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 filing fee.

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 arbitration.

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.

State Courts

Magistrates' Court

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.

County Court

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.

Supreme Court

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 Residential Tenancies.

The Transport Accident Commission (TAC)

Deals with all Victorian motor vehicle insurance and compensation claims.

FEDERAL COURTS

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.

Tribunals

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.

FURTHER INFORMATION

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.

McKean & Park was established in 1863 by James McKean and thrives today with 20 professionals specifically in all major areas of practice including Workplace Relations and Anti-Discrimination Law. The firm is proud of the fact that many of its Lawyers are accredited specialists approved by the Law Institute of Victoria. McKean & Park is committed to providing clients with comprehensive and innovative legal services delivered promptly in a professional and cost effective way.