Unit 4- Dispute Resolution Methods (1)

1. Unit 4- Dispute Resolution Methods (1)

2. Types of Disputes • There are two main types of legal dispute: criminal and civil. • Criminal law includes offences against the person, property, state, legal system and morality. • Civil law includes the law of contract, consumer law and torts. • In some instances, a specific dispute or legal problem may fall within both criminal and civil law. Case example; the death of Australian cricketer and radio broadcaster David Hookes.

3. David Hookes Case Study • The death of former Australian cricketer David Hookes had both criminal and civil implications. • Hookes had been drinking at the Beaconsfield Hotel, St Kilda, following his team’s one-day win over the South Australian cricket team. • He was allegedly punched in the head by a bouncer outside the hotel and died in the Alfred Hospital the following day. • The bouncer was committed to stand trial for manslaughter. A Supreme Court jury found him not guilty. • David Hookes’ widow, Robyn Hookes, lodged a writ suing the bouncer, the agency that employed him and the owners of the hotel, for a loss of at least $175 000 in annual income. • The writ alleged that hotel staff ‘allowed’ and ‘encouraged’ the bouncer to assault Hookes after he was evicted from the hotel. The writ also alleged that the hotel employed security staff who were not appropriately trained, who had inappropriate temperaments and who were likely to incite and engage in violent acts. • Robyn Hookes claimed that her husband was forcibly removed from the hotel by security staff and was followed and assaulted. She alleged that the hotel had a responsibility to ensure that he was ‘not unreasonably exposed to the risk of injury’. The claim was resolved by an out-of-court settlement for an undisclosed amount.

4. Criminal Actions • A criminal action generally involves an offender—referred to as the ‘accused’ or the ‘defendant’— and a victim. • However, criminal legal proceedings occur between an individual who is accused of committing a criminal offence and the state. • The reason for the state initiating criminal proceedings against the accused individual is that a criminal offence not only harms the victim but potentially endangers the community. • Purpose of criminal law • The purpose of criminal proceedings is to sanction the accused and protect society. Their effect is to enforce the values of society. Usually, a person will only be arrested if: • they have been caught in the act of committing an offence • there are reasonable grounds to believe that they may abscond • they constitute a danger to the community.

5. Civil Actions • Civil disputes usually involve two or more private individuals. • Civil actions arise from torts and breaches of contract. The ‘law of torts’ is a term for civil wrongs. • The main areas are negligence, trespass, nuisance and defamation. • Purpose of civil law • The intention of the legal action is to remedy a civil wrong. The remedy restores the complainant or plaintiff to their position prior to the infringement or breach. • Civil actions • Civil actions arise when one person believes another person has violated their civil rights.

6. Look carefully at the cartoon and identify the different types of dispute illustrated. Will these disputes be treated as civil or criminal matters?

7. Courts • Each court has its own jurisdiction., meaning power to hear and determine a dispute. • The Magistrates’ Court deals with minor cases, while the Supreme Court deals exclusively with the most serious matters., such as murder. • Most courts within the Victorian hierarchy exercise both civil and criminal jurisdiction. • That is, most courts can hear either criminal or civil disputes. • Some courts possess only original jurisdiction: they can hear a case only on the first occasion and therefore cannot hear cases on appeal. • Superior courts have appellate jurisdiction, meaning that they can hear appeal cases. • Juries are used only in the County Court and the Supreme Court.

8. Reasons for a Court Hierarchy • Imagine the problems of having just one court to deal with all matters, irrespective of the nature of the dispute, its seriousness, the amount of money involved and so on. • First, there would be much longer delays. • The right to appeal is an important feature of our legal system, as it gives an individual the opportunity to have their case determined in another court, thereby ensuring certainty, consistency and fairness.

9. Reasons for a court hierarchy? • Specialisation- Each court is limited to a specific area of jurisdiction in which it can develop expertise. The judge or magistrate in each court can develop a specialised understanding of the law with respect to the types of cases that are determined in that particular court. A judge in the Family Court, for instance, can become fully conversant with matters relating to family law. • Precedent- The doctrine of judicial precedent is largely dependent on a hierarchy of courts. Precedents are established in the superior courts. The decision of the superior court is binding on all courts lower in the hierarchy. An important advantage of the doctrine of precedent is that it provides for consistency. • Appeals- The right of appeal is seen as fundamental to the concept of justice. Appeals would not be possible without a court hierarchy. People who believe that they have grounds for an appeal would not have the opportunity to have their case heard again in a superior court by a judge with special knowledge and expertise. • Administrative convenience- A hierarchy of courts is administratively convenient because it reduces the likelihood of delays by providing a means of allocating cases according to their seriousness and complexity. Minor cases can be allocated to the lower courts where they can be heard relatively quickly. More complex matters generally take longer to hear. These cases are heard in higher courts by judges with the expertise to deal with such matters

10. Reasons for a court hierarchy?? 5) Time and money- Litigation is a costly and time-consuming process. A court hierarchy enables minor matters to be dealt with relatively quickly and inexpensively in the Magistrates’ Court rather than having them resolved in the County Court or Supreme Court, where it may cost thousands of dollars and take years before the case is finally determined by the court. 6) Expertise and experience- A court hierarchy enables more serious, difficult, technical or complex cases to be heard by experienced and specially qualified judges. • Cases concerning murder are heard in the Supreme Court. • Supreme Court judges have many years of experience as lawyers before their appointment.

11. Problems with a court hierarchy • Read from page 254-255 and summarise in your own words the problems with a court hierarchy and state three advantages and three disadvantages of a court hierarchy. • ‘Critically evaluate the need for a court hierarchy’.

12. Magistrates Court • The Magistrates’ Court is presided over by a magistrate. • In Victoria, the Magistrates’ Court is the lowest court in the hierarchy. • It has original jurisdiction over summary, minor civil and criminal matters, indictable offences tried summarily, committal proceedings, warrants and civil claims to the value of $100,000. • The Magistrates’ Court is responsible for processing 95 per cent of all criminal cases and 90 per cent of all civil cases. • The Magistrates’ Court cannot hear appeals.

13. Magistrates Court- Civil Proceedings • Civil proceedings • The Magistrates’ Court has the power to hear civil claims up to $100 000. There are a variety of dispute settlement methods that can be used in the Magistrates’ Court to settle civil disputes. These methods include conciliation and arbitration. • Conciliation • Pre-hearing conferences in the Magistrates’ Court use a process of conciliation. Parties to a dispute may apply to have a pre-hearing conference. Magistrates or registrars may also refer cases to a pre-trial hearing. A pre-trial hearing will be used when the court believes that it will encourage an out-of-court settlement or if there are complex issues that can be resolved before a court hearing. • Arbitration • Civil cases in which the compensation claimed is less than $10 000 must be heard by arbitration. Arbitration is a less formal hearing, conducted by a registrar, and is not bound by the rules of evidence. Legal representation is allowed, but is discouraged. In some cases another person, such as an agent, can appear on behalf of the complainant. The decision of the arbitrator is final and binding. • If a settlement cannot be reached, the case will be referred to the court.

14. Magistrates Court- Criminal Proceedings • The Magistrates’ Court hears criminal matters in relation to the following: • ● summary offences • ● indictable offences tried summarily • ● committal proceedings. • The Magistrates’ Court can hear a diverse range of criminal offences as either summary offences or indictable offences heard summarily. The Magistrates’ Court does not have jurisdiction to hear: • sex offences where there has been penetration • armed robbery or aggravated armed robbery • trafficking in large quantities of drugs • murder, attempted murder and manslaughter • individual offences of theft of property in excess of $25 000 (with the exception of car theft).

15. Magistrates Court- Criminal Proceedings • Summary offences • All summary offences are heard in the Magistrates’ Court. Summary offences are minor offences, such as traffic offences—speeding, not stopping at a red light, exceeding a blood alcohol content of 0.05—as well as such offences as being drunk and disorderly, and minor (common) assault. There is no right to a trial by judge and jury for these offences. • Indictable offences heard summarily • With the consent of the defendant, some indictable offences may be heard summarily in the Magistrates’ Court by a magistrate. The indictable offences that may be heard using the summary procedures in a Magistrates’ Court are offences drugs, robbery, burglary and handling stolen goods, punishable by terms of imprisonment up to 10 years or a maximum fine of 1200 penalty units. • For an indictable offence to be tried summarily, three elements must be satisfied: • the prosecutor or the defendant must apply to have the case dealt with summarily, or the court must decide to deal with the matter summarily. • the court must be satisfied that the matter is suitable to be determined summarily; • the defendant must consent to the court dealing with the matter summarily; on day of the hearing, the court will ask the defendant: ‘Do you consent that the charge against you shall be tried by us or do you desire that it shall be sent to trial by a jury?’

16. Magistrates Court Why have your case heard in the Magistrates’ Court? • The matter will be dealt with relatively quickly and inexpensively, as compared to being tried in the County Court. • If the defendant is found guilty by the court, the maximum penalty that can be issued by a Magistrates’ Court is less than the maximum penalty that a judge of the County Court can hand down. • The Magistrates’ Court is less formal than the County Court. While representation by a lawyer is advisable, Committal Hearing • Before the case is brought to trial, a committal is conducted in the Magistrates’ Court to determine whether there is a case against the defendant. The hearing is an investigation conducted to establish whether there is sufficient evidence to support a conviction by a jury in the County or the Supreme Court. • Hearings are held to save time and money. If there is insufficient evidence against the defendant to justify the case being sent to trial in a higher court, then the case is dismissed and time and money are not wasted on a trial. • If a magistrate believes there is sufficient evidence to support a conviction, the matter is sent for trial in a higher court. The accused will be remanded in custody or granted bail pending the trial before a judge and jury.

17. Magistrates Court • Warrants • A warrant is a legal document used by the court to authorise a particular act. A warrant to arrest allows a police officer to arrest and detain a suspect. • The Magistrates’ Court has the power to issue the following types of warrants: 1) warrant to arrest 2) remand warrant 3) search warrant 4) warrant to seize property 5) warrant to imprison 6) warrant to detain in a youth training centre 7) penalty enforcement warrants for unpaid fines. • 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. If an application for bail is not successful, the magistrate will order that an offender be held in remand. In most instances, a bail justice will decide bail. Judges in the County or Supreme Court also can hear bail applications. • Family law and family violence • Under the Family Law Act 1975 (Cth) the Victorian Magistrates’ Court has jurisdiction to deal with matters concerning: • ● child and spouse maintenance • ● contact and residence orders • Under the Marriage Act 1961 (Cth) the court can hear applications for minors to marry. • Applications for intervention orders to protect individuals from family violence or stalking are heard in the Magistrates’ Court.

18. Diversion Programs in Magistrates Court • The Magistrates court and the Children’s court provide diversion programs for first-time offenders. • Provide offenders with the opportunity to avoid a criminal record. • Offenders are required to do something appropriate which is aimed at making amends to the victim or assisting the offender to avoid re-offending. • Before diversion can be recommended, the following must be met: • The offence is able to be hear summarily • The offence is not subject to a minimum or fixed sentence or penalty • The accused acknowledges responsibility for the offence • There is sufficient evidence to gain a conviction • A diversion is appropriate in the circumstances.

19. Appeals in the Magistrates Court • The Magistrates’ Court is the lowest court in the Victorian court hierarchy. It therefore has no power to hear appeals from any other court. • Criminal appeals • In criminal cases, the County Court can hear appeals against a decision made by a magistrate. • The director of public prosecutions may, for instance, appeal against the leniency of a sentence handed down by a magistrate.

20. Appeals in the Magistrates Court • In hearing an appeal from a Magistrates’ Court in a criminal case the County Court may decide to: • reduce the sentence • increase the sentence • set aside the conviction and dismiss the case. • Either party may appeal to the Supreme Court on a point of law. In most instances a single justice of the Supreme Court (not the Court of Appeal) will hear the appeal. The judge in the Supreme Court may decide to: • discharge the appeal and allow the decision of the magistrate to stand • decide that the decision of the magistrate was an error in law and quash or overturn the magistrate’s decision • send the matter back to the Magistrates’ Court directing the magistrate to apply the law as stated by the Supreme Court. • Civil appeals • The only right of appeal for a civil case heard in the Magistrates’ Court is an appeal on a point of law to the Supreme Court. In the case of such an appeal, the Supreme Court can: • affirm the decision • reverse the decision • send the case back to the Magistrates’ Court and direct that the magistrate apply the law as decided in the Supreme Court.

21. 10 most common offences heard by the Magistrates Court in 2008-09 • Theft - 26 613 • Driving while disqualified/suspended/cancelled- 15 572 • Drunk in a public place- 11 943 • Obtaining property by deception- 10 253 • Exceeding the prescribed concentration of alcohol within 3 hours of breath test- 8613 • Exceeding signed speed limit- 8 578 • Driving unregistered vehicle in toll zone- 8 413 • Using unregistered vehicle/trailer on highway- 6 989 • Failing to answer bail- 6 590 • Possessing a drug of dependence - 6 504

22. Question time  1)Outline the criminal and civil jurisdiction of the Magistrates’ Court. 2) What is a court hierarchy? Why are courts arranged in a hierarchical structure? 3)What is the place of the Magistrates’ Court in the Victorian court hierarchy? 4) Outline the appeal process of the Magistrates court. 5) What other matters can the Magistrates Court hear? 6) Define ‘original jurisdiction’ and ‘appellate jurisdiction’. Complete questions 1-8 on page 264 of your text book.