Glossary of Legal Terms

Law passed by parliament, known as a 'bill' before assent by governor or governor general.

When a case is put off to a later date.

Administrative law
The rules governing decision making by public officials.

Administrative Notices
Provide guidance on practice and procedure required or followed by the Court in the District Registry to which the notice relates to supplement what might be contained in statutes or the Court’s Rules.
    See also Practice Notes and Administrative Notices

The law and court with jurisdiction over maritime affairs in general.

A written declaration made under oath before a notary public or other authorised officer.

An independent person or company with authority to act on behalf of another.

Alternative dispute resolution
    See mediation

An application to a higher court to review a decision of a lower court or tribunal. For example, an appeal from a decision of the Federal Circuit Court  of Australia may be made to the Federal Court, and a decision of a single judge of the Federal Court may be the subject of an appeal to the Full Court of the Federal Court.

Appellate jurisdiction
The power given to a court to hear appeals in certain matters.

Person, person's organisation or corporation that starts an appeal in a court. Applicants, appellants, respondents, defendants, etc., are generally called 'parties'.

Appellate courts
Courts to which an appeal is made.

The individual, organisation or corporation who/which applies to the Court to start legal proceedings against another person or persons. Also known as ‘plaintiff’ in admiralty and corporations matters and in some other courts.

The document that starts most proceedings in the Federal Court.

The practicing members of the legal profession.

A lawyer who presents cases in higher courts.

Case at first instance
A case for which no precedent is set.

Case law
The area of law developed by the courts while hearing and determining disputes.

Cause of action
A term used in the Federal Court’s case management system to classify proceedings commenced with the Court. There are sixteen main causes of action and five supplementary causes of action.

Civil law
Laws regulating the behaviour of individuals; a form of private law.

Class actions
    See Representative proceedings

Common law
Case law developed in common courts. This term is sometimes used to describe all case law or judge made law.

A set of rules or principles according to which a state or other organisation is governed. A body of laws governing those who make laws. The Australian Constitution is an Act that sets out the structure of federal government and the powers of federal parliament.

A barrister.

A right that gives the author of an artistic work, for a limited period, the exclusive privilege of making copies of the work and publishing and selling the copies.

Criminal law
Laws concerned with both the rights of the individual and of society as a whole.

Cross appeal
An application by a respondent in an appeal also seeking a review of the lower court or tribunal decision and made in response to the appeal. A cross appeal is not required if the respondent is simply seeking that the decision of the lower court or tribunal be upheld.

Cross claim
A claim made in a proceeding by one party against a co-party, such as the first respondent (or defendant) against the second respondent (or defendant). However, if the claim in the proceeding is by one party against an opposing party, such as the respondent (or defendant) against the applicant (plaintiff), it is called a counter claim. A cross claim has to be closely connected to what is in dispute in the original claim or a counter claim.

Crown prosecutor
Legal representative of the Crown who institutes criminal proceedings against the accused.

A long established tradition or usage that becomes customary law if it is (a) consistently and regularly observed and (b) recognized by those states observing it as a practice that they must follow.

Customary law
The way people live and their rules including ceremonies, songs, stories; a way of life governed by a system of beliefs.

Compensation (usually money); most common outcome of civil cases.

In the defence the respondent must answer each allegation made by the applicant in the statement of claim. Matters in dispute should be apparent when the defence is delivered. Points of disagreement between the parties are referred to as “issues”. Where facts are admitted they cease to be an issue in the proceedings. Consequently, they need not be proved at the trial.
    See also Reply

Person brought to court and charged with a criminal offence. Applicants, appellants, respondents, defendants, etc., are generally called 'parties'.

Determination of fact
The court's role to discover the truth.

Orders made by the Court or a judge in relation to the conduct of a proceeding. Before the trial or hearing of a matter a judge may give directions so that the parties involved will be properly ready. The directions usually set down a list of steps to be taken by the parties and the deadline for those steps. The steps usually involve filing of material and defining the issues that require a decision by the Court.

Revealing all relevant information.

A process by which the parties involved in a legal proceeding must inform each other of documents they have in their possession and which relate to the matters in dispute between the parties.

The ability to choose whether to, or whether not to, proceed with a decision.

When the decision is made on what seems fit for the circumstances.

To differ in opinion.

Docket system
A system by which each case is allocated to a particular judge who will then see the case through to completion. In the Federal Court the system is called the Individual Docket System (IDS).

The body of rules applied to where there is no relief under common law. equity: (From Latin Æquitas: 'even' or 'fair.') Being just, impartial, and fair. Justice applied in circumstances not covered by rules of law.

(From Old French estoupail: 'stopper' or 'bung.') Legal rule that one cannot make an allegation or denial of fact that is contrary to one's previous actions or words.

Evidence is material that tends to prove or disprove a particular fact or facts. Evidence might be an object or thing, it might be a document or it might be oral testimony from a witness. Whether evidence can be used in a hearing will depend on its admissibility. This may depend on a number of matters and there are many rules of evidence which take account of such matters as the relevance and reliability of evidence.

A document or item produced in court for the purpose of becoming part of the evidence in a proceeding.

To wipe out, make nonexistent.

Filing of documents
The process of the Court accepting a document or documents lodged by a party to a proceeding.

First instance
A proceeding heard in the Court’s original jurisdiction.

Fixed costs
    See Lump sum

Full Court
Three or more judges sitting together to hear a proceeding.

That part of a proceeding where the parties present evidence and submissions to the Court.

Human rights
Basic rights intended to protect all people from cruel and inhumane treatment, threats to their lives, and persecution.

A court order making a person do, or refrain from doing, something.

Intellectual property
Abstract property, such as a manuscript or computer software, over which the owner has legal possession.

Interlocutory application
Interlocutory proceedings are for dealing with a specific issue in a matter - usually between the filing of the application and the giving of the final hearing and decision. An interlocutory application may be for interim relief (such as an injunction) or in relation to a procedural step (such as discovery).

A method of formal discovery wherein a lawyer serves upon the other party's lawyer a written document consisting of a set of questions. The party served must answer the questions, under oath and in writing.

The final order or set of orders made by the Court after a hearing, often accompanied by reasons which set out the facts and law applied in the case. A judgment is said to be ‘reserved’ when the Court postpones the delivery of the judgment to a later date to allow time to consider the evidence and submissions. A judgment is said to be ‘ex tempore’ when the Court gives the judgment orally at the hearing or soon after.

Judicial discretion
The right of a judge to make a choice, eg. in punishment.

The extent of legal authority or power of the Court to apply the law. The Federal Court has jurisdiction under more than 150 Acts of the Commonwealth Parliament and has original and appellate jurisdiction.

A rule established by authority, society, or custom.

An act of parliament or piece of delegated legislation.

Individuals, organisations or companies who/which are the parties to a proceeding before the Court.

Lump sum (or fixed costs)
The Court may fix an amount for professional costs to avoid the need to have the costs taxed.

Mediation or (Alternative Dispute Resolution)
A process in which an impartial third party (the mediator) assists the parties in an attempt to bring about an agreed settlement or compromise, without requiring a decision of the Court.

Natural justice
Rules of fair play originally developed in the common law courts.

Obiter dictum
A judge's statement made during a judgment, but not part of the reason for the decision.

Original jurisdiction
The authority or legal power to hear a case in the first instance.

People involved in a court case. Applicants, appellants, respondents, defendants, are generally called ‘parties’.

Party and party costs
Costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.

A party who initiates a civil action.

Pleadings include formal written statements of an applicant's claim and a respondent's defence. All of the material facts the parties intend to allege at the trial and the issues in dispute are defined in the pleadings. The pleadings show what facts are in dispute and what issues the Court will need to determine.

Within the Federal Court Rules 2011, pleadings are defined to include: statement of claim, statement of cross claim, defence and reply. It does not include originating application, interlocutory application or affidavit.

Practice Notes and Administrative Notices
The Court publishes Practice Notes and Administrative Notices. Practice Notes are issued by the Chief Justice on advice of the judges of the Court. Administrative Notices are issued by each District Registrar at the request, or with the agreement, of the judges in the District Registry to which the notice relates.

Practice Notes
Provide guidance on practice and procedure required or followed by the Court nationally to supplement what might be contained in statutes or the Court’s Rules.
    See also Practice Notes and Administrative Notices

Precedents Judgments
quoted as an authority for deciding a similar set of facts; must come from an equivalent or higher court. precedent: (From Latin prÆcedens: 'going before in time').

Prima facie case
(Prima facie is Latin for 'at first sight' or 'on first consideration.') A showing of sufficient evidence to initially establish a petitioner's case. If such a case is made out, the opposing party is then required to respond; if not, the case will be dismissed.

Procedural fairness
The just administration of rules that provide how parties go about enforcing their legal rights.

The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the judgment.

Professional costs
Costs paid to the lawyer who represents a party to the proceeding.

Ratio decidendi
The legal reasoning on which a judgment is based.

The Federal Court and Federal Circuit Court Regulation 2012 which prescribe the filing and other fees that must be paid in relation to proceedings in the Federal Court.

Remedy Redress
make up for a wrong.

Cancellation of a statute or part of a statute or act.

The applicant may respond to the defence with a reply, although not for the sole purpose of denying the allegations in the defence. A reply is to raise facts and matters in answer to the allegations in the defence. See also Defence

Representative proceedings
Representative proceedings are commonly referred to as class actions. A class action allows one claimant to bring an action in court on behalf of a group of people. There are no limitations on the types of claims that can be brought through the class action system. Some Examples of class actions that have been brought in Australia include: shareholder class actions; cartel class actions; product liability class actions; financial services and planners class actions.

The individual, organisation or corporation against whom/which legal proceedings are commenced. Also known as a ‘defendant’ in admiralty and corporations matters and in some courts. In an appeal it is the party who/which did not commence the appeal.

Religious or solemn ceremonies that must be observed.

Rule of law
The concept that everyone obeys the law; no one is above it.

Rules made by the judges which set out the procedures for conducting a proceeding. The current rules of the Federal Court are the Federal Court Rules, Federal Court (Corporations) Rules 2000 (for proceedings under the Corporations Act 2001) and Federal Court (Bankruptcy) Rules 2016 (for proceedings under the Bankruptcy Act 1966).

Rules of standing
Determining who is allowed to appear before the court.

Self represented litigant
A party to a proceeding who does not have legal representation and who is conducting the proceeding on his or her own behalf.

Separation of powers doctrine
Division of the power among legislative, executive and judicial arms of government to provide for checks and balances.

Statement of claim
In the statement of claim the applicant alleges all of the material facts that show that the applicant has a cause of action that is enforceable against the respondent. The statement of claim may formulate any question of law that the Court will be asked to determine. It must set out the orders sought by the applicant against the respondent.

Acts of parliament.

Statutory rule
The generic name for all types of delegated legislation.

A subpoena compels the appearance of a person at a trial to testify and to produce documents. A subpoena is a court order, and if properly issued and disobeyed, the disobedient person could be in contempt of court.

A document issued by a court directing a person to appear before it.

Sunset clause
A legal clause giving a final date after which no remedy may be sought, regardless of the grounds of complaint.

Taxation of costs
The process by which a party in whose favour a costs order is made may apply to a taxing officer to have their costs quantified.

Terra nullius
Empty land; land belonging to no one.

A civil wrong where one person unreasonably interferes with the rights of another.

Judicial examination and determination of issues between parties with or without a jury.

A specialised adjudication body. The term is generally used to refer to administrative dispute resolution bodies other than courts.

Ultra vires
Where a body has acted outside its lawmaking powers.

A written court order to do or refrain from doing something.