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Law Notes Civil Procedure Notes

Topic Three Jurisdiction Notes

Updated Topic Three Jurisdiction Notes

Civil Procedure Notes

Civil Procedure

Approximately 42 pages

Here you will find summarised civil procedure law notes for the entire Monash University topic.

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TOPIC THREE: JURISDICTION

In order for [plaintiff] to bring their case, it must show that the court has

both subject matter jurisdiction and territorial jurisdiction.

Participants in litigation

  • Federal system (& VCAT): ‘applicant’ & ‘respondent’.

  • Appeals: (State & Federal) ‘appellant’ & ‘respondent’.

  • Victorian courts: ‘plaintiff’ & ‘defendant’.

1. Subject matter jurisdiction (refers to nature of the disputes which may be adjudicated on by the particular court)

a) Victorian Courts

i. VCAT

  • Jurisdiction derives from numerous pieces of legislation including:

    • Fair Trading Act 1999;

    • Residential Tenancies Act 1997;

    • Domestic Building Contracts Act 1995;

    • Equal Opportunity Act 1995;

    • Planning and Environment Act 1987; and

    • Guardianship and Administration Act 1986.

  • Jurisdiction determined by nature of dispute, rather than amount of dispute

Civil Division Administrative Division Human Right Division

  • Civil Claims

  • Credit

  • Domestic Building

  • Owners Corporation

  • Real Property

  • Residential Tenancies

  • Retail Tenancies

  • General

  • Land valuation

  • Legal Practice

  • Occupational and Business Regulation

  • Planning

  • Environment

  • Taxation

  • Anti-discrimination

  • Guardianship

  • Health and Privacy

  • Mental Health

Division Human Rights Division

ii. Magistrates Court

  • Any claim for damages or equitable relief within jurisdictional limit ($100,000): (s100 Magistrates Court Act)

    • Excludes prerogative writs and administrative proceedings: (s100(2) Magistrates Court Act)

  • Claims for debts, damages for breach of contract, damage to property or for injury (e.g. motor car collisions) and limited neighbourhood matters, e.g. fencing disputes.

  • Specialised (civil law) divisions of the Magistrates’ Court

    • Industrial Divisionincludes claims under theLong Service Leave Act1992 and theOccupational Health and Safety Act2004.

    • Work cover Division deals with claims for compensation for workplace injuries either under theWorkers Compensation Act1958 or theAccident Compensation Act1985.

    • Family Violence Court Criminal & civil jurisdiction (events involving alleged family violence)

    • Neighbourhood Justice Division: The court is multi-jurisdictional and sits as a Magistrates Court, a Children’s Court (Criminal Division), Victims of Crime Assistance Tribunal (VOCAT) and the Victorian Civil and Administrative Tribunal (VCAT).

iii. County Court

Original Jurisdiction Appellate Jurisdiction

  • All claims regardless of relief sought or subject-matter (section 37(1)(a)).

  • Claims against municipal councils for loss/injury while using roads, land, buildings etc controlled by council (s37(1)(b))

  • Other areas where jurisdiction conferred by statute e.g. Administration & Probate Act; Property Law Act; Transfer of Land Act; and Adoption Act

Hears appeals from:

  • the criminal jurisdiction of the Magistrates' Court of Victoria

  • the orders of magistrates within the criminal and family divisions of the Children's Court.

iv. Supreme Court (BOTH)

  • Superior court of Victoria with unlimited jurisdictions85(1) Constitution Act (Vic)

  • 85 Powers and jurisdiction of the Court: (1) jurisdiction in or in relation to Victoria its dependencies and the areas adjacent in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.

Original Jurisdiction (Trial Division) Appellate Jurisdiction (Court of Appeal)

  • Equity and Commercial

    • Admiralty, TAC, Engineering and Construction (TEC), corporations, IP, planning, long cases

    • Commercial court: Intensively case managed (The “Green Book”)

    • Varying degrees of case management e.g. TEC has a resources conference early in proceedings

  • Common law

    • Major torts: Judge manages interlocutory states until case is ready for trial (then handed to civil list) c.f. criminal list

    • Valuation, Compensation and Planning

    • Judicial Review and Appeals

    • Personal Injury

    • Long cases

  • Inherent Jurisdiction:

    • All powers necessary to enable it to act effectively and to control its own proceedings and to prevent obstruction or abuse of process. E.g. making practice directions, making orders for security for costs

  • Established under the Constitution (Court of Appeal) Act 1994

  • Hears appeals from Supreme Court and County Court and VCAT and other tribunals

  • Made up of the SCV Chief Justice, a President and currently 11 judges of appeal.

Division

b) Courts exercising Federal Jurisdiction (have accrued jurisdiction- including the Supreme Court)


i. High Court

Original Jurisdiction

S75 Constitution

Jurisdiction over all matters:

  • Arising under a treaty

  • Affecting representatives of other countries Cth or person being sued as a representative if Cth is a party

  • B/W States; B/W residents of different states or B/W State & resident of another State

  • Writ of mandamus/prohibition or injunction against officer of Cth
S76 Constitution & s30 Judiciary Act

  • Matters involving interpretation of the Constitution

  • Matters arising under any laws made by the Parliament

  • Matters of admiralty and maritime jurisdiction

  • Matters relating to the same subject matter claimed under the laws of different states

Exclusive Jurisdiction – NO OTHER COURT CAN RULE

S38 Judiciary

Act

Includes matters arising directly under any treat & suits between

States
Also includes constitutional interpretation

Appellate Jurisdiction

S73 Constitution

Has jurisdiction to hear appeals from:

  • Original jurisdiction of the HC

  • Any other federal court exercising federal jurisdiction, or of the Supreme

  • Court of any state
S35A Judiciary Act

Special leave is required

(a) Proceedings involve a question of law

i. Of public importance; OR

ii. HCA required to resolve differences of opinion between courts as to the state of the law; AND

(b) Interests of the administration of justice requires the HCA to consider the judgment

Process for getting special leave

  • File a written summary of argument (not to exceed 10 pages)

  • Appeals can be dismissed on the...

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