extrinsic materials which include the headings and marginal notes, agreement and treaties, memorandum and parliamentary documentation process
c) What is the Long Title of State legislation?
INTERPRETATION OF LEGISLATION ACT 1984 – LONG TITLE
An Act to make fresh provision with respect to the construction and operation of, and the shortening of the language used in, Acts of Parliament and subordinate instruments, to repeal the Acts Interpretation Act 1958 , to amend the Property Law Act 1958 , the Supreme Court Act 1958 , the Subordinate Legislation Act 1962 , the Constitution Act 1975 , the Penalties and Sentences Act 1981 and certain other Acts and for other purposes.
BE IT ENACTED by the Queen’s Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

Question Four
(a.) What was the ratio decidendi of Case A?

The ratio decidendi of Case A is that is wrong to cross the roads in undesignated areas. People ought to be of sound judgement and make informed decisions when dealing with matters of life.
b.) In regard to both Case B and Case C, explain whether the decision in Case A is a binding or persuasive precedent?
The decision in Case A is persuasive precedent that is the unlikely influenced by the outcome in Case C. The judge thus can make decision without consideration of past judgements.
c). What is the likely outcome in Case C if the judge decides to follow the obiter dictum in case A?
If the judge decides to follow obiter dictum, his or her opinions, observations and remarks will play a role in the determination of the case. The laws and crucial facts about the case may thus be insignificant in this regards. It is however crucial that the judge explores relevant contexts and areas of law before making a decision in line with the obiter dictum. The likely outcome for Case C thus would be a compensation plan for the victim since the train areas of movement were unsafe and pose risks to him. The train ought to be safe in areas of operations and areas with high risks such as the one in this case should be well guarded.

Question Five

(a). Identify who initiated the original proceedings and in doing so, briefly explain facts which led to the proceedings being commenced.
The proceedings of the case were initiated by the appellant who was injured while alighting from a Ventura bus. The Tribunal was formed to look into the appellant case with the Transport Accident Commission under the Transport Accident Act of 1986. The appellant suffered an injury as a result of the accident. The Driver confirmed the incident and claimed that his actions were unintentional.
b).Briefly outline the legal arguments advanced by each of the appellant and the respondent to the appeal
The legal aspects have basis on the Transport Accident Act of 1986. The Tribunal affirmed that the appellant was injured due to the transport accident and was liable to lay claim against the Bus owners under the common laws of damages. In section 93 (1) of the act, an individual who suffers injury as a result of transport accident may bring up the proceedings for the common law damages with regards to the injury sustained. The argument in the case was the classification of the incident as a transport accident.
c. What was the decision made in this case?
The Deputy President presiding the case categorized the circumstances leading to the injury of the appellant as a transport accident as set out in the Transport Accident Act of 1986, s 3(1). The decision was that the appellant had a case to put across and against the respondents who included the Transport Tribunal and the Bus ownership.
d) Explain whether the decision of the case above be binding or persuasive on the Victorian Court of Appeal in a similar case? Explain your answer in detail.
The decision is persuasive with regards to the Victorian court of Appeal. The accident is explained to include the actions of the driver which lead to the accident however were part of the process of driving. This is against the binding precedent of the judiciary that outline the statute words and the legislative intention.

Question Six

Explain fully, giving reasons for your decision, and any additional facts needed if appropriate.

a). Sir Ben Small, a well-known gynaecologist, develops a new theory on child birth and sends a circular to all of his patients explaining the new method. The circular includes a photograph of a nude woman.
Considering the Obscene Works Act, 1975, Sir Ben Small is wrong to display the photo of a nude woman in his circulars. Despite the fact that he was doing something good to his patients, he presents a photograph which can be offensive to others and is unlawful. Such an act disregards the obscene laws outlined in the 1975 Act. He is thus guilty of the offence and thus his work ought to be confiscated and the accused person punished accordingly. He is liable to a fine of $1000 or six months in jail.
b). Allan conducts a library. Under an arrangement with book importers, new books are sent to him on arrival in Melbourne and he returns them if he does not think that they are suitable for his library. A parcel of books is received by Allan but is unopened when detectives raid the library. They open the parcel and find in it a book which contains an obscene passage. Allan did not know the contents of the parcel however; he did know the nature of that particular book.
Allan is right to go through all the materials he source for his library before distributing the same to his readers. If he finds an unsuitable book for instance one with obscene contents, he responsively returns the book to the importers. It is however wrong under Obscene Works Act of 1975 for him to be in possession of such obscene materials and thus is liable for prosecution. Allan should have been more specific to the materials he orders from the importer thus for such a case it is an offence and thus guilty. To serve as a lesson to him and others, he shall be liable to a fine of $1000 or a 6 months imprisonment.

Conditions for assessment

This is an individual assessment task. You must not copy the work of others. (For more information regarding Academic Integrity please refer to RMIT Academic Integrity Guidelines). Please answer all questions.
This is intended as a written assessment. Please make arrangements with your assessor as soon as possible if you are eligible for special allowance or allowable adjustment to this assessment (eg, verbal assessment or additional time).
You are allowed to seek clarification or guidance from your Assessor about this assessment task.
You must submit your work online via the Learning Management System.
Your Assignment should be written clearly and logically with appropriate use of legal terminology. There is no word limit although you should be mindful in keeping your responses concisely written.
You should proof read your Assignment carefully prior to submission to avoid grammatical and spelling errors.
Your Assignment must be typed with a 3 cm left margin and 1.5 spacing.
Please ensure that your name, student ID, course name and code and assignment name are included in a header on your assignment, and that each question in the body of your assignment is numbered
You will have the opportunity to resubmit (one resubmission only) and any satisfactory resubmission will result in a CAG for this assessment.
Please refer to the Course Guide for information regarding re – submissions.
You can appeal the assessment decision according to the RMIT Assessment Policy and Procedures.

Instructions on submitting your project/portfolio/report

To be submitted electronically via Canvas by 5.30 pm on Friday 29 March 2019.

Equipment/resources students must supply:

Equipment/resources to be provided by RMIT or the workplace:

Nil

Section B – Assessment Guide

Below is a checklist for how this assessment task will be judged as satisfactory or not satisfactory.

Key Criteria that must be demonstrated

Criteria for Assessment

Satisfactory

Comment

Able to access and research sources of Australian law

Ability to explain Australia’s adversary trial system

Explain application and outcomes of precedent in the context of legal framework

Analyse and interpret legislation in context of legal framework

Demonstrate knowledge of legal terminology

Assessment Task 2 Case Study [26/02/2019] Author: Andrew Webster

Student Project Assessment task © Content is subject to copyright, RMIT University

Page 1 of 2

Identify and Apply the Legal Framework

Part 1

Conveyancing

Semester 1/

Disclaimer

This subject material is issued by RMIT on the understanding that:
1. RMIT, it’s directors, author(s), or any other persons involved in the preparation of this publication expressly disclaim all and any contractual, tortious, or other form of liability to any person (purchaser of this publication or not) in respect of the publication and any consequences arising from its use, including any omission made, by any person in reliance upon the whole or any part of the contents of this publication
2. RMIT expressly disclaims all and any liability to any person in respect of anything and of the consequences of anything done or omitted to be done by any such person in reliance, whether whole or partial, upon the whole or any part of the contents of this subject material.
3. No person should act on the basis of the material contained in the publication without considering and taking professional advice.
4. No correspondence will be entered into in relation to this publication by the distributors, publisher, editor(s) or author(s) or any other person on their behalf or otherwise.
All details were accurate at the time of printing.
February 2019

Objectives

At the completion of this course you should be able to:

1. Identify the sources of Australian law

2. Understand the differences between Federal, State and Territorial laws

3. Differentiate between civil and criminal proceedings

4. Understand the

adversary system

of trial

5. Understand the elements of precedent

6. Understand the legislative process

Learning Activities

A variety of teaching methods will be used including lectures, class discussion, case studies, problem-solving and audio-visual presentations.

Useful Resources

There is no prescribed text for this course as this Manual contains details of most of the learning materials, however the following websites will provide you with useful information in gaining underpinning knowledge.

Victorian Parliament:

www.parliament.vic.gov.au

Victorian Legislation:

www.legislation.vic.gov.au

Victorian Law Institute:

www.liv.asn.au

Australian Law Foundation:

www.alf
.

Commonwealth Legislation:

www.austlii.gov.au

Victoria Legal Aid:

www.vla.vic.gov.au

Victorian Courts

www.courts.vic.gov.au

Overview of Assessment

To achieve competency in this course students must satisfactorily complete all assessment tasks.

BSBLEG

3A – IDENTIFY AND APPLY THE LEGAL FRAMEWORK

Unit Descriptor

This unit describes the performance outcomes, skills and knowledge required to research legal systems and jurisdictions within Australia.

Elements and Performance Criteria

ELEMENT

PERFORMANCE CRITERIA

1. Identify sources of law

1. Identify the main institutions of government in Australia.
2. Research sources of Australian law.
3. Assess rules for resolving conflicts of laws.

2. Identify and analyse relationships between the Australian federal government and the states and territories

1.1 Identify legislative powers of the Australian federal government and limits on that power.
1.2 Analyse the legislative powers of the states and territories.
1.3 Evaluate the relationship between the legislative powers of the Australian federal government and the states and territories.

3. Differentiate between civil and criminal proceedings

2.1 Identify and examine the differences in law and procedures between civil and criminal proceedings.
2.2 Analyse the findings and determine which court hear particular cases.

4. Examine elements of the adversary system of trial

3.1 Identify main features of the adversary system of trial.
3.2 Evaluate these features and determine how they apply in the context of the legal environment.

5. Examine elements of precedent

4.1 Identify the main features of the principles of precedent
4.2 Analyse how precedent is applied in the context of a legal environment.
4.3 Examine and document the outcomes of precedent

6. Examine legislation

5.1 Examine principles for reading and interpreting legislation
5.2 Apply principles for reading and interpreting legislation in the context of a legal environment.

Part 1

Rules and Laws

The Need For Laws

Characteristics of Effective Laws

The Rule of Law

From a Penal Colony

Federation

Post Federation

The Australian Parliamentary System

Powers of States and Commonwealth

Changes to the Constitution

Native Title

Sources of Australian Law

Statute Law

Common Law

Statute Law

Process for Enacting Legislation

1. Proposal for a Change in Law

2. Consideration of Proposal by Cabinet

3. Drafting of Bill

4. Initiation

5. First Reading

6. Second Reading

7. Committee Stage

8. Third Reading

9. Review by Other House

10. Royal Assent

Delegated Legislation

Government Departments

Statutory Authorities

Local Councils

Executive Councils

Common Law

The Australian Court System

Reasons for a Court hierarchy

Jurisdiction

The Victorian Court Hierarchy

The County Court

The Supreme Court

The Court of Appeal

The Federal Court Hierarchy

The Federal CIRCUIT Court

The Federal Court

The Family Court

The High Court

Tribunals

adversary system

Part 2

Criminal and civil law

Criminal Law

Civil Law

Overlap: Civil And Criminal Law

Criminal Law Procedure

Civil Law Procedure

Alternative dispute resolution

Mediation

Conciliation

Arbitration

Collaborative Law

Ombudsman

Industry complaint resolution schemes

Law making by judges

PRECEDENT

Binding Precedent

Ratio Decidendi

Persuasive Precedent

Distinguishing Precedent

Fact Situation

STATUTORY INTERPRETATION

Legislation

Common Law Approaches

Bibliography

100

Part 1

Rules and Laws

‘What is law?’ This is a question that is an essential starting point to our study of this unit. It is also not as simple as there is no universally accepted definition of the term ‘law.’
Simply stated however, a law can be defined as a rule of conduct reflecting the needs and values of society which must be followed by individuals within that society and which attracts a recognised punishment or penalty in the event that it is not obeyed.
Laws can be also referred to a ‘legal rules’ and are to be distinguished from non-legal rules. Non-legal rules are frequently referred to as customs, manners or morals and are created by groups or communities in society to govern the behaviour of their members. For example, there are school rules, family rules, social rules and sporting rules. If an individual breaks any of these rules, he or she will not be dealt with by the legal system as we know it.

For example, if a student breaks a school rule such as repeatedly answering a mobile phone in class, an appropriate punishment will be enforced by the school. This penalty will not involve a legal sanction. Similarly, if a member of a club breaks a club rule, they may have their membership suspended or cancelled.
In contrast legal rules also referred to as laws that are legally enforceable in the event that they are broken.

For example, if an individual drives his or her car through a red light, they will be dealt with by the legal system and may be punished through the courts, as this type of conduct is identified as breaking a legal rule.
Laws can also be distinguished from rules as they are created by recognised law-making bodies within society. Rules, however, are created by particular bodies, be it schools, clubs, corporations.
In summary, the following points are relevant in determining the difference between rules and laws.
6.1 The source of the rule/law
6.2 The regulator of the rule/law
6.3 The sanctions that apply in the event that the rule/law is broken

The Need For Laws
The law is clearly of utmost importance in our society. Without laws our society would be in chaos.
The law performs the following functions in Australian society:
Protects individuals and society
Provides guidelines for acceptable conduct thus controlling social relations and behaviour among citizens
Establishes the rights and responsibilities of citizens
Provides mechanisms and procedures for the peaceful resolution of disputes
Promotes the orderly and harmonious functioning of society
Protects human rights and freedoms
Promotes education
Preserves the existing legal system
Facilitates social change

Characteristics of Effective Laws
For laws to effectively perform the functions outlined above, they must possess the following characteristics:
Known to the general public
Clear and able to be understood
Acceptable to the community
Stable
Consistent
Able to be enforced
Able to change to reflect the changing morals, values and demands of the community
Effective laws promote social cohesion and respect for the law which is essential for the smooth operation of all aspects of community life.

The Rule of Law
The rule of law is an essential principle within the Australian legal system. It embodies the following three features:
All persons are equal before the law
Pursuant to law this means that each person is regarded as having the same rights and responsibilities as all other members of the community.
The law is supreme
This means there is recognition by all citizens that the law is the highest level of authority in the state legal system. This is premised by members of society acknowledging the existence of basic rights afforded to all citizens and recognition that laws must be followed.
Individuals have basic human rights
According to law individuals have certain ‘civil liberties.’ Freedom of speech and religious worship are two examples of human rights recognised within our legal system.
The rule of law provides the legal framework for civilised society in which we live.

How did Australia’s Legal and Parliamentary System Evolve?

From a Penal Colony

You may recall from history lessons in school that Australia was colonised by England in 1788. Prior to colonisation Australia was inhabited by Aboriginal Australians, however they were not recognised or acknowledged as owners or occupiers of the land by the English. The British government deemed Australia “terra nullius”, meaning “a land that belongs to no one”. The Aboriginals were dispossessed, and no recognition was given to their customary laws.
Australia was basically established as a penal colony and was initially governed without any parliament. The statutes and common laws of England (including equity) were applied to Australia, under what was known as the Doctrine of Reception. The Doctrine of Reception, stated that, if the land belonged to no one, England could then settle the land and apply its own laws. The governor held all legal and administrative powers across the colony being ruled by England. The only laws of England that did not apply were those deemed by the governor as inappropriate.
Throughout the following years colonies were established and greater law making powers were also established. In 1823 the NSW Supreme Court for civil and criminal jurisdictions was established. A type of parliament, the Legislative Council was also formed which had powers to make laws that were consistent with English laws. The members of the Legislative Council were appointed from England.
Between 1828 and 1900 various constitutions, laws and legal processes were established throughout the colonies. Of particular significance the NSW constitution was created, and this gave NSW the power to establish a Parliament with a Legislative Assembly and Legislative Council. It also then allowed NSW to make its own laws provided they were consistent with English law.
In 1855 Victoria’s constitution was enacted which gave the colony of Victoria full representative government.

Federation

Reading:
House of Representatives – The Constitution (www.aph.gov.au) refer Link on Canvas – Week 2 materials

On 1 January 1901 the Commonwealth of Australia Constitution Act (the Commonwealth Constitution) come into force which transformed the six colonies into States of the Commonwealth of Australia. This was known as Federation.
Federation created the Commonwealth of Australia with each state and the Commonwealth having shared and specific powers. The Act was passed by the English Parliament on 9 July 1900. This process meant Australian was self-governing however; through the Colonial Laws Validity Act 1865 (UK) the English Parliament retained the power to pass laws that would affect the states. It is important to note that although the English parliament had the power to do this, they did not actually use this power.
The Commonwealth of Australia Constitution Act also created the High Court of Australia. However, a decision from the High Court or a State Supreme Court could still be appealed to the Privy Council in England.

Post Federation

The adoption of the Statute of Westminster Act 1931 (UK), removed the powers of the British Parliament to make laws for Commonwealth countries unless by request from that country. Further amendments to this Statute were made in 1942 to allow Australia power to make decisions particularly in regard to defence in the World War.
Until 1975, the Australian legal system provided an avenue of appeal from the High Court of Australian to the Privy Council in England. The avenue for appeal has now been removed. Since 1975 the highest court of appeal in the Australian legal system is the High Court.
It is interesting that not until 1986 did Australian gain full independence to make its own laws. The Australia Act 1986 (UK) repealed the rule that Australian state laws were invalid if they were inconsistent with English law. This Act also abolished the Privy Council as the appeal court from State Supreme Courts.

The Australian Parliamentary System

Reading:
House of Representatives The Australian System of Government (www.aph.gov.au) refer Link on Canvas – Week 2 materials
House of Representative The House, Government and Opposition (www.aph.gov.au) refer Link on Canvas – Week 2 materials

The Australian parliamentary system was based on the British system of government, which is called the Westminster system. Both the Commonwealth and the states modelled its parliament and legislation processes on the Westminster system and this is reflected in the Commonwealth of Australia Constitution.

The Westminster system consists of three elements, the Queen, the upper house and the lower house. The Federal parliament and the State parliaments are bi-cameral (two houses) except Queensland which only has one house. The upper house of the Federal parliament is the Senate and the lower house is the House of Representatives. The Queen is represented by the Governor General.
In State parliaments, the upper house is the Legislative Council and the lower house is the Legislative Assembly. The Queen is represented by the Governor.
The figure below outlines the structure of the Australian Federal and State parliaments.

STATE

FEDERAL

PARLIAMENT

Governor

Governor General

QUEEN’S REPRESENTATIVE

Legislative

Council

Senate

UPPER HOUSE

Legislative

Assembly

House of Representatives

LOWER HOUSE

One of the important features of the Westminster system is the doctrine of the separation of powers. Separation of powers refers to the distribution of government powers into three (3) distinct arms or branches, each of which has a separate function. Under the doctrine each arm should be independent of the others to ensure that there are checks and balances on the people who govern us. The executive power exists to formulate and administer policy. Executive power vests in the Queen and is exercisable by the Governor General who will generally act as advised by the Prime Minister. The Prime Minister appoints senior ministers to form cabinet. Each minister heads a major government department for example Defence, Foreign Affairs and Treasury.
The legislative power is power to make or enact laws. This power is exercised by the elected members of both houses of parliament with the approval of the Governor General.
The judicial power is exercised by the various courts which interpret and enforce the law. Members of the legislature or executive must not interfere with the way the judges carry out their duties.
Although there are three (3) distinct functions of government, there is a blurring of these powers. Executive power rests with the Prime Minister and Cabinet who are the elected members of either the House of Representatives or the Senate who are also involved in the making of the law. However, the exercise of judicial power is quite separate from the other powers.
The Australian Constitution establishes a system of representative and responsible government. Every Member of Parliament represents the people within their electorate. If the electorate is dissatisfied with their local member, a new person maybe elected. Each Member of Parliament is responsible to the Parliament in that they must resign if they mislead the parliament.
In summary the key features of parliamentary system in Australia are:
It is sovereign – meaning it is not ruled by others for example British parliament
Bicameral – meaning there are two houses of Parliament being the House of Representatives and the Senate
Our head of state is the Queen making us a constitutional monarchy. The Queen is represented in Australia by the Governor-General
The judicial system is separate and independent from Parliament (separation of powers)
The executive arm of government comprises the Prime Minister and Cabinet Ministers and are answerable to Parliament
The role of the public service is to advise and serve the government in power and is politically impartial

The Legislature
The Executive
The Judiciary
Queen, represented by Governor General
THE CONSTITUTION

Courts
Minister of the Crown (the ministry) from both the Houses of representatives and Senate
Ministers head Departments
Federal governments departments
High Court
Other federal Courts and Tribunals (Family Court, Federal Court
Mann. T:Essential of Business Law (2001 Tertiary Press) p.13
Parliament
Administration

Powers of States and Commonwealth
The Commonwealth Parliament does not have unlimited law-making power.
The nature of the Australian federation is that, at the time of federation, the colonies agreed to give up powers to the new central body. The Constitution sets out the distribution of powers between the States and Commonwealth parliaments by determining what areas of law the Commonwealth Parliament can legislate.
The specific powers in which the Commonwealth Parliament can make laws are listed in section 51 and were given to the Commonwealth Parliament to make laws for the ‘peace, order and good government of Australia’. The powers listed in section 51 are known as the 39 heads of power (refer to appendix 1).
Most of the powers listed in the Constitution are not given exclusively to the Commonwealth.
When we look at these powers under section 51 they can be classified into exclusive or concurrent powers.

Exclusive powers are those powers that only the Commonwealth parliament can exercise or pass laws whereas concurrent powers are where both the Commonwealth and State Parliaments have authority to pass laws- they are shared powers.
The specific powers that are exclusive to the Commonwealth Parliament are:
Sec 90 Customs, excise and bounties
Sec 92 Free-trade between states
Sec 105 Taking over state public debts
Sec 114 Military forces
Sec 115 Currency
Sec 122 Govt. of Federal Territories
These powers were more appropriate for a national Parliament which governs the whole of Australia, rather than a State Parliament.
However, the bulk of the Commonwealth powers under section 51 to make laws are concurrently held with the states. This means that both the Commonwealth and States have the power to legislate in these areas. For example: Bankruptcy, Taxation and Marriage.
However, a problem may arise where both the Commonwealth and States have made laws in the same area which may be inconsistent. The Constitution deals with this.
Where there is any inconsistency between the laws made under the specific powers of the Commonwealth Constitution by the Commonwealth and State, Section 109 of the Constitution provides that the State law, to the extent of the inconsistency, shall be invalid.
Any powers not specifically mentioned in the Constitution remains with the States. These are called residuary powers.
This does not mean that they are exclusive powers of the State, which the Commonwealth cannot legislate on. In fact, the Commonwealth legislates in all sorts of areas in which it has no specific power. For example, crime is not a specific power of the Commonwealth under section 51, but the commonwealth can pass laws dealing with crime through its other powers, crimes on aircraft’s, crimes involving mail, crimes involving the importation of goods.

Changes to the Constitution
The wording of the Constitution can only be changed by referendum under section 128 of the Commonwealth Constitution.
The Constitution can only be changed if:
The proposed amendment is passed by an absolute majority (over 50% of all elected members) of both houses of parliament.
The proposal is put to a referendum of all Australian voters (including voters in the territories) within 2-6 months of the absolute majority vote
The proposal is approved by a double majority, that is:
– more than 50% of all voters; and
– a majority of the six states (NT and ACT are not included)
the Governor General gives royal assent to the amendment

Native Title
Previously in this chapter, reference was made to native title. The significance and importance of native title is key to our legal system in regard to Australia’s legal history.
In 1992 after a lengthy and protracted legal challenged the High Court handed down a decision in Mabo & Ors. V. State of Queensland (1992) 107 ALR1. The High Court decision rejected the concept of terra nullius and recognised Aboriginal claim to land rights, recognising Aboriginals as traditional owners of the land included in this claim.
The High Court concluded that the application of the doctrine of terra nullius was in fact an error and recognised that Aboriginals could make claim to land under native title. It also determined that common law could accommodate native customary title.
The decision did not apply to all Australian land but specifically to vacant Crown land. For a native title claim to be approved the claimants have to prove they are the descendants of the original traditional owners and they hold a deep traditional relationship with the land.
This decision created much discussion in Australia amongst politicians and every day Australians.
The National Native Title Tribunal was established to assist people in regard to native title claims. The Tribunal was set up under the Native Title Act 1993 (Cth) and is a federal government agency.
Part of the Tribunal’s role is to test and mediate claims, maintain the Register of Native Title Claims and Register of Indigenous Land Use Agreements and to negotiate agreements in regard to indigenous land use.

Test Your Knowledge 1:

Read pages 4-11 of the student learning guide. Log on to Canvas –
Identify and Apply the Legal Framework
to record your answers to the following questions:
· Judicial power is exercised by:
1. courts
2. parliaments
3. subordinate authorities
4. government
· Concurrent powers are given to:
a) Commonwealth parliament only
b) State parliaments only
c) Subordinate authorities
d) Commonwealth and state parliaments
· A referendum is a proposal:
a) given to the electorate to elect a minister
b) put to the electorate to change the meaning of the constitution
c) put to the electorate to change the wording of the constitution
d) put to the electorate to abolish the constitution
· The Federal parliament and most State parliaments have bicameral legislatures. This means that:
a) the Upper house has more power than the Lower House.
b) there is only one House of Assembly.
c) most Bills start in the House of Representatives.
d) there are two Houses of Parliament
· Australia’s system of government can be described as a:
a) unitary system
b) republic
c) confederation
d) federal system.
· The founders of the Commonwealth Constitution intended that the Senate be:
a) the people’s house
b) a House of Review
c) the State’s House and a House of Review
d) a House of lords.
· To form government (according to the Westminster system) a party, or coalition of parties, must hold a majority in:
a) the Upper house
b) the Lower House
c) the Upper and Lower Houses combined
d) a majority of states.
· Federal parliament consists of:
a) elected members of the political party or parties with a majority in the House of Representatives and the Queen the Upper house
b) members of the Government and opposition parties in the House of Representatives
c) elected members of both the Senate and the House of representatives and the Queen
d) members of the government in both the Senate and the House of Representatives.
· Section 109 of the Constitution sets out:
a) that the Federal Parliament has the exclusive right to impose customs and excise duties
b) that the Federal Parliament has the right to grant financial assistance to any State on any such terms and conditions as the parliament thinks fit.
c) that where the Commonwealth and State parliaments pass laws on the same matter which are inconsistent with one another then the laws of the State will be invalid to the extent of the inconsistency
d) none of these
· The Commonwealth constitution allows for a division of power between the:
a) State Governments and the Commonwealth Government
b) British Government and the Australian government
c) House of Representatives and the Senate
d) Governor-General and Parliament
.

Sources of Australian Law
The two main sources of law in Australia are summarised in the figure below:

Law made by

judges

Common Law

Law made by parliament

Statute Law

Statute law also known as Acts of parliament, legislation, enacted law and written law, is law made by either the Federal Parliament or a State Parliament.
Statute law also includes rules, regulations, by-laws, ordinances which are made by a delegate of parliament for example local councils, government bodies and statutory authorities.

Common Law

Common law means law created by the courts through the reported decisions of judges.
Common law includes:
a) decisions made by judges where no legislation or law applies.
For example, areas of contract law which deal with broken contracts and negligence which deals with harm or damage caused by lack of reasonable care for others.
In other words, common law was developed by judges who followed their own decisions and those of other judges in similar cases where no guiding law existed before.

b)
judges’ interpretations or discussions about particular laws, statutes and regulations which may be unclear or ambiguous. Once parliament passes a law, the judges can’t go back to parliament to ask what they meant by that particular law that has been passed. Therefore, it is the responsibility of the courts to interpret or work out the meaning and application of that particular law or regulation. It is always open to Parliament, in the event that it disapproves of a particular interpretation of a law made by a judge, to enact further legislation to clarify Parliament’s intention with regard to the particular law in question.

Common law is also referred to as unenacted law, judge-made law, case law and precedent.
Equity is a form of common law or ‘judge-made law’ that was developed to overcome some of the gaps and rigidity in the common law system.

Statute Law

Reading:
House of Representatives- Making Laws
(www.aph.gov.au) refer Link on Canvas – Week 2 materials
House of Representatives – The Constitution (www.aph.gov.au) refer Link on Canvas – Week 2 materials
Refer link below

Statute law is the most dominant source of law in Australia today. However, until the middle of the nineteenth century, there were comparatively few statutes and most of the law was derived from the common law.
Statute law is enacted by either a State or Federal Parliament in accordance with the legislative process. The legislative process is that process by which Parliaments make legislation. The legislative process in the State parliaments is essentially the same as that of the Federal Parliament.

Exercise 1
There are several questions set out below which are to be completed before class next week. Students should access the link on Canvas titled “Making laws” as a starting point but will need to navigate through several links on the parliamentary website to complete all responses to these questions.

a) The Australian Parliamentary system is based on the British system known as the?

b) What is a Bill?

c) Where is legislation initiated?

d) Who made up the Committees of Parliament?

e) What did the committee do?

f) When does the debate of the Bill take place?

g) Who takes over from the speaker on the completion of the second reading?

h) What happens when there is a division in the house?

i) After the Bill has been passed by the Legislative Assembly where is it sent?

j) Who formally signs the Act to make it law?

Process for Enacting Legislation
The typical process of enacting legislation is explained below:

1. Proposal for a Change in Law

The need for a change in law could emanate from various sources. These include but are not limited to the following:
Pressure groups
Cabinet ministers
Political parties
Members of parliament
Government departments
Law reform commissions or committees
Lobbyists
Individuals/citizens
Media
Court decisions
In each of the above cases, the individual or group would endeavour to have a proposal made into law.

2. Consideration of Proposal by Cabinet

The proposed policy must be submitted to cabinet for consideration and approval, before it can be considered by parliament. Cabinet is the body responsible for deciding matters related to government policy and is comprised of the prime minister and ministers at federal level. Its role is to determine the type and content of the legislation to be put before parliament.

3. Drafting of Bill

Once cabinet decides to adopt the proposed policy, the parliamentary counsel (legal professional with expertise in drafting legislation) will write a draft of the proposed legislation, referred to as a Bill. The Bill is then ready for introduction into parliament after cabinet is satisfied with its terms.

4. Initiation

The responsible minister who is wishing to introduce the Bill will advise the Clerk of the House (known as the house of origin) that he or she intends to introduce the Bill. The clerk then ensures that notice is given for the presentation of the Bill on a subsequent day in parliament.

5. First Reading

The Bill is introduced into parliament (usually the lower) in a procedure known as the first reading. During this stage, the Bill’s title is read out and copies of the Bill are distributed among members of the House. There is no debate on the Bill at this stage. However, a date for the second reading of the Bill is determined.

6. Second Reading

The purpose of the Bill is explained by the government minister responsible for introducing the Bill. General debate on the Bill and its merits and failings occurs during this stage and involves members of parliament form all elected political parties within that house.

7. Committee Stage

During this stage the Bill is debated in close detail, clause by clause. A more comprehensive examination of each aspect of the proposed law change is undertaken. Consequently, amendments to the Bill may be recommended and a vote on the suggested amendments taken. This stage is concerned with ensuring that necessary alterations to the Bill are made so that approval of the majority of the members of the House will be obtained.

8. Third Reading

The third reading may involve further debate of the Bill. The House then votes upon the proposal.

9. Review by Other House

If the Bill passes the house of origin, the Bill will then be transmitted to the other House, where it must go through the above processes again. If the other House amends the Bill, the amendments must be referred back to the House from which the Bill originated for approval of those amendments.
Bills can be introduced by both Houses (unless they are money Bills) in which case they can only originate in the lower house. Indeed, the majority of Bills are introduced into the Lower House of Parliament first (the House of Representatives at Federal level and the Legislative Assembly at State level) because the Lower House is that which seats the government and majority of ministers.
In Federal parliament, if a Bill is not approved by the other House, a double dissolution may occur. This means that the Governor General may dissolve both Houses of parliament simultaneously and an election may be called.

10. Royal Assent

Once the Bill has been passed by both houses of parliament, it will be referred to the Queen’s representative for royal assent. The Governor General at Federal level and the governors for each of the State parliaments will sign the Bill on the Queen’s behalf signifying approval of the law by the monarch. Once royal assent is received the Bill becomes an act of Parliament. The date of commencement of the operation of the new act will be announced in the Commonwealth of Australia Gazette or Victorian Government Gazette.

The diagram below summarises the process by which Parliament initiates legislation.

HOUSE OF REVIEW
· Initiation
· First Reading
· Second Reading
· Committee Stage
· Third Reading

Proposal for change in law

Draft Bill proposed

Consideration of proposal by cabinet

Royal Assent

Act of Parliament

HOUSE OF ORIGIN
· Initiation
· First Reading
· Second Reading
· Committee Stage
· Third Reading

Delegated Legislation
The Federal and State Parliaments delegate their law – making powers to certain bodies to make laws, as they do not have the time or expertise to pass all laws essential for the good governance of the country.

For example, Parliament may delegate the power to regulate local services such as water supply in a particular city.
The bodies to whom this authority is delegated are known as subordinate authorities. These bodies include the following:
Government departments
Statutory authorities
Local councils
Executive councils

Government Departments

Governments departments legislate in their particular areas of expertise.
Examples of government departments include the following:
Department of Defence (national security)
Department of Education, Employment and Workplace Relations (DEEWR) (education and workplace training, transition to work and conditions and values in the workplace)
Department of Foreign Affairs and Trade (DFAT) (international relations and trade)
Department of Human Services (DHS) (social and health-related services)
Department of Immigration and Citizenship (DIAC) (migration, citizenship and multicultural affairs)
Department of Veterans’ Affairs (DVA) (policy and programs re Australia’s obligations to war veterans and their families)

Statutory Authorities

Statutory authorities are given the power to legislate by an act of parliament (State and/or Federal).
Examples of statutory bodies include the following:
VicRoads in Victoria (road and traffic safety)
WorkSafe Victoria (workplace health and safety)
Australian Competition and Consumer Commission (consumer affairs)
Australian Securities and Investments Commission (company law)
Australian Taxation Office (collection of taxes)
Reserve Bank of Australia (monetary policy)

Local Councils

Local councils have the power to make laws relating to their local area. Local councils are constituted by representatives elected by the people entitled to vote in their municipality. Areas in which local councils make laws include animal keeping and animal noise, building regulations, parking permits and collection of rubbish.

Executive Councils

The key role of Executive Councils is to grant approval of regulations made by government departments and statutory authorities. The Executive Council (also called the Governor in Council) at state level is comprised of the Governor and relevant ministers. At federal level the Executive Council (also referred to as the Governor-General in Council) is constituted of the Governor General and relevant ministers.
The above bodies are subordinate to Parliament meaning any laws they make may be scrutinised and ultimately overridden by parliament, if necessay. As such, legislation made by the above bodies is also known as subordinate legislation.
The authority to legislate is given to subordinate bodies under an enabling Act or parent Act which ordinarily establishes guidelines for the exercise of power by the subordinate or delegated authorities.

Laws made by subordinate authorities are referred to as regulations, by-laws, orders and/or rules.
As the elected body of the people, parliament retains ultimate control over the legislative law – making process. It may overrule or disallow legislation as easily as it grants the authority to legislate. It will withdraw this authority if the subordinate body has exceeded the power conferred to it by the parliament or has improperly exercised the authority granted. The subordinate body will have acted ‘ultra vires’ and the law made will be unenforceable. Committees have also been established at both federal and State level to review subordinate legislation and ensure that legislation passed accords with specific powers granted.

Common Law
The common law developed in England over centuries. It has its origins as far back as the Norman Conquest of England in 1066. At the time when William the Conqueror conquered England, the laws of the local areas were based on customs and known only to those within communities called shires. The laws lacked uniformity and a centralised legal system of organisation.
Over time, however, the kings’ justices (judges) were sent on circuit throughout the country and settled disputes. In effect, they were able to bring together the disparate laws of the different regions and make uniform decisions for the land. The common law courts administered justice throughout England at this time.
Common law, that is the decisions of judges in legal cases as opposed to statute law was the primary source of law in Australia until the late nineteenth century. Decisions of the courts were recorded in law reports serving as precedents in subsequent cases.
As previously explained a key function of the courts is to interpret and apply existing law to cases that come before them. Where a novel case comes before a court and there is no relevant statutory or common law principle, the court will establish a precedent. Similarly, where the law is vague or uncertain the courts will establish a precedent. This law made by the courts will be binding and have to be followed by courts lower in the same court hierarchy. It is the legal principle established by a case that is binding and not the decision itself. The legal principle can be located in the ‘ratio decidendi’, meaning the reason for the decision. The doctrine of precedent will be examined later in more detail.
The term common law may also refer to the law of equity which is a distinct branch of judge made law. This system of law evolved in the Courts of Chancery in England and applied justice and fairness. It developed to overcome the inadequacies and inflexibilities of the common law system. As such, it operated independently of the common law courts and had its own rules and remedies. For example, remedies available under the law of equity included specific performance (a court order that a party does what was agreed or contracted) and an injunction (a court order restraining someone from doing something or ordering them to do it). These remedies could be awarded at the court’s discretion where damages were an inadequate form of relief under the common law.
The common law system and the law of equity were originally separate law systems. Each applied its own rules and principles developed by judges to civil law disputes. Today this system of law is fused and no longer do the two systems operate independently. In the event of a dispute between the common law and equity, the law of equity prevails.

COMMON LAW

(judge-made law)

STATUTE LAW

(legislation)

Common Law

Equity

(justice and fairness)

The Australian Court System
One of the key roles of the courts is to resolve legal disputes. In Australia in both Federal and State and territory jurisdictions, the courts are organised in a hierarchy – a ranking order. This means that there are different levels of courts, each which hear and determine particular cases. The courts lower in a particular hierarchy hear and determine less serious cases and those higher in the hierarchy deal with more serious or complicated cases.

The Australian Court Hierarchy

Full Court of the Federal Court

Federal Circuit Court

MAGISTRATES’ COURT

includes Children’s Court

Coroner’s Court

INFERIOR

COURTS

SUPERIOR

COURTS

INTERMEDIATE

COURTS

COUNTY COURT

SUPREME COURT

COURT OF APPEAL

VICTORIAN STATE

COURT

HIERARCHY

FEDERAL

COURT

HIERARCHY

HIGH COURT

OF AUSTRALIA

Full Court of the Family Court

Federal Court

Family Court

Reasons for a Court hierarchy

The court hierarchy is important for the following reasons:
Specialisation
Expertise
Time and money
Precedent
Appeals

Specialisation

A court hierarchy provides for the workload of courts to be divided. Different courts within the Australian court system have a specific jurisdiction and hear particular disputes. For example, courts higher in the court hierarchy hear more serious cases. Those lower in the hierarchy determine less serious cases. Specialisation fosters efficiency and promotes equality as like cases are decided similarly.

Expertise

The court hierarchy also provides for the more serious, complicated and technical cases to be heard and determined by experienced judges who possess expertise in the matters that come before them. For example, as murder cases are always heard in the Supreme Court, judges in this court will have developed specialist skills and be able to understand the legal technicalities and complexities associated with those cases. As such, courts develop expertise in resolving the particular cases within their jurisdiction.

Time and Money

A court hierarchy enables less serious cases to be settled speedily and inexpensively. The likelihood of delays in hearing a matter is reduced and the expertise available is allocated to the appropriate court. The ‘clogging up’ of superior courts in hearing minor matters is avoided.

Precedent

A court hierarchy is an essential part of the doctrine of precedent (law making through courts), as courts lower in the court hierarchy and bound to follow decisions of the more superior courts. Without the ranking of courts, the doctrine of precedent would not operate.

Appeals

The court hierarchy enables a party to appeal their decision and have their matter heard a second time by a higher ranked court. It would not be possible for an aggrieved party to question a court’s decision if a hierarchy of courts did not exist. The system of precedent is dependent on appeals from courts lower in the hierarchy. Precedents would not be established if there was no opportunity to appeal against a determination of a lower court.

Jurisdiction
Each court has its own jurisdiction. The term ‘jurisdiction’ refers to the extent of the power of the various courts to hear cases. Most courts have jurisdiction to hear either criminal or civil matters. As previously explained, criminal matters involve offences against society and involve the State and the accused person. Civil cases involve disputes between individuals where one sues another claiming their rights have been violated.
Some courts only have original jurisdiction. This means they can only hear cases for the first time, and do not hear cases on appeal. An appeal means a party can take a matter to a higher court to reconsider the decision of a lower court. More superior courts in the hierarchy have appellate jurisdiction. This means they have the authority to hear cases on appeal.
State courts hear cases concerning state law, while the jurisdiction of Federal courts relates to cases involving federal law, as determined by the Commonwealth Constitution.

Jurisdiction

The extent of authority a court has to hear and determine particular disputes

Original jurisdiction

The extent of authority a court has to hear and determine a matter for the first time

Appellate jurisdiction

The extent of authority a court has to hear and determine a matter for the second time on appeal

Criminal jurisdiction

The extent of authority a court has to hear and determine a case brought by the state accusing the defendant of the commission of a crime

Civil jurisdiction

The extent of authority a court has to hear and determine noncriminal legal matters

The Victorian Court Hierarchy
The Victorian Court hierarchy comprises of three levels of courts, extending from the Magistrates’ Court (the lowest court in the state hierarchy) to the Court of Appeal (the highest court in the state hierarchy). Appeals can be made from the Victorian Court of Appeal to the High Court. As such, the High Court can be considered part of the Victorian court hierarchy.

The Magistrates’ Court

MAGISTRATES’ COURT

Including the following divisions:

COUNTY COURT

SUPREME COURT

COURT OF APPEAL

CORONER’S COURT

INFRINGEMENT

COURT

DRUG

COURT

CHILDREN’S COURT

KOORI

COURT

The Magistrates’ Court is the lowest court (inferior court) in the state court hierarchy. It has original jurisdiction only and can hear minor criminal and civil matters. It has no appellate jurisdiction as it is located at the bottom of the court hierarchy.
A jury is never present in the Magistrates’ court.

Criminal Jurisdiction

In its criminal jurisdiction the Magistrates’ Court hears summary offences. These are minor criminal offences and include traffic offences, serving liquor to minors, minor assaults and vandalism. The Magistrates’ Court also has jurisdiction to hear and determine some indictable offences summarily. An example is theft of less than $100,000. This means that the defendant could choose to have his or her case heard in the magistrates’ Court instead of the matter being heard in the County or Supreme Courts before a judge. As previously explained there are reasons an individual may choose this option. These reasons include the lower costs, the less severe penalties and the speedier resolution of the matter.
The Magistrates’ Court in its criminal jurisdiction also conducts committal proceedings for more serious indictable offences that must be finally determined in the County or Supreme Courts. A committal proceeding is a hearing to determine whether there is sufficient evidence against the defendant to both warrant a trial and support a conviction in a higher court. (Note, a discussion has commenced at government level which will investigate whether committals might be abolished).

Civil Jurisdiction

In its civil jurisdiction, the Magistrates’ Court hears minor civil disputes involving claims of up to $100,000. Civil cases involving claims of less than $10,000 are referred to arbitration. Arbitration involves a third party listening to both parties to a dispute and making a decision in a more informal setting than a court room.

Specialist Magistrates Courts

The Children’s Court and the Coroners’ Court are two specialist branches of the Magistrates’ Court.

The Children’s Court

The Children’s Court hears criminal offences with the exception of murder against minors (those under the age of 18). This court also has jurisdiction to hear welfare matters involving minors.

The Coroner’s Court

The Coroner’s Court investigates unexpected deaths, those deaths that cannot be explained and those of an unnatural or violent nature. The role of the coroner is to determine the cause of death. The coroner also investigates unexplained fires that involve death, serious injury or significant damage to property and make recommendations.
There are several other specialist Magistrates’ courts which deal with specific matters. These courts are the Drug Court, the Koori Court and the Infringement Court.

The Drug Court

The Drug Court which is located in Dandenong, deals with those offenders who have a drug or alcohol related problem. It aims to commit such offenders who have pleaded guilty to a crime which is punishable by imprisonment and which was committed whilst the offender was under the influence of drugs or to support a drug habit to supervised rehabilitation programs. The aim of these programs is to assist in the treatment of the offender. The court may choose to suspend a sentence imposed on the defendant to enable appropriate treatment of the offender. The court may impose particular conditions upon the offender. Those offenders who are unable to overcome their drug or alcohol dependency and breach the conditions imposed by the court may ultimately be required to appear before the traditional courts for sentencing.

The Koori Court

Established in 2004, the Koori Court of Victoria hears criminal cases against those of Koori descent aged between 10-17 years. Persons involved in the court process are of Koori descent and include a Koori Elder who may inform the court on aboriginal cultural issues. A justice worker of aboriginal background may also assist the Magistrate with case management. Hearings are conducted informally in an attempt to encourage participation by the aboriginal people in the court process. A Magistrate sits in this court and has the same sentencing options as those available in the Magistrates’ Court

The Infringement Court

As the name suggests the function of the Infringements Court is to handle the processing and enforcement of infringement notices and penalties. Examples include parking and other ‘on the spot’ fines. Infringement Registrars sit in these courts and make decisions on matters before them. Determinations are made without a hearing being conducted.

The County Court

The County Court is the intermediate court in the state court hierarchy being positioned above the Magistrates Court. It has both criminal and civil jurisdiction and can hear criminal appeals from the Magistrates’ Court.

Criminal Jurisdiction

The County Court hears the majority of serious indictable offences including rape, culpable driving, drug trafficking and serious assaults. These offences are ordered to trial in the County Court by a magistrate upon the conclusion of a committal hearing and the finding of sufficient weight to support a conviction as referred to earlier.

Civil Jurisdiction

In its civil jurisdiction, the County Court in Victoria hears disputes for non-personal injury and personal injury claims of an unlimited amount.

Appellate Jurisdiction

The County Court can hear appeals in relation to criminal matters from the Magistrates’ Court against a summary conviction or sentence. This Court cannot hear civil appeals, unless stipulated under a specific act.
In criminal cases a jury of 12 is compulsory when the accused pleads ‘not guilty.’ In civil cases a jury of 6 is optional.

The Supreme Court

The Supreme Court is at the peak of the Victorian state hierarchy. As such, it is referred to as a superior court.

Criminal Jurisdiction

In its criminal jurisdiction the Supreme Court hears the most serious indictable offences. These are cases involving treason, murder, attempted murder, certain conspiracies and corporate offences.

Civil Jurisdiction

In its original jurisdiction, when hearing civil matters, the Supreme Court hears claims for an unlimited amount of damages.

Appellate Jurisdiction

The Supreme Court can hear civil and criminal appeals on points of law from the Magistrates’ Court.
In criminal matters a jury of 12 will hear and determine the outcome when the plea is ‘not guilty.’ In civil cases a jury of 6 is optional.

The Court of Appeal

The Court of Appeal hears criminal appeals from the County or Supreme Courts on a point of law, conviction or severity or leniency of a sentence. It also hears civil appeals from the County or Supreme Court on a point of law, question of fact, or amount of damages awarded.
The Court of Appeal has no original jurisdiction.
Three justices preside over civil cases in the Court of Appeal and 3-5 justices in criminal matters.

The Federal Court Hierarchy
At the apex of the Federal court hierarchy is the High Court of Australia. Apart from this court there are three other Federal courts. These are the Federal Court, the Family Court and the Federal Magistrates Court.

FEDERAL CIRCUIT COURT

HIGH COURT OF AUSTRALIA

FAMILY

COURT

FEDERAL

COURT

The Federal CIRCUIT Court

Previously known as the Federal Magistrates’ Court, the Federal Circuit Court was established by the Federal Court of Australia Act 1999 (Cth), this court was created to provide a simple, speedier, cheaper and more informal alternative to the Federal and Family Courts. It was also intended that this court alleviate the superior Federal courts of their heavy workload.
The Federal Circuit court has jurisdiction to hear less complex cases which are within the jurisdiction of the Federal Court and Family Court. These cases include straightforward divorce applications, matters involving child contact arrangements and the division of family assets upon the dissolution of marriage. It also hears and determines applications for bankruptcy and cases involving unlawful discrimination, consumer protection law, migration and copyright.
The Federal Circuit Court has no appellate jurisdiction. A single magistrate hears and determines matters in this court.

The Federal Court

The Federal Court of Australia was established by the passage of the Federal Court of Australia Act 1976 (Cth).

Original Jurisdiction

In its original jurisdiction the Federal Court hears disputes relating to Commonwealth law. Such disputes include bankruptcy matters and matters dealing with income tax, intellectual property, consumer protection and workplace relations.
One justice presides over the original jurisdiction of this court. There is no jury.

Appellate Jurisdiction

The Full Court of the Federal Court hears appeals from the decisions of single justices of the Federal Court. The court can also hear appeals on Federal matters from the State Supreme Courts and Territories and from the Administrative Appeals Tribunal.
Three justices sit in the appellate jurisdiction of this court.

The Family Court

The Family Court of Australia was created in 1976 with the passing of the Family Law Act 1975 (Cth).

Original Jurisdiction

The Family Court has original jurisdiction to hear family matters including divorce, residence of children, maintenance for spouse and children and property disputes.
One justice presides in this court.

Appellate Jurisdiction

The Full Court of the Family Court also has jurisdiction to hear appeals from its original jurisdiction.
** Students should note that there is a plan to merge the operations of the Family Court with the Federal Circuit Court, but no firm date has been fixed as yet for this to occur.

The High Court

The Commonwealth of Australia Constitution Act 1900 (The Constitution), established the High Court of Australia at the time of federation.

Original Jurisdiction

The High Court has an extensive original jurisdiction. It hears constitutional matters involving either disputes between the states, disputes between the Commonwealth and the states as well as matters dealing with treaties where the Commonwealth Parliament is a party.
A key role of this court is to hear cases involving interpretation of the Constitution. In constitutional matters, a Full Bench, that is seven Justices listen to and reach a determination on the issue at hand.

Appellate Jurisdiction

The High Court is the ultimate court of appeal in Australia.
In its appellate jurisdiction the High Court can hear cases from its original jurisdiction and from all State, Territory and Federal courts.
When hearing appeals from its original jurisdiction one judge sits in this court. Appeals from the Courts of Appeal are heard by three to five Justices.

Part V—Powers of the Parliament

51 Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(i) trade and commerce with other countries, and among the States;
(ii) taxation; but so as not to discriminate between States or parts of States;
(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;
(iv) borrowing money on the public credit of the Commonwealth;
(v) postal, telegraphic, telephonic, and other like services;
(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
(vii) lighthouses, lightships, beacons and buoys;
(viii) astronomical and meteorological observations;
(ix) quarantine;
(x) fisheries in Australian waters beyond territorial limits;
(xi) census and statistics;
(xii) currency, coinage, and legal tender;
(xiii) banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;
(xiv) insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;
(xv) weights and measures;
(xvi) Bills of exchange and promissory notes;
(xvii) bankruptcy and insolvency;
(xviii) copyrights, patents of inventions and designs, and trade marks;
(xix) naturalization and aliens;
(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;
(xxi) marriage;
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;
(xxiii) invalid and oldage pensions;
(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances;
(xxiv) the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;
(xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;
(xxvi) the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;
(xxvii) immigration and emigration;
(xxviii) the influx of criminals;
(xxix) external affairs;
(xxx) the relations of the Commonwealth with the islands of the Pacific;
(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;
(xxxii) the control of railways with respect to transport for the naval and military purposes of the Commonwealth;
(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State;
(xxxiv) railway construction and extension in any State with the consent of that State;
(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;
(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides;
(xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law;
(xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;
(xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

Tribunals
In addition to the courts, tribunals play an important role in resolving civil disputes. Tribunals are specialised bodies which are established under legislation and are able to hear specific types of matters.
Tribunals are able to determine how they deal with matters within their jurisdiction. A number of tribunals prohibit parties from being represented by lawyers who might otherwise be able to advocate on behalf of those parties who are involved in a dispute or claim.
Tribunals tend to operate under the inquisitorial system as opposed to the adversary system which allows the person who is hearing the dispute, normally referred to as a “member”, to directly ask whatever questions he or she might feel is relevant or appropriate to help determine the claim.
However, the tribunal system relies heavily upon mediation as a means of resolving many of its disputes. Mediation is one of a number of forms of “alternative dispute resolution” – also known as “ADR”. The major types of ADR methods will be discussed later in this manual.
Both Commonwealth and State governments have created a number of tribunals to assist the civil courts in resolving the ever increasing volume of claims and disputes.
Examples of Commonwealth (or Federal) tribunals include:
1. Administrative Appeals Tribunal – known as the “AAT”
2. Australian Competition Tribunal
3. Fair Work Australia
In Victoria, the Victorian Civil and Administrative Tribunal (known as “VCAT”), contains a number of different divisions namely Administrative, Civil, Human Rights and Residential Tenancies divisions. Each of these Divisions include a number of lists or types of matters which can be heard within that division. The various lists have been established in a similar manner to their Commonwealth counterparts. Examples of Tribunal lists which are included within VCAT are as follows:
1. Domestic Building Works
2. Residential Tenancies
3. Guardianship and Administration
4. Planning and Environment
5. Civil Claims
6. Owners Corporations
7. Equal Opportunity
8. Racial and Religious Vilification
In addition, another tribunal has been established in Victoria, the Victims of Crime Assistance Tribunal – known as “VOCAT”, which determines application for compensation made to it by victims of crime.

adversary system
The adversary system is the method used to administer justice in Australia in both civil and criminal cases. This system is based on the English common law system. It provides for two opposing parties to argue their versions of the dispute before an independent and impartial third party. The judge rules on disputed points of procedure and evidence and may ask questions to clarify the evidence of a witness, but otherwise does not take an active part. At the conclusion of a trial or hearing, the judge or the jury delivers a decision. The truth is expected to emerge from the arguments presented by the parties.

Exercise 3
To gain a better understanding of the Adversary system watch the DVD Adversary System and answer the following questions:
1. What is the adversary system?
2. Which countries use the adversary system of trial?
3. How did this system of trial develop?
4. What are the key features of the adversary system?
5. What is party control? Give examples of the types of decisions a party must make.
6. In a civil matter, which party brings the case before a court?
7. What is the role of the judge in the adversary system?
8. Some forms of evidence are _____________while other forms are ______________.
9. In Doug’s case, what evidence is deemed admissible by the judge?
10. Give examples of evidence which are inadmissible.
11. The person who holds the burden of proof in civil disputes is known as the _________________ and in criminal disputes is the __________________.
12. What is the standard of proof required in a criminal case?
13. What is the standard of proof in a civil dispute?
14. Why is there a need for legal representation?
15. What countries use the inquisitorial system of trial?

LAW5745C [BSBLEG413A]
Identify and Apply the Legal Framework

Part 2

Advanced Diploma of Conveyancing

Part 2

Criminal and civil law

Criminal Law

Definition

Criminal Law involves offences against society, and can be committed against a person, property, morality or the legal system. Examples of crimes (criminal offences) include murder, rape (offences against the person); theft, burglary, robbery (offences against property); incest, bigamy, pornography (offences against morality); and treason, perjury (offences against the legal system).
To prove a crime has been committed, two elements must exist. These elements are the actus reus (the guilty act) and the mens rea (the guilty mind). At common law, the accused person must have committed a criminal act and had a guilty mind, at the time of the act’s commission, before she or he can be convicted.

Legislation

Both the Commonwealth and the States have enacted criminal laws, which are based on the English common law.

State

Commonwealth

Crimes Act 1958 (Vic)
Criminal Procedure Act 2009 (Vic)
Drugs, Poisons and Controlled Substance Act 1981 (Vic)
Road Safety Act 1958 (Vic)
Sentencing Act 1991 (Vic)
Summary Offences Act 1966 (Vic)

Crimes Act 1915 (Cth)

Victorian state laws are the laws which directly affect most citizens on a daily basis.

Classification of Crimes

In Victoria, criminal offences are classified by legislation into the following:
6.4 summary offences
6.5 indictable offences
6.6 indictable offences triable summarily
Summary offences are less serious crimes that are heard before a magistrate in a Magistrates’ Court. There is no jury present in the hearing of such matters. Such a matter may also be heard in the absence of the defendant. Examples of summary offences include road traffic offences, offensive behaviour, damage to property and minor assaults.
Indictable offences are serious criminal offences where an accused person is entitled to have their trial heard in the presence of a judge and jury. They are heard in either the County or Supreme Courts. Such offences are brought to trial only after a Magistrate conducting a committal proceeding in the Magistrates Court, is satisfied that sufficient evidence exists to warrant a conviction against the accused at a full trial. Examples of indictable offences include murder, treason, manslaughter, rape, kidnapping, culpable driving, and blackmail.
Indictable offences that fall within section 28 and Schedule 2 Criminal Procedures Act [footnoteRef:1] may also be heard and determined summarily, that is, by a magistrate in the Magistrates’ Court, provided that the defendant consents and the court agrees. The advantages of this process for an accused person are that a conviction is likely to result in a less severe penalty, and the case will be disposed of more quickly and cheaply. [1: Criminal Procedures Act 2009 (Vic)
]

For example, where a defendant is charged with the indictable offence of ‘without lawful excuse recklessly causes serious injury’ the maximum period if heard on indictment is level 4 imprisonment (15 years). As the offence is listed in Schedule 2 it is capable of being dealt with summarily. In this event, the maximum penalty that the defendant may receive is 2 years.
In Victoria a court hierarchy exists where criminal cases are heard in particular courts according to the seriousness of the alleged offence.

Magistrates Court

Summary offences and indictable offences triable summarily.

County Court

Indictable offences but of a less serious nature.

Supreme Court

Indictable offences. This is the only court which can conduct trials for murder and treason.

Parties to the case

The parties, that is, the persons who are involved in legal proceedings in an indictable criminal case are the State or Crown (ie. the party representing the Government), and the alleged criminal or defendant who is accused of the crime.
The lawyer or barrister arguing the Crown’s case is called the prosecutor. The Director of Public Prosecutions (DPP) is responsible for prosecuting (instituting and conducting) alleged indictable offences under Victorian law in the Supreme and County Courts.
The police prosecutor represents the Crown when prosecuting the alleged offender in the Magistrates’ Court, ie in summary proceedings.

Burden of proof

A fundamental principle of our legal system is that an accused person is considered innocent until proven guilty. Whether the offence is summary or indictable the onus (burden) of proving that a crime has been committed rests with the prosecution.

Standard of proof

The standard of proof required in a criminal case is ‘beyond all reasonable doubt’. Simply stated the prosecutor must try to persuade or prove to the jury beyond reasonable doubt that the defendant is guilty. If there is any reasonable doubt as to the guilt or otherwise of the accused a decision of ‘not guilty’ must be returned and the accused acquitted.

Jury

As mentioned before, a person who is charged with an indictable offence is entitled to have their case tried ‘before a jury of their peers’ that is, members of the community. It is the jury who determines whether the facts of the case as presented by the prosecution at the trial have proved beyond all reasonable doubt that the accused has committed the offence with which they have been charged.

Verdict

The jury must reach a unanimous verdict in cases involving murder and treason. In all other cases, a majority verdict of 11 out of 12 is acceptable after 6 hours of deliberation. If either a unanimous decision or majority verdict cannot be reached, then a hung jury is declared. This entitles the accused to go free. The accused will be brought to trial again at a later date as determined by the Director of Public Prosecutions.
The role of the judge, apart from instructing the jury throughout the conduct of the trial, is to impose an appropriate sanction upon the accused if he or she has been convicted.
Where the case is a summary hearing, there is no jury, and accordingly, the role of the Magistrate is to determine the guilt or innocence of the accused person as well as to then impose the appropriate sanction.

Aim

As a crime is an action which is viewed as something that is harmful to society, the aim of criminal law is therefore to protect members of society from being harmed. In doing so, this will also achieve preservation of public law and order. As a result, a criminal justice system has been created in our society which includes a number of courts. The function of these courts includes the power to punish or sanction those who commit crimes against society, that is, against any member of the community. These sanctions can take many and varied forms.

Types of criminal sanctions

The primary aim of the criminal law is punishment of the offender for commission of a crime against society. The punishment varies according to the crime committed. For example, a fine may be imposed for a minor offence such as a parking infringement and a term of imprisonment for the commission of a serious indictable offence such as murder.
The various options that are available to a judge or magistrate are set out in the Sentencing Act. They include:
1. Imprisonment. Statutory provisions prescribe the maximum term of imprisonment that may be imposed in relation to a particular offence.
2. A hospital security order. This involves the offender being detained in an approved mental health service. Such an order would only be appropriate in the case of an offender suffering from a psychiatric illness.
3. A drug treatment order where the use of drugs has been an important element in the offender’s criminal conduct. Such an order can only be imposed by the Drug Court Division of the Magistrates’ Court.
4. A community correction order. This involves the offender being released on conditions prescribed by the court. The conditions that can be imposed include performing unpaid community work, attending an education program or undergoing treatment.
5. In the case of a young offender (someone who at the time of sentence is under 21) an order that he or she be detained in a youth training centre or youth residential centre.
6. An order that the offender pay a fine.
7. An order for the release of the offender on the adjournment of the hearing on conditions. The court may adjourn the final determination of the matter for up to five years. It may impose conditions on the offender such as that he or she be of good behaviour in the meantime. If the offender observes the conditions the charge is usually dismissed at the end of the adjournment period and no conviction recorded.
8. An order for the discharge of the offender. A conviction is recorded but no penalty is imposed.
a. An order for the dismissal of the charge for the offence. Although the court is satisfied that the charge has been proved it imposes no penalty and does not record a conviction.
A court may sometimes combine two or more types of sentence. In some cases the court may impose a penalty but without recording a conviction. An offender may be ordered to make restitution or compensation to the victim.
In determining the appropriate sanction the judge or magistrate should take into account a number of considerations. These include deterrence of any would-be offenders and those offenders who may otherwise contemplate committing the same or a similar crime in the future; denunciation, that is disapproval of the offenders action by imposing a sentence demonstrating the courts disapproval; rehabilitation and reform of the offender; and importantly the protection of the community

Effect on offender

Offenders who are convicted of a crime will have particulars of their charges and convictions included in their criminal record which is maintained in Victoria by the Department of Justice. These persons may suffer other legal consequences such as disqualification from jury service, loss of right to vote in a federal election and refusal of entry in a profession if their conviction means they are not deemed to be a person of good character.
As well as legal ramifications, conviction for a crime ordinarily carries a social stigma. Consequences may include loss of friends and social esteem.

Civil Law

Definition

Civil law is concerned with disputes between two parties. The parties to a dispute may be private individuals, companies or governments. The dispute ordinarily involves one party taking action against another because their rights have been infringed by the other party and physical, monetary and/or psychological loss or damage has been suffered.

Common Areas of Civil Law[footnoteRef:2]
[2: Law Institute Victoria What Law is all about? http://www.careers.liv.asn.au/content.asp?contentid=16 7 September 2010
]
Common areas of the civil law are outlined in the table below.

Administrative law*

Related to appropriateness of decisions made by government regarding planning, social security and many other matters

Banking and finance

Transactional (financial activities within banks and financial institutions) and non-transactional (advisory work regarding banking and finance regulations)

Commercial law

Applies to the rights, relations and conduct of individuals and businesses involved in commercial trade or transactions

Constitutional law

Related to the interpretation of laws and rights contained in the Commonwealth and state constitutions.

Construction law

Regulation of construction and engineering activity in terms of contractual negotiations and management of disputes.

Contract law

Regulation of the roles, relationships and obligations of parties engaging in the negotiation of a legal agreement.

Corporation law

Governing the law of corporations whether as a business, virtual or artificial person.

Employment law

[see labour law]

Energy and resources law

Regulating the environmental impact of development, in line with national and international environmental law.

Family law

Regulation of human relationships and dealings (including marriage, divorce, adoption).

Film and entertainment law

Dealing with the commercial issues attached to production, finance and distribution of film/television.

Human rights law

A system of laws, both domestic and international which is intended to promote human rights. Includes a number of treaties which are intended to punish some violations of human rights such as war crimes, crimes against humanity and genocide.

Insolvency litigation

Regulation of bankruptcy and debt recovery issues.

Intellectual property law

Related to patents, trademarks and copyright for intellectual property.

International law

Governing negotiations, disputes and treaties between countries

Labour law

Regulation of industrial and workplace relations.

Law of succession

[see wills and estates]

Law of torts

Responds to cases of conflict between people and/or legal entities and governs compensation for wrongful acts (negligence, nuisance, defamation, trespass).

Native title

Concerns the legal rights and interests of Aboriginals and Torres Strait Islanders. Involves traditional native laws and customs related to land and waters, as recognised by Australian law.

Personal injury law

Related to workplace health and safety – also transport and public liability claims.

Property law

Administers property purchases and sales, also leasing mortgages.

Sports law

Regulations to the structure and management of sports entities and participants.

Taxation law*

Regulation of the tax obligations for individuals and businesses.

Wills and estates

Concerns the distribution of property following death (execution of wills, estate planning, etc.)

* Public Law. Criminal law is also included under this classification.

Common Law

Unlike the majority of crimes in Victoria which are set out in legislation, the relevant laws governing civil matters are based primarily on the common law as determined by judges in previous cases.

Parties to the case

The parties in a civil action are the plaintiff and the defendant. The plaintiff feels wronged and sues, that is, instigates legal proceedings against the defendant seeking a civil remedy. The plaintiff and defendant in a civil matter together are referred to as the litigants. The process is known as litigation.

Burden of proof

As with the criminal law, the burden of proof in civil matters rests with the party instituting legal action. In civil cases this is the plaintiff who must prove that he or she has been wronged by the defendant.

Standard of proof

The standard of proof in a civil case is ‘on the balance of probabilities’. This means that to win the case the plaintiff’s version of the facts must be more likely to be true than not. Simply stated there must be a greater than 50% chance or probability that the defendant wronged the plaintiff. This is a less stringent standard than that which must be proved in a criminal case.

Jury

A jury is optional in civil cases heard in the Supreme and County Courts. This means that either party is free to choose to have a jury hear and determine their case. A civil jury in the Supreme Court and County Courts ordinarily comprises of six jurors. There may however, be up to eight jurors empanelled in lengthy civil cases.

Verdict

When present in civil cases, the role of the jury is to reach a finding either in favour of the plaintiff or defendant. A civil jury must also determine the amount of damages to be awarded when a decision in favour of the plaintiff has been made. A majority decision of five to one will be accepted if a unanimous decision cannot be reached.
In the absence of a jury, the judge will grant a remedy to the successful party and order the unsuccessful party to pay the other party’s legal costs. This is known as a judgement.

Aim

The civil law aims to regulate relations between parties and protect the rights of individuals. Importantly, the civil law provides an injured party with an opportunity to issue legal proceedings to seek an appropriate remedy with the aim of restoring the wronged party to his or her original position before the wrong was comitted.

Civil Remedies

Monetary compensation or damages is the most common remedy sought in civil cases. It is the payment of money to a wronged party for loss, injury or suffering. Other remedies available to an aggrieved party in civil matters include an order for specific performance and an injunction. An order for specific performance is a court order that directs a party to do that which he or she agreed to do under a contract. An injunction is a court order which generally prohibits certain action by another person.

Effects on Defendant

In contrast to the criminal law, there is generally no stigma attached to being a defendant in a civil case. If an action is resolved in the plaintiff’s favour a final judgment is entered, which is usually a monetary award. If the defendant fails to pay, the court has various options for enforcing judgment.

Overlap: Civil And Criminal Law

Sometimes an incident can result in both a civil and criminal action. For example, car accidents may lead to criminal charges for dangerous or drink driving, with the aim of punishing the offender as well as civil actions commenced to obtain compensation for personal injuries sustained and/or damage to the vehicle sustained in that same incident.
Read the case study below and answer the following questions:

Exercise 4
Read the following case study and answer the following questions:

BOGGABILLA BUS BEDLAM

Bernie Brown was a bus driver for the BoggaBilla Bus Co. Pty Ltd (BoggaBilla Bus Co). He had driven for this company for many years and on the day in question, he was working an afternoon /evening shift. He was a very experienced driver, one of the best employed by BoggaBilla.
However, on this particular day he did two things which he should not have done:
1. Before going on duty he had a number of alcoholic drinks (bus drivers are required to have 0 level alcohol reading) – it was his birthday and he had been out for lunch with family and friends since he was working later on that day.
2. Victorian Transport regulations lay down that the maximum number of passengers to be carried as 35. Bernie allowed 40 passengers on his bus that evening. It had started raining and he felt sorry for some passengers who might have been left stranded if he hadn’t allowed them on.
Thomas Green was a passenger on the bus. Thomas was sitting on the bus making last minute amendments to a presentation on his laptop computer for an important business meeting the next morning. If the meeting was successful, it could mean a million dollar contract for Thomas.
The roads were wet and slippery. Bernie Brown did not see a car which was being driven by Flo Adams until just before impact when the car and bus collided. This led to a number of unfortunate and significant consequences.
Firstly, it fractured the radiator of the bus, making it undriveable. The cost to repair the bus was $30,000.00.
The cost of repairs to Flo Adams’ car was in excess of $15,000.00. The injuries which Flo sustained were significant, she was hospitalised for over two (2) weeks and had a number of operations for her badly broken hip and ankle. She was forced to go into rehab for another 6 weeks before coming home. Flo faces ongoing treatment especially intensive physiotherapy and was off work for 4 months. As a result of the accident she will have an ongoing impairment of more than 30 per cent. Her lawyers have told her that her claim will exceed $100,000.00.
When the bus and car collided, the laptop computer that Thomas Green was working on fell to the floor and was rendered completely inoperable. Thomas was unable to demonstrate his new software development at the meeting the next morning. As a result, the deal which Thomas was intending to clinch fell through, and he lost the opportunity to finalise his million dollar contract.
Several other (unhurt) passengers complained bitterly because the bus should have connected with the last train home and now they would have to find alternative transport. The rain didn’t help either!!!

This case study gives rise to a number of different types of disputes. See how many different types of disputes – civil and criminal you can find. For each dispute which you have identified answer the following questions:
1. Is this dispute a civil or criminal dispute?
2. What is the nature of the dispute?
3. What are the names of the parties to each dispute?

4. Identify the party who has the burden of proof in each dispute?

5. Identify the standard of proof in each dispute?
6. Identify the jurisdiction of the court most likely to hear each dispute?

Criminal Law Procedure

The steps that must be undertaken in the prosecution of an indictable offence as opposed to a summary offence are significantly greater, due to the more serious consequences that flow for the accused person should he or she be convicted of the offence with which they have been charged.
It should also be remembered that there is provision in our legal system for the detention of persons who have been charged with certain indictable offences such as murder to be held in custody at the Remand Centre in Melbourne, from the time when they are charged until the criminal trial takes place.
This can occur in circumstances such as where the accused is considered to be likely to commit further offences or where he or she may interfere with witnesses before the trial is to take place.
In most situations however, a person who has been charged but has not yet had their case dealt with by the courts is released from custody either with or without bail, which may be forfeited in the event of non appearance on the day of the hearing or trial.
The Criminal Procedure Act[footnoteRef:3] has been enacted to streamline the procedures for bringing both summary and indictable cases to hearing. The main purpose of this Act is to ensure that throughout the time between when a person is charged with an offence or number of offences, there is an appropriate level of disclosure to the other parties involved in these proceedings at the earliest possible stage in the proceedings. [3: Criminal Procedure Act 2009 (Vic)
]

In the past the legal profession has been criticised for;
1. not being properly prepared for cases when the final hearing takes place, or
2. alternatively ambushing the other party by surprise documents or disclosures at the hearing.
Frequently this has led to delays or adjournments of cases, meaning a waste of court time and money or in more serious cases, an adverse decision against a party involved in the proceedings
For this reason, case conferences, filing hearings and mention hearings are convened by the relevant court to ensure that there is full and appropriate disclosure of all material information and documentation (except those subject to professional privilege) at the appropriate time.
It is important therefore to consider in this context the differences in procedure between indictable and summary cases.

Procedure for dealing with summary offences/indictable offences triable summarily

The process for dealing with summary offences and indictable offences triable summarily are detailed in the following flowchart.
SUMMARY OFFENCES FLOWCHART[footnoteRef:4] [4: The College of Law, Victorian Practice Papers Vol 2 (Lexis Nexis Butterworths, 2009) p965
]

Once the accused has been served with the charge sheet or charge sheet and summons, it is shortly followed by the service of a ‘preliminary brief’ by the prosecution giving details of the case against the accused, unless it is served at the same time as the charge sheet.
The preliminary brief is usually prepared in a standard form. Section 37 Criminal Procedure Act[footnoteRef:5] sets out what is required in the preliminary brief and will usually include: [5: Criminal Procedure Act 2009 (Vic) s37]

A summary of the prosecution case setting out the facts on which the informant relies
1. List of witnesses
2. Signed or unsigned statements
3. List of exhibits
4. Where relevant, any certificates produced in relation to status of driver’s licences or vehicle registration
5. Where relevant, any certificate to the testing of drugs, firearms etc
6. Printout listing any prior convictions
7. Copies of restitution compensation or forfeiture orders.[footnoteRef:6] [6: The College of Law, Victorian Practice Papers Vol 2 (Lexis Nexis Butterworths, 2009) p 954
]

The court mention date is the first step in the court process when the accused will advise the court of either a guilty or not guilty plea. This is possible because the accused will have been served with all necessary information about the alleged offences in the preliminary brief.
A plea of guilty will lead to the early disposal of the case, possibly on the mention date otherwise at a date in the near future. It will also most likely lead to a lighter sentence being imposed.
An adjournment might occur if the accused is seeking to provide the court with additional material that will be of assistance to the court at the time of sentence. This could include medical reports, letters from employers, character evidence. Details of prior convictions are also made available to the court at the time of sentencing.
In the event of a not guilty plea, the case will be adjourned from the mention hearing to a later court hearing date, but not to a final hearing. Rather, the case, in summary offences, goes to a summary case conference, not unlike the process that is used at a committal mention in an indictable offence. If the issues between the prosecution and the accused are not resolved at the summary case conference, then the case will proceed to a summary hearing.
The same enquiries are made of the parties and/or their representatives as will be seen in indictable offences concerning the number of witnesses to be called at the final hearing together with an informed estimate of the time that each might take to give their evidence. Of special interest to the court is any information as to whether there might be a change in plea by the accused.
When all enquiries have been resolved to the satisfaction of the court, the case is allocated a hearing date. At the hearing, the accused person will either be found guilty or not guilty by the presiding Magistrate. There are no juries in a summary hearing and most cases are dealt in less than one day.

There are fewer steps involved in the summary hearing procedure than in indictable matters and even with a guilty plea, some cases can be disposed of in a matter of months, not years, as is the case with many indictable offence cases.

Procedure for dealing with Indictable Offences

Preliminary Steps

The procedure for prosecuting an indictable offence is by definition, a more formal process with the criminal trial being held in either the County or Supreme Court depending upon the nature of the charges. However, every indictable offence is first dealt with in the Magistrates Court through the committal process.
The importance of the committal hearing should never be underestimated in terms of its role in criminal procedure. The committal hearing takes place in a Magistrates’ Court where the accused has the opportunity to test the prosecution case to the point of cross examination of the prosecution witnesses.

However, it will only be held once the required and now enhanced preliminary procedures have been concluded to the satisfaction of the court. There is an obligation on the prosecution to ensure complete disclosure and exchange of information with the representatives of the accused.

Filing Hearing

The filing hearing is conducted to set dates for the service upon the accused of the ‘hand up brief’ by the prosecution. The hand up brief contains in effect the entire case which is being prosecuted against the accused. It will include all witness statements, medical reports and assessments together with the results of any profiling, including DNA, and blood tests and any other material to be used in evidence. This is to be served before the committal mention hearing to enable the lawyers for the accused to review all evidence against their client before this next hearing takes place.

At the filing hearing the court will fix a date for the committal mention hearing.

Committal Mention Hearing

At this hearing, the Magistrate wishes to hear from the legal representatives about the progress of the case. It is expected the hand up brief will be served by the prosecution. As an example, it might question the representatives about the commencement or progress of negotiations over any changes to the number of charges to be tried or a possible plea of guilty to some or even all of the charges.
Occasionally the hand up brief is not complete, and the Committal mention may need to be adjourned. The Committal mention could also be adjourned as the accused may have not engaged legal representation or commenced negotiations as to the appropriate charges.
The court also has the power to order the parties to attend a Committal Case Conference, where for instance it feels that there is scope for some progress in relation to the negotiation of the charges. The Magistrate plays an active role in the discussions.
If a matter is resolved a hand up brief committal is conducted where the accused pleads guilty and is committed to the County Court or Supreme Court for a plea hearing.
If the matters cannot be resolved the defence is required to file a Form 32 which will detail the witnesses the defence seeks to cross examine in the Committal hearing and the reasons why. The defence also can request copies of documents referenced in the ‘hand up brief’ which have not been provided.

Contested Committal Hearing

If the matter cannot be resolved at the Committal Mention stage a contested committal hearing is fixed and witnesses may be cross examined by the accused’s legal representatives.
Committal proceedings are generally not overly lengthy proceedings – although they could run for weeks in complicated cases involving cross examination of a number of witnesses.

The actual finding that a Magistrate, at the conclusion of a committal, is required to make is “whether the evidence before the court is of sufficient weight to support a conviction”.
The contested committal proceeding is a vital stage as it enables both the prosecution and the representatives for the accused to test how strong the evidence supporting their case might be. The additional bonus for the accused is that if a Magistrate feels there is “insufficient weight” in the prosecution evidence presented to the court to support a conviction, the case against the accused will be dismissed.

Note: that there are now suggestions that the committal process may eventually be removed from the Criminal procedure process.
However, if the case is ordered to proceed to trial, this will be heard in either the County Court or the Supreme Court depending upon the severity of the offences which are alleged to have been committed.
There are again many rules and directions from the court which are in place to ensure that when the case reaches trial. The procedures are slightly different in each court & every possible avenue for negotiation or plea bargain will be explored during this time.
Further, all documentation and evidence to be led as evidence at the final hearing by one party is to be served on the other party and will not come as a surprise at the hearing.
In addition, the prosecution must serve the representatives for the accused with a document known as an ‘Indictment’, previously known as a presentment. This document sets out details of each charge alleged against the accused. The charges in the indictment may be different to the original charges filed by the police.
The Supreme Court for instance, will conduct a Post Committal Directions Hearing within a matter of a few days of a person having been committed to stand trial in the Magistrates Court. The Judicial Registrar will conduct this hearing and make orders that several preliminary steps take place before a Directions Hearing within 13 weeks of this hearing before a Judge. There is also a final Directions Hearing to be conducted to make sure that all orders have been complied with, which occurs approximately 6 weeks before the trial date.
As part of this final check – up, the court will want information from the parties about such issues as how many witnesses are to be called, how long the presentation of their case might take and whether there has been or is likely to be further negotiations or discussions between the parties about the conduct of the trial or the charges to be proceeded with against the accused.
Throughout this process, the court will encourage discussions between the parties in the event that a plea bargain might be arranged to prevent a trial of the alleged offences taking place.

Exercise 5
This is a continuation of the Case Study on page 52 of the manual. Please read the additional facts and then answer the following questions:

TERRIBLE DAY FOR BERNIE

Anne Jones was one of the last passengers that squeezed onto the bus that wet evening. As there were no seats left she stood in the centre aisle of the bus hanging on to a seat. When the bus hit Flo’s car, Anne was thrown from the bus and tragically died at the scene of the accident.
The police had attended the accident and Bernie was given a preliminary breath test. The preliminary breath test indicated that Bernie had alcohol in his bloodstream as his blood alcohol content was in excess of 0.00. Bernie then accompanied the police to the police station where he undertook a further breath analysis. Bernie’s alcohol reading (BAC), was recorded at 0.02. The police have charged Bernie with exceeding 0.0 alcohol limit and dangerous driving causing death.

· Following these charges being laid against him, Bernie was granted ‘bail’ until his case was heard in Court. Briefly explain what is Bail and what is a surety?

· What is the name of the document which Bernie will receive at the commencement of this prosecution?
· What does the expression indictable offence mean?
· Bernie must first appear on a mention date at the local Magistrates court?
What is the purpose of a mention date in criminal proceedings?
· The Magistrates court conduct one further hearing at which time some of the evidence is tested. Identify the name of these proceedings and what are the two (2) possible outcomes of these proceedings – hint- – the answer is not “guilty” or “not guilty”.
· Bernie did a bit of law once – he has heard of the expression,” indictable offences triable summarily” Tell Bernie what it means and if it likely to be possible in the case against him?
· As one of these charges is an indictable offence, it will not be prosecuted by the informant who commenced these proceedings against Bernie with the assistance of the Police Prosecutor on the day of the hearing but instead by a Government Office. What is the name of this office?

Civil Law Procedure

Procedures in civil proceedings in the Supreme and County courts are similar and summarised generally below.

County Court and Supreme Court

Pleadings

The pleadings are a series of documents which include details of the claims made by the respective parties. The purpose of the pleadings is to provide the court and other parties to the proceedings with a written record of the case and to clarify the issues in dispute.

Step 1 – Writ

In Victoria proceedings are commenced with a writ which is accompanied by a statement of claim. The writ outlines the action to be taken against the defendant and commands the defendant to appear before the Court to answer the plaintiff’s claim. The statement of claim provides details of the plaintiff’s claim and the relief or remedy that he or she is seeking from the defendant.
The writ is filed at the court and together with the statement of claim is served on the defendant.

Step 2 – Notice of Appearance

If the defendant intends to defend the case he or she will file an appearance. If no appearance is filed within a specified time, the plaintiff may seek judgment in default.

Step 3 – Statement of Defence

The defendant is required to file a defence which is a response to the statement of claim. It contains an admission or denial for the claims made by the plaintiff. If no defence is filed, again within a specified time, the plaintiff may seek judgement in default.

Step 4 – Counterclaim

A counterclaim may be served upon the plaintiff if the defendant intends to lodge a claim against the plaintiff arising out of the same set of facts. A counterclaim is a cross claim by the defendant in the form of an independent action but pleaded in an existing action to save time and money.

Step 5 – Reply

The plaintiff may reply to the counterclaim if he or she has any arguments in response to the defendant’s counterclaim.

Step 6 – Directions Hearing

The court will require the parties to the dispute to attend a Directions hearing following the completion of pleadings at which the court makes orders as to how the case is to be “managed” from that point in time – the pre – trial stage – until the final court hearing. The court may well fix a date for the final hearing of the case as early as this Directions hearing. This includes how the “interlocutory” steps of discovery & interrogatories are to take place in the case, if in fact they are necessary at all.
Leave or permission from the court in the form of a court order is required for these steps to be undertaken in each individual court action. Slightly different procedures apply in each court, but this is not relevant for the purposes of this course. These days, the Court is now much more involved in the management of each of these processes.
The purpose of the Directions Hearing is to reduce the duration of the final trial once it begins and reach a timely decision. This is achieved by the court deciding upon points of law, the admissibility of evidence and encouraging parties to make admissions before the trial begins.

Discovery

This pre-trial stage in civil cases enables both parties to obtain additional information about the other party’s evidence prior to trial. It is this exchange of evidence and statements, that serve to eliminate surprises, clarify the issues in dispute and encourage settlement. The discovery phase indicates discovery of documents and interrogatories.

Step 7 – Notice of Discovery

Either party may request the other to view all relevant documents that will be used in the proceedings and to obtain copies of those documents to assist with their preparation for the trial. Documentary evidence in our “electronic age” is a very widely defined expression.

Step 8 – Interrogatories

Each party may serve interrogatories on the other party. Interrogatories are written questions requiring written answers which are to be sworn on oath, to clarify facts and issues arising from the pleadings and which are relevant to the dispute.

Step 9 – Pre-trial Conference

In most cases all matters are referred to mediation prior to hearing. Mediation is a structured negotiation process where an impartial third party assists the parties to resolve the dispute. See later notes on Alternative Dispute Resolution.

Step 10 – Readiness for Trial

A proceeding will not be set down for trial except by order of the court. The date for trial is usually determined at the time of the first Directions hearing or alternatively at a Pre- Trial Directions hearing. Prior to trial the parties are required to prepare and file a Court Book. A Court Book contains an index, copy of the latest versions of any pleadings served between the plaintiff and defendant and a copy of each document the party intends to tender in evidence.

Step 11 – Trial

If the matter is not settled after the pre-trial procedure is completed, the case will then proceed to hearing and upon completion the court will give a judgment.
After the pre-trial processes have been completed the matter will be listed for trial. The civil trial process is similar to the trial process followed in criminal law. Generally, the trial follows the procedures set out below and summarised in the diagram on the next page:
1. Calling-on of the case by the judge’s associate
2. Empanelling of the jury (if requested)
3. Opening address by the plaintiff’s counsel
4. Presentation of the plaintiff’s case
a. examination-in-chief by the plaintiff’s counsel
b. cross-examination by the defendant’s counsel
c. re-examination by the plaintiff’s counsel
5. Possible submission of ‘no case to answer’ by defendant
6. Opening address by the defendant’s counsel
7. Presentation of the defendant’s case
a. Examination-in-chief by the defendant’s counsel
b. Cross-examination by the plaintiff’s counsel
c. Re-examination by this defendant’s counsel
8. Closing address by the plaintiff’s counsel
9. Closing address by the defendant’s counsel
10. ‘Charge’ by judge summarises evidence, directs jury on law
11. Jury (or judge if no jury) reaches a decision on questions of fact and/or damages

Civil Trial Procedure in the County and Supreme Courts

Plaintiff or defendant may appeal outcome

Judgement for the plaintiff

Defendant pays costs

Judgement for the defendant

Plaintiff pays costs

Judgement is given by jury (or judge if no jury)

Summing up (if jury present)

Judge’s charge to jury

Closing addresses by plaintiff’s and defendant’s counsel

Presentation of defendant’s case by counsel

Opening address by defendant’s counsel

Rejected

Case continues

Accepted

Case dismissed

‘No case to answer’

Submission made by defendant

Presentation of plaintiff’s case by counsel

Opening address by

plaintiff’s counsel

Jury is empanelled

(optional)

Case is called

Magistrates’ Court

The procedure for disposing of cases in the Magistrates’ Court jurisdiction is less complex than in the County or Supreme courts since these cases are limited to disputes of less than $100,000. Further, VCAT (Victorian Civil and Administrative Tribunal) has jurisdiction to dispose of any civil claims which involve consumer affairs issues – that is – the purchase or supply of goods or services of any amount.
It should also be noted that any civil claim for less than $10,000 is to be referred to arbitration rather than being the subject of a formal court hearing.
If proceedings are to be commenced in the Magistrates’ Court, the following steps set out the procedure.

Step 1 – Complaint

A complaint is filed with the nearest court registry to where the cause of action arose. The original complaint remains on the court file, with a sealed copy being served on the defendant. The Complaint contains details of the facts of the claim including a statement as to why the plaintiff believes the defendant should be ordered to compensate the plaintiff for the civil wrong which has been committed.

Step 2 – Defence

The defendant has a period of 21 days from the date of service of the complaint to notify the plaintiff and the court that the claim is to be contested. This is undertaken through the filing and service of a Notice of Defence, requiring the defendant to provide material facts which clearly demonstrate the issues in dispute between the parties.

Step 3 – Counterclaim

If a defendant believes that in addition to defending the plaintiff’s claim, that he or she may have a valid claim against the plaintiff arising from the same set of facts, for example a claim for building materials made by a builder is met with a counterclaim that the materials that were supplied were of poor quality, then the defendant is entitled to issue a counterclaim. This must be filed and served within 21 days from the date of the service of the defence.

Step 4 – Discovery

The procedures in the discovery stage in the Magistrates’ Court are very similar to those in the higher courts with, in most civil cases, the parties being entitled to file and serve both a Notice for Discovery and Interrogatories on the other party.
The responses are to be by way of affidavit and can be followed with either requests for production of certain documents or further and better answers to interrogatories in situations where the answers supplied are inadequate. Note that discovery & interrogatories re not permitted as of right for disputes which are for less than $10,000.00.
However, a Notice for Discovery and Interrogatories cannot be filed and served for claims involving Workcover and Transport accidents unless leave of the Court is first obtained.

Step 5 – Pre – hearing Conference, mediation

Following completion of these steps, the court at this point becomes actively involved in exploring options for the resolution of the case. It does so by requiring the parties to attend either a pre – hearing conference or in more complex matters a mediation. Attendance is compulsory at these meetings.
This is a significant event in civil proceedings in the Magistrates’ court and accordingly, all documents and other evidence which a party claims support their position should be brought to court on this day. If the matter does resolve, the parties sign minutes of orders setting out the terms of the agreement, otherwise, the court will require each party to provide detailed information about their case to set a date for the final hearing.

Step 6 – The hearing

The procedure at the final hearing of Magistrates Court cases is fairly similar to that of the higher courts although they are usually less complex with fewer witnesses to be called and less material being exchanged between the parties. After the magistrate has allowed each party to present their case and for all witnesses to be examined and cross examined, a final decision in the form of a court order is made.

Exercise 6
This is a continuation of the Case Study on page 52 of the manual. Please read the additional facts and then answer the following questions:

UNFORTUNATE FLO

On the day of accident, Flo Adams had been attending an art auction and was the successful bidder on a Margaret Olley painting. After the auction, Flo carefully placed the painting in the boot of her car. However, as a result of the accident the painting was completely destroyed. Flo had paid $100,000.00 for the painting. Unfortunately, Flo had previously decided not to renew her motor vehicle insurance (property damage) and as she had just bought the painting she had not arranged any insurance for the painting.
Flo Adams has decided to take legal action to recover the costs of repairs to her car which she had confirmed by her local panel beater at a figure of $18,000.00 together with the cost of the painting ($100,000.00).
Bruce Brimble, the director of the BoggaBilla Bus Co interviewed Bernie as to how the collision occurred. Bernie advised that there was no car travelling in front of him as he approached a set of traffic lights which were red. Bernie said that Flo’s car must have turned left from the auctions rooms into the path of the bus when it was unsafe to do so. Flo instructs her lawyers to initiate civil proceedings.

The stage is set for a civil claim to be litigated, but do the facts that are known demonstrate that this is a clear – cut case? The steps which must be completed before a civil trial takes place are set out above.
· Identify the steps which Flo has to take to initiate this legal action, now that she has decided to adopt this course of action?
· Once Flo has completed the steps set out in the answer to question 1, how is the legal action brought to the attention of the BoggaBilla Bus Co?
· If BoggaBilla Bus Co decides to defend the action, what initial steps would they be required to take to protect its legal rights?

· BoggaBilla Bus Co has also suffered damage to their bus ($30,000.00) what proceedings could they initiate to recover their amount?
· Assume the parties have now made claims against the other and have also defended the proceedings issued by the other party. What is the name of the next step in the legal process and provide two (2) examples of steps included in this process?
· Identify three (3) documents which you believe should be produced by Flo and/or her legal advisors to the defendant which are relevant to the issues in these proceedings. Briefly explain why each of these documents are relevant
· Draft an interrogatory (question) on behalf of the defendant to be answered by Flo Adams for each of the following words or phrases listed below.
1. visibility
2. stop
3. eyesight
4. brakes
5. previous 24 hours
6. traffic lights

Alternative dispute resolution
The aim of Alternative Dispute Resolution (ADR) is to encourage parties engaged in a civil dispute to endeavour to resolve their conflict by arriving at compromise solutions, either without or more frequently with the assistance of a neutral third person.
ADR processes can be used as an alternative to litigating in court. The benefits of using an “alternative” approach can have the benefits of being-
a. quick.
Parties can have their matters heard quickly without the delay associated with the traditional court system.
b. informal
The process can take place with minimum notice and at a time that suits the parties to the dispute.
c. less complicated
The process is less rigid than the formal court procedures. ADR processes are not dictated by formal court room rules and protocols.
d. less costly
The cost involved is less than with having a matter heard and determined by the court.
e. controlled by the parties themselves
Parties can work together to ensure any negative consequences of the dispute are avoided by ‘building’ on their relationship during discussion of the issues in dispute. Solutions that better meet the needs of the parties in the particular circumstances can be explored, as opposed to the usual orders made by the courts.
f. Confidential
Confidentiality is maintained, as hearings are conducted in private and the basis upon which a determination is made need not be made public

Alternative means of resolving disputes are often used in commercial, family and neighbourhood disputes. They are also utilised in complaints relating to discrimination, health services and employment.
Whilst parties may use ADR processes as an alternative to litigation, ADR is very much an integral part of our court system today. Lawyers and parties are strongly encouraged to make use of the wider options for appropriate dispute resolution introduced by the Civil Procedure Act 2010 (Vic) in an effort to avoid the expense, delay and complexity of litigation.
All civil cases in any jurisdiction in Victoria must now be subject to mediation. Further, there must be a genuine and sincere attempt at mediating a resolution before being certified by the relevant court as being ready to proceed to a civil hearing. Arbitration is also used in the Magistrates’ Court for claims under $10,000.00. Approximately 90% of civil court claims are settled before trial.
The same process has been adopted in all other states which are responsible for the administration of justice in their jurisdiction as well the Commonwealth which encourages mediation in all cases before the Family Court, the Federal Court or the Federal Magistrates Court. The processes are similar as is the pressure to achieve a resolution of every dispute.
VCAT conducts its hearing under an inquisitorial system; the parties frequently are required to attend mediation on more than one occasion to try to resolve the issues. VCAT also has the option to exclude legal representatives from mediations preferring to hear the matter discussed in the words of the parties themselves.
Alternative dispute resolution methods include the following:

Mediation

Mediation is a structured negotiation process which is conducted by a third party known as a mediator. The mediator is impartial and attempts to assist the parties to resolve their dispute. The main role of the mediator is to help the parties to narrow or define the issues in dispute and generate options for resolution.
The parties will have had the opportunity to fully prepare themselves prior to the mediation as the mediator will have provided details of every aspect before the mediation date. For instance, parties will be encouraged to provide and exchange copies of all supporting documentation and to consider how they might compromise their claim in order to try to resolve it.
At the mediation, after an introduction, the mediator allows each party to state their position and encourages the parties to try to find ways to bring about a conclusion to their dispute in a mutually acceptable manner.
The most significant difference between mediation and other forms of ADR is that the mediator is not able to make suggestions to the parties to try to resolve their issues in dispute, their role is simply to promote discussions between the parties. Mediation may or may not involve legal representation on behalf of the parties.

Conciliation

This method of dispute resolution involves a third party, the conciliator, listening to both disputing parties and suggesting options for resolving the matter. For example, the conciliator may suggest to a party to look at the dispute from a different perspective or possibly work out how an amount agreed to be paid under a proposal to settle the matter can be managed.
The conciliation process is similar to the arbitration process; however, the conciliator does not make a ruling as is the case with arbitration. Conciliation may or may not involve legal representation on behalf of the parties.

Arbitration

Under arbitration a third party, the arbitrator conducts the arbitration in a more formal manner. The arbitrator listens to the parties and endeavours to assists them to settle their dispute. If this cannot be achieved, the arbitrator determines the dispute by making a ruling. The effect of an arbitration hearing is that any agreement reached by the parties or ruling by the arbitrator can be enforced by the successful party.

Collaborative Law

One of the most interesting developments in ADR is in the area of “collaborative law”. With collaborative law each party engages a lawyer to meet with the other party, often on a number of occasions, to endeavour to resolve their dispute. It is a process where parties and their respective lawyers agree to work together to reach a settlement based on what is important to them. The negotiation process consists of a number of ‘four-way’ meetings involving the parties and their lawyers working together, as a team, towards a common goal. The parties and their lawyers sign an agreement to negotiate in good faith without resorting to litigation.
This is becoming a popular method in settling family law claims and also for tackling complicated commercial claims, but in the event that the matter does not settle, each lawyer withdraws from the case and new lawyers will need to be engaged to litigate the case.

[footnoteRef:7] [7: Law Institute of Victoria www.liv.asn.au/Membership/Practice-Sections/Collaborative-Practice/What-is-Collaborative-Practice 24 October 2011
]

Ombudsman

An ombudsman is an independent officer appointed by either the Federal and State governments to investigate complaints instituted by members of the public against government bodies. The ombudsman can recommend particular action be taken to address the complaint if he finds it justified. In cases involving serious breaches of the law the ombudsman may report the issue to Parliament. There is no cost associated with this particular alternative to litigation.

Industry complaint resolution schemes

Several industry and professional bodies have established their own alternative resolution schemes to resolve matters within their particular industry or profession efficiently and expediently. The aim is to avoid the lengthy and costly litigation process. A key advantage is that a complaint will ordinarily be referred to an industry specialist for resolution, resulting in client satisfaction. Participation by aggrieved persons is also optional and thus if court action is preferred this can be adopted by the complainant.
Both the Insurance and Superannuation industries have adopted complaint resolution schemes.

Exercise 7
To gain a better understanding of the alternative dispute processes watch the video
Alternative Dispute Resolution
Bendigo, Vic: Video Education Australasia, 2008.
The video can be located on the Identify and Apply Legal Framework learning hub under Learning Resources.

Exercise 8
This is a continuation of the Case Study on page 52 of the manual. Please read the additional facts and then answer the following questions:

TORMENTED THOMAS

Thomas was devastated after the accident and thought all hope was lost for the development and marketing of his software program. Unfortunately for Thomas the backup USB was also damaged in the accident. Desperate, Thomas took the computer to Quick Fix Computer Solutions.
After four weeks and for a fee of $10,000.00 dollars, Quick Fix Computer Solutions were able to reconstruct the hard drive and save the data. Thomas was so relieved and happy he immediately paid their $10,000.00 Bill. Thomas also brought himself a new MacIntosh laptop for $3,800.00 to replace the damaged computer.
However, Thomas was still bitterly disappointed in losing the software development deal. Thomas telephoned Bruce Brimble, the director of the BoggaBilla Bus Co, to advise him that he wanted to make a claim for:
• the cost for saving the data,
• replacement of the computer; and
• the loss of the contract (estimated to be $150,00.00).
Bruce advised that he was happy to discuss the matter to try and settle the claim but felt that the cost of repairs seemed very high and that he didn’t see why BoggaBilla Bus Co should be responsible for Thomas losing the contract. The manager felt that Thomas should also accept some responsibility as it was dangerous and unsafe for him to use a laptop whilst travelling on the bus and to have his back up USB with him.

Prior to answering these questions make sure that you have viewed the video Alternative Dispute Resolution located under Learning Resources on
the Identify and Apply Legal Framework
learning hub.
You can assume that Thomas and Bruce have agreed to mediate this dispute.
· List three advantages for Thomas Green to have the matter dealt with by alternative dispute resolution.

· Thomas is considering taking a lawyer to represent him at the mediation hearing. Advise Thomas whether he is able to do this?
· Suggest three possible documents which Thomas should bring to the mediation to assist him in the presentation of his case?
· What will be the role of the mediator at the mediation?
· During mediation, why would a mediator choose to conduct a part of the process “in private session”?
· If Thomas and Bruce reach an agreement at mediation, will this agreement be binding? Why or why not?

Law making by judges
Earlier in the manual it was discussed how parliament makes law by enacting legislation. This section concentrates on how judges make laws through the use of:
1. precedent cases and:
2. statutory interpretation, which is the interpretation by a judge on what a particular piece of legislation means.

PRECEDENT
Australian courts are bound by the common law doctrine of precedent. The doctrine of precedent was first developed in England, where judges developed a practice of following their own previous decisions and those of other judges. This practice is known as ‘stare decisis’, meaning ‘let the decision stand’. The practice was introduced in Australia with the English colonisation.
The doctrine of precedent obliges judges to follow previous binding decisions of courts when currently deciding a case. This doctrine means that a judge must follow the legal rule established in a previous case.
The Doctrine of Precedent provides for predictability, consistency and fairness in our courts.

Binding Precedent

In order to be binding, a precedent must be a decision of a court made in the same hierarchy of courts and it must come from a court which is either higher in the hierarchy or from the same court, provided that court is obliged to follow its own previous decisions. For example, the High court is not obliged to follow their previous decisions but will usually do so if it is good law in order to promote consistency in our society.
An example of binding precedent is where the Victorian Supreme Court of Appeal, makes a ruling or decision in a case and another case comes before a lower court in the hierarchy with the same elements in a lower court. The lower court will make its decision based on the higher court’s ruling. Precedents are usually only established in superior courts. The County Court does not generally set binding precedents for a Magistrates’ Court.
However, the precedent is only binding if the facts of the previous cases are identical or similar to the case being heard.
The judgement of a previous court is only binding to the legal principle for which the case stands, and which can be cited as an authority – the legal principle is called the
ratio decidendi.

Ratio Decidendi

The reason for deciding the case is known as the ratio decidendi, which basically means the reason for the decision.
The ratio decidendi is not a restatement of the facts of the case but the underlying legal principle and reason for the court’s decision. It is this part of the decision that is binding on lower courts.
The task of determining the ratio decidendi of a case can be very complex. It might not necessarily be placed at the end of the judgement; it could be found in various parts of the judgment and may not appear conveniently in a single succinct expression of the law.
In many cases heard on appeal or in constitutional matters in the High Court, several judges are involved in reaching a decision.
If a unanimous decision cannot be reached, the precedent created is that of the majority. In such cases the ratio decidendi has to be found by looking at the judgements of those judges who form the majority.
One important aspect of looking at the decision of a judge is to distinguish the legal principles from a finding of fact. A finding of fact does not form part of the ratio.

CLASS DISCUSSION

Read the case study below and answer the following questions:

BLOWTORCH BOB

Bob is charged with assault with a dangerous weapon. Bob injured a workmate who entered a room while Bob was using a blow torch. In the case against Bob, the court found that:
· An assault occurs where the defendant intends to frighten or harm someone
· A blow torch is a dangerous weapon for the purposes of this offence
· Bob did not in fact know that anyone was in the room with him.

a) Which of the court findings is a statement of law and which is a statement of fact?
b) Try to formulate the principle of law (ratio decidendi) which would apply to future cases.

Persuasive Precedent

There are a number of decisions in previous cases which may not be binding on a court but still may be of a particular interest to a court. These decisions are said to be persuasive.
Decision of courts outside the court hierarchy where the case is being heard, may be referred to for consideration by the court if they seem relevant. For example, decisions in the English Court of Appeal or New South Wales Court of Appeal may be relevant if they have determined principles of law which have not yet been determined in a case by Victorian Courts. A decision of a lower court or a court on the same level of a court hierarchy will also be considered persuasive.
The court may also be persuaded by a statement made in one case, but the statement does not form part of the ratio decidendi. These statements are known as ‘obiter dicta’ statements, meaning ‘statement by the way’. Obiter dicta may be followed but judges are not bound to follow them.
However, the obiter dicta in one case may form the ratio decidendi in another case as in the cases
of Hedley Byrne and Co Ltd v Heller and Partners Ltd [1963] 2 All ER 575
and
Shaddock and Associates Pty Ltd and Anor v Parramatta City Council (1981) 150 CLR 255

Hedley Byrne and Co Ltd v Heller and Partners Ltd [1963] 2 All ER 575

An advertising agency had approached a bank to ask whether a client of the bank was credit worthy. The bank gave a favourable reference but stated that it did so without any responsibility.
Of course, the company relied on the advice and entered into a contract with the client of the bank, which resulted in them in losing 17,000 pounds. As a result, the advertising agency sued the bank for providing negligent advice.
The court held that the bank did not owe a duty of care to the person who sought the advice as the bank had disclaimed responsibility when giving the advice.
However, the court went further and by way of obiter dicta said:

If in the ordinary course of business or professional affairs a person seeks information or advice from another, and the person relied on the advice, then a duty of care ought to be owed unless the person giving the advice disclaims responsibility.

Shaddock and Associates Pty Ltd and Anor v Parramatta City Council (1981) 150 CLR 255

A solicitor acting for a number of Companies intending to purchase land contacted the local Council by telephone to inquire about road widening proposals and was advised that there were none.
The solicitor also sent a written inquiry to the Council as to the planning uses for the land. Although the Council was required by law to provide the planning information, it was also common practice at the time to provide details of road-widening proposals without charge. The written response by the Council to the planning inquiry also failed to disclose the road widening proposal.
In fact, two years before these events Council had approved a plan for road widening that would require more than one third of the land. If the Companies had known of this proposal they would not have proceeded with the purchase.
After the Companies purchased the land, the Council proceeded with the road widening. As a result, the Companies were unable to proceed with the development they proposed. Having suffered significant financial loss they sued the Council.
The court decided that the Council did owe a duty of care to Shaddock, that it breached that duty of care and was therefore liable to pay damages.
The ratio decidendi was:

A duty of care is owed when information or advice is sought and is relied upon, in the course of business and the supplier of information sets up as a centre from which that advice may be sought.

Looking at both case citations it can be seen that the Hedley Byrne v Heller case was heard in England before Shaddock’s case.
As the facts in Shaddock’s case fitted the situation envisaged by the House of Lords in the obiter dicta in the Hedley Byrne v Heller case, the obiter dicta was used as a persuasive precedent in the decision in Shaddock’s case.

This has in fact turned out to be a most persuasive piece of obiter dicta by the House of Lords. It had been thought that a negligent misstatement whether written or spoken could not give rise to an action for financial loss unless there was a contract that may have existed between the parties. Later decisions have extended this statement of obiter in both the English and Australian courts.

Distinguishing Precedent

If a court does not follow a decision which is binding, basically it means that it will result in a legal mistake. One of the reasons for the existence of a court hierarchy is to be able to fix mistakes. Therefore, if a precedent was not applied, a party would be able to appeal on an error of law and the decision would be reversed. If there was no appeal, a higher court or court at the same level could overrule the decision in another later case.
A court can disapprove of a precedent by expressing an unfavourable or disapproving opinion but if it is binding the court must follow the precedent.
The only way that a judge can avoid a precedent is by distinguishing the case. In considering a previous case, a judge may consider that there are certain factual differences between the precedent and the case that is to be decided which justify the court in not following the earlier decision.
The court is still accepting that the earlier decision is good law but that it is inapplicable to the present case because of some material factual differences.

CLASS DISCUSSION

You Be the Judge![footnoteRef:8] [8: Reproduced from Understanding Law pp43-46
]

Assume that you are a judge, concerned with the (imaginary) case of
Jones v DPP
now being heard in your court.

You have gone on to the bench remembered to bow, and nobody has yet started to laugh. Your first case comes on. It is an appeal by Mrs May Jones, who was charged and convicted of effecting a public mischief and fined five hundred dollars. The relevant law is contained in the case of R v Manley.

R v Manley was decided in 1933 by the Supreme Court of Criminal Appeal. Elizabeth Manley told police that a man (whom she described) had struck her with his fist and stolen her purse. The police investigated the matter but it turned out that nothing of the sort had happened. She was convicted of the offence of ‘effecting a public mischief’ and appealed against her conviction to the Supreme Court of Criminal Appeal. The Court upheld the conviction.
The ratio (rule) from R v Manley could be formulated as follows:

Any person who puts police to investigation of a false charge and thus exposes innocent person to the risk of prosecution is guilty of the offence of public mischief.

Fact Situation

Mrs Jones was doing the shopping one day, and she discovered her purse was missing from her bag. She remembered that a few minutes previously she had brushed against a man in the street, so she immediately reported the matter to the police, describing the man. The next day a store manager telephoned her at home and told her she had left the purse on the counter. She told police, who were very annoyed.

How do you decide the appeal?

Should Mrs Jones be convicted or acquitted?

Now turn to appendix 2 page 52 and read the decision of the appeal judges and then answer the following questions.
· Was Mrs Jones acquitted or convicted of the offence?
· Did Justice Black give a narrow or wide interpretation of the ratio in R v Manley case?
· What were the underlying reasons for Justice Black’s decision?
· Did you agree with the court’s findings?

STATUTORY INTERPRETATION
The courts’ role is to interpret and apply legislation. When doing this the court will look for and interpret the meaning or intention of the legislation. This is sometimes quite clear, however often the meaning is not clear, may be ambiguous or if interpreted literally the outcome of a case would not be appropriate.

Legislation

To assist judges in the interpretation of legislation, Commonwealth and State legislation has been created. The Acts (Interpretation Acts) are:
1. Acts Interpretation Act 1901 (Cth) and
2. Interpretation of Legislation Act 1984 (Vic)

These Acts establish a set of rules which have three main purposes:
· shorten the content of other Acts by prescribing meanings for frequently used terms e.g. “Commonwealth” “Minister”
· provide clear directions to the court to resolve certain ambiguities e.g. singular words to be read as plural, distances to be measured in a straight line.
· provide that the courts must read an Act so as to give effect to the purpose and policy of the legislation rather than the literal meaning.
In order to assist courts to determine the purpose and policy of the legislation the courts are able to consult extrinsic material including:
1. headings and marginal notes in the Act which are not technically part of the Statute
· relevant law commission reports and other reports
· treaties and agreements referred to in the Act
· explanatory memorandums to the Act
· parliamentary process documents (second reading speeches, debates etc)

Common Law Approaches

However, in interpreting and applying the legislation, in addition to the legislative requirement judges in the past also relied on a number of common law approaches to statutory interpretation. They are the:
· Literal Rule
· Golden Rule
· Mischief Rule
· Purpose Rule
· Presumptions and Legal Maxims

The Literal Rule

This rule interprets the wording of an Act as intended by parliament. The court applies the literal meaning of the words. If this meaning is plain the court does not look further into the purposes or objectives of the legislation

CLASS DISCUSSION

Read the following scenario and then answer the questions:

HIT THE ROAD JOE[footnoteRef:9] [9: Adapted from Trischa Mann Essentials of Business Law (Tertiary Press, 2001)
]

SCENARIO ONE

Sec 10 Traffic code reads:
“All motor vehicles must have lights illuminated when travelling on public roads at night”

Joe Smith was travelling home along a country highway one evening. It was wet, moonless and he only had his parking lights illuminated when he unfortunately collided with a police car.
The constables were furious because he was virtually invisible, given the road conditions at the time.

· Using the literal interpretation rule, would Joe be convicted or acquitted of this offence?

Golden Rule

Sometimes when a section is read literally it is difficult to determine what it exactly means. The literal meaning may be ambiguous i.e. having two or more meanings. Alternatively, it may produce a result that is absurd or inconsistent with other sections of the act. Using the Golden Rule, the court would then adopt a sensible interpretation which would avoid an absurd, ambiguous or inconsistent outcome to reflect the purpose of the legislation.

CLASS DISCUSSION

Using the same scenario as in Hit the Road Joe- Scenario One answer the following questions:
1. Applying the literal rule of interpretation, does this produce an ambiguous, absurd or inconsistent result?
2. Using the golden rule, how could the judge interpret this section to reflect the purpose of the legislation?

Mischief Rule

Under the Mischief rule it assumes that an act was passed in order to overcome some specific defect in the law. In interpreting and applying the mischief rule, the court will look at what the purpose of the legislation was trying to achieve, what was the mischief or wrong that the law is intending to prevent or the good it was trying to create.

CLASS DISCUSSION

Read the following scenario and then answer the questions:

HIT THE ROAD JOE[footnoteRef:10] [10: Adapted from Trischa Mann Essentials of Business Law (Tertiary Press, 2001)
]

SCENARIO TWO

Let’s assume there has been an amendment to Sec 10. The section now reads:

“All motor vehicles must have headlights on while travelling on public roads at night.”

The Act stated that its purpose was “to remove inappropriately illuminated vehicles from the road so as to ensure safe driving conditions for all road users”.
Joe driving home one night in a particular heavy fog uses his fogs lights instead of his headlights and was stopped by the police.

1. Using the literal rule of interpretation, would Joe be convicted or acquitted of this offence?
2. Using the mischief rule, how could the judge interpret this section to reflect the purpose of the legislation?

Purpose Rule

Another common law approach to statutory interpretation is the purpose approach. This approach grew out of the mischief rule. The idea was to give effect to the intention of Parliament in passing the legislation. This approach has now been incorporated into the Acts Interpretation legislation. The purpose approach requires the judge to look at the whole of the Act and also in context with other laws within Victoria.

Presumptions and Maxims

In addition to the common law approaches to statutory interpretation there are also a number of presumptions and legal maxims that the judge may use to assist in interpretation of a section of an Act.
A presumption is a legal principle or rule that applies unless there is evidence to contrary. For example, there is a presumption that an act will not operate retrospectively unless there is an express intention by parliament. It is assumed that where a word is used in more than one place in the act, that word will have a consistent meaning unless there is a contrary intention. There is also a presumption that parliament is presumed not to limit fundamental rights and freedoms in passing legislation.
Other techniques used to assist in determining the meaning of words in certain context is a legal maxim. The rule of ejusdem generis (Latin meaning “of the same kind”) is applied to determine the general words where they follow a group of more specific words. The rule restricts the meaning of the general words to the same narrow class as the specific words. This is sometimes known as the class rule.
For example, if an act reads “no person shall have in their possession heroin, cannabis, cocaine or any other drug”. “Any other drug” would have to fall within the same class as those specifically mentioned. Paracetamol is a drug but would not fall into the same class or category as the drugs that have been nominated.

Test Your Knowledge:

Read pages 39-51 of the student learning guide. Log on to Canvas- Identify and Apply the Legal Framework to record your answers to the following questions:
1. A precedent is created when:
a. there is a pre-existing statute that is relevant to the case at hand
b. there is an existing common law principle that is relevant to the case
c. there is no past statute or common law principle that is relevant to the case at hand
d. the judge doesn’t like the statute or common law principle that is relevant to the case at hand and creates a new precedent.
2. A binding precedent occurs when;
a. A higher court must follow the decisions made by a lower court in the same hierarchy where the facts of the case are similar
b. A lower court must follow the decisions made by a higher court in the same hierarchy where the facts of the case are similar
c. All courts must follow the decision of the High court even where the facts of the case are not similar
d. Lower courts must follow the decisions of higher courts even where they are not in the same hierarchy.
3. In the case of
Lang v Webster
counsel for Lang cited the previous case of
Jones v Smith. Counsel had hoped that the authority of that case would determine the issue in his client’s favour. However, the judge decided not to follow
Smith v Jones
on the basis that the material facts were different from those in the current case of
Lang v Webster
.

In this case the judge has:
i. Disapproved of the earlier decision
ii. Overruled the earlier decision
iii. Reversed the earlier decision
iv. Distinguished the earlier decision.
4. A major justification for the existence of the doctrine of precedent in our legal system is that:
a. The decision in individual cases will be noted in proper law reports for future reference
b. It helps to establish consistency and justice within the legal system.
c. Future case will be determined by reference to relevant past decisions
d. It increases the level of abstraction at which the rules laid down by cases are stated.

5. Persuasive precedents:
a. are made by higher courts and must be followed by lower courts
b. do not have to be followed but can be used as a guide or reference by courts in future cases
c. are made by courts of equal standing and must be followed.
d. are decision made by superior courts in all hierarchies and must be followed by all lower courts.
6. The part of the precedent which makes it binding is called:
a. Ratio decidendi
b. Ratio dictum
c. Obiter decidendi
d. Obiter dictum
7. The literal rule is used to:
a. interpret words of an Act as stated under the objectives of the Act
b. interpret words of an Act as it was written
c. interpret the words of an act as explained in government policies.
d. interpret the words of an Act by considering the circumstances surrounding the case at hand.
8. The rule used in circumstances where the literal rule would lead to an absurd or inconsistent outcome is called:
a. Class rule
b. Literal rule
c. Golden rule
d. Mischief rule.
9. The Acts Interpretation Act (Cth) directs judges, when interpreting commonwealth legislation to favour the:
a. Literal rule
b. Golden rule
c. Purpose approach
d. None of the above.
10. . An observation, made by a judge on a legal question suggested by the case before him, but not requiring a decision is referred to as:
a. Obiter dicta
b. Ratione Soli
c. Ratio Decidendi
d. Onus Probandi

Bibliography

Books

Barron Margaret, Fundamentals of Business Law (McGraw Hill, 6ed, 2009)
Beazer Margaret Justice and Outcomes (Beazer publishing Company, 7ed, 2004)
Cook, et al. Laying Down the Law (Butterworths, 7ed, 2009)
Carvan J Understanding the Australian Legal System (Law Book Company, 2ed, 1994)
Campbell et al, Legal Research Materials and Methods (Law Book Company)
Chisholm and Nettheim, Understanding Law (Butterworths, Xed, 2007)
Easton Dennis et al, Introducing the Law (CCH, 2ed,1985)
Gibson Andy and Fraser Douglas, Business Law (Pearson, 5ed, 2011)
Gifford and Gifford How to Understand an Act of Parliament (Law Book Comp)
Harvey Callie Cornerstones of Australian Law (Tilde University Press, 2ed, 2007)
Hall, K Legislation (Butterworths, 2002)
Mann Trischa Essentials of Business Law (Tertiary Press, 2001)
Pearce D C Statutory interpretation in Australia (Butterworths, 6ed, 2006)
Vermeesch and Lingren Business Law of Australia (Butterworths)
Vickery and Pendleton Australian Business Law (Pearson Education, 5ed 2006)

Cases

Hedley Byrne and Co Ltd v Heller and Partners Ltd [1963] 2 All ER 575
Shaddock and Associates Pty Ltd and Anor v Parramatta City Council (1981) 150 CLR 255

Legislation

Acts Interpretation Act 1901 (Cth)

Interpretation of Legislation Act 1984 (Vic)

Websites

www.parliament.vic.gov.au
www.legislation.vic.gov.au
www.liv.asn.au
www.victorialawfoundation.org.au.
www.austlii.gov.au
www.vla.vic.gov.au
Appendices

Appendix 2

You be the Judge – Decision Jones v DPP

Justice White:
The ratio decidendi of Manley’s case is that any person who puts police to investigation of a false charge and thus exposes innocent persons to the risk of prosecutions is guilty of effecting a public mischief. The accused in the present case, Mrs. Jones comes squarely within this rule but it has been argued that she is nevertheless not guilty of the offence because she did not tell a deliberate falsehood. I do not accept this argument. There is no reference to deliberate falsehoods in the judgment of the Court of Criminal Appeal in Manley’s case, and the consequences of her conduct are the same whether the false charges were deliberate or accidental. The rule in Manley’s case is not confined to dishonest reports, but includes cases such as the present, where serious allegations were made to the police carelessly, without any effort to check that they were at least likely to be true.
Finally, counsel for the accused said that a conviction in a case such as this would discourage people from co-operating with the police by reporting suspected crimes. I cannot agree with this argument either. The only possible effect of a conviction here would be that people would be more careful in making allegations to the police, which would be entirely desirable. In any case, it is not for me to consider such matters my task is to apply the law as it has been laid down in Manley’s case, and I find the accused guilty of the offence charged and dismiss the appeal.

Justice Black:
In this case, the accused has not been dishonest: at the most she has been careless or reckless in reporting a suspected crime to police. Yet as counsel for the prosecution points out, there is no reference in Manley’s case to dishonesty and the references to wasting police time and exposing innocent people to suspicion are applicable to this case.
Nevertheless, in my opinion the rule in Manley’s case does not extend to negligent, as opposed to deliberate, misconduct. The accused in that case was clearly guilty of a deliberate lie, and although the court does not stress that aspect, the decision cannot be taken to extend to the quite different situation of the present case.
Nor am I prepared to extend the rule in Manley’s case. To do so would probably discourage people from reporting cases to the police unless there were absolutely sure of their facts. This would deprive the police of a great deal of the co-operation from the public on which they often depend. Furthermore, I would not wish to extend the criminal law into an area so far from what most people would consider criminal, and in a way that subjects people to the risk of prosecution for conduct which is merely careless. If the law is to be extended in that way let it be done by parliament, not by the courts.
I therefore hold that the accused is not guilty of the offence charged, and allow the appeal.

Justice Grey:
I agree with my learned colleague Justice Black that this appeal should be allowed, and I have nothing to add to the reasons her Honour has given. The appeal is allowed, and the conviction quashed.

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