Going to court is a complicated and expensive process in Australia. Not only are there different courts in each state, but there are also national courts. So, what is the difference between each court? And, if you need to start proceedings, which court should you use? Australia has a unique court system based on the United Kingdom’s Westminster system. However, it was adapted to suit the Australian structure of states and the Commonwealth better. This article will give an overview of the court system in Australia and a description of each different level of court within the system.
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This guide will help you understand the directors’ duties that apply to you within the Australian corporate law framework.
The Constitution and Australian Courts
Under the Australian Constitution, courts are independent of the other arms of government. Therefore, judicial officers can act without political interference. The Constitution itself creates only the High Court of Australia. However, it gives Parliament the power to create other federal courts and to give power to state and territory courts.
What is the High Court?
As its name suggests, the High Court is the highest court in Australia. It has power over all matters to do with the Constitution. However, it also deals with cases involving international law and all appeals from the lower courts. These appeals occur when the matters involve sufficient public interest or where the lower courts have interpreted the law differently.
The High Court has a chief justice and six justices. It sits mostly in Canberra, with regular sittings in other states. Before 1986, Australians could appeal beyond the High Court, to the United Kingdom’s Privy Council. However, this was only because Australia’s legal system was not considered to be mature enough. Therefore, the option to appeal to a British Court ended with introduction of the Australia Acts 1986.
Continue reading this article below the formWhat Are the Federal Courts in Australia?
Along with the High Court, there are three other federal courts in Australia, where a chief justice heads all. We explore these below.
Federal Court of Australia
It hears all civil matters arising under federal laws and some criminal cases where the defendant is alleged to have committed a federal crime. The civil matters include:
- bankruptcy;
- corporations;
- industrial relations;
- native title;
- taxation; and
- consumer law.
The Federal Court also hears appeals from the Federal Circuit Court (other than family law matters).
Family Court of Australia
This specialist court in family law deals with family disputes and hears appeals from family law matters of the Federal Circuit Court.
Federal Circuit Court of Australia
Formerly the Federal Magistrates Court, this court hears less complex disputes in matters including:
- family law and child support;
- administrative law;
- admiralty law;
- bankruptcy;
- copyright;
- human rights;
- industrial law;
- migration;
- privacy; and
- consumer law.
Federal Circuit and Family Court of Australia
As of 1 September 2021, the Family Court of Australia and the Federal Circuit Court of Australia were merged, intending to resolve the backlog of family law matters and reduce long wait times for the courts.
The court is now made up of two divisions. Division One is a continuation of the Family Court of Australia and deals exclusively with family law matters. On the other hand, Division Two is a continuation of the Federal Circuit Court of Australia and deals with family law, migration law, and general federal law matters, such as:
- administrative law;
- admiralty law;
- bankruptcy;
- copyright;
- human rights;
- industrial law;
- migration;
- privacy; and
- consumer law.
A key focus of this restructuring has been that court proceedings should be a last resort. As such, the court expects that people will make genuine attempts to resolve their differences through dispute resolution and endeavour to limit the costs and stress of litigation.
The State Courts
The hierarchy of courts in each state and territory varies, but all have a generally similar structure. This structure consists of a higher court headed by a chief justice and intermediate and lower courts below that.
The supreme courts in each state and territory will conduct jury trials for serious significant offences such as murder. However, they also hear appeals from lower courts.
Most states and territories also have a Coroner’s Court, which deals with unexplained deaths and fires. There is also commonly a Children’s Court for matters involving children (or defendants under 18 at the time of offending).
Jurisdictional Limits of the State Courts
If you want to commence a civil claim, it is important to understand which court is the correct forum and what relevant jurisdictional limits apply. For example, in New South Wales. the civil jurisdiction limit for the:
- Local Court includes matters up to a monetary limit of $100,000;
- District Court includes matters up to a monetary limit of $750,000; and
- Supreme Court includes claims exceeding $750,000.
Key Takeaways
It is important to seek legal advice on the appropriate forum and jurisdiction in Australia before commencing a claim for several reasons, which include:
- understanding the jurisdictional limits;
- procedural requirements; and
- strategic considerations.
If you need advice on making a legal claim, our experienced dispute lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Along with the High Court, there are three other federal courts in Australia, where a chief justice heads all. These courts include the Federal Court, the Family Court and the Federal Circuit Court.
New South Wales has the Local Court, the District Court and the Supreme Court of NSW as the superior court. All hear both civil and criminal matters. On the other hand, the ACT has no intermediate court.
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