DISPUTE RESOLUTION METHODS
Week Ending: 9th June
Key Knowledge 1: The reasons for a court hierarchy
Doctrine of precedent
The existence of a court hierarchy allows for the operation of the doctrine of precedent (lower courts must follow the legal reasoning behind decisions made in higher courts) *Without the existence of a court hierarchy; the doctrine of precedent could not operate* Importance of this reason: This provides consistency and fairness of each adjudication. It also allows a degree of certainty in relation to the legal system. Appeals The court hierarchy allows for a system of appeals to operate effectively. Within the system, if a party is dissatisfied with their outcome in a lower court, they can appeal to a higher court who can review their case and potentially overrule a decision. The importance of this reason: It ensures litigants can have a fair trial with the confidence that they can appeal if they feel the decision is unjust. Specialisation A court hierarchy enables the workload of the courts to be divided. This allows each court to develop a level of expertise. The court processes are also streamlined to provide for specialised legal personnel and legal procedures. Judges and Magistrates in each court have a specialised understanding of the law in relation to the types of cases that they hear. This promotes timely resolution of disputes. Eg. Supreme Court: Trial Division– murder related offences Family Court – family disputes and custodial issues. |
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Administrative Convenience
A court hierarchy makes efficient use of the limited financial and physical resources available. This reduces the amount of delays by providing a means for allocating cases according to their seriousness and complexity.
The jurisdiction of each court is clearly established and people do not need to waste time and money initiating an action in an inappropriate court. Eg. Minor cases are heard by the Magistrates’ Court
A court hierarchy makes efficient use of the limited financial and physical resources available. This reduces the amount of delays by providing a means for allocating cases according to their seriousness and complexity.
The jurisdiction of each court is clearly established and people do not need to waste time and money initiating an action in an inappropriate court. Eg. Minor cases are heard by the Magistrates’ Court
Lower Order Thinking Skills
‘The court hierarchy is essential for the operation of the doctrine of precedent.’ a. Other than ensuring the operation of the doctrine of precedent, describe one reason for a court hierarchy. (Q1a: 2013 Exam) 2 Marks In your opinion, would the Victorian legal system improve if there was one level of courts instead of a hierarchy? Justify your answer. (Q3: 2011 Exam) 3 Marks Audrey has commenced civil proceedings in the Supreme Court of Victoria (Trial Division). The court will resolve the dispute at trial after mediation was unsuccessful. a. Provide one reason for the existence of a court hierarchy. Refer to Audrey’s dispute in your answer. (Q5a: 2014 Exam) 2 Marks |
Higher Order Thinking Skills
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Key Knowledge 2: Original and appellate jurisdictions of the Victorian Magistrates’ Court, County Court, and Supreme Court (Trial Division and Court of Appeal)
Magistrates court
- The Magistrates' Court deals with most legal disputes in Victoria.
Original CRIMINAL Jurisdiction
1. Summary offences = These are less serious charges which are heard and decided by a Magistrate, including traffic offences, minor assaults, property damage and offensive behaviour.
2. Indictable offences heard summarily = With the consent of the defendant, some indictable offences may be heard summarily in the Magistrates' Court by a Magistrate. These offences include burglary and theft.
3. Committal Hearings = Before a case is brought to trial, a committal is conducted in the Magistrates' Court to determine whether there is a case agains the defendant. The hearing is an investigation conducted to establish whether there is sufficient evidence to support a conviction by a properly instructed jury in the County Court or the Supreme Court. Hearings are held to save time and money.
4. Bail Applications = When a suspect has been taken into custody and charged by the police, the Magistrates' Court has the power to hear applications for bail.
5. Warrants = A warrant is a legal document used by the court to authorise a particular act. Eg. A warrant to arrest someone allows a police officer to arrest and detain a suspect.
Original CIVIL Jurisdiction
- In civil matters, such as negligence claims, contract disputes and claims for repair and injury from car accidents, the Magistrates' Court can decide most disputes about money or property up to the value of $100,000 (in some cases the court can deal with unlimited value).
- Compensation claims under $10,000 are referred to Arbitration
Please note: The $100,000 amount is a guide only.
Original CRIMINAL Jurisdiction
1. Summary offences = These are less serious charges which are heard and decided by a Magistrate, including traffic offences, minor assaults, property damage and offensive behaviour.
2. Indictable offences heard summarily = With the consent of the defendant, some indictable offences may be heard summarily in the Magistrates' Court by a Magistrate. These offences include burglary and theft.
3. Committal Hearings = Before a case is brought to trial, a committal is conducted in the Magistrates' Court to determine whether there is a case agains the defendant. The hearing is an investigation conducted to establish whether there is sufficient evidence to support a conviction by a properly instructed jury in the County Court or the Supreme Court. Hearings are held to save time and money.
4. Bail Applications = When a suspect has been taken into custody and charged by the police, the Magistrates' Court has the power to hear applications for bail.
5. Warrants = A warrant is a legal document used by the court to authorise a particular act. Eg. A warrant to arrest someone allows a police officer to arrest and detain a suspect.
Original CIVIL Jurisdiction
- In civil matters, such as negligence claims, contract disputes and claims for repair and injury from car accidents, the Magistrates' Court can decide most disputes about money or property up to the value of $100,000 (in some cases the court can deal with unlimited value).
- Compensation claims under $10,000 are referred to Arbitration
Please note: The $100,000 amount is a guide only.
County court
Original CRIMINAL jurisdiction
- The majority of serious indictable offences (1 Judge and, where the plea is 'not guilty', a jury of 12)
Original CIVIL jurisdiction
- The County Court deals with civil disputes where the compensation claims are for unlimited amounts. A good guide is that claims over $100,000 are heard in this court. Cases in the County Court may be heard by a judge and jury.
Appellate CRIMINAL jurisdiction
- If a decision made in the Magistrates' Court is to be appealed, it usually goes to the County Court. The judge in the County Court can decide whether to agree with the magistrate's decision or make a different decision.
* On matters of fact
* On matters of sentence
Appellate CIVIL jurisdiction
- There is no Appellate Civil jurisdiction
Please note: The main County Court is in the centre of Melbourne. County Court judges also visit major country towns to hear cases.
- The majority of serious indictable offences (1 Judge and, where the plea is 'not guilty', a jury of 12)
Original CIVIL jurisdiction
- The County Court deals with civil disputes where the compensation claims are for unlimited amounts. A good guide is that claims over $100,000 are heard in this court. Cases in the County Court may be heard by a judge and jury.
Appellate CRIMINAL jurisdiction
- If a decision made in the Magistrates' Court is to be appealed, it usually goes to the County Court. The judge in the County Court can decide whether to agree with the magistrate's decision or make a different decision.
* On matters of fact
* On matters of sentence
Appellate CIVIL jurisdiction
- There is no Appellate Civil jurisdiction
Please note: The main County Court is in the centre of Melbourne. County Court judges also visit major country towns to hear cases.
Supreme court - Trial Division
The Supreme Court is Victoria’s highest court. Cases in the Supreme Court may be heard by a judge and jury. The court is divided into the Trial Division and the Court of Appeal.
Original CRIMINAL jurisdiction
- The Trial Division hears very serious criminal cases, like murder, and deals with large disputes over money and business.
Original Civil jurisdiction
- Claims for unlimited amounts of compensation are heard in the Supreme Court. A good guide for 'unlimited amounts' would be claims for over $200,000 but also involve COMPLEX issues.
Appellate CRIMINAL & CIVIL jurisdiction
- An appeal from the Magistrates Court
* On Point of Law
Original CRIMINAL jurisdiction
- The Trial Division hears very serious criminal cases, like murder, and deals with large disputes over money and business.
Original Civil jurisdiction
- Claims for unlimited amounts of compensation are heard in the Supreme Court. A good guide for 'unlimited amounts' would be claims for over $200,000 but also involve COMPLEX issues.
Appellate CRIMINAL & CIVIL jurisdiction
- An appeal from the Magistrates Court
* On Point of Law
Supreme court - Court of Appeal
Original CRIMINAL & CIVIL jurisdiction
There is no Original CRIMINAL or CIVIL jurisdiction in the Supreme Court - Court of Appeal
Appellate CRIMINAL & CIVIL jurisdiction
- Appeals about decisions made in the County Court and Trial Division of the Supreme Court
There is no Original CRIMINAL or CIVIL jurisdiction in the Supreme Court - Court of Appeal
Appellate CRIMINAL & CIVIL jurisdiction
- Appeals about decisions made in the County Court and Trial Division of the Supreme Court
Children's court
- The Children's Court operates like the Magistrates' Court but specialises in children's matters.
- The Criminal Division of the court hears all charges except offences resulting in death or attempted murder, which must be heard in an adult court. For a matter to be heard in the Children's Court the person must have been between the ages of 10 and under 18 at the time of the offence. They must also be under 19 at when their proceeding commences (when the charge is filed).
- The Family Division of the Children’s Court hears protection applications, breaches of welfare orders, changes to welfare orders, irreconcilable differences applications and applications for permanent care. Applications for family violence and personal safety intervention orders are also held in this division.
- The Criminal Division of the court hears all charges except offences resulting in death or attempted murder, which must be heard in an adult court. For a matter to be heard in the Children's Court the person must have been between the ages of 10 and under 18 at the time of the offence. They must also be under 19 at when their proceeding commences (when the charge is filed).
- The Family Division of the Children’s Court hears protection applications, breaches of welfare orders, changes to welfare orders, irreconcilable differences applications and applications for permanent care. Applications for family violence and personal safety intervention orders are also held in this division.
Coroner's Court
- The Coroners Court investigates deaths that happen unexpectedly, when the reason for the death is not known or when a body cannot be identified.
- The coroner will try to find out why the death happened. Sometimes the coroner will make reports with recommendations to try to prevent similar deaths happening again.
- The coroner will try to find out why the death happened. Sometimes the coroner will make reports with recommendations to try to prevent similar deaths happening again.
Lower Order Thinking Skills
In a recent decision the Victorian Supreme Court (Trial Division) established a new precedent. a. Outline the original jurisdiction of the Victorian Supreme Court (Trial Division) (Q8a: 2011 Exam) 2 Marks The Victorian court hierarchy is an important part of our legal system. It allows the doctrine of precedent to operate and it establishes the jurisdiction of courts.’ a. Explain one reason why a precedent established in the Victorian Supreme Court (Court of Appeal) may not have to be followed in the Victorian Supreme Court (Trial Division). (Q3a: 2012 Exam)2 Marks b. Using the Magistrates’ Court as an example, explain the term ‘original jurisdiction’. (Q3b: 2012 Exam)3 Marks |
Higher Order Thinking Skills
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Week ending: 16th June
Key Knowledge 3: The role of VCAT
Victorian Civil and Administrative Tribunal (VCAT)
The role of VCAT is to provide:
Tribunals are less formal than courts and are usually a quicker and cheaper way of resolving disputes. Often people involved in a case at the tribunal will be able to represent themselves.
VCAT deals with a wide range of everyday legal disputes. It has three divisions, each specialising in different types of cases:
- Cost-effective: Cheaper application fees and legal representation not required.
- Accessible: Due to limited costs and informality, dispute resolution seems much more accessible.
- Informal: The fact that strict rules of evidence and procedure are not followed makes dispute resolution much easier.
- Timely: Disputes are settled much quicker. And with limited avenue for appeal, this also means a less congested court system.
- Quality: With it's specific divisions and lists,
Tribunals are less formal than courts and are usually a quicker and cheaper way of resolving disputes. Often people involved in a case at the tribunal will be able to represent themselves.
VCAT deals with a wide range of everyday legal disputes. It has three divisions, each specialising in different types of cases:
- the Civil Division deals with consumer matters, retail tenancy disputes, owners corporation disputes, sale and ownership of property, and use or flow of water between properties
- the Residential Tenancies Division deals with disputes between landlords and tenants, owners of rooming houses and residents and between the Director of Housing and tenants
- the Administrative Division deals with applications from people seeking review of government decisions that affect them, including decisions from the Transport Accident Commission, state taxation, legal services, freedom of information applications, assessments by the Victorian Workcover Authority, business regulation and planning decision
- the Human Rights Division deals with matters that include guardianship administration, equal opportunity, racial and religious vilification, health and information privacy and decisions made by the Mental Health Review Tribunal.
Lower Order Thinking Skills
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Higher Order Thinking Skills
‘The Victorian Civil and Administrative Tribunal (VCAT) is always a better option to resolve civil disputes than the courts because it is less expensive and quicker.’ Do you agree with this statement? Justify your answer. (Q11: 2013 Exam) 7 Marks Discuss the extent to which the Victorian Civil and Administrative Tribunal (VCAT) can overcome two weaknesses of civil pre-trial procedures. (Q13: 2013 Exam) 8 Marks |
Key Knowledge 4: Dispute resolution methods used by courts and VCAT, including mediation, conciliation, arbitration and judicial determination
Mediation: Parties negotiate over a dispute with the help of an impartial 3rd party who facilitates the process.
Conciliation: Parties negotiate with the assistance of an impartial 3rd party conciliator, who is an expert in the area being disputed and can provide advice, assistance and suggestions.
Arbitration: an independent impartial arbitrator will listen to both sides and determine an outcome.
- Parties try to come to a settlement, with the mediator facilitating discussion however not to make suggestions.
- Mediation is often a compulsory civil pre-trial procedure before a case can proceed to court
- The decision is not binding. (Unless a deed of settlement is drawn up and enforced by the courts)
Conciliation: Parties negotiate with the assistance of an impartial 3rd party conciliator, who is an expert in the area being disputed and can provide advice, assistance and suggestions.
- Decisions are not binding. (Unless a 'deed of settlement' is drawn up and enforced by the courts)
Arbitration: an independent impartial arbitrator will listen to both sides and determine an outcome.
- The decision is binding and enforceable by the court.
- In civil matters before the Magistrates’ Court where the claim is less than $10,000, the parties settle their disputes via arbitration
Quick Comparison of Dispute Resolution Method
Lower Order Thinking Skills
Describe one difference between conciliation and arbitration as dispute resolution methods. (Q2: 2014 Exam) 3 Marks Explain the dispute resolution method that will be used by the Supreme Court of Victoria (Trial Division). (Q5b: 2014 Exam) 3 Marks |
Higher Order Thinking Skills
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Key Knowledge 5: Strengths and weaknesses of dispute resolution methods used by courts and VCAT
Strengths and Weaknesses of 'Alternative Dispute Resolution'
Strengths of Alternative Dispute Resolution methods
* Much less formal - is not bound by strict rules of evidence and procedure. This makes it less intimidating and cheaper (do not have to hire legal representation)
* Conducted in a safe and supportive environment
* Cheaper than litigation
* Confidential - unlike court system which is open to the public
* Voluntary- which means parties can leave at any time* Flexible- can be modified to suit the needs of the parties
* Broader range of solutions available
* More likely to reach a solution that will be followed- as parties can tailor a resolution or compromise that suits them
* Not adversarial- and therefore both parties can feel as if they have ‘won’
* Frees up the courts
* Much less formal - is not bound by strict rules of evidence and procedure. This makes it less intimidating and cheaper (do not have to hire legal representation)
* Conducted in a safe and supportive environment
* Cheaper than litigation
* Confidential - unlike court system which is open to the public
* Voluntary- which means parties can leave at any time* Flexible- can be modified to suit the needs of the parties
* Broader range of solutions available
* More likely to reach a solution that will be followed- as parties can tailor a resolution or compromise that suits them
* Not adversarial- and therefore both parties can feel as if they have ‘won’
* Frees up the courts
Weaknesses of Alternative Dispute Resolution methods
* Decision is not binding- (although at the conclusion of mediation or conciliation a binding deed of settlement can be drawn up)
* One party may compromise too much because they are trying to compromise as much as possible
* One party may be more manipulative or stronger than the other party
* It may not be appropriate in all situations
* One party may choose not to attend the resolution process if it is voluntary
* It is not appropriate in most criminal cases
* If a decision cannot be reached it may have to proceed to court anyway
* Decision is not binding- (although at the conclusion of mediation or conciliation a binding deed of settlement can be drawn up)
* One party may compromise too much because they are trying to compromise as much as possible
* One party may be more manipulative or stronger than the other party
* It may not be appropriate in all situations
* One party may choose not to attend the resolution process if it is voluntary
* It is not appropriate in most criminal cases
* If a decision cannot be reached it may have to proceed to court anyway
Lower Order Thinking Skills
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Higher Order Thinking Skills
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Key Knowledge 6: Strengths and weaknesses of the way courts and VCAT operate to resolve disputes.
Lower Order Thinking Skills
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Higher Order Thinking Skills
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