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Topic One: An Introduction to Our Civil Justice System

1. INTRODUCTION Whilst Aus civil procedure is still predominantly modelled on the adversarial system, there has in the last 20 years been an interest in mitigating party control of litigation. What is civil procedure? Procedural law is the law which governs the conduct of proceedings. The “procedural law” studied in this unit is DISTINCT from “substantive law”. The latter determines a person’s rights and duties towards each other whereas the former provides the mechanism for enforcing those rights and duties where they have been transgressed. Procedural law provides the “how” of enforcing substantive legal rights which you have been taught such as Contract Law, Tort Law and Commercial Law. Civil Procedure therefore is largely concerned with the pre-trial processes of bringing a dispute before the court. Expressed another way, civil procedure is: “The mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right” (Poyser v Minors (1881)7 QBD 329 at 333 per Lush J) Primarily a process for the resolution of civil disputes, remember this is atypical, most cases never come to court or are resolved prior or dropped. Purpose of procedural law is not only to provide institutions and rules to facilitate disputes but also to perpetuate the rule of law. 'Adjectival' rules: qualify substantive rights - regulate the way in which substantive rights are claimed, proved, enforced without impacting on the definition of those rights. Two important distinctions between the operation of substantive and procedural law:

a. Subjection to substantive law is involuntary, whereas recourse to procedural law is voluntary.

b. Substantive law is self executing, whereas procedural law creates choices for the parties.

2. MECHANISMS OF CIVIL PROCEDURE

The principles of Civil Procedure are mostly embodied in the Rules of Court. Each Court within our Court hierarchy has developed rules by which its procedures are governed. For instance, we have: *the Magistrates Court Rules; *the County Court Rules; and *the Supreme Court Rules. We will focus on the Supreme Court Rules 2005 (Vic). The Rules of the Magistrates Court and the County Court are however, similar to the Supreme Court Rules. The source of these Supreme Court Rules is the Supreme Court Act 1986 (Vic).

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Supreme Court Act 1986 (Vic) s 25 Power of the Court to make it's own rules in respect of pretty much everything. Inherent Jurisdiction However, the Supreme Court has also “inherent jurisdiction” so it can regulate its own procedures. Supreme Courts have an inherent jurisdiction deriving from their status as superior courts of record. The inherent power, as an incident of judicial power, provides superior courts with such power as is necessary to ensure that their procedures are capable of producing just outcomes. The overall purpose of the inherent jurisdiction is to allow courts to regulate their process and to prevent abuse of process Riley McKay Pty Ltd v McKay [1982] Four general purposes of the inherent jurisdiction 1. ensure convenience and fairness in legal proceedings 2. prevent steps that would render judicial proceedings ineffective 3. acting in aid of superior courts 4. aiding or controlling inferior courts Inherent powers are powers which are intrinsic in a Court, arising from the very nature of the court as a superior court of law. The essential character of a superior court necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Inherent jurisdiction is a feature only of superior courts. No doubt that a court invested with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.

3. HOW DO COURTS INTERPRET THE RULES OF COURT? Supreme Court Rules: Order 1 Rule 14 'Exercise of Power' In exercising any power under these rules the court shall endeavour that all questions in the proceedings are effectively, completely, promptly end economically determined AND may give any direction or impose any term or condition it thinks fit. It can do this under its own power, or on the motion of any party or any person who has a sufficient interest.

4. THE ADVERSARIAL TRIAL SYSTEM: “THE TRADITIONAL ADVERSARY SYSTEM” In Australia, the “traditional adversarial trial system” applies. However, as we have seen, this system has been impacted as a result of the enactment of the Civil Procedure Act 2010 (Vic) which we will examine in detail later in these lectures. The parties in a civil case and the court constitute two fundamental plaques of the adversary system. The parties and the court have distinct but related FUNCTIONS AND FEATURES: 1. THE PARTIES - The parties are in the main control of the trial: According to the traditional adversarial system, it was the parties themselves who defined and prepared the issues that went before the court.

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The parties decide on the issues that need to be determined in court The parties are responsible for all pre-trial preparation This means that a party can not raise a fresh issue at trial AND the court cannot do this either. According to the traditional adversarial system, the parties were assigned the responsibility for all the pre-trial steps and procedures that needed to take place. The parties select the evidence to be adduced at trial, each party is responsible for gathering evidence to put before the court. They are also responsible for the way evidence is presented They also decide the speed in which certain things are done 2. THE COURT: When the parties indicate to the court that they are ready, the courts function would then be to conduct a trial and decide the issues (the issues that the parties themselves had defined for determination) According to the traditional adversarial system, the court had NO role to play in pre-trial proceedings until the matter was set down for hearing The court’s role, according to the traditional adversarial system, was purely passive and non-interventionist. Even during the hearing itself, the courts role was also passive - The parties presented their case and the court gave their decision The judge cannot enter into the dispute and they cannot raise any new issues that could potentially be determined at trial For a judge to enter into the dispute could result in the impression of partiality, bias or impeding a parties presentation of their case The court makes their decision based on the evidence and issues presented to it. The procedure effectively makes the judicial function into one continuous hearing The judge can confirm ambiguous things in the facts and evidence and ensure that due process is observed during the trial but nothing beyond this The parties obtain evidence by calling and interviewing the witnesses in turn - the judge can only examine the witnesses to clarify their evidence when it is ambiguous The judge cannot call a witness for any other reason

JONES v. NATIONAL COAL BOARD [1957] 2 Q.B. 55 The judge's part when evidence is being given is to hearken to it, asking questions of witnesses only when it is necessary to clear up a point; to see that advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points made by the advocates and can assess their worth; and at the end to make up his mind where the truth lies. Though a judge is entitled and bound to intervene at any stage of a witness's evidence to understand the nature of the evidence, such intervention should be as infrequent as possible during cross-examination, for the very gist of cross-examination lies in the unbroken sequence of question and answer. A coalminer working at the coal face was killed by a fall of roof. Some weeks before the accident there had been a previous fall at that point and conditions had not been completely restored to

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normal. The widow brought an action for damages against the National Coal Board alleging, inter alia, breaches of statutory duty under section 49 of the Coal Mines Act, 1911,1 and rules made thereunder, and also negligence at common law, in that the board, by using props and not using chocks, had failed to take proper steps to support the place where the dead man had been working. The board denied liability and in turn relied on section 102 ( of the Act of 19111 to excuse them from liability for the alleged breaches of statutory duty. At the trial of the action the trial judge intervened during the evidence for the plaintiff in order to understand the technicalities. During the evidence for the defendant board the judge intervened frequently, both during examination-in-chief and during cross-examination, at times conducting the examination of a witness himself, at times interrupting cross-examination to protect a witness against questions which he considered misleading, the nature and extent of his interventions being such as to break the sequence of question and answer. On the issue of chocks in particular the judge in effect stopped cross-examination. He gave judgment for the board on all the matters in issue. Held that, though the judge was actuated by the best of motives, his interventions taken together were excessive and ill-timed, with the result that not sufficient primary facts had been elicited to enable the appellate court to determine the issues as to liability; and that there must therefore be a new trial.

Hoare Bros v Magistrates' Court [2003] MAGISTRATES - plaintiff charged pursuant to s.40 of the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 - questioning of witness from the bench during examination in chief - plaintiff sought order prohibiting Magistrate from further hearing and determination of the charge on the basis of apprehended bias - apprehension of bias test - leading questions asked - questions appeared to be calculated to remedy deficiencies in prosecution case - apprehension of bias found - order in the nature of prohibition granted. 21. 'The boundary between on one hand the permissible elucidation, by questions from the judge, in the interests of justice, of answers given by the witness, and on the other hand an impermissible entry by the judge into the arena of conflict, is a fine line, particularly in a criminal case. I appreciate that the questions asked by the Magistrate were intended, as his Worship indicated, purely for the purpose of clarification. However, I find, with some reluctance, that those questions were, in the form in which they were asked, such that a fair-minded lay observer, with knowledge of the circumstances of the case, might reasonably apprehend that his Worship might not bring an impartial and unprejudiced mind to the resolution of the question he was required to decide, namely whether the defendant before him had committed the offence with which it was charged. The questions were, as the Magistrate conceded, leading questions; and they appeared to be calculated to remedy deficiencies in the prosecution case.'

Fookes v Slaytor [1979] Issues and facts: The plaintiff was driving his car on a dark, wet night. The plaintiff, whilst driving, struck a parked truck which was unfit – it had no lights on it As a result of that collision, the plaintiff suffered injuries and the plaintiff sued because the truck was unlit. The defendant did not file a defence, they did not even appear at trial. The trial judge held that the plaintiff’s damages should be reduced because the plaintiff was guilty of contributory negligence. The plaintiff had contributed to his own collision and so the plaintiff had his damages reduced Plaintiff appealed to the

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Court of Appeal: The COA said what the trial judge was VERY WRONG because there was no issue before the court about the plaintiff’s contributory negligence. Ultimately the trial judge was correct in his decision ALTHOUGH incorrect to bring it to trial as it was not an issue before the court The plaintiff thus received full damages from the defendant Role of the judge in each case: It is obvious that the object of the judge is to find the truth, but that truth must be found within the constrictive parameters of the adversarial system **You can only find the truth on the issues before the court** If any fact should emerge in the trial which concerns an issue not before the court, the court must ignore that fact – even if the court knows it will adversely reflect upon the courts.

MAIN DISADVANTAGES to our adversarial system: Leaving it to the parties to gather all prep for trial leaves long delays before the matter can come to court Punishment does not usually occur when one party does not comply with the rules of court UNLESS at the request of the non-delinquent party Leaving sanctions to the parties: even though there are time limits the parties can extend them at their own decision – this can cause big delays. Elaborated: Courts will not impose sanctions if the rules of court aren’t complied with meaning although all the rules of court may impose time limits within which particular steps need to be taken, the parties can concede to each other extra time for taking these steps Costs of litigation will substantially increase Summary: The adversarial system is based on party control The judges role is passive as they cannot intervening in the preparation or presentation of a case SOLUTION TO DISADVANTAGES OF THE TRADITIONAL ADVERSARIAL SYSTEM To help overcome this the rule above 1.14 has given judges a bit more power to sure that proceedings are done properly and may give direction or impose any terms or condition it thinks fit [discussed above] Most state parliaments have introduced legislation which attempts to overcome the main defects of the traditional adversarial system How does the new Civil Procedure Act impact on the traditional adversarial system? S 7 Civil Procedure Act 2010 (Vic) – overarching purpose: The overarching purpose of the Civil Procedure Act + the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute

5. THE IMPACT OF CASE MANAGEMENT PRINCIPLES Move away from adversarialism and party control to a system where the courts control the progress of individual matters by case management practices. Influenced by overarching purpose provisions which have led to an approach where a court will take into account interests beyond those of the immediate parties to a matter. Judge as a manager of litigation.

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Role of the Judge: adversarial model is premised upon party control. Parties are left to conduct proceedings as they see fit and according to their own timetable. Judges assume a passive role, intervening like an umpire only if the non-delinquent party seeks the imposition of sanctions. This has been criticised, as the result may be that the judge ends up administering the law as distinct from justice. Managerial judging: Most judges have shifted to adopting a more active managerial stance. The judge becomes active in investigating the best way to define the dispute and to present the case. Case Management: an approach to the control of litigation in which the court supervises or controls the progress of the case through its interlocutory phase. The traditional adversarial trial system has a number of particular features which can be readily identified: * it is the parties themselves who determine the track of evidence that is presented to the court and thus it is the parties themselves who “select” the issues to be litigated and upon which adjudication is sought; * each party is responsible for the investigation and the gathering of the information that is to be placed before the court, and the way it is to be presented; * the judge plays a comparatively “non-interventionist role”, and the court makes its decision based on the evidence and issues presented to it; * the procedure is designed to concentrate the judicial function into one continuous hearing; * evidence at the hearing is elicited by the parties asking questions in turn, the judge being forbidden to call witnesses or to examine them otherwise than for the purpose of clarifying their evidence where it is unclear; and * where the rules of court are not complied with, in general no sanction will be imposed on the “delinquent” party except at the request of the “non-delinquent party”. But it is these features which represent the adversarial trial system biggest disadvantages: *leaving it to the parties themselves to enforce the expeditious preparation for trial; *as a consequence, long delays can be experienced before a matter gets to trial; *leaving sanctions to the parties: the adversary philosophy is that the courts will not impose sanctions if the rules of court are not complied with; thus, although the rules of court may impose time limits within which particular steps need to be taken, the parties are free to concede to each other extra time for the taking of these steps. The obvious consequence is that inordinate delays occur before a case finally comes to trial; *in sum, traditionally, the adversarial model of procedure is premised on “party control”: judges played a passive role by not intervening in the preparation or presentation of a case; and *above all, costs of litigation will substantially increase.

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Bearing in mind these factors, O1r14 of the SCR assumes increasing importance. CIVIL PROCEDURE ACT 2010 - SECT 7 'Overarching Purpose' (1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. (2) Without limiting how the overarching purpose is achieved, it may be achieved by— (a) the determination of the proceeding by the court; (b) agreement between the parties; (c) any appropriate dispute resolution process— (i) agreed to by the parties; or (ii) ordered by the court. The Development of the Overriding Purpose As case management became increasingly interventionist it became necessary to articulate an overriding objective/purpose. The importance of the development of the overriding purpose cannot be underestimated. This objective introduced 'a new concept of justice into civil procedure...committed to proportionality rather than...an unalloyed commitment to the achievement of...justice on the merits.' Overriding philosophy that 'the court must manage litigation to bring cases to an early and economical disposition consistently with the needs of justice'. THE IMPACT OF CASE MANAGEMENT PRINCIPLES In view of the matters raised, it is little wonder that something had to be done about our litigation system in Victoria. Case management by judges and quasi-judicial officers such as Registrars remove the progress of cases from the control of the parties (or their legal representatives). The judges and Registrar of each court now are able to set down timetables by which particular steps have to be taken by the parties. Case management is an approach to the control of litigation in which the court supervises/controls the progress of the case through the interlocutory phase. Two basic models: 1. 'Individual List'; Continuous control by a judge, who personally monitors each case on an ad hoc basis, and 2. 'Master List'; Control is exercised by requiring the parties to report to the court at fixed milestones and where the court exercises routine and structured control. Master List the most common form of case management, although case management regimes may encompass elements of both models. No Australian jurisdiction maintains a purely party initiated system. Victoria: Specialist Divisions and Lists Supreme Court of Victoria has introduced a number of judge controlled specialist lists operating in civil jurisdiction eg: intellectual property, commercial, taxation and major torts. The Judge-in-Charge of each list gives directions to the parties from the early stages of each proceeding in the list.

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These lists then form part of the Trial Division; divided itself into three further divisions - Commercial and Equity, Common Law and Criminal. Each division has a principal judge with overall supervision of the progress of cases. Majority of proceedings are not in the specialist lists, these cases receive directions from a Master who manages the Civil Management List. Federal Court: Individual Docket Adopted in all Federal Court registries. Each case is allocated to a particular judge who will be responsible for that case from commencement to disposition. Rationale: preferable for one judge only to make decisions about the issues and establish continuity. At the forefront of innovation eg: eCourt, hold direction online - virtual courtroom, make submissions and affidavit evidence and orders. Spitfire Nominees P/L v Hall and Thompson [2001] VCSCoA Held: The COA said that the case management system was introduced for the clear purpose of managing cases efficiently and economically in the Supreme Court It ensures that cases be brought to trial and disposed of as expeditiously as the interests of justice dictate A party will be penalized in costs if they are responsible for delaying a trial Case management contemplates greater control being exercised by the courts – the preparation of a case was to some extent taken out of the hands of the parties. Parties are deprived of the opportunity of allowing delay If the essence of case management is the setting down a timetable by which steps have to be taken by the parties, what is the situation if there is a need to amend documents, and thus for instance, preventing the timetable being followed and causing cases which are timetabled for a hearing, having to be postponed? In this scenario, the High Court of Australia has not been consistent.

Sali v SPC Ltd (1993) HCA Distinguish this case with QLD v JL Holdings Held: In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases What might be perceived as an injustice to a party when considered only in the context of an action between parties, may not be so perceived when considered in context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources In a context between efficiency v justice, you have to consider the interests of justice between the parties to the litigation BUT you also have to consider the interests of justice of ALL the others waiting for their cases to come to trial

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If the case between a particular set of parties has to be adjourned, that will throw out the timetable of all other cases waiting for their trial Justice has to succumb to case management principles

Queensland v JL Holdings P/L (1997) HCA The HCA reversed itself from its decision in Sali (above) Reversed again in Aon Risk (below) Fact summary; The Federal Court, at a directions hearing, set out a timetable and gave the parties a trial date. The defendant made application to amend the defence that application was refused because the trial judge thought that the trial date would have to then be vacated/frustrated Held (on appeal to the High Court): In order to do justice in this particular case, the adjournment should have been granted so the defendant could amend its defence. The HC held in this case that justice was the paramount consideration 'case management had to succumb to justice as between the parties (completely opposite to what they held in Sali - above) Case management is a very important function BUT it is not so important as to prevail over the justice of a particular case so as to prevent a defendant from raising a perfectly arguable defence 'justice is the ultimate aim for a court'

Aon Risk Services Ltd v Australian National University (2009) HCA HCA REVERSED ITSELF AGAIN ***This is one of the MOST IMPORTANT cases of the last 100 years*** THIS IS THE CORRECT APPROACH AND REFLECTED IN LEGISLATION s 47-53 Civil Procedure Act Fact summary; ANU had insured a number of properties in Canberra – a number of these properties were damaged by bushfires. The University made a claim against their insurers, the insurers refused to pay so the university decided to sue AON and their insurance agent. The case had gone on for 3 days when counsel for ANU wanted to raise fresh cause of action against AON. The trial judge took 12 months to decide whether to grant the adjournment and eventually he granted the adjournment saying that he had to do justice according to JL Holdings. AON appealed to the Court of Appeal who decided against it. They then appealed to the High Court Held (High Court): High Court did NOT allow an amendment or adjournment. Greater weight was again placed on the overriding purpose of the just, efficient and cost effective resolution of proceedings – order 1.14 SCR No longer will courts necessarily allow amendments. No longer will parties say that they will pay the other parties costs in order to have an adjournment granted. ANU also did not have a good explanation for why they left their amendment so late. As a result of this case, before the court will grant an adjournment to allow an amendment to a proceeding, the court has to consider not only the justice requirements of you and the other party, but also the justice requirements of ALL OTHER LITIGANTS

Sali v SPC: Case management is more important than the principles of justice VERSUS (decision reversed) QLD v JL Holdings: Justice is more important than case management VERSUS (decision reversed back to Sali) Aon Risk Services v ANU: Case management is more important than justice principles. The court has to look at the justice requirements of all other litigants as well as the two parties attempting to amend the case ! THIS IS THE CORRECT APPROACH.

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What happens if a party has a genuine need to amend documents? Potentially the court timetable may be upset. What takes precedence? The need to do justice or case management principles? The current law is what is stated in AON’s case – this has now been enshrined in s 47-53 Civil Procedure Act (CPA) Civil Procedure Act – key sections re case management S 47(3)(b) CPA: A court may actively case manage civil proceedings by identifying at an early stage the issues involved in a civil proceeding, including any issues that have not been resolved in accordance with any mandatory or voluntary pre-litigation processes S 47(3)(e) CPA: The court may control the progress of any civil proceeding, including but not limited to, fixing timetables; dealing with as many aspects of a civil proceeding as it can on the same occasion S 47(3)(f) CPA: The court may limit the time for the hearing of any part of a civil proceeding. It can limit the number of witnesses. It can limit the time for the examination or cross-examination of any witness. It can limit the issues or matters that may be the subject of examination/cross-examination S 48(2)(e) CPA: The court may define issues by pleadings or otherwise. Points from Cairns – Civil procedure author and lawyer - This goes against the traditional adversarial system: The traditional model of the adversarial model no longer applies. The role of the judge is no longer passive The court manages the progress of cases and ensures that the parties are aware of the avenues for alternative dispute resolution Delay is brought under control by the court setting and enforcing a timetable for the progress of cases AND supervising their management to refine the issues Courts have a responsibility to prevent the waste of time and public money. The private convenience of litigants must give way to the overriding obligation of the courts to see that their facilities are used to bring litigation to an end at the earliest possible moment Case management is based on the premise that the conduct of litigation is not a mere private matter for the parties - there is an important public interest in the functioning of the civil justice system Certain steps must be taken under the timetable the court sets out. If they are not taken, the court can penalise the delinquent party by making an order for costs against them In extreme cases the court can dismissed the proceeding completely

6. THE PRINCIPLES OF OPEN JUSTICE What is “Open Justice”? Fundamental aspect of the system of justice (both civil and criminal) in Australia. The conduct of proceedings in public is an essential quality - justice must be seen to be done. What is the justification for it? As a fundamental principle of the common law it confers particular benefits on the administration of justice i.e. by acting as a bastion against the exercise of arbitrary power, improves judicial performance, check on the veracity of witnesses, public vindication of rights.

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What are some of the common law exceptions to it and what are the justifications for them? No inherent power of the court to exclude the public John Fairfax Publications P/L v District Court of NSW (2004) INSTEAD there are exceptions where courts have the power to supress publication or to supress people from coming into court rooms Common law exceptions: Rinehart v Welker [2011] When it is in the public interest to have a closed trial When parties agree that their dispute should first be dealt with via confidential mediation and then, if that failed, confidential arbitration Held: 'Least adverse impact upon the open justice principle and common law freedom of speech...so as to minimise its intrusion upon that principle' Open justice ensures public confidence in the administration of justice The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public. Media interests had standing at common law to be heard on the making of orders. Must satisfy the court that by nothing short of the exclusion of the public can justice be done Statutory exceptions – Court Suppression and Non-publication Orders Act: The court has to take into account the administration of justice is to safeguard the public interest in open justice when deciding whether or make a suppression order or non-publication order They can make a suppression order or non-publication order on one or more of the following grounds: 1. The order is necessary to prevent prejudice to the administration of justice 2. The order is necessary to prevent prejudice to the interests of national or international security 3. The order is necessary to protect a person’s safety 4. It’s necessary to avoid undue distress or embarrassment to a party or a witness in criminal proceedings involving a sexual offence 5. It is necessary for the public interest and that public interest outweighs the public interest in open justice

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Topic 2

The Victorian Court Hierarchy

1. Introduction

Australia, as a federation, has several distinct but often overlapping jurisdictions, each with its own court structure.

There is a federal jurisdiction. It extends, within the boundaries set by the Constitution, throughout every State and Territory of the Commonwealth.

There are also State and Territory jurisdictions which apply so far as the State legislatures legitimately permit.

In each State and Territory there are thus two sets of Courts:

Federal Courts; and

State Courts.

The State and Territory Courts may be vested with federal powers under particular federal enactments, but otherwise they and they alone exercise the judicial powers of the State or Territory concerned.

Federal Courts, regardless of whether they or their registries are located in any particular State or Territory, can only exercise any federal powers which have been vested in them by the Commonwealth.

Territorial judicial powers can be vested in federal courts, and federal powers can be vested in State or Territory Courts but State judicial powers cannot be vested in federal courts unless there is a Constitutional amendment or States cede relevant powers to the Commonwealth. This complex position will be considered further under “cross-vesting legislation”.

2. The jurisdiction of the courts

Before a court can determine a dispute, it must have “jurisdiction”, or the “power” to hear and decide the dispute. A court must have jurisdiction over both the “defendant” and the “subject matter of the dispute”.

The subject matter of the dispute must be one which may be ordinarily determined by that court. In other words, the court must have the “power” to hear a dispute of that kind.

Sometimes subject matter jurisdiction may be limited by a monetary amount in dispute. At other times, the jurisdiction of a Court may extend only to certain types of disputes, such as the Family Court which has “jurisdiction” over matters relating to marriage, divorce, custody and matrimonial property disputes.

Further, it is also necessary to show that the Court has jurisdiction over the defendant. For instance, the Supreme Court of Victoria would not have “jurisdiction or power” to hear a dispute between two citizens in the City of Milan in Italy who had no connection with the State of Victoria.

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(a) ‘Subject matter jurisdiction’: The High Court

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 71 ‘Judicial power and Courts’

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Commonwealth judicial power is vested in: a) The High Court of Australia (Federal Supreme Court) - this section says that the High Court is to have three justices b) Such other federal courts that the Parliament creates - Such courts are the Federal Court, Family Court and the Federal Magistrates Court c) Such other courts that it invests federal jurisdiction in - The Commonwealth Parliament has the power to invest other courts (State Courts) with Federal Jurisdiction COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 75 ‘Original jurisdiction of High Court’ In all matters: (i) arising under any treaty;

(ii) affecting consuls or other representatives 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; the High Court shall have original jurisdiction. The nature of jurisdiction : S 75 of Constitution gives the High Court original jurisdiction over some subject matters (including treaties, foreign relations, litigation regarding the Commonwealth and litigation between States) - This section also ensures that officers of the Commonwealth (not State) remain accountable under the rule of law. COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 76 ‘Additional original jurisdiction’ The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (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. Section 76 of gives the High Court greater original jurisdiction as it vests Parliament with the power to invest in the High Court any additional powers at any time involving original jurisdiction COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 77 ‘Power to define jurisdiction’ With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court; (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction.

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S 77 gives the Parliament power to define the jurisdiction in the matters above - The Federal Parliament can vest any State Court with federal jurisdiction JUDICIARY ACT 1903 - SECT 38 ‘Matters in which jurisdiction of High Court exclusive’ Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters: (a) matters arising directly under any treaty; (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 another State; (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; (d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth; (e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. Section 38 follows on from section 77 to specially give the high court some exclusive jurisdiction over the state for some subject matters (ie treates) The High Court’s jurisdiction is exclusive of the jurisdiction of State courts as to:

- Matters arising directly under any treaty - Actions between States or persons suing or being sued on behalf of States - Actions by Commonwealth against States - Matters in which a writ of mandamus or prohibition is sought against an officer of the

Commonwealth or a federal court. S 39 Judiciary Act (Cth): The High Court is exclusive of the jurisdiction of the State courts

- Also provides that State courts will not have jurisdiction in matters mentioned in s 38

(b) ‘Subject matter jurisdiction’: The Federal Court

FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 19 ‘Original jurisdiction’

(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament.

(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

JUDICIARY ACT 1903 - SECT 39B ‘Original jurisdiction of Federal Court of Australia’ Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of

which a criminal prosecution is instituted or any other criminal matter.

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(c) The 'accrued jurisdiction’ of the Federal Court

The Federal Court has an “accrued” jurisdiction which enables that court to determine claims which arise under common law or state legislation but only if they are part of the ‘same matter’ as the claim within the Federal Court’s primary jurisdiction;

FEDERAL COURT OF AUSTRALIA ACT 1976 - SECT 32 ‘Jurisdiction in associated matters’ Associated matters--civil proceedings (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters ) in which the jurisdiction of the Court is invoked. (2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter (the core matter ) in respect of which an appeal from that judgment, or another judgment of that court, is brought. (3) Subsections (1) and (2) do not apply in relation to a core matter that is an indictable offence matter. Associated matters--indictable offences (4) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters (the related matters ) that: (a) arise under any laws made by the Parliament; and (b) are not otherwise within the Court's jurisdiction; and (c) relate to one or more indictable offences; that are associated with an indictable offence matter in which the jurisdiction of the Court is invoked. (5) The jurisdiction conferred by subsection (4) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a related matter that is associated with an indictable offence matter in respect of which an appeal from that judgment, or another judgment of that court, is brought. Indictable offence matters (6) For the purposes of this Act, a matter is an indictable offence matter if a proceeding in relation to the matter would be an indictable primary proceeding.

**Federal court can only exercise federal jurisdiction but if a state legislation issue has arisen… If it is separate and distinguishable the federal court should not consider it BUT

1. If it is part of the ‘same matter*’ and not the primary concern, the federal court can continue looking at it *See discussion of matter in Re Wakim below

2. It is a matter of the courts discretion and there is no direct formula - it is a matter of practical

judgement whether a non federal claim and a federal claim can join in a proceeding, see Fencott v Muller below Considerations of impression and practical judgement are relevant because the question of

jurisdiction usually arises before evidence is adduced and often before the pleadings are complete.

In Fencott v Muller (1983) 152 CLR 570 at 608 the High Court said:

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‘…in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.’

In re Wakim; Ex parte McNally (1999) 198 CLR 511, the High Court gave some definitions which may constitute a “matter”:

There is but a single matter if different claims arise out of “common transactions and facts” or a common substratum of facts notwithstanding that the facts upon which the claims depend do not wholly coincide;

There is but one matter where different claims are so related that the determination of one is essential to the determination of the other (e.g., in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination;

Claims which are ‘completely disparate’ or ‘completely separate and distinct’ or ‘distinct and unrelated’ are NOT part of the same matter.

The Court went on to state that, if proceedings were tried in different courts, there would be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter.

By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.

In this case of Re Wakim, the High Court held that there was a “single matter” before the court: there was a single claim for damages pursued against each of the defendants. Judgment and recovery against one will diminish the amount that may be recovered against the others.

(d) ‘Subject matter jurisdiction’: The Supreme Court

The court must have the power to hear the dispute of that kind (subject matter). S 85 Constitution Act 1975 (Vic): Provides the jurisdiction of the Supreme Court - the Supreme Court shall have jurisdiction in all cases whatsoever - The Supreme Court has whatever jurisdiction that is necessary to do justice

- This has been widely construed with the result that the Supreme Court has a wide general jurisdiction to hear disputes - it can hear disputes about anything

- This power may be enlarged, reduced, modified or excluded by legislation Section 71, 77 (iii) and s 39 of JA means that federal jurisdiction can be vested in a state court Only a court who satisfies chap III requirements can be vested with federal jurisdiction

CONSTITUTION ACT 1975 - SECT 85 ‘Powers and jurisdiction of the Court’ (1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction. (3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986 .

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(4) This Act does not limit or affect the power of the Parliament to confer additional jurisdiction or powers on the Court.

(e) ‘Territorial jurisdiction’: The Supreme Court

The Court must have ‘jurisdiction over the defendant’. Thus, whilst the Supreme Court may have ‘subject matter jurisdiction’, it is also necessary that it have “in personam” jurisdiction over the defendant.

Laurie v Carroll (1958)

Supreme Court must have jurisdiction over the defendant

Held: Key principle ONE at COMMON LAW: The base of the Court’s jurisdiction is valid service on the defendant - that defendant had to be in Victoria

At common law, the jurisdiction of the Supreme Court only extended as far as the State boundaries. The jurisdiction of the Supreme Court does not run beyond the limits of the State.

**At common law, at the time of service, for the Supreme Court to have jurisdiction over the defendant, that defendant had to be in Victoria

If the defendant was in Victoria at the time that he/she was served, that defendant had to succumb to the jurisdiction of the Supreme Court - even if they were only in Victoria fleetingly.

Held: Key principle TWO: In the absence of statutory authority, an originating process (such as a writ) does not run beyond the territorial border of the state

Facts: Plaintiff had issued a writ of summons out of the SC of V the day after the defendant had left Victoria with no intention of returning. The plaintiff had obtained order giving him leave to serve the writ by substituted service upon solicitors who had acted for the defendant. The defendant applied ex parte to discharge the order for substituted service and the other orders. Application was dismissed in the first instance and the defendant appealed to the HC. All orders were set aside based on the principles above.

The impact of ss 12 and 15 Service and Execution of Process Act 1992 (Cth) may provide that writs can extend beyond the state, into the commonwealth and territories, and determine the conditions in which this may be done and the consequences.

Is it possible for the defendant to voluntarily submit to the jurisdiction of the SC? Yes – one would presume (clarify).

3. Cross vesting of jurisdiction

Despite the federal court having “accrued” jurisdiction to hear some common law matters and despite with State courts having invested in them federal jurisdiction, there was still much argument as to which court had “subject matter” jurisdiction to hear and determine a case.

Furthermore, prior to the commencement of the Service and Execution of Process Act 1992 (Cth), there was also quite a clear division of “territorial jurisdiction” between the State Courts.

As a result, jurisdictional problems frequently arose when commercial transactions in particular, transcended the borders of one or more States.

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A typical scenario which was likely to raise all these issues is as follows:

A plaintiff wishes to institute proceedings against a defendant for breach of contract (a State matter). In its defence, the defendant wishes to allege that the plaintiff has breached s18 of the Australian Consumer Law (which is in a schedule to the Competition and Consumer Act 2010 (Cth) (a Federal matter). Furthermore, in which court would such an action be brought if there were two or more defendants in different states?

Much legal argument was to be had in determining the correct court to hear and determine a case resulting in inefficiencies, uncertainties, delays and unnecessary expense.

Difficulties occasioned by lack of State court jurisdiction in trade practices matters were to some extent overcome by s138B of the Competition and Consumer Act 2010 (Cth) which invests State Courts with federal jurisdiction to hear and determine such matters.

The cross vesting scheme is located in Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) (aka cross vesting legislation). This was enacted in the Commonwealth and States/Territories

Bank Invest v Seabrook and Others [1988] NSWCOA Cross-vesting legislation key elements and effects Held: - The cross vesting legislation in effect brings together the Supreme Courts, Federal Court and the Family Court into an organisational relationship. - The legislation achieves two objectives: 1. It enables any of these courts to exercise the jurisdiction of and to apply the law that would be applied by any one of the other courts 2. This legislation enables any one of these courts in which proceedings are commenced to transfer them to any one of the other courts **The legislation provides the services of an integrated court system - transcending the borders, both geographic and jurisdictional, that have in the past obstructed the courts The cross vesting legislation confers on each of the courts (Supreme, Federal and Family Courts) Australia wide jurisdiction and sets up a mechanism regulating the transfer of proceedings from one of those courts to another

The Cross vesting Act has two broad purposes (elaborated below): 1. It invested in each of the three courts the jurisdiction of the other; 2. It enabled a court to transfer a case to a more appropriate court in the interests of justice

1. It invested in each of the three courts the jurisdiction of the other: The acts applied to three courts: the Federal Court, the Family Court and the Supreme Courts of each State and Territory.

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Intended effect: The Federal Court could hear a state matter and a State court could hear a federal matter

***HOWEVER In Re Wakim (detailed below) it was held that it was constitutionally invalid for Federal courts to hear state matters Effect: A Federal Court could NOT hear a matter relating to state law unless it came within its accrued or associated jurisdiction. ***HOWEVER it was constitutionally valid for a State court to hear matters relating to Federal law.

In Re Wakim - HCA Re the first aim of Cross-vesting legislation: declared partially constitutionally invalid Held: • The HCA declared as constitutionally invalid the following proposition: It was constitutionally invalid for Federal courts to hear state matters. • Every other piece of the legislation, however, was declared to be valid. • EFFECT: A Federal Court could NOT hear a matter relating to state law unless it came within its accrued or associated jurisdiction. HOWEVER it was constitutionally valid for a State court to hear matters relating to Federal law.

2. To enable a court to transfer a case to a more appropriate court in the interests of justice: If one party began proceedings in an inappropriate court, this Act allows the action to be transferred to a more appropriate court

S 5 Cross Vesting Legislation: This section gives power to the court on its own motion and gives power to either party to make application to have a case transferred to a more appropriate court in the interests of justice Furthermore, when a case is transferred in the interests of justice there is no right of appeal. Bank Invest v Seabrook – what interests of justice means: The Court said the guiding principle is what the interest of justice dictate and that the question should not be encumbered by judge made pronouncements of principles Basically: What’s in the interests of justice depends on the facts of each and every case. There’s no point in a court making judicial decisions/pronouncements as to what is or what’s not in the interests of justice Key point: If the cross vesting legislation applies, if the issue is whether a case should be transferred from one Supreme Court to another under the cross vesting legislation, the sole criteria is it in the interests of justice to so transfer it. **See BHP Billiton and Beston Parks cases below for factors to determine if it is in the interests of justice

BHP Billiton Ltd v Schultz (2004) HCA Important case re transfer of proceedings Issues and facts: - Schultz suffered from asbestosis and similar diseases. He claimed that he contracted that disease

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because of his exposure to asbestos over certain periods of time that he worked for BHP in South Australia. - Schultz bought proceedings against BHP and a number of other defendants and he alleged against them negligence, breach of contract and breach of statutory duty. - Schultz lived in SA and worked in SA. He commenced proceedings seeking damages in the Dust Diseases Tribunal in NSW. - BHP applied to have the case transferred from the Dust Diseases Tribunal to the NSW Supreme Court - The cross vesting legislation only applied to the Supreme Courts, Family Court and Federal Court. This means that it was in BHP’s interest to have the case transferred to the Supreme Court of South Australia Why the cross-vesting legislation is important: - Schultz lived in SA. BHP is incorporated in Victoria but carries on business in SA and NSW. - One of the other defendants was incorporated in England but registered as a foreign corporation in NSW. The other two defendants are incorporated in Canberra. Another defendant was incorporated in NSW. - Further, the products containing the asbestos were manufactured, sold and supplied to BHP by one defendant in NSW - The products were supplied to the worker in South Australia. ISSUE: The case was transferred from the Dust Diseases Tribunal to the NSW Supreme Court. Should the case be transferred to the Supreme Court of SA in the interests of justice? Held – key points the High Court made: 1. Whether a case can be transferred or not depends upon a consideration of what the interests of justice are. 2. The High Court called for a nuts and bolts management decision as to which court, in pursuit of the interests of justice, is the more appropriate court to hear and determine disputes 3. The court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice 4. The wording of the legislation is imperative: if there is a more appropriate court the court shall transfer proceedings to that other more appropriate court. What is in the interests of justice? The court can have regard to the following factors (these aren’t arbitrary – they are just guides – some are more important than others) - NB I prefer the factors below in Beston Parks - The convenience and expense of transferring a case - The availability of witnesses: can the witnesses travel interstate for the proceedings? - The places where the parties lived or carried on business - The law governing the relevant transaction - Does the contract have a choice of jurisdiction clause? Basically: with which court does this dispute have the most connection with?

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Forum non conveniens: The High Court did say in this case, that the principle of forum non conveniens has no application under the cross vesting legislation

Beston Parks Management Holding P/L v Sexton (2008) - VSC Factors relevant to whether a case should be transferred Issues and facts: The Supreme Court was asked to consider the transfer of a case from one court to another Held: The court said factors which may be relevant, but not limited to, are as followed: - The connection between the parties - The alleged conduct and the jurisdiction - The governing law of the dispute - Any choice of jurisdiction clause - Issues of cost and convenience to the parties - Where the parties and witnesses live and carry on business Not all of these factors will be present in every case and if they are present, they may assume varying degrees of relevance and importance If it appears that in the interests of justice that the proceeding be determined by another Supreme Court, then S 5 Cross Vesting Legislation obliges the court to transfer it - there is no discretion given to the court

4. Victoria: a typical state judicial hierarchy

It is appropriate now to examine Victoria’s judicial and quasi-judicial hierarchy which is generally typical of those found in the other States and Territories.

Civil jurisdiction in Victoria is exercised by the Magistrates Court, County Court and Supreme Court. As well, there are tribunals that exercise administrative powers determining significant civil rights and/or quasi-judicial powers.

(a) The Magistrates’ Court

The Magistrates’ Court Act 1989 (Vic) established a Magistrates’ Court of Victoria.

All matters of civil procedure are set out in the Magistrates Court General Civil Procedure Rules2010 (came into operation on the 1st of January 2011, the rules of which assimilate many of the Supreme Court Rules).

Civil jurisdiction: (s 100 Magistrate’s Court Act)

It can hear disputes involving subject matter up to $100,000 (*can be higher in certain cases) in respect of any civil proceeding ‘for damages, debt, or liquidated demand’ or equivalent equitable relief (having risen from the previous limit of $40,000).

*It may hear matters concerning greater monetary limits where specific legislation vests jurisdiction in the court to determine them, for example with the consent of the parties or in respect of occupational health and safety.

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The sitting court is constituted by a single magistrate, unless an Act or the rules provide for a court to be constituted by a registrar. Where the Magistrates’ Court exercises federal jurisdiction the court consists of a magistrate sitting alone.

Magistrates are appointed from barristers and solicitors who have no less than five years experience.

Neighbourhood Justice Division In 2006, the Victorian Parliament passed the Courts Legislation (Neighbourhood Justice Centre) Act 2006 (Vic), which established a ‘Neighbourhood Justice’ Division of the Magistrate’s Court. The idea of this division is to deal with both small civil and family violence criminal matters on an informal local level. This Division is constituted by a magistrate assigned to that Division and is to ‘exercise its jurisdiction with as little formality and technicality and as much expedition, as . . . proper consideration of the matters before the Court permit.’ (Magistrate’s Court Act 1989 s 4 M (6).)

Appeals:

The only avenue for appeals from an order made in civil proceedings is to the Supreme Court, and such an appeal is confined to a question of law (s 109 Magistrates Court Act)

VCAT: Victorian Civil and Administrative Tribunal

In 1998, the Victorian Parliament established the VCAT, which consolidated numerous ‘specialist’ tribunals in a number of different areas of law. See Victorian Civil and Administrative Tribunal Act 1998. VCAT hears a broad range of matters, including:

Anti-discrimination

Purchase and supply of goods

Domestic building works

Guardianship and administration

Legal professional services

Consumer credit

Planning and land valuation

Retail and residential tenancy

Licensing for businesses

State taxation

Transport Accident Commission and Freedom of Information decisions

Small claims disputes

Property division claims

VCAT has three divisions, Administrative Division, Civil Division and Human Rights division.

Each of these Divisions maintains separate ‘lists’ dealing with particular subject-matters of disputes. Thus, the process can vary between the ‘lists’.

VCAT maintains its own rules and regulations: see Victorian Civil and Administrative Tribunal Rules 2008.

At the initiation of a dispute before VCAT, parties may be directed to a mediation, compulsory conference or directions hearing in an attempt to settle the matter, although many disputes proceed