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Re-cap from last week
Sources of law

Alternative methods to courts

• Alternative methods of dispute settlement have grown in the last few years because of the delays, costs, ignorance and intimidation of the traditional court system.
– These include
• tribunals;
• ombudsmen; and
• alternative dispute resolution.

Alternative methods to courts

Alternative methods to courts

Judicial and quasi-judicial tribunals
– Designed to provide cheap, quick and fair dispute resolution.
– Examples:

Administrative Appeals
Tribunal (AAT)

Australian Competition and Consumer Commission
(ACCC)

Consumer, Trader and Tenancy
Tribunal (NSW)

Alternative methods to courts

Ombudsman
– “Agent or representative of the people.”
– They investigate complaints about administrative actions and governmental and commercial decision-making.
– Examples:
• Commonwealth Ombudsman (Defence, Immigration,
Postal Industry and Taxation)
• Telecommunications Industry Ombudsman
• Banking & Financial Services Ombudsman

The adversary system

Features of the adversary system
– Two opposing sides who argue their case in a court presided over by a neutral third party —for example a judge.
– One side will “win”; one side will “lose”.
– In a civil case – parties prove their case “on the balance of probabilities”.
– In a criminal case – the Crown proves the case
“beyond reasonable doubt”.

The parties

For criminal matters:
• The Prosecutor (DPP) must establish:
– That the accused had the intention or mens rea, to commit the crime; and
– That the accused carried out the act or conduct.

• If the accused is found guilty, the court will apply what it considers to be the “appropriate remedy”.

The jury

• The jury determines questions of fact.
• In criminal trials:
– All accused are entitled to a jury of 12 in all cases in intermediate and superior courts where the accused pleads ‘not guilty’ to an indictable offence. • In civil cases:
– Because of cost, they are not used as much as they once were.

Case law (precedent)

• Precedent means that a question that was dealt with in a certain way continues to be dealt with in that way in similar later situations. Rules of precedent

• A court is part of the same ‘hierarchy’ if it is ‘linked’ by a right of appeal.
• The position of the court of record in the court hierarchy will determine whether the ratio is binding or persuasive.
– For example, Vic and NSW Court of Appeal decisions bind their Supreme Cts.

Statute law

• Statute law is made by parliament and subordinate bodies to which it has delegated legislative power.
• Statute law can last forever or until it is changed.
• Where statute law and common law conflict, statute law will prevail to the extent of the