When two people have a dispute and one of them takes legal action, the dispute may end up being heard and decided by a court of law.
	The dispute is now called a case and the hearing of the case by the court is called a trial. Because it is a dispute between two ordinary people, it is called a civil action (as opposed to a criminal action).
	The two people in dispute are called the parties; the party who commenced the legal action (i.e. the one ‘suing’) being the ‘plaintiff’ and the other party in the dispute (i.e. the one being sued) being the ‘defendant’. In lower courts (see Australian court hierarchy ), like the Magistrates’ Court, the word ‘trial’ is usually replaced by other general purpose words such as ‘hearing’.

At a trial or hearing the parties concentrate most of their efforts on trying to prove facts helpful to their own cases. Some time will be spent on establishing what rules of law should apply given the particular area of dispute between the parties (e.g. what are the legal rules about what constitutes a ‘contract’ and what legal rights does a contract give to the parties?). It is the judge who decides what rules of law apply and tells (‘instructs’) the jury what they are.

At the end of the trial, the jury (or the judge if the case does not involve a jury, because, in some cases, the parties can choose not to have a jury) will look at all the evidence. They will decide which facts to believe and then decide which party wins and what type of recompense (or ‘remedy’), if any, the winner is entitled to receive from the loser. The loser may not be prepared to accept all or part of this decision and may request a higher court (e.g. Supreme Court of Victoria) to hear the case and make a different decision. This is called an ‘appeal’.

There are usually two reasons (or ‘grounds’) on which the loser, now called the ‘appellant’ (the other party now being the ‘respondent’), can base an appeal. First, the appellant can claim that the jury (or judge) made a mistake in deciding which of the facts presented by the parties to believe. This is a very hard argument to win because appeal courts usually take the attitude that because the trial jury (or judge) saw and heard the evidence being given, it is in a much better position to decide which pieces of evidence to believe in and to rely upon. It must be kept in mind that at most appeals the witnesses are not called to give evidence again and there is no jury. The judges just read the written record (or ‘transcript’) of what was presented at the trial and listen to arguments put forward by the lawyers for each party. There are few cases appealed on this ground.

The second ground for appeal is that the trial judge made a mistake in applying the law, by using a wrong rule, misinterpreting the meaning of the appropriate legal rules or applying a correct rule in an inappropriate manner. In this type of appeal there is no dispute about the facts as decided at the original hearing and the court accepts those facts as being true. The argument is centered on what the correct rules of law are and how they should be applied to the settled facts of the case.

It is this type of appeal case that is important in setting out what the law is. They are often collected and published in law reports and referred to in law books, articles in law journals etc. They are the cases that students learn about in law subjects. Therefore in the cases referred to in classes, students need not be concerned about whether the facts as stated are true. Students, like professional lawyers, should concentrate on how these cases explain the law with respect to the particular area of dispute between the parties. Students should do this because they are required to use these rules of law to decide the outcome of new similar disputes. This is exactly what lawyers do.

RELATED LINKS

The Australian Court Hierarchy

FURTHER READING

	Khoury and Yamouni Chapter 1 pp.1-11
	Parker and Box pp.1-50
	Crosling and Murphy Chapter 1
	Turner, Chapter 1
	Latimer, Chapter 1