Topic 2: Sources of Law, Precedent in Australian Courts

Speaker 1 Welcome. This is the second podcast for law. Speaker 2 112 introduction to the Australian legal system at Charles sturt University. In Speaker 1 this podcast will be considering another source of Law Speaker 2 and that is the law that's created and applied by Australian courts. Every day Speaker 1 will be Speaker 2 briefly over viewing. The following important Concepts that are detailed in much greater information in your readings this week. So Speaker 1 again, this is just a concept lecture to pull together. The key ideas But the things we'll Speaker 2 be talking about our civil law as against common law countries and the adversarial system of justice that we see in our courts. The difference between substantive law and procedural law. The importance of understanding Court hierarchy jurisdiction of our various courts and how jurisdictions Speaker 1 determined will touch briefly on Cross vesting. Legislation, very complex area and floor, which Speaker 2 you'll study further on in civil procedure and will consider questions of Of Law and questions, of fact and how this informs the role of juries in our legal system. Speaker 1 Let's talk about civil law as Speaker 2 against common law as your text notes. Australia is what we would call a common law legal Speaker 1 system and what that means is Speaker 2 that the law in Australia comes from a variety of sources. We know legislation is a very predominant Source in that regard, but we also obtained our law and our legal system from case law and from Speaker 1 customary law and even international law civil law countries, as distinct Speaker 2 from Common law such as France. Spain, Germany and Italy Speaker 1 rely heavily Speaker 2 more. So on written Speaker 1 codes as their source of Speaker 2 law. All of the laws that apply to Australians are not necessarily codified in legislation or be at that a lot of our lorries but they do come from a variety of Speaker 1 sources not least of these sources is Speaker 2 case law and precedent. Now when we refer to precedent, we mean Speaker 1 the cases that have come Speaker 2 before usually from Superior. Ports that provide legal rules or principles that apply to the cases that follow because Speaker 1 precedent is ever-changing and evolving. This is a Speaker 2 dynamic area of law, that lawyers need to keep abreast Speaker 3 of. Speaker 1 Now there are some basic principles you need to be aware of in Speaker 2 handling common law or case law. Speaker 1 The first principle is Starry decisis this is a fancy Latin term which simply means to stand by Speaker 2 the things decided. It's The Binding nature I suppose of Don't and it's synonymous with the word president. Speaker 1 It's the idea that legal Speaker 2 principles decided by the courts are binding on subsequent decisions, made by courts, particularly lower courts in the court. Hierarchy Speaker 1 precedent is highly dependent as you can imagine there for on the court Speaker 2 hierarchy and the level that the court Speaker 1 is, that's making the decision at the time. That will determine how binding a precedent will be. Speaker 2 Will consider more of this, though. In topic 7. Let's talk a little bit about adversarial as against inquisitorial models. The Australian common law system is premised on an adversarial system of justice. And that means that two or more parties who are in dispute with each other contest that dispute by presenting their cases. In a courtroom context in this model, the courts role is to impartially adjudicate the evidence before it and to resolve The disputes between the parties by applying the relevant Rules of Evidence of which determine what is Speaker 1 admissible. And Speaker 2 also, by making Speaker 1 a enforceable decision, the Speaker 2 courts role in an adversarial Speaker 1 system is theoretically passive neutral Speaker 2 and almost like a spectator or Speaker 1 referee. The judicial officer is charged Speaker 2 with ensuring procedural Speaker 1 fairness in the presenting of each party's case and to remain neutral Speaker 2 until he or she makes a finding Or one or the other party, based on an adjudication of the facts and an application of the law. The court is not charged as Speaker 1 it is in Speaker 2 inquisitorial models with the Speaker 1 job of finding the truth or Speaker 2 getting the truth out of the parties rather in an adversarial model, they are simply to adjudicate on what evidence is put before it by the represented Speaker 3 parties. Speaker 1 Let's talk a little bit about alternative dispute resolution. Speaker 2 Now not every legal dispute ends. In court, in fact, a very small proportion of cases actually proceed to full-blown hearing a vital part of resolving disputes and saving time, money and stress. For your client is engaging in what's called alternate dispute resolution, we call it a Dr. For short, there are many different forms of ADR and they range from the highly informal to the quite formal. It includes things such as Speaker 1 negotiations settlement. Aces. Speaker 2 Mediations arbitration binding judicial opinion, all forms of ADR. Play a vital part in resolving matters and relieving the very heavy workload that is on our court systems. Speaker 1 Lawyers need to be conversant and highly skilled in Ada and indeed, there are Speaker 2 elective subjects you can do as part of your Speaker 1 degree which will skill you in this lawyers, have an Speaker 2 ethical obligation to attempt and to properly engage in a A to resolve disputes. They clients regardless of whether or not the client wants their dispute resolved this way Speaker 1 and they have to do this prior to instituting proceedings. Many courts will actually include a Speaker 2 Dr as part of the case management Speaker 1 process and in some courts such as the federal Speaker 2 court. They'll require certification by the legal practitioner Speaker 1 before they commenced the proceedings that Speaker 2 the practitioner has made a reasonable attempt to resolve the dispute prior to commencing legal Speaker 1 proceedings. If you'd like an example of this, have a look at the Civil Speaker 2 dispute, resolution Act of the Commonwealth section 42 section 10. Speaker 1 Now, when engaging in a Dr, lawyers over the same ethical duties of Candor honesty and Independence, they do in any other legal proceedings. It's interesting to note in the Australian, solicitors Speaker 2 conduct rules which are the rules that govern, how solicitors behave and Speaker 1 practice. The word Speaker 2 court is defined in the glossary of the rules to include Speaker 1 an Raishin mediation or any other form of alternative Speaker 2 dispute resolution. Speaker 1 So a Dr. Is very Speaker 2 important in our system of Speaker 3 justice. Speaker 1 Substantive law as against procedural law, if you've not already noticed, lawyers love Speaker 2 to classify and categorize things. It's often the way we work about getting things sorted Speaker 1 in our head in the legal system, Speaker 2 in the categorization of areas of law and the subjects you will study in your law Speaker 1 degree. We have the concept of what's called substantive law Speaker 2 versus the concept of procedural Speaker 1 law. Well what's this? By definition each area Speaker 2 is theoretically quite Separate procedural law. Are those laws that govern the conduct of proceedings before the Speaker 1 court? It's object ival in that, it allows subjective or substantial rights to be pursued and Speaker 2 obtained substantive law, however, is the actual law that governs or creates the rights and Speaker 1 responsibilities between the parties. Speaker 2 So, for example, contract law or tort law, the Speaker 1 right to sue for negligence or too soon. Speaker 2 Breach of Speaker 1 contract is what we call Speaker 2 substantive law, your legal writing contract, or tort is a substantive legal, right? Speaker 1 How you litigate that in court? However, is subject to Speaker 2 procedural law and the rules of the uniform, civil procedure rules. Speaker 1 So, that's the difference between the two. Now, if you have a look at the Priestly 11 subjects that you will study in your degree, you'll see that you have a blend of Speaker 2 subjects that are both procedural, like, civil procedure, criminal procedure, and to a degree. Speaker 1 Ants and subjects that are Speaker 2 substantive in character. So for example, contract law, tort law, constitutional law company law, Etc. You can't litigate a matter in court, unless you understand Speaker 1 both the substantive law behind the cause of action Speaker 2 and the procedural law and rules of the court in which you'll bring the cause of action, both areas of law are vitally important. That's probably why they're part of your law degree. Although we tend to classify areas in substantive law Banks, separate to procedural law, Speaker 3 Of Speaker 2 the reality in actual legal practices that they tend to merge sometimes and sometimes they're not all that separate after all. What do I mean by this? Well, let me give you an example. Speaker 1 Say, I'm injured by the negligence of somebody in New South Wales. The limitation Act of New South Wales, Speaker 2 which tells me how long I have to bring legal proceedings, says that I have Speaker 1 three years from the date of my injury in which to bring legal proceedings, against the person who was negligent if I fail to do so. Speaker 2 I will make a procedural application to extend the limitation period and to see if the court will allow me to extend the time, in which I can bring my case, the decision of whether or not my case can be brought and the extension Speaker 1 of time is a procedural law question and Speaker 2 it's governed by a long line of legal precedent Speaker 1 on the section section 60, C of the New South Wales, limitation Act. Now let's say under sixth section, 60 see when considering the facts of my particular case the Court decides Speaker 2 But no, I cannot bring my case out of time that I have run out of time in that three-year period. Speaker 1 That is a procedural decision Speaker 2 but notice how it Speaker 1 completely Alters my Speaker 2 substantive legal rights, my right in tort law to sue for negligence. No longer can be Speaker 1 pursued because of procedural, law decisions. So as you can see procedural, law can really affect substantive legal Speaker 2 rights and although they are separate. They do go hand in hand with each other. Speaker 1 Now the next concept that's Speaker 2 really important that we talk about a lot is caught hierarchy. It's critical in your study of law Speaker 1 to understand both the Speaker 2 federal court hierarchy and the state court hierarchy. And it would be really helpful for you to have on your, your wall, near your desk or wherever you are studying a diagram of both hierarchies. Visually depicting them you'll find Speaker 1 these in your texts Speaker 2 which are helpful, but also in online topic notes. But also, the court websites will give you. Court, hierarchy. Diagrams generally speaking Australian, jurisdictions comprised of three Speaker 1 tiers. That is the lower Court's intermediate courts Speaker 2 and a singular Superior Speaker 1 Court. Each Court was created by an act of Parliament and in that legislation, the court is vested with authority and with what we call jurisdiction. Speaker 2 Now, when we talk about jurisdiction or we're talking about quite simply is whether or not, the court has a particular Power or ability to hear a matter and to make a binding determination for the parties in that matter. Most of our Superior Courts which are the Supreme Courts of each state and territory the federal court in the high court, have what we call original jurisdiction and they also have appellate jurisdiction. Original jurisdiction means those types of Speaker 1 matters. The court can hear it Speaker 2 first instance. So, in other words, when the case first comes to the court, Speaker 1 Let jurisdiction refers to appeals and those matters that the court can hear as an appeal from either the same court or a court that is Speaker 2 lower in the court. Hierarchy, let's take an example, the Speaker 1 Supreme Court of New South Wales has Speaker 2 an original jurisdiction. That's conferred by section, 23 of the Supreme Court act, that's a very broad jurisdiction and it enables the Supreme Court of New South Wales to hear. And determine all matters necessary for the administration of justice in New South Wales. Well, now that's very broad. The Speaker 1 court can hear all matters within its Speaker 2 territorial jurisdiction. Namely it has to be within New South, Wales, or connected to New South Speaker 1 Wales, and it has an unlimited Speaker 2 monetary jurisdiction, which means that it doesn't matter how much the case is worth the Supreme Court can hear it provided. It's over a certain amount namely 750,000 dollars which is the district courts monetary jurisdiction. Speaker 1 Now, that's the original jurisdiction of the Supreme Court section. 44 Speaker 2 of the Supreme Court, act confers appellate jurisdiction on the Supreme Court and it constitutes another part of the Court. That's called the court of appeal. The court of appeal according to section, 44 can hear appeals from single judges of the Supreme Court and can also hear appeals from other New South Wales courts and tribunals Speaker 1 it. So therefore we would Speaker 2 say that the Supreme Court of New South Wales has both appellate and original jurisdiction. In addition to this, it has a supervisory jurisdiction in respect to a other courts in the New South Wales State system. Speaker 1 This means that the court of appeal will often hear Speaker 2 appeals not just only from single judges of the Supreme Court but also from The District Court of New South Wales as well as certain tribunals. So we go up the hierarchy often. So to speak when we're talking about appeals, if funnily enough practitioners Speaker 1 often call making an appeal, taking it upstairs, figuratively, it's fairly Speaker 2 accurate. The District Court of New South Wales. And appellate jurisdiction. Also it can hear appeals from the local Court of New South Wales, and the children's Court in certain Speaker 3 circumstances. Speaker 1 Let's have a think about the high court for the high court of Australia as the highest Speaker 2 court in our hierarchy has original jurisdiction and an appellate jurisdiction. Also Speaker 1 pause this podcast now and look up section 73 of the Constitution. That's the instrument that constitutes the high court of Australia. Looking at section Speaker 2 73. What's the appellate jurisdiction of the high court? What types of matters can adhere Speaker 1 Superior Courts which are the Supreme Courts of each state and territory Speaker 2 also have in addition to appellate and original jurisdiction, what we would call inherent jurisdiction, Speaker 1 inherent jurisdiction is an incredibly difficult concept to Define and to understand Speaker 2 there are a couple of terms to understand before we can get into inherent Speaker 1 jurisdiction. Firstly, these are quartz of Speaker 2 superior record and what that means is that they have a very Why General jurisdiction over criminal and civil matters and they're the highest court in this regard, within this, to the state or territory. Speaker 1 Secondly, the courts of Speaker 2 record meaning that Speaker 1 all proceedings and judgments before those courts Speaker 2 are recorded through transcripts and Speaker 1 judgments, courts of superior record are said to have inherent power. Now, inherent power is a power within the cord itself that is not conferred by legislation or able. To be taken away by legislation and inherent power allows the court to maintain its authority over the proceedings that proceed before it Speaker 2 and that includes the legal practitioners that come before it Speaker 1 as the author Jacobs explains. And I'm going to quote here, the essential character of Superior Courts of law necessarily involves that it should be invested with the power to maintain its Authority and to prevent its processes from being obstructed and abused. Such a power is intrinsic in a superior court, it is the very lifeblood, it's very essence, its imminent attribute without such power. The court would have form but would lack substance the jurisdiction, which is inherent in a superior court of law. Is that which enables it to fulfill itself as a court of law? Speaker 2 Inherent power allows the courts of superior record to issue, practice, directions, and practice notes, that Speaker 1 regulate, how legal proceedings are be to be conducted before them. And it can do Speaker 2 this inherent power because part of inherent power, is being able to regulate the proceedings before them and prevent abuse of Speaker 1 process. So, this will include things like how the matters are to be case managed. Speaker 2 So when the matter comes before, the court orders, the court will be making what documents are to be filed by the parties when Azar to appear and the expectations, the court has of legal practitioners. In terms of getting matters, ready for hearing equally, it is inherent power that allows the discipline and management of the legal profession by Superior Speaker 1 Courts. The Supreme Court of each jurisdiction in each state is the Speaker 2 body. That's responsible, Speaker 1 ultimately for the admission of a legal practitioner to Legal practice. And through inherent jurisdiction, the Supreme Court is also the body Speaker 2 that can strike a legal practitioner. Off the role of legal practitioners. If they're found to no longer be a fit and proper person. This is all part of this idea of inherent Speaker 3 power. Let's talk a bit more about Speaker 1 jurisdiction. When we talk of jurisdiction, as I said before, we're quite simply Speaker 2 talking about whether or not the court has the power to make and hear a binding determination on the matter before it getting jurisdiction. Right Speaker 1 is vital because if you commence proceedings in the wrong Speaker 2 Court without jurisdiction your legal proceedings, might be stayed. Speaker 1 In other words, not able to Speaker 2 proceed struck out or transferred to another court and that causes delay and cost implications. Locations for the client being a Federated Nation. We have nine different Court jurisdictions. When we take into account each state territory and federal court of the Court Speaker 1 hierarchy, each jurisdiction has different courts and tribunals Speaker 2 as the Australian Parliament is created by our constitution. So too, is the high court. The Commonwealth Parliament can only make laws concerning those areas. It's authorized to do so under Speaker 1 the Constitution. And so to the Speaker 2 Commonwealth courts are only able to determine Disputes on areas that the constitution grants them power to or indeed non civil disputes again in accordance to those Powers contained in the Constitution, Speaker 1 the Constitution also allows the federal Parliament to pass legislation that vests Commonwealth courts Speaker 2 with power, which it has done. An example, is the judicial Act of 1903 or the federal court of Australia act. Now, in the federal court hierarchy, we also have the high court of Australia, which is the highest court. Speaker 1 Not in all of our land. We also have beneath the high court, the federal court, the federal circuit and Family Law, Speaker 2 Court of Australia. And there is also an appellate jurisdiction within the federal court Speaker 1 in the state jurisdiction. The states have jurisdiction to Speaker 2 hear any matters unless their jurisdiction is removed by by the state or the Commonwealth to a court that has more exclusive jurisdiction over the Speaker 1 matter, and that's only in limited circumstances. Speaker 2 So Commonwealth courts will have He met us that arise in the states when it concerns a matter about the Constitution or a matter about federal law predominantly Speaker 1 in many instances, cross vesting Speaker 2 legislation, which we'll talk about. In just a moment, has actually transferred, the bulk of civil proceedings to state jurisdictions Speaker 1 in the states, under the various acts of Parliament that vest those courts with Speaker 2 power. The courts hear those matters that the legislation allows so legislation. Has jurisdiction Speaker 1 the Supreme Court has jurisdiction to Speaker 2 hear almost any matter, as we spoke about a moment ago, under section, 23 of the Supreme Court, act other state level Court, such as the District Court of New South. Wales the land and environment Court of New South Wales and indeed the local Court. Each have legislation Speaker 1 constituting them and within that Speaker 2 legislation have particular Provisions that give them jurisdiction. Speaker 1 Most of the litigation Speaker 2 conducted in the Supreme Court is civil litigation. Of cases, in Australia are Speaker 1 heard in state courts, not the federal hierarchy and will be considering each Court's Speaker 2 Jurisdiction in much greater detail when you get to law, 217 civil procedure. But Speaker 1 for now, it's important for you to understand that jurisdiction is conferred by the governing legislation that constitutes each court Speaker 2 and making sure you understand, those particular rules, Speaker 1 how do we determine Speaker 2 which court to commence proceedings in? You might be wondering, well, Speaker 1 the first steps to understand as I I said how the courts Speaker 2 are constituted in the hierarchy. Speaker 1 It's also important to understand that Speaker 2 each court within the hierarchy has original jurisdiction and some of them have appellate jurisdiction. Speaker 1 The next step in considering jurisdictions too often. Look at the type of matter that you're seeking to litigate Speaker 2 to classify it. By looking at subject matter territorial Speaker 1 location of the dispute Speaker 2 and monetary amount that might be in dispute subject. Matter jurisdiction, and territorial matter jurisdiction will determine whether a court. Has the power to make a binding judicial decision Speaker 1 over your proceedings that you can ultimately enforce courts. Can't make Speaker 2 decisions on matters that are outside of their jurisdiction. Speaker 1 So it's really important to make sure that the scope or reach of a Speaker 2 Court's power and authority is able to make a binding determination. Speaker 1 As I said before, Speaker 2 jurisdiction can be very important and because of the laws that apply in the various States and territories differ choosing the right jurisdiction, might directly impact the substantive legal rights of your client and so it's an important area for you to Speaker 1 study. It's a complex area for you to study but you don't have to Speaker 2 get your head around it completely. Now in this first year subject, Speaker 1 For this reason, parties will sometimes Speaker 2 argue jurisdiction very strongly because one state or territory might have a more favorable laws than another state or Speaker 1 territory, and this can be particularly. So, with mining Speaker 2 cases workers, compensation cases, and motor accidents cases due to different legislation, applying in different jurisdictions and giving different benefits or rights. That might be more advantageous. If you could connect your accident to a particular state or territory Speaker 1 prior to cross festing, Ation parties used to Speaker 2 do something called Forum Shopping which was choosing to commence proceedings, not necessarily in the most correct jurisdiction but the one most favorable to their clients case Speaker 1 the jurisdiction of Courts cross vesting act Speaker 2 has limited Forum Shopping significantly for a court to be lawfully able to have jurisdiction. As I said, it has to have power over the matter. Speaker 1 Let's talk about federal court, the federal Speaker 2 courts. Original jurisdiction was created under section, 39b of the Commonwealth, Judiciary Speaker 1 Act, the federal courts can only determine Speaker 2 cases that the constitution gives federal government power to make laws in respect of or that. Speaker 1 The constitution Speaker 2 determines the cord is able to hear Speaker 1 unless it is a Speaker 2 family law matter of high court jurisdictional matter. So, Speaker 1 that's the federal courts determine issues that raised federal or Speaker 2 issues, they also derive their original jurisdiction from section, Teen, if the federal court act and this is conferred under Section 77, 1 of the Constitution. Speaker 1 Now section 39 be of the Judiciary Act Speaker 2 defines the scope of the courts original jurisdiction. 39b one, Speaker 1 a was inserted into the Judiciary Act in 1997 and the effect of this was to significantly, Speaker 2 expand the original jurisdiction of the federal court. So Speaker 1 if the federal court can hear matters that arise essentially under Federal legislation. So a lot of our Speaker 2 Australian consumer law. For example, comes out of the Australian competition and consumer Speaker 1 act. That's a federal piece of legislation and therefore can be litigated in the Speaker 3 federal court Speaker 1 subject. Matter jurisdiction, for the federal court is Speaker 2 determined by where the subject matter involves an area of law that the federal government has power to legislate upon. Speaker 1 Now, let's talk a little bit about the state courts due to their history. The Superior State Courts have as we said inherent jurisdiction, Fiction. They also have very wide-ranging powers to hear civil disputes under their constituting legislation. They also have extensive power to deal with all types of cases subject to legislation, that Speaker 2 confer that power on them and they'll often hear a lot of matters. Also on appeal or review that have made by administrative tribunals. So for example, in cat Speaker 1 section, 39 subsection 2 of the Judiciary Act invests state courts with Federal jurisdiction. Speaker 2 In all matters that the high court has original Speaker 1 jurisdiction to. So there is a bit of a crossover here and that means that, sometimes we can litigate matters that normally would go to a federal court setting in state courts. As you can see jurisdiction, becomes very complicated. Speaker 2 Considering the high court, let's just have a brief overview of the high Court's Jurisdiction. Speaker 1 The high court is vested with original jurisdiction under Section 75 of the Constitution and that means it determines matters that arise under treaties, that Speaker 2 affect consoles are representatives of other Speaker 1 countries that concern the Commonwealth or a Speaker 2 person that's suing or being sued on behalf of the Commonwealth or where the Commonwealth is a Speaker 1 party. It can resolve disputes between states or between residents of different states and matters in which your writ of Speaker 2 mandamus, or prohibition, or an injunction is sought against an officer of the Speaker 1 Commonwealth. In all of these matters, the high court Speaker 2 has original jurisdiction, Speaker 1 the parliament enacted, the Judiciary Act, which Speaker 2 conferred on the high court, jurisdiction, beyond that given in the Constitution, which is Speaker 1 its entitled to do. And so, the high court also, has original jurisdiction to hear Speaker 2 constitutional matters on Speaker 1 matters involving interpretation of the Constitution, and indeed, this Remains the bulk of the high, Court's workload today, as well as appeals being the highest court in the hierarchy, the high court is Speaker 2 the point of no return. I Speaker 1 suppose. It's the last Speaker 2 stop in appeals if indeed, you are able to get an appeal before the high court, not every matter has an automatic right of appeal to the highwomen. Speaker 1 Court and that's Speaker 2 because, you know, basically due to work load, the high court is able to determine what matters should be heard Speaker 1 and particularly that's Speaker 2 determined by matters that are important points of law. Just Speaker 1 because an injustice may have been done or something might be seen as being as fair Speaker 2 or operating reasonably. Doesn't mean the high court will necessarily review that in appeal, Speaker 1 rather it has to be an important point of law that will establish precedent Speaker 2 to bind the lower. It's in the hierarchy, under Section 44 of the high court of the act, the Judiciary Act, the high court May on its own motion remit, any matter, or any part of a matter to a relevant, state court or authority. So Speaker 1 If we talk about the high, Court's appellate jurisdiction again for just a moment, as we said it's the final point for appeals the areas that you Speaker 2 have appeal rights to the high court. Include, it's from lower courts that are exercising original jurisdiction. If the high court, which we spoke about a moment ago, you have an automatic right of Speaker 1 appeal for any federal court or Court. Exercising Federal jurisdiction from the Supreme Court of any state. But that's not an automatic right again, sometimes special leave applications are required. Speaker 2 And any state where an appeal lies in right to the Queen, in Council Speaker 1 under the federal court of Australia. Act Parliament, has added further restrictions and exceptions to the high, Court's appellate jurisdiction. Speaker 2 So, for example, there is no right to appeal from a single judge sitting in the federal court, who is exercising original jurisdiction of that Speaker 1 court and where the single judge is sitting as an appeals judge. Exercising, appellate jurisdiction, special leave is required for Speaker 2 appeals from the court of the federal court and from appeals from the Supreme Court. So Speaker 1 as I said before, that Speaker 2 filtering process of working out. What are important matters of law are Speaker 1 determined in. What's called special leave application, section 35 of the Act deals with this special leave applications to the high Speaker 2 court are amazing processes to watch. If you would Speaker 1 like to ever sit in and see some Speaker 2 fast and furious Justice with excellent opportunities to seek very good advocacy. I our judge you to look up the lists of the high court and see if they are appearing in your capital Speaker 1 city and see if you can sit in and watch some of the special leave Speaker 3 applications. Speaker 1 Let's talk about cross festung legislation. If proceedings are commenced in New South Wales, let's say but concerns parties, that are usually resident and domiciled in Victoria. And let's say those Speaker 2 proceedings regarding a contract that was made in Victoria cross Speaker 1 vesting, legislation is highly relevant to determining where those proceedings should be heard and transferring those proceedings to the appropriate jurisdiction. Now, when considering cross vesting, we need to look at a number of pieces of legislation. There is The jurisdiction of Courts cross vesting Act of each relevant State, there is the Judiciary Act of the Commonwealth, the service, and execution of process Act of the Commonwealth and the legislation that constitutes the particular court in the state or territory. As I said before, starting proceedings in the wrong. Court can have serious, implications, procedurally, and cost wise for the case at hand. Speaker 2 Each state and territory has the power to create their own courts and their own laws. And that means that different Speaker 1 It's in different parts of Australia are able to Speaker 2 determine different types of cases, Speaker 1 cross vesting, legislations in place for good reasons. It's to make sure that parties don't exploit. The differences between Speaker 2 states and territories in a federal system Speaker 1 and abuse process by Speaker 2 commencing in the incorrect Forum or jurisdiction. As I said, Speaker 1 that's called Forum Shopping. The other important part with cross festung legislation is it allows certainty for businesses. Earnest and Commercial entities to determine which jurisdiction they should submit to when trying to resolve a dispute. So it gives certainty to Contracting cross vesting, legislation only applies to Superior Speaker 2 Courts and not to the inferior courts. Namely the Supreme Court's of each state and territory Speaker 1 the cross vesting legislation provides that original and appellate jurisdiction of each of the participating courts is vested in each of the other. Dissipating, courts, the participating courts include the federal court, the Family Court Supreme, Court's of each state and the family court of West Australia. The high court is not a participating court for cross festung purposes. The Cross C system. We've got of cross vesting, began in Australia on the first of July 1988. Now, originally when the legislation was passed, it allowed vesting from state to Federal jurisdictions. But the decision of the high court in re wakeham ex parte McNally challenge, the Constitutional validity of that legislation and particularly had an issue with the idea of vesting or giving federal courts, the power that state courts had so giving Federal Court's Jurisdiction, over State matters, the high court held that that was unconstitutional and that they could not do that in Speaker 2 legislation under Section 77 subsection 1 of the Constitution. Speaker 1 So, as a consequence of that, the net decision was that those parts of the Cross vesting scheme was invalid. And therefore States could not vest the federal courts with their jurisdiction to Speaker 2 determine State matters because of chapter 2 of The Constitution accordingly, the legislation has been amended. Speaker 1 So what cross legislation now does is two things. Firstly, it gives subject matter jurisdiction of each Court to the other court in this scheme. So those participating chords the Superior Court. Except that state Speaker 2 jurisdiction does not vest in federal courts. Speaker 1 And secondly, the cross fisting legislation allows courts to transfer Matters from one Court in the scheme to another court if the interests of Justice Speaker 2 require. So in our example earlier, if the contract in Victoria, Speaker 1 if the case is commenced in New Speaker 2 South Wales, but rightly belongs in Victoria, it can be transferred in relation to section 5 of the Court jurisdiction of Courts cross. Investing Act of New South Speaker 1 Wales. The next important question, let's leave jurisdiction behind and cross vesting. You've done enough of that and you'll come back to that in civil procedure. The next important Speaker 2 question for us to understand in terms of key concepts for this topic are questions of fact, and questions of law. So an important distinction in the study of law is to understand what are questions of fact and what are questions of law. This distinction is vital when you're reading cases and understanding what can and cannot be determined by juries and what is Speaker 1 correctly determined? Instead by judges questions, effector aimed at getting to the bottom of what happened evidence is presented to the court through Witnesses documents photos or video to ascertain the facts of a matter Speaker 2 in criminal trials. Juries are the fact, finders or fact determiners Speaker 1 they sit and they hear the evidence that's presented before them. And then they determine whether or Speaker 2 not something has been proven as a fact or not questions of law. However, are those effects of things, such as whether a piece of evidence is admissible, or is not what the relevant legal test or principle Speaker 1 should be, that determines the substantive law between the parties. It is the domain of judges to Speaker 2 determine questions of law. So for example, in a murder trial, it will be the jury's role to determine the facts such as Speaker 1 whether the accused was in the place at the time of the Speaker 2 murder. Had a relationship with the victim of some sort Etc questions of law though. Be things such as whether or not the onus of proof for a certain aspect rests on the prosecution, or on the defense Speaker 1 where a judge is sitting in a Civil Trial without a jury, Speaker 2 or are in a criminal matter where the accused has elected to not have Speaker 1 a jury. An example, being the recent high-profile case of Christopher Dawson, it is the judges role to be both the Speaker 2 fact finder or determiner Speaker 1 and the determiner of legal principles as well. Well, so the judge weighs both hats, facts and law. Also come into importance, when were talking about appeal, appellate courts, frequently will not overturn. A finding of fact by a lower court but will overturn a finding of Speaker 2 law or an error of law. Speaker 1 Now, the reason for this is that it's considered that the court, who first, here's a matter in original jurisdiction is best placed to determine the facts based on the evidence that was brought before it. Speaker 2 It is for that reason that findings by juries are Usually, very hard to overturn on appeal, Speaker 1 the distinction between facts and law will be a vital one to keep in your mind. As you read, Speaker 2 cases in your study of the law. And when we come up to the topic of case law in this subject, I want you to start asking yourself the question. What part of this case is fact? And what? Part of the case is law, let's just have a brief chat about juries in our court system. Generally speaking, the three major modes of trial are trial by judge trial by jury, Or a hearing conducted by a referee or arbitrator, Speaker 1 juries are used in civil proceedings, Speaker 2 criminal trial and Coroner's Speaker 1 courts. However, they're not as common, as you might think they Speaker 2 are the vast majority of civil cases, are presided over by single judges alone without juries. And that is. Unless one of the parties takes the steps necessary to request, a trial by jury a very small number of cases do this. And then other cases will Instead of doing this refer certain facts to arbitrators, or independent referees, where a jury is required in New South, Wales civil matters there will be six jurors appointed or empaneled, and in coroners Court matters. Also six jurors in criminal trials. If you look at section 19 of the jury act, there is a jury of 12 people. Speaker 1 Now, one place where juries are still common place is Speaker 2 in defamation, trials section, 21 of the deformation Act of New South, 'The whales permits a plaintiff or defendant to elect proceedings to be Tried by a jury, unless the court orders. Otherwise, a party must file. A notification of their intent to elect for a jury trial before the trial has been fixed for hearing generally speaking though. Parties will often seek to litigate defamation actions in the federal court where there is no jury. So often choosing the jurisdiction can be quite important when it comes to death. Nation actions, other legislation specifically excludes or limits trials by juries. So, for example, section, 85, subsection, 5 of the Supreme Court act provides that where a trial by jury has been ordered. Certain questions of fact, must be tried without the jury, so it's well worth being aware of this and actually, having a look at the relevant legislation when considering whether or not a jury might be involved in a matter. These are the key Concepts that you needed to consider. Make sure that you have your study guide handy and that your notes cover each of these areas because they will be the subject of assessment. As always if you're unsure of any of the concepts or how they might apply, please make sure you ask and raise it together in study groups and the tutorials. Thanks for listening. These are the key Concepts that you needed to consider. Make sure that you have your study guide handy and that your notes cover each of these areas because they will be the subject of assessment. As always if you're unsure of any of the concepts or how they might apply, please make sure you ask and raise it together in study groups and the tutorials. Thanks for listening.