Seminar 8- The hierarchy of courts PDF

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in class lecture note with all teachers ppt slides note in seminar 8 and 9, good for preparing in class test....

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The hierarchy of courts  The relevance of hierarchy: Why Au. Courts arranged in a hierarchy? Allows appeals from the lower courts to the higher ones. Crucial to the operation of the doctrine of precedent (the lower courts deal with disputes and the higher courts have responsibility for establshing the legal principles serving as precedents in later cases)  Jurisdiction 1. General jurisdiction: the general power to hear all matter subject only to express legislation restriction.( State supreme court) 2. Limited jurisdiction: only have power to hear those maters in relation to which jurisdiction has been conferred by statutes, or in the case of High Court, authorised by the Constittuion. 3. Only state supreme court has general power. 4. What does ‘jurisdiction’ mean?Superior courts have power in making the law and application of the common law . Legal rule are interpreted and applied by the courts in the process of adjudicating disputes.  Federal and State jurisdiction (why there are two court hierarchies in Au?--becuase Au is federal system and 1.?)

1. Constitution creates a federal system:(so that) Australians are subject to both Commonwealth and State law There are two court hierarchies: Commonwealth and State 2. Court:

Commonwealth/federal court: interpret and apply federal system State courts interpret and apply State laws

The commonwealth Parliament can legislate to give State courts power to demermine matters arising under federal laws according 77(iii).  Original and appellate jurisdiction 1. The lowest court in a hierarchy has no appellate function. 2. In general terms, the higher a court’s position in the hierarchy, the more time it spends exercising appellate jurisdiction rather than hearing cases.(What different functions is a court performing in the exercise of original and appellate jurisdiction?) 3.The terms ”appeal” and “ review” are used interchangeably. Appeal--creature of statutes of statute and determined by the Act Review--the superior courts have power at common law to review decisions of inferior courts and tribunals.  State and Terriotory courts Inferior courts

Intermediate courts(middle Superior courts range of court)

Definition

1. Magistrates’ court(Local court): include family

Tasmania,

only

have

two

of court-court, courts of summary jurisdiction, court of level petty sessions. local(magistrates) courts and 2. In the past time, Magistrates’ courts were presided[prɪ ˈzaɪd] 主持 over by Justices of Peace. 3. Magistrates’ were addressed as ‘Your Workship’

supreme court

before 2004, and ‘Your Honour’ now. 4.Summary jurisdiction: magistrates determine all questions without jury, including criminal and civil dispute. Crime level

less serious, Maximum term: 2 years (more serious crime of inditable offence--in intermediate or higher

Meaning

Establishment of court division: diversify tribunals

courts) and procedures in cost and other difficulties of litigant. Structure

Single judge

Judge

and

jury(judges

determine all questions of law and juries decide questions of facts. Matters:

1. Criminal and civil

original jurisdiction

and

appellate

Original jurisdiction: single judge Appeals: several judges/ could be

exercised by the Full Court(Court of Criminal Appeal and Court of Appeal- civil)

Note

The appeal from supreme court: high court

Judge

1. Your

Honour,

1.Your Honour/ called: Justice

title:

surname Monetary

Civil:

limit

injury:60000(Local court Act)

limited

claims :100000,

personal

Civil:

750000,

in

certain

specified s3, s44

High Court require special leave 上诉的特别许可 for imporant cases, 35A of the Judiciary Act 1903 (Cth)  Specialist courts Land and enviraonment court-status and appeal structure vary. Tribunals

Federal Courts Federal Courts

Act Function

Federal Magistrates Court

Federal Australia

Court

of

Family Court of Australia

Federal Magistrates Act 1999

Federal

Court

of

Family Law ACT

(Cth)

Australia Act 1976(Cth)

1986 (Cth)

Only deal with quickly, cheaply Superior court: original Superior dispute in federal level, no and

appellate

High court

original

court: and

1. At the head of State and Federal hierarchy

criminal matters

jurisdiction

appellate jurisdiction

2. Original: s75 Constitution/ s76:from federal Parliament--additional original jurisdiction 3. Original jurisdiction(Full

Court):

significant constitutional cases Structure

Jurisdiction

General Dicision and Fair Work

Specialist court:

Divison

children property.

1. No

jurisdiction

Emphase

1. original

conferred and could

jurisdicition:

not deal with criminal matters.

conferred over150

relevant by

and 1. s74 Constitution: prohibit appeals on the questions of federal constitutional law

legislation

federal statutes

Appeal

native

The Privy Council (Limitation of Appeals) Act

practices/

1968 (Cth): abolished appeals in relation to State law

Share with Fedral Court and

Single

Family court(have concurrent jurisdicton with the Federal

title/trade workplace

judge:

Court such as bankruptcy,

relationship/human

customer protection, trading, workplace relationship)

right

Lies on the Federal court and Exercised by the Full

1. Appellate: s73

Family court

2. s35: important cases---only special leave could to appeal

Court

Specialise in legislation

granted

2.exercised by two or more judges/ 7 in important cases 2.

Family Relationship Center is funded to deal with dispute

Judicial appointments and tenure  How judges are appointed 1. Decided by executive arm: State and Federal government 2. Appointed by Cabinet 3. No legislation requirement, except 6 of the High Court of Australia Act 1979 (Cth), requires Commonwealth Attorney- General

to consult with State Attorney-General to fill a High Court vacancy.

 Judicial backgrounds 1. No specification in legislation for criteria, except s7 in Constitution of the High Court of Australia Act- a person could not be

appointed unless being a judge in State or Territory court or as lawyer in High Court/ Supreme Court for 5 years. 2. The appointment lack of diversity and transparency 3. An Advisory Panel was established and submit report to Attorney-General

 Judicial attributes

Base on merit?: Law council provides federal measures for judicial appointment  Judicial tenure 终身制 1. Security of tenure is vital for an impartial judiciary/ independent of political consideration. 2. s72 of the Constitution: shall not be removed except by the Governor-General /retirement age for Hight court:70/ prove misbeheavior 3. Judicial Misbhehaviour and Incapacity (Palimanetary Commission) Bill 2012 (Cth): investigate misbehaviour or incapacity 4. s53： the removal of Judge in state 5. s41: Judicial Officers Act 1986 (NSW): a judicial officer may not be removed from the offices in the absence of a report of the Conduct Dicision to the Governor Q:What law governs the removal of judges in Au? s72 of the Constitution: Q:How does the law differ betwen the Commonwealth and the States? Stability and Flexibility? Q:Any woman appointed to the High Court since 2009? Yes, Virginia Bell Q: who was appointed as Cheif Justice of the High Court following the retirement of His Hounour Murray Gleeson in 2008? Q:Has the Bill been enacted in2012? Yes, as part of legislative package to reform judicial complaints.. assist the Parliament under 72(ii)

The adversary System Adversarial vs inquisitorial dichotomy Adversarial

Inquisitorial

Differences

Advantage/Disadvantage

Civil law v Common law Civil codes v Case law

Systemic v individual costs Individual autonomy v court control

Legal norms v Precedent Court-driven v Party-driven litigation

Search for ‘approximate’ truth Search for efficiency and justice

Active v passive judiciary

Limited utility of system stereotyping

Written v oral evidence Systemic ‘stereotyping’

Internal diversity Systemic convergence

1. The adversary nature is the defining feature of common law legal system 2. Individual paly a central part, and judges’ role is passive rather than active.

Tribunals

 Rationale and function

 Characteristics and procedures

Seminar 9

Seminar 9:Judicial Decision-Making(Common law, equity and precedent)

Past and present

Common law and equity

Doctrine of precedent  Judge-made law

 The idea of precedent  The relevance of hierarchy

 Federal courts  State courts  Other courts

Formalism

Formalism and Realism What is legal formalism? What is legal realism? 

Rule- Formalism: emphase the importance of the rule, slot-machine version, unsophisticated and mechanical decision-making The advantages: eschew(avoid) the perosonal preferences / lead to social justice--avoid government arbitration That justification is the worth and efficacy of formalism-an attitude and a technique of reasoning that is separate from political haggling, expresses a coherent

and neutral blueprint for human relations and, as such, is deserving of institutional allegiance and obedience....