LAW100 Week 2 Essay
Submitted By danielafrozi
Words: 644
Pages: 3
PRESENTATION
NAME
PRESENTATION NAME
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
