Week 5 Court Hierarchies PDF

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Week 5: Court Hierarchies Jurisdiction ● Each court has a different jurisdiction ● What is meant by ‘jurisdiction’? - ‘The scope of a court’s power to examine and determine facts, interpret and apply the law, make orders and declare judgement. Jurisdiction may be limited by geographic area, the type of parties who appear, the type of relief that can be sought,a dnt eh point to be decided’ (Butterworths Australian Legal Dictionary) ● Note different jurisdictions: - Federal v state/territory; - Civil v criminal; - Original (or ‘first instance’ or ‘trial’) v appellate ● Federal laws set up Federal Courts, and give them jurisdiction over matters such as: - Trade practices/ consumer protection; - Taxation, bankruptcy/insolvency - Immigration - Family law ● State laws set up State Courts, and give them jurisdiction over matters, such as: - Enforcing contracts; - Remedies in tort (such as negligence, trespass, defamation); - Land law

Superior, inferior and intermediate… ● The most serious and costly cases are handled by the highest level of courts at first instance, that is, when they go to trial - ‘superior courts) - Queensland example: Supreme Court of Queensland ● Minor criminal offences or civil proceedings where less money is involved are heard by ‘inferior courts’ - Queensland example: Magistrates Court. ● In most jurisdictions, in between those two levels of courts there are the ‘intermediate courts’ - Queensland example: District Court ● Intermediate courts have similar jurisdiction to superior courts except that they have some financial or other limitation in civil matters or are limited as to the type of offences they may hear in criminal matters

High Court of Australia (HCA) ● Has a place in every court hierarchy in Australia ● Mentioned in the Commonwealth Constitution - see Chapter III - The Judicature ● Created by High Court of Australia Act 1979 (the latest alteration of a line of acts)

Judges of the High Court of Australia ● Chief Justice Kiefel, 3 September 2007 ● Justice Bell, 3 February 2009 ● Justice Gageler, 9 October 2012 ● Justice Keane, 5th March 2012 ● Justice Nettle, 3 February 2015 ● Justice Gordon, 9 June 2015 ● Justice Edelman, 30 January 2017 ● Conservative means conservative in the way that judges see their role ● Different judges have different levels of comfort in making law

● Sir Samuel Griffith was the attorney general of queensland, Chief Justice of Australia and was on the high court of Australia

High Court - original jurisdiction ● Original jurisdiction see ss 75 and 76 of the Constitution and ss 30 and 38 Judiciary Act 1903 (Cth) ● In practice most original jurisdiction cases are constitutional law matters ● Most original jurisdiction cases are constitutional matters which go straight to the high court ● Even though in most jurisdictions of Australia a trial will be presided over by a single judge at the high court level, in a constitutional matter, all seven judges sit

Constitution s 75 Original jurisdiction of High Court In all matters: (i) Arising under any treaty; (ii) affecting consuls or other represntatives of other countries; (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

● High court shall have original jurisdiction

See Judiciary act of 1903 (Cth) s 38 - High Court given exclusive jurisdiction in these matters S 38… ● Exclusive jurisdiction means that only the high court can hear those matters (a) Matters arising directly under any treater (c/f Const s 75 (i)) (b) Suits between States, or between persons suing or being sued on behalf of different states, or between a State and a person suing or being sued on behalf of anther State (c/f Const s 75 (iv)) (c) Suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a state, or any person being sued on behalf of a State (c/f Const s 75 (iii)) (d) Suits by a State, or any person suing on behalf of the State, against the Commonwealth or any person being sued on behalf of the Commonwealth (c/f/ Consts 75 (iii)) (e) Matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. (c/f/ Const s 75 (v)) ● But in some instances ● Federal Court also has original jurisdiction: Judiciary Act 1903 (Cth) s 39 B ● High Court can remit to Federal Court: Judiciary Act 1903 (Cth) s 44 (send it back to the Federal Court) Constitution s 76 Additional original jurisdiction ● The parliament may make laws conferring original jurisdiction on the High Court in any matter ● May is permissive but shall is mandatory (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; (iii) of Admiralty and maritime jurisdiction; (iv) relating to the same subject matter claimed under the laws of different States ● The high court does not conduct criminal trials. Criminal trials in the federal jurisdiction are extremely rare ● Jurisdiciton over federal criminal laws is given to the state courts High Court - appellate jurisdiction ● This is where most of its work lies ● High Court is at the ‘common apex’ of every court hierarchy in Australia - ‘Ultimate’ appellate court : as far as you can go. If you don’t like what the high court says that that's too bad because there is no one else you can go to

● Appeals from state courts: Judiciary Act s 35 ● Appeals from federal courts: Judiciary Act s 20 ● ‘Leave’ to appeal must be granted by the High Court - Leave is not always granted - Typically only one or two of the judges will sit to here leave judges High Court - criteria for granting special leave 35 A Criteria for granting special leave to appeal ● In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to (a) Whether the proceedings…. Involve a question of law: (i) that it is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is require to resolve the differences of opinion between different courts, or within the one court, as to the state of the law; and (b) Whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgement to which the application relates. ● The Queensland Court of Appeal, which is the highest court in queensland, it typically constituted by three judges and those three judges won't always agree with each other, resulting in a majority judgement, 2 judges find it one way and the other judge finds it another way ● 2 judges in the court of appeal and one judge in the court of appeal and one judge in the lower court differing in opinion ● If the judges say ‘my god’ that is an interesting point of law.. Then you are likely to get your leave ● It was decided last year that the high court would hear the request for special leave and the appeal at the same time ● If the high court doesn’t give leave to appeal they don’t have to give there reasons but if they allow the appeal they will give their reasons Queensland Courts: ● Magistrates Court ● District Court ● Supreme Court ● Court of Appeal ● High court of Australia (‘common apex’ of all Australian court hierarchies) Magistrates Court:

● ● ● ●

Magistrates Courts are situated in centres all around Queensland - Charville to Cairns All around Queensland - most prevalent court in Qld Chief Magistrate - Judge Terry Gardiner (status - Judge of the District Court) You address judges as your honour, and used to be your worship for Magistrate Judges. You do not call them this socially. You call them Mr or Ms

● Magistrates court has an equitable jurisdiction ● The only equitable remedy that can be given is damages (money) but things like injunctions cannot be given ● The Magistrate sits alone to decide (there is no jury) ● Prescribed limit is $150,000 so if people are seeking $150,001 they need to go to a different court ● Magistrates were a robe District Court: ● Not as numerous as the magistrates courts ● Courts in cities and large provincial towns - Brisbane, Beenleigh, Southport, Ipswich, Rockhampton, Maroochydore, Townsville and Cairns have permanent judges. Circuits are scheduled to other centres. ● Chief Judge - Judge Kerry O’Brien ● You would address the court as your honour, if you were to meet them at dinner you would address them at judge ● District Court judges were a robe or a wig District Court - civil jurisdiction ● More extensive equitable jurisdiction than the Magistrates Court, including the power, in certain defined circumstances, to make orders for specific performance and declarations and to grant injunctions 68 Civil Jurisdiction (1) The District Court has jurisdiction to hear and determine (a) All personal actions, where the amount, value or damage sought to be recovered does not exceed the monetary limit including (i) any equitable claim or demand for recovering of money damages, whether liquidated or unliquidated (b) In this section monetary limit means $750000

Supreme Court: ● Hears and decides the most significant cases in regards to a dollar amount or a penalty ● Supreme Courts are located in Brisbane Rockhampton, Townsville and Cairns ● The court might go on a circuit to a different town for a hearing - Judges associate goes, Judge goes and lawyers go

● Chief Justice - Justice Catherine Holmes ● You would address them in court as your honour, when writing about them you call them justice and in public you call them judge Supreme Court - civil jurisdiction ● Because it is a supreme court its civil jurisdiction is not limited to a certain amount ● Supreme Court of Queensland Act 1991 (Qld) ● Civil jurisdiction not limited as to amount ● Complete equitable jurisdiction - i.e. can award the full range of equitable remedies ● If they supreme court can do everything then why doesn’t it do everything ● The supreme court wouldn't like it if you try and deal with something when it could have been dealt with my lower courts ● The higher the court is the harder it is to convince them of your claim and it costs more money

Appellate jurisdiction of courts in Queensland - Civil Matters ● The court of Appeal doesn’t have an original jurisdiction Appeals: ● What is an appeal? - An appeal is ‘An application to a higher court to reconsider the decision of a lower court, on the ground that there has been an error in the decision of the lower court’ (Butterworths Concise Australian Legal Dictionary) - An appeal can exist exist either ‘as of right’ or ‘with leave’ - All appeals in the high court are ‘with leave’ - When heard, appeals may be dismissed, upheld, remitted to a lower court to reconsider, or allowed in part - Dismissed (loses) and upheld (wins) - An appeal as of right: when you don’t need to appeal to leave - Terminology: ● Trial: Plaintiff v Defendant ● Appeal: Appellant v Defendant Court of Appeal: ● A division of the Supreme Court ● Some judges appointed as ‘judges of appeal’ (JA) - may , but usually won’t, conduct trials ● Judges of the Supreme Court, trial division, also sit in appeal from time to time (J) ● President - Justice Walter Sofronoff (P) ● Constituted by 3 or (very rarely) 5 judges ● Replaced the FUll Court of the Supreme Court of Queensland ● No original jurisdiction ● The last time all members sat was the trial for the Lacey brothers

Appellate jurisdiction of courts in Queensland - Civil Matters ● Supreme Court single judges don’t have a supreme court jurisdiction in the way it is being talked about in this lecture ● There are some matters that can be taken by a single Supreme Court judge for review: - Decisions of the Commissioner for State Revenue - Taxation Administration Act 2001 s 69 - Sterilisation decisions under the Guardianship and Administration Act 2000 (Qld) - Section 800: Schedule 4 Dictionary ● But typically the Supreme Court is a trial court and majority of the time it appeals trials ● Right to appeal granted by legislation ● Magistrates Court to District Court: - Need leave of the District Court where not more than $25000 (minor civil dispute amount) - Magistrates Court Act 1921 (Qld) s 45 - Queensland Civil and Administrative Tribunal Act 2009 (Qld) sch 3 (def’ns minor civil dispute; prescribed amount) ● District Court to Court of Appeal - Need leave of Court of Appeal unless ‘judgement is given… for an amount equal to or more than the Magistrates Court jurisdictional limit’ ($150,000) - District Court Act 1967 (Qld) s 118 ● An interlocutory judgement is a judgment that is made along the way.

The supreme Court to Court of Appeal ● General as of right… - S 62 Supreme Court of Queensland Act 1991 (s 69 renumbers s 62 in late 2012) ● Court of Appeal to High Court of Australia - Special leave always required to appeal to the High Court of Australia - the ‘My God’ test - S 35, 35 A Judiciary Act 1903

Federal Courts: ● Federal Circuit Court ● Federal Court and Family Court ● Full Federal Court and Full Family Court

● High Court of Australia Federal Circuit Court (FCCA) ( Was Federal Magistrates Court (FMC) until 11 April 2013) ● Chief Judge - Judge William Alstergren ● Commenced 3 July 2003 ● Created by Federal Magistrates Act 1999 (Cth) ● Renamed by Federal Circuit Court of Australia Legislation Amendment Act 2012 ● Created to ease pressure on Federal and Family Courts ● Registries are where you go to lodge the documents you must lodge and to pay required money ● Shares registries of the Family and Federal Courts ● Approx 80% of workload in family law but also hears matters involving administrative law, bankruptcy, human rights, consumer protection and trade practices, privacy, migration, copyright, industrial law and admiralty law Federal Court (FCA) ● Before the court was created the Supreme Courts of each state dealt with federal jurisdiction ● Chief Justice - Justice James Allsop ● Commence 1 February 1977 ● Created by the Federal Court of Australia Act 1976 ● Queensland registries in Brisbane and Townsville ● The Federal Court’s original jurisdiction is conferred by over 150 Commonwealth statues. It doesn’t deal with one primary matter like the other courts ● Consumer law, administrative law and migration law disputes dominate Family Court (FamCA) ● CHief Justice - Judge William Alstergren: Deputy Chief Justice - Robert McClelland (Commonwealth AG 2007-2011) ● Created by the Family Law Act 1975 (Cth) ● Commenced 7 January 1976 ● Registries in Brisbane, Rockhampton, Townsville and Cairns ● Most States have referred power to make laws with respect to custody and maintenance of children to the Commonwealth (see Commonwealth Constitution s 51 (cccvii)); jurisdiction vested in the Family Court ● Jurisdiction over all matters under the Family Law Act ● Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 (Cth) gave the Court jurisdiction over some federal administrative law, bankruptcy, income tax and consumer protection matters. ● In practice, handles complex parenting and financial settlement cases ● The states handed over the divorce powers to the federal courts (except for WA)

Merger of FCCA and FamCA? ● Merger announced in May 2018 to address delay in and cost of family law system: Federal Circuit and Family Court of Australia ‘FCFC’ ● Merger was to occur from beginning of 2019 ● Bill to effect the merger lapsed at the end of last Parliament (1 July 2019) ● Bill to effect the merger lapsed at the end of the last Parliament (1 July 2019) ● Second reading speech sets out the policy behind the bill and how the merger is designed to work ● ALRC review of system announced 2017, reported March 2019 - Recommended return of the family law jurisdiction to the state courts

Appellate jurisdiction of Federal Courts Federal Court/ Federal Circuit Court ● Appeals on points of law from the Administrative Appeals Tribunal and various other tribunals are available to the Federal Court and in some circumstances may be referred to the Federal Circuit Court ● There are some limited circumstances where the Federal Circuit Court can hear appeals ● See ss 44,44AAA, 4AA, AAT Act 1975 ● Federal Court is above the Federal Circuit Court

Full Federal Court ● Constituted by 3 judges of the Federal Court - Or, theoretically, ‘more’ see s 14 Federal Court of Australia Act 1976 (Cth) - Hears appeals from the FCA and FCCA (federal court matters) - See Part III, Division 2A Federal Court of Australia Act 1976 (Cth) for appellate jurisdiction provisions ● Appeal courts have more than one judge because you need more judges to outweigh the decision one judge ● ‘Full Court’ - a full federal means that three judges constitute the court Full Family Court ● Constituted by 3 judges of the Family Court or theoretically more see s 4 Family Law Act 1975 ● Hears appeals from the FamCA and FCCA (family law matters) ● See Part X Family Law Act 1975 (Cth) for appellate jurisdiction provisions

Federal Circuit and Family Court? ● Appeals from the FCFC would go to a single judge of the Federal Court

Criminal Jurisdiction - original ● State courts have jurisdiction over (almost) all breaches of Commonwealth criminal law; s 68 Judiciary Act 1903 (Cth) ● Therefore, there is (most of the time) only one court hierarchy (Queensland) to consider. ● Two ways for courts to ‘hear’ criminal offences: - On indictment: i.e. before a judge and jury (in the Supreme or District Courts), sometimes following a committal (preliminary) hearing before a Magistrate to determine if is enough evidence to put the defendant on trial. - Summarily i.e. before a Magistrate sitting alone. No jury is present. ● Essentially two types of criminal matters: - See Criminal Code 1899 (Qld) s 3 - Indictable offences (crimes, misdemeanours), which are serious offences. ● Some must be tried on indictment (the more serious ones), others may be tried summarily: See Code Chapter 58A - Summary offences (simple and regulatory offences), which are less serious and are always tried summarily. These aren't contained in the criminal code. They are contained in the Summary Act Criminal Jurisdiction of Magistrates Court ● Criminal jurisdiction is given by the Justice Act 1886 (Qld) in combination with with the Criminal Code (Qld) ● In criminal proceedings, the Magistrates Court can still consist of two Justice of the Peace (who now have to be specially qualified), and this still occurs in some country areas ● Hears lesser offences - assault, stealing, traffic ● May also try some indictable offences summarily ● May also conduct committal hearings - enquiry into whether there is sufficient evidence to commit a person charged with an indictable offence (more serious offence) to trial ● In the Exam which Queensland Court will deal with a particular matter and your starting point will be finding out whether it a crime, misdemeanor or simple offence ● You will have to work out whether it is a matter that can be dealt with summarily ● They would want something to be summarily because it is quicker to deal with. It is also the case that if you are dealt with summarily you will be given a lesser sentence, you avoid a jury and much less press ● There are some indictable offences that must be dealt with summarily. Relevant offences are decided summary. A relevant offence is if the punishment is not more than 3 years ● Where is an indictable offence triable summarily

Criminal Jurisdiction of District Court

● Criminal jurisdiction is given by the Justices Act 1886 (Qld), the Criminal Code Qld and the District Court of Queensland Act 1967 (Qld) ● The District Court has jurisdiction in respect of those indictable offences with a maximum penalty of not greater than 20 years and ...