Glossary of Terms

Here are some definitions of the most commonly used legal terms.

Barrister - A lawyer who is engaged by solicitors to represent them in court (i.e. Do the talking for them). Barristers also provide advice on cases.

Breach of Contract - The failure of a party to a contract to perform a contractual obligation; or an anticipatory breach.

Civil Case - Issues in dispute between private citizens as distinct from criminal cases.

Class Action - Legal proceedings which allow the claims of many individuals against the same defendant, which arise out of the same or similar circumstances, to be conducted by a single representative.

Commercial Law - Areas of law having particular relevance to commerce and commercial transactions, such as contract, agency, banking, insurance, finance, export and import of merchandise, carriage of goods, mercantile agency and usages, company and partnership law.

Common Law - The unwritten law derived from the traditional law of England as developed by judicial precedence, interpretation, expansion and modification.

Committal - A proceeding in which a Magistrate determines if there is enough evidence to support a charge of an indictable offence.

Contract

1. A legally binding promise or agreement; an act in law where two or more persons declare their consent as to any act or thing to be done or forborne by some or one of them for use of the others or other of them.
2. The body of general principle pertaining to the various branches of contract law, such as sale of goods contracts or charterparties.
3. The act of entering into an agreement.
4. The form or document that embodies the terms of an agreement between parties, for example a `standard form contract'.

Costs - At common law, the remuneration and disbursements incurred in relation to legal work.

Criminal Case - A matter between the State and an individual pertaining to a criminal offence. A criminal offence is either a summary or indictable offence.

Custody - Control, responsibility for, or confinement.

Damages - Compensation for damage suffered; a court-awarded sum of money which places the plaintiff in the position he or she would have occupied had the legal wrong not occurred.

De Facto - A partner who lives with you.

Defendant - a person against whom a civil proceeding is brought or a person charged with a criminal offence.

District Court - Headed by a Judge, the District Court has the jurisdiction to deal with criminal offences and civil cases where the amount being claimed is between $50,000 and $250,000.

Equity
1. The separate body of law, developed in the Court of Chancery, which supplements, corrects, and controls the rules of common law.
2. A right recognised by a court of equity, based on ethical concepts, and justifying in certain cases the judicial intervention of that court.

Executor - a person named in a will whose duty it is to execute the directions of the will.

Hearing - A proceeding, conducted by a court, tribunal, or administrator with a view to resolving issues of fact or law, in which oral evidence may be taken and documentary and real evidence tendered.

Indictable offence - A more serious criminal offence which is triable by a jury.

Industrial Law - The area of law that regulates industrial relations, that is, the relations between employers and employees and their representative organisations.

Judge - A judge sits in the District and Supreme Courts and is addressed as "Your Honour"

Jurisdiction - The scope of the court's power to examine and determine the facts, interpret and apply the law, make orders and declare judgment. Jurisdiction may be limited by geographic area, the type of parties who appear, the type of relief that can be sought, and the point to be decided.

Jury - 12 people who are chosen from a panel of ordinary citizens randomly picked from the electoral role, to make determinations of facts in trials.

Law - The subject matter of the discipline of jurisprudence; the framework of rules and regulations governing society.

Lawyer - A barrister or solicitor; a person qualified to practice law.

Legal Aid - A government body which provides funding for legal representation for people who cannot otherwise afford it.

Legislation - The instruments embodying the creation and promulgation of laws by the Commonwealth and State legislatures; law made by Parliament, that is, statute law or Acts of Parliament. Law made by other bodies under the authority of Parliament is termed delegated legislation.

Liability - A person's present or prospective legal responsibility, duty, or obligation.

Licence - A permit to do something which would without a licence be unlawful.

Litigation - The conduct of legal proceedings by parties before a court.

Magistrate - A magistrate sits in the Magistrates Court and is addressed as "Your Worship".

Magistrates Court - Headed by a Magistrate, a Magistrates Court has the jurisdiction to deal with minor criminal offences and civil cases where the amount being claimed does not exceed $50,000.

Mediation - A method of dispute resolution which includes undertaking any activity for the purpose of promoting the discussion and settlement of disputes, bringing together the parties to any dispute for that purpose, and the follow-up of any matter being the subject of such discussion or settlement.

Minor Debt Claim - a claim which is brought in the Magistrates Court and where the amount being sought is less than $7,500. Benefits are that there are minimal costs. Solicitors cannot appear in court at the hearing of the claim.

Negligence - An action in tort law, the elements of which are: the existence of a duty of care; breach of that duty; and material damage as a consequence of the breach of duty.

Offence - A specified transgression of the criminal or regulatory law. An offence may be against the common law or against the provisions of statutes or subordinate legislation.

Offer -
1. In colloquial usage, the expression of mere willingness to commence negotiations.
2. In contract law, the expression of willingness to contract on terms stated.

Out of Court Settlement - In civil proceedings, an agreement where parties to proceedings, without reference to the court and at any time before final judgment, to settle or compromise all or any of the matters in issue between them.

Plaintiff - a person who brings a civil claim.

Precedent -
1. A judgment that is authority for a case on similar facts.
2. A document or form used as a basis or template by lawyers as a guide for drafting in analogous situations.

Product liability -
1. A responsibility or onus imposed by the law of contract and tort, or by consumer legislation on a manufacturer, distributor, or supplier to warn consumers appropriately about possible detrimental or harmful effects of a product and to foresee how it may be misused.
2. In tort law, the liability of a company, manufacturer, or producer for defective products, which arises from the duty owed by that manufacturer to consumers of those products, irrespective of the existence of a contractual relationship.

Property - A word which can be used to describe every type of right (that is, a claim recognised by law), interest, or thing which is legally capable of ownership, and which has a value.

Prosecution -
1. Proceedings by which a person is brought to trial for a criminal offence; the initiation of legal processes in the criminal jurisdiction of a court.
2. The party conducting criminal proceedings against another person; generally called `the Crown' in higher courts.

Public liability - A risk of liability to the public at large against which an insurance policy may be obtained.

Power of Attorney - Power given to someone to act on your behalf.

Senior Council - A senior Barrister who is engaged for more complex matters; usually in the superior courts.

Registrar - An officer of the court.

Respondent -
1. A party to court proceedings against whom relief is claimed by an applicant or an appellant.
2. A person against whom an interlocutory or procedural application is made by way of notice of motion.

Special damages -
1. Damages awarded for loss actually suffered and expenditure actually incurred.
2. Damages in respect of a tort that is not actionable per se.
3. Damages that are peculiar to a particular plaintiff in that they are over and above those suffered by the public at large.

Solicitor - A class of legal practitioner, generally responsible for advising clients on legal matters, preparing legal documents, representing clients in summary matters, and instructing barristers in relation to more complex advocacy work.

Subpoena - A document requiring you to go to Court to give evidence.

Summons - A notice calling upon a person to appear before a court for a specified purpose.

Summary Offence - A minor criminal offence which is dealt with in the Magistrates Court without a jury.

Supreme Court - Headed by a Judge, the Supreme Court has the jurisdiction to deal with some criminal offences like murder and some serious drug offences. The Supreme Court also has jurisdiction to deal with civil matters where the amount being claimed exceeds $250,000.

Tort - A civil wrong distinguished from the law of contract, law of restitution, and the criminal law. A tort is a breach of a duty, potentially owed to the whole world, imposed by law.

Trustee - a person to whom an estate is conveyed on trust for another.

Will - A legal document that states a person's intention for disposal of his/her property after death.

Without Prejudice - A term used for communications between parties which excludes the content of the communication from being tendered/or relied upon in court proceedings.

Witness -
1. A person who sees or hears material relevant to an enquiry.
2. A person appearing at a hearing to give evidence.
3. A person who observes the signing of a legal document such as a will as and when it takes place and affirms it by adding his or her own signature on the document as an attesting witness