SOME IMPORTANT TERMINOLOGY AND PROCEDURES
A plaintiff is the person who initiates litigation against another in
a civil (non-criminal) action. In some courts and tribunals the plaintiff is
called the Applicant. The person against whom litigation is commenced is called
the defendant or in some cases the respondent.
Commencement refers to the method required to start the litigation
process. The document used to do this is called the originating process.
For example, to start a personal injury action in the District Court the
document required is a statement of claim. Another common type of
originating process is a summons. To commence an action, these documents
are filed in the registry of the relevant court together with the prescribed
Service describes the way in which the court documents are brought to
the attention of other parties involved. Sometimes service on another party is
required to be personal: this means that the document has to be delivered to the
person involved and left in their presence. For many court documents however it
will be sufficient under the rules of the court for service to occur by mail.
Default procedure. Usually when an originating process is served the
other party is required to take some step within a certain time. Most courts
have a procedure called judgement by default if the defendant does not take
these prescribed steps - judgement will be entered in favour of the plaintiff.
Defence: if the claim is disputed, the defendant must file a defence
or answer to the claim within a certain time after the originating process is
served on them.
Pre-trial procedures. There are various steps required to eventually
bring the matter before the court. Some courts have standard timetable of steps
which must be complied with. For example in some courts the court will issue a
date for a directions hearing as soon as the originating process is filed. At
this hearing, sometimes called a callover, the court will make orders or
directions for things which need to be done by the parties to prepare for the
hearing. At this time the court might also consider whether the matter is
appropriate for referral to some other method of dispute resolution, such as
Before the trial there are also a number of interlocutory applications which
can be made. These are applications to the court for orders other than for final
resolution. There is a wide range of interlocutory applications which can be
made. Their purpose, broadly, is to give the court power to make orders which
will preserve the status quo between parties, to obtain evidence or to narrow
down the issues before trial.
Hearing: If the matter has not been resolved it will proceed to
hearing before a judge. It is at the hearing that each side will have the
opportunity to present its case through the testimony of witnesses and the other
party will have the opportunity to cross examine those witnesses. Courts are
generally required to apply strict rules to the evidence which can be used and
parties can object to certain types of evidence being given by witnesses such as
opinion evidence where a witness is not qualified to give that opinion. Many
tribunals are not bound by the same rules of evidence as are applied in courts.
At the end of the hearing the judge will give a verdict and make other orders
which may include orders as to the payment of costs.
Enforcement refers to the procedures available to the court for
ensuring that the court's orders are carried out. For example if a person has
been ordered to pay money it may be possible to obtain a court order that this
money be taken out of their salary.
COURTS AND TRIBUNALS IN VICTORIA
A court's jurisdiction refers to its authority to decide the different
matters which come before it. Different courts have different jurisdictions.
In Australia, the Constitution gives the Commonwealth Parliament powers to
make laws only in certain areas. Matters which involve Commonwealth or federal
laws are dealt with by a system of federal courts operating in all states.
Victoria also has its own system of courts and tribunals. The following courts
are the main courts exercising jurisdiction in Victoria.
Magistrates are the judicial officers in local courts. They can hear civil
cases involving matters such as debts and contract disputes where the amount of
money involved does not exceed $40,000. Magistrates also hear criminal matters
although in some cases this is merely to determine whether the person charged
should be sent to a higher court for a hearing called a trial.
Judges decide cases in the County Court. They can hear civil claims for
amounts up to $200,000 (Unlimited in motor accident claims and personal injury)
and can also hear claims up to $250,000 under the Property Law Act. Criminal
matters or appeals from Magistrates' Courts are also heard by County Courts.
The Supreme Court is the highest state court. It hears civil and criminal
matters and certain appeals from Magistrates' and the County Courts. A number of
judges from the Supreme Court hear some appeals together. For example, when
there is an appeal from the Magistrates' Court about a criminal matter, several
Supreme Court judges may hear the appeal together and when this happens the
Court is called the Court of Criminal Appeal.
Appeals from the Supreme Court may be made to the High Court of Australia but
only from the decisions of a number of Supreme Court judges sitting together and
only with the special leave, or permission, of the High Court.
Victorian Civil and Administrative Tribunal (VCAT)
There are also a number of specialist tribunals which operate at state level,
which are collectively known as the Victorian Civil and Administrative Tribunal.
VCAT covers such a range of areas, from Anti-discrimination to Civil Claims to
The Transport Accident Commission (TAC)
Deals with all Victorian motor vehicle insurance and compensation claims.
The Federal Court of Australia, which hears matters relating to federal laws
such as breaches of the federal Trade Practices Act.
The Family Court of Australia which deals with matters which are covered by
the Family Law Act.
The High Court of Australia. This is the highest Court in Australia . It
hears appeals from state Supreme Courts and from federal Courts and may hear
other matters which involve, for example, important Constitutional issues.
There are also a number of specialist courts which operate at the federal
level such as the Industrial Relations Court of Australia.
Within Australia there are a number of tribunals and other bodies with
jurisdiction to hear certain types of cases outside the Court system. Federal
tribunals include the Administrative Appeals Tribunal and the Human Rights and
Equal Opportunities Commission. State tribunals include the Administrative
Decisions Tribunal and the Fair Trading Tribunal.
This Information Outline is provided courtesy of McKean & Park Lawyers
& Consultants who are experienced in this area of law. They are located
at 405 Little Bourke Street MELBOURNE VIC 3000 or call them on (03)
9670 8822 if you would like more information on the legal topic, or you wish
to obtain formal advice regarding your situation.
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