court and litigation | Wentworth Lawyers & Partners

Court and Tribunal Litigation

Litigation is amongst the several dispute processes provided by the law. As enacted in several movies and TV shows, litigation is usually conducted before a judge where both parties present their case and argue their matter. However, it is obviously less dramatic and more practical in real courts and tribunals.

Often, when you hear someone claiming to sue someone else or of being sued, it means that an action is being brought against a person or company in a civil court or tribunal through litigation.

To further elucidate, civil litigation is sought by an entity or an individual when their rights have or are being infringed upon to a degree where they are unable to sustain their way of life due to the significant harm or wrong done to them.

Whereas, criminal litigation is brought against an individual or entity by the State or Federal Government as prosecution, alleging them of a criminal act. If proven guilty, the alleged is punished as per the applicable law. Such punishment can be in the form of fines, restrains, and imprisonment.

During litigation, the final order given by the judge is considered binding and is therefore enforceable. If an entity or individual chooses to ignore such an order, they are likely to be charged with contempt of court. The final order of a judge can be appealed in relevant appellant courts as per the rules governing them. The likelihood of success of litigation depends on the individual circumstances and nature of each case.

What are the Parties Involved in Litigation?

All litigation matters, irrespective of their nature, will always involve at least two parties. At one end is the party bringing the matter before the court for a binding decision. On the other end is the party responding to the matter so brought.

In civil and administrative cases, the party bringing the dispute is referred to as the plaintiff or the applicant. Whereas the responding party is called the respondent. In criminal cases, the party that brings the matter to the court is the State itself and is represented by the prosecutor. Whereas, the party responding in such cases are called defendants who are accused of a criminal act.

How does it work in Courts and Tribunals?

The courts and tribunals in Australia come together to provide several avenues available for litigation within the Australian legal system. Judges overlooking matters in courtrooms and tribunals rely on strictly established processes, laws and legal precedents to give their final decision.

Their obligation as judicial officers is limited to making decisions regarding the disputes brought to them and therefore cannot make legislative policies as an outcome of their decision.

The circumstances and nature of each decide the relevant court or tribunal before which the matter should be addressed. To have a decent chance at success, litigants must ensure that they bring the case before the correct court or tribunal.

Although both courts and tribunals predominantly assist in resolving disputes, they vary in jurisdiction and function. Here, courts are constitutionally established to deal with most criminal cases and civil disputes. Whereas, tribunals have the authority to make decisions regarding more specialized and limited matters that can be either administrative or civil in nature. On one hand, civil tribunals resolve disputes between private individuals or entities. On the other, administrative tribunals address matters regarding executive actions of the government.

What does litigation involve?

In brief, a litigation process usually involves the following steps:

Step 1.Pre-commencement preparation

Step 2.Filing and service of originating process

Step 3.Presenting defenses and crossclaims in court

Step 4.Discovery or issuance of subpoenas

Step 5.Filing of evidence affidavits

Step 6.Trial

Step 7.Appeal if necessary

Step 8.Enforcement of court’s decision

Alternative dispute resolutions

The court can recommend, or the involved parties can decide to opt for an alternate dispute resolution mechanism at any time during the proceedings. this is a far more costs efficient way of approach in dealing with disputes facing the other party.

State Courts

The Local Court, District Court, and Supreme Court.

Local Court

The Local Court is the lowest court in the court hierarchy. The NSW Local Court deals with civil disputes for claims up to $100,000.There are a number of local courts throughout NSW.

They hear:

civil cases
criminal law cases
applications for apprehended violence orders (AVOs)
applications relating to driver's licences

The Local Court's civil jurisdiction
In the local court, civil cases are dispute abo money or property, such as:

loan agreements
unpaid bills
damages from a motor vehicle accident
services paid for and not provided
property not returned

The local court has two divisions to determine civil cases.

The Small Claims Division hears claims up to $20,000
The General Division hears claims over $20,000 (up to $100,000).
if the parties agree up to $120,000. Any claim more than this amount will be heard in the District Court.

Small Claims Division

Proceedings in the Small Claims Division are generally less formal and less technical than other civil cases, and the rules of evidence don't apply. This means that witnesses are not called to give evidence in defended small claims matters, unless the court decides otherwise. In defended matters, a pre-trial review is held before a hearing is set. The purpose of the pre-trial review is to help the parties reach an agreement if possible without the need for a further hearing. A pre trial review can be conducted by a registrar, assessor or magistrate. If agreement cannot be reached the court will give directions for the parties to file witness statements by a certain date.

General Division

Proceedings in the General Division are more formal. In defended cases, witnesses attend and give evidence and cases are determined by a magistrate. Appeals against decisions in the General Division can be made to the supreme court on a question of law. Appeals in other circumstances require to leave from the supreme court to appeal.

Cases in the Local Court are heard by Registrars, Assessors and Magistrates.

Website: https://www.localcourt.nsw.gov.au/

District Court

The District Court is the intermediate court in the court hierarchy. There are two District Courts, Sydney CBD and Parramatta, but the District Court also sits and has registries at a number of places outside of Sydney.

The District Court hears:

civil claims between $100,000 and $750,000, or more if the parties agree
more serious criminal matters except murder, treason and piracy
appeals from the Local Court.

Cases in the District Court are heard by a Judge. Criminal cases are heard by a judge and a jury unless the accused requests a Judge alone trial.

Website: https://www.districtcourt.nsw.gov.au/

Supreme Court

The Supreme Court is the highest court in NSW.The Supreme Court hears:

the most serious criminal matters, such as murder
civil claims more than $750,000
appeals from the District Court.

The appeal courts are the Court of Appeal and Court of Criminal Appeal.

Trial work is divided between the Common Law Division and the Equity Division.

Cases in the Supreme Court are heard by a Judge. Criminal cases are heard by a Judge and a jury unless the accused requests a Judge alone trial.

Website: https://www.supremecourt.justice.nsw.gov.au/

Federal Courts

Federal Circuit Court of Australia, Federal Court of Australia, High Court of Australia

Federal courts in NSW hear matters relating to federal law when the incident arises in NSW or the parties live in NSW.

Federal Circuit Court of Australia

The Federal Circuit Court hears a range of cases including:

family law and child support
administrative law
admiralty law
bankruptcy
copyright
human rights
industrial law (employment law)
migration
privacy
trade practices.

Website: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home

Federal Court of Australia

The Federal Court sits in all capital cities and elsewhere in Australia from time to time.

The Federal Court hears a range of cases including:

employment
human rights
migration
bankruptcy
appeals from the Supreme Court of NSW in federal matters
appeals from the Supreme Court of the ACT and the Supreme Court of Norfolk Island
appeals from decisions of single judges of the court and from the Federal Circuit Court in non-family law matters.

Website: https://www.fedcourt.gov.au/

High Court of Australia

The High Court is the highest court in Australia. It is located in Canberra. There are offices of the High Court Registry in Sydney and Melbourne, staffed by officers of the High Court. In Adelaide, Brisbane, Darwin and Perth, registry functions are performed on behalf of the High Court by officers of the Federal Court of Australia, and in Hobart they are performed by officers of the Supreme Court of Tasmania.

The High Court hears:

a range of cases, including cases about arbitration, contract, company law, copyright, courts-martial, criminal law and procedure, tax law, insurance, personal injury, property law, family law and trade practices
cases which involve interpretation of the Constitution, or where the Court may be invited to make a decision differently to how it did before, or where the Court considers the principle of law involved to be one of major public importance
appeals from the Supreme Court of the states and territories
appeals from the federal courts.

Cases may be decided by a full bench (all seven Justices), a full court (not less than two Justices) or a single Justice. There is no automatic right to have an appeal heard by the High Court and parties who wish to appeal must persuade the Court in a preliminary hearing that there are special reasons why the appeal should be heard. Decisions of the High Court on appeals are final. There are no further appeals once a matter has been decided by the High Court, and the decision is binding on all other courts throughout Australia.

Website: https://www.hcourt.gov.au/

State Tribunals

NSW Civil and Administrative Tribunal (NCAT)

Tribunals or commissions also have the power to make decisions that are binding. Tribunals are less formal than courts and often provide a quicker and cheaper way of solving a legal dispute.

NCAT has 4 Divisions:

Administrative and Equal Opportunity
Consumer and Commercial
Guardianship
Occupational

NCAT hears a range of matters including:

Housing and property
- Tenancy
- strata and community living
- home building
- social housing
- dividding fencing
- agricultural tenancy
guardianship issues
anti discrimation
consumer and business
administrative review and regulation
professional discipline.

Website: https://www.ncat.nsw.gov.au/

Federal Tribunals & Commissions

Administrative Appeals Tribunal (AAT)

The Administrative Appeals Tribunal (AAT) conducts independent merits review of administrative decisions made under Commonwealth laws. We review decisions made by Australian Government ministers, departments and agencies and, in limited circumstances, decisions made by state government and non-government bodies. We also review decisions made under Norfolk Island laws.

The AAT manages our workload in the following divisions:

Freedom of Information Division
General Division
Migration & Refugee Division (including the Immigration Assessment Authority)
National Disability Insurance Scheme Division
Security Division
Small Business Taxation Division
Social Services & Child Support Division
Taxation & Commercial Division, and
Veterans’ Appeals Division

AAT can review decisions made under more than 400 Commonwealth Acts and legislative instruments. The most common types of decisions AAT review relate to:

child support
Commonwealth workers’ compensation
family assistance, paid parental leave, social security and student assistance
migration and refugee visas and visa-related decisions
taxation
veterans' entitlements.

AAT also review decisions relating to:

Australian citizenship
bankruptcy
civil aviation
corporations and financial services regulation
customs
freedom of information
the National Disability Insurance Scheme
passports
security assessments by the Australian Security Intelligence Organisation.

AAT can also review decisions made under a small number of Norfolk Island laws, including decisions about building, land valuation, and planning.

Review of decisions

AAT review decisions “on the merits”. This means that they take a fresh look at the relevant facts, law and policy and arrive at our own decision. They must make the legally correct decision or, where there can be more than one correct decision, the preferable decision.

AAT has the power to:

affirm a decision
vary a decision
set aside a decision and substitute a new decision, or
remit a decision to the decision-maker for reconsideration

Website: https://www.aat.gov.au/

Fair Work Commission

The Commission is Australia’s national workplace relations tribunal. It was established by the Fair Work Act 2009 (Fair Work Act) and is responsible for administering the provisions of the Fair Work Act.

The Commission’s powers and functions include:

dealing with unfair dismissal claims
dealing with anti-bullying claims
dealing with general protections and unlawful termination claims
setting the national minimum wage and minimum wages in modern awards
making, reviewing and varying modern awards
assisting the bargaining process for enterprise agreements
approving, varying and terminating enterprise agreements
making orders to stop or suspend industrial action
dealing with disputes brought to the Commission under the dispute resolution procedures of modern awards and enterprise agreements
determining applications for right of entry permits
promoting cooperative and productive workplace relations and preventing disputes.

The Commission and General Manager also have responsibilities in relation to the registration, amalgamation and cancellation of registered organisations and the making and alteration of their rules under the Fair Work (Registered Organisations) Act 2009.

Website: https://www.fwc.gov.au/

Industrial Relations Commission (IRC)

The Industrial Relations Commission regulates industrial and workplace issues in New South Wales. It is established under the Industrial Relations Act 1996 (NSW).

The Industrial Relations Commission has both administrative and judicial functions, which gives it a dual nature. Its administrative functions are exercised by Commissioners. These administrative functions include resolving industrial disputes, making awards and approving enterprise agreements.

IRC exercises its jurisdiction in relation to:

The regulation of the workplace through the making and/or variation of an Award
The making and approval of Enterprise Agreements
The promotion of equal opportunity in employment
Civil matters and prosecutions under various industrial laws - these include underpayment of statutory and award entitlements and superannuation appeals
The resolution of industrial disputes through conciliation and arbitration
Registration and regulation of employer and employee organisations, including proceedings for the enforcement of rules, challenges to the validity of rules and the acts of officials
Proceedings for relief from alleged unfair dismissal, and
Proceedings for the avoidance and variation of unfair, harsh or unjust contracts, with consequential orders for the payment of money.

Website: https://www.irc.nsw.gov.au/

The special courts dealing with specific dispute and matters

Family Court of Australia

The Family Court of Australia, through its specialist judges and staff, assists Australians to resolve their most complex legal family disputes.

The Family Court is a superior court of record established by Parliament in 1975 under Chapter 3 of the Constitution and deals with more complex matters. These may include:

Parenting cases including those that involve a child welfare agency and/or allegations of sexual abuse or serious physical abuse of a child (Magellan cases), family violence and/or mental health issues with other complexities, multiple parties, complex cases where orders sought having the effect of preventing a parent from communicating with or spending time with a child, multiple expert witnesses, complex questions of law and/or special jurisdictional issues, international child abduction under the Hague Convention, special medical procedures and international relocation.
Financial cases that involve multiple parties, valuation of complex interests in trusts or corporate structures, including minority interests, multiple expert witnesses, complex questions of law and/or jurisdictional issues (including accrued jurisdiction) or complex issues concerning superannuation (such as complex valuations of defined benefit superannuation schemes).

Website: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home

Land and Environment Court of NSW

LEC hears many different aspects of issues and disputes in respect to land and environment disputes and types of dispute and case summaries for each type labeled as a class presented for easy understanding of our clients.

Class 1: Environmental planning and protection appeals

Johnson Property Group Pty Ltd v Lake Macquarie City Council (No 2) [2020] NSWLEC 42

The applicant submitted to seek an appeal to the Court for the Council’s decision to reject their development application. However, the council argued an appeal was only available for a determination, not a decision. A determination is defined under s 4.16 of the Environmental Planning and Assessment Act 1979 which is a ‘refusal’ or an ‘approval’ of a development application whereas a ‘decision’ means a ‘rejection’. The Court held the applicant did not have a right of appeal against the Council for a rejection of a Development Application in accordance to ss 8.2, 8.6, and 8.7 of the Environmental Planning and Assessment Act 1979.

Class 2 : Tree disputes and local government appeals

Johnson v Angus [2012] NSWLEC 192

The Johnson family applied to the Court to remove three trees to restore mountain views under s 14B of the Trees (Disputes Between Neighbours) Act 2006. The Commissioner allowed removal of two palms but not the Turpentine tree as it was not a tree; nor was it planted or formed part of the hedge with the plans in accordance of Part 2 the Trees (Disputes Between Neighbours) Act 2006. The Johnsons submitted the Commissioner made an error but the Court rejected this submission for three reasons: 1. The submission failed to inquire the purpose of the planting of the tree at the time of planning; 2. The plant had to be formed as part of a hedge and be physically planted; 3. The plant is required to form a hedge

Class 2 and 3: Strata Scheme Development Proceedings

Moussa v Owners Corporation of Strata Plan 65404 & Ors [2007] NSWLEC 807

The case was concerned with whether a strata development contract was valid when registered as the developer was not the owner of the development lot at the time. The Court held the applicant not owning 33 Solander Street was not invalidity of the contract. It was clear from the terms of the strata development contract that 33 Solander Street would be an added development.

Class 3 - Valuation, compensation, and Aboriginal land claim cases

Wild Oaks Properties Pty Ltd v Valuer General [2018] NSWLEC 192

This case was concerned with whether three lots of land should be valued separately as two parcels of land under s 37 of the Valuation of Land Act 1916. Lands that are owned by the same person but let to different people would be separately valued or if the lands are separated by own or separately owned then they are separately valued. The court held this was not the case as the lands were used as one farm.

Class 4 - Judicial review and civil enforcement

Nadilo v Eagleton [2020] NSWLEC 95

The applicants sought for noise disturbances that affected their sleep pattern because of the use of an aircon and heat pump water heater in an adjacent property. Due to COVID-19, the hearing was moved to sometime later in 2021. The Court held it was not appropriate to cease the heat pump water heater but to restrain the aircon.

Class 5 - Criminal proceedings

Environment Protection Authority v Taylor [No. 4] [2002] NSWLEC 59

The defendant was guilty of committing three offenses of the Pesticides Act 1978 for carelessly disregarding the instructions for a registered pesticides; contaminating pesticides with food, and using pesticides near food. The court charged the defendant $22,000 for each offense.

Classes 6 and 7 - Criminal appeals from the NSW Local Court

Denning v Department of Environment and Conservation [2007] NSWLEC 258

The plaintiff pleaded guilty in the Local Court for approaching two humpback whales closer than 100 metres of distance and was convicted of a $3,000 fine in accordance to cl 57(3)(a)(2) of the National Parks and Wildlife Regulation 2002. Denning is seeking to appeal his plea of guilty as he felt his solicitor was urging him to plead guilty at the time for a smaller fine. The court held it has the jurisdiction to entertain the appeal.

Class 8 – Mining

Connell v Santos NSW Pty Ltd [2014] NSWLEC 1

The defendant plead guilty to 4 charges under the Petroleum (Onshore) Act 1991 for failing to comply with the petroleum title on the land in the Narrabri Shire Council. Santos was charged with $30,000 for the first offence and $15,000 for the second, third, and fourth charges.

Cross-vested jurisdiction

CSKS Holdings Pty Ltd v Woollahra Council [2014] NSWLEC 176

intiffs alleged the defendant breached the development of the contracts in regards to the community scheme; electricity and telephone services; and the road works and sealing. Thus, the plaintiffs sought the damages of the breach of contracts.