When a case is taken to court, the process is called a ‘hearing’ or a ‘trial’. The
order in which a hearing runs is almost the same for criminal and civil cases.
- The representatives of the parties introduce themselves to the court.
- The representative of the party that has brought the case to court, presents all of
their evidence to the court through having witnesses testifying, often called witness
- That evidence can be challenged by the other party through ‘cross-examination’ of
- The representative of the party that is responding to or defending themselves against
the charges, presents their evidence to the court. Again, the other party can challenge
the evidence through cross examination.
- The representatives then each tell the court what they think the evidence proves and
how that is relevant to what has to be proved in the case.
- The decision maker makes their decision on what happened.
- The decision maker makes their decision on what the penalty or remedy is to be, most
often called sentencing in criminal trials.
What process does a court use to deal with a legal dispute?
A court can only deal with a legal dispute at the request of one of the people or
organisations affected by the dispute. The process used by courts to resolve disputes
is slightly different for different kinds of cases – for example, criminal cases and
civil cases have slightly different processes. Even within the criminal law, there
is a slightly different process for dealing with indictable offences (more serious
offences) and summary criminal offences (less serious offences).
Courts can only decide the outcome of a case using the evidence that is presented
in the hearing. They cannot go out looking for other evidence or calling witnesses.
This is because Australia has an ‘adversarial’ legal system.
In order to reach the decision at the end of a hearing, the court has to identify
what laws are relevant to the situation and then how those laws apply in the particular
situation. To do this the court relies heavily on the parties to point out what laws
are relevant and how those laws should be applied to the situation.
Except in very limited cases – such as cases involving children or cases involving
national security – the hearing of cases is public. This means that anyone can walk
into the court and stay to listen to the hearing and the decision. This is an important
part of our court system because it means that the process can be seen and understood
by anyone and has the elements of natural justice and procedural fairness.
What are the differences between courts and tribunals?
Tribunals are similar to courts because they use similar processes to resolve disputes
between parties. Tribunals have many features that are similar to courts, for example:
- tribunals, like courts, are independent. They are separated from the executive and
legislative branches of government;
- tribunals and courts are open to the public;
- tribunals and courts have a duty to be transparent by providing reasons for their
- parties have the right to appeal against decisions of courts and tribunals.
Some examples of the differences between courts and tribunals include:
- tribunals have a more relaxed approach to the rules of evidence than courts;
- tribunals encourage and often require parties to speak on their own behalf. Lawyers
are only permitted in special circumstances;
- tribunals often specialise in resolving disputes in a particular area – courts generally
have the power to hear a much broader range of cases;
- it is usually much cheaper to resolve a dispute at a tribunal rather than have it
litigated at court;
- tribunals are most often made up of a panel of three people, only one of whom is a
lawyer – the other two members are usually experts within the particular field of
the tribunal; and
- members of tribunals are appointed for a fixed period of time, rather than until they
reach retirement age.