County Court Act 1958 Questions PDF

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Answer a series of questions about the County Court Act (1958) Vic ...

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LEGAL RESEARCH METHODS / BLB1114 Meg Drury / 4571595 13 April 2017

QUESTIONS 1. What is the commencement date of the County Court Act 1958 (Vic) and when was it assented to? Identify the number of the Act and the version incorporating the latest amendments, indicating the date up to which amendments have been incorporated. Does the Act have a long title? If so provide details and indicate where it is located in the Act. The commencement date of the County Court Act 1958 (Vic) is S. 97(4) on 27/2/2015. The assent date is 30/9/1958. The number of the act is No. 6230/1958. The act may be cited as the County Court Act 1958. This is a short title; The long title can be located in S. 1 of the act, which states the title is “an act to consolidate the Law relating to the County Court”.

2. Which Interpretation Legislation is relevant to the interpretation of the County Court Act 1958 (Vic)? Explain s 35 of the relevant interpretation legislation in your own words. The interpretation legislation relevant to this act is the Interpretation of Legislation Act 1984. s 35 of this legislation refers to the Principles of and aids to interpretation. The interpretation of a provision of an Act should contain a construction that will promote the purpose and values of the relevant act. The interpretation legislation may also consider other relevant precedents or documents, such as reports of proceedings in any House of the Parliament.

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3. How are the terms ‘Judge’ and ‘Associate Judge’ defined under the County Court Act 1958 (Vic)? Explain in your own words. Do judges and associate judges exercise the jurisdiction of the court to the same extent? What does this mean? Are the definitions open or closed definitions? A judge is defined as a judge or acting judge of the court, and includes the Chief Judge but does not include an associate judge. Roles of a judge include to interpret the law, assess the evidence presented to them, and to control court hearings assigned to them. Judges should be impartial in their decision making and pursue justice overall. An associate judge is a member of a judicial panel who is not the Chief Justice. An associate judge is defined in the County Court Act 1958 (Vic) as a person appointed under section 17A; which states that an associate judge must be a person who is or has been a judge or a magistrate of the High Court of Australia or of a court created by the Parliament of the Commonwealth, or a court of Victoria or of another State or Territory, or a person who is an Australian lawyer of at least 5 years’ standing. The definitions of ‘judge’ and ‘associate judge’ are closed definitions, which means they are not open for interpretation. An associate judge may not necessarily exercise the same roles as a judge. Although the extent and nature of the tasks performed by an associate judge depends one each individual judge, an associate judge is there more so to assist the main judge of the court.

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4. What is the criminal jurisdiction of the County Court? Indicate in your own words three offences which cannot be tried and determined in the County Court. The County Court has jurisdiction to hear all indictable criminal matters, including serious theft, armed robbery, sexual offences, culpable driving, and income and sales tax offences. Most of these offences arise under Victorian legislation; however, the Court also deals with several offences under Commonwealth legislation.1 Offences that cannot be heard in the County Court are treason, murder and manslaughter. These three offences must be heard in the Supreme Court of Victoria. 5. What is the civil jurisdiction of the County Court? Indicate in your own words the limitations on the County Court’s civil jurisdiction. The civil jurisdiction of the County Court is divided into two divisions – the commercial division and the common law division. The commercial division aims to provide a fast, cost-effective and fair alternative for the resolution of commercial disputes. The commercial division is divided into the following lists: expedited cases list, banking and finance, building cases, and the general cases list2. The common law divisions is comprised of the following lists: Applications list, defamation list, family property list, general list, medical list, serious injury applications, WorkCover, and confiscation list3. The County Court’s civil jurisdiction is unlimited.4

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Criminal

Division

(2015)

County

Court

of

Victoria

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Ibid Ibid 4 Ibid 3

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6 (a). Outline the method of, and eligibility for, appointment of a person as Chief Judge or judge of the County Court. The method of being appointed as a chief judge is the appointment by the Governor in Council. The Governor in Council will appoint a Chief Judge and as many other persons as are needed to be judges of the county court under the County Court Act 1958 (Vic). To be eligible to be appointed as Chief Judge or judge of the County Court, a person must be or has previously been a judge or magistrate of the High Court of Australia or of a court created by the Parliament or Commonwealth, or a court of any Victorian court of a court of any other state or territory, or is an Australian lawyer of at least 5 years’ standing. 6 (b). Having regard to section 4A of the County Court Act 1958 (Vic), explain the rationale for the establishment of the Koori Court Division of the County Court. The Koori Court Division has powers that are necessary to enable it to exercise its jurisdiction. The justification for the establishment of the Koori Court Division of the County Court is to allow participation of the Aboriginal culture within the Australian legal system, as a means to bridge the cultural differences between Indigenous Australians and the imposed colonial law.

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7. What specific sources/aids might a judge use to assist in the interpretation of expressions used in the County Court Act 1958 (Vic)? Refer to four different sources/aids to assist with interpretation, indicating whether they are intrinsic or extrinsic to the Act. Interpreting statues and legislation is one of the most difficult tasks faced by judges and magistrates. Sources/aids that may assist a judge in interpreting the County Court Act 1958 (Vic) include precedents, dictionaries, interpretation legislation, and reports. Precedents are an extrinsic source judges may use to interpret legislation. Previous judges may have ruled on specific statutory meanings or legislation, and a judge may follow it as a persuasive precedent. Dictionaries are another extrinsic source that may be applicable to assist a judge in interpreting specific meanings for the relevant legislation. Interpretation legislation, such as the previously mentioned Interpretation of Legislation Act 1984, ensures that legislation is consistently and justly interpreted throughout the entire legislation it is relevant to. Reports may be extrinsically examined by a judge to obtain a fuller understanding of why the specific legislation was created, and what its entire purpose and intentions entail. 8. For the purposes of section 17AAA of the County Court Act 1958 (Vic) a ‘judicial officer’ means a judge or an associate judge. Describe how a ‘judicial officer’ may be obliged to undertake further education and training. What, in your opinion, is the basis of the requirement of ongoing professional development and training? A judicial officer may be obliged or encouraged to undertake further educational training if the chief judge leads them to do so. In my opinion, the basis of the requirement of ongoing educational development and training is to refine a judicial officer’s knowledge on the constantly evolving and reforming legislation. To perform at a higher and impartial standard, it may be necessary for a judicial officer to review their knowledge on judicial powers and precedents.

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9. The County Court offers mediation to support the timely and cost-effective processing of its cases. With or without the consent of the parties, the court may refer a civil proceeding to mediation. Which section of the County Court Act 1958 (Vic) gives the court the power to so refer a case? Does this section provide for other forms of Alternative Dispute Resolution? Can evidence from mediation be admitted at the hearing of the proceeding? Explain. The County Court Act 1958 (Vic) gives the court power to refer a case to mediation in sections 47A-47B and 48C. The act also mentions arbitration and the use of an assessor as means for alternative dispute resolutions. No evidence shall be admitted at the hearing of a proceeding of anything said or done by any person at the mediation, as all matters said in mediation are confidential. A judge is not informed of the contents of or decisions made during mediation, and it is unable to be used against a party if the case does continue to a trial.

10 (a). Explain the following statement made by Gleeson CJ in Brodie v Singleton Shire Council (2001) 206 CLR 512, 513: ‘[l]egislation and the common law are not separate and independent sources of law... they exist in a symbiotic relationship.’ The statement made by Gleeson CJ refers to how statue can shape and effect common law development. A symbiotic relationship describes the interaction between two dissimilar organisms living in close physical association, which, in context, relates to how legislation and common law should complement each other despite their dissimilarity. The legislature introduces the law and the court interprets legislation, and in doing so, creates common law. The assumption is that the legislature acts in a way that has regard to its purpose in making a law, its constitutional role and those of the other branches of government. Legislation should agree with the freedoms and rights that common law aims to protect, as that is fundamentally crucial in a representative democracy. The principles that govern legislation are essentially the application common law principles and will surely evolve over time. Therefore, the statement made by Gleeson CJ in Brodie v Singleton Shire Council (2001) 206 CLR 512, 513 is justified.

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10 (b). How does the County Court Act 1958 (Vic) link to the research topic for this semester and how might you use this Act in your final essay due in Week 12? The County Court Act 1958 (Vic) relates to the research topic as it is a relevant piece of Victorian legislation. The Act defines the roles of different judges, which may relate to judges acting in a disinterested and matter-of-fact way, in which the research topic states judges should act. The definitions included in section 3 of the act may also assist judges in defining their roles and in having an impartial viewpoint. I may include this legislation if it relates to a specific case or media release that I am referring to.

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