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Glossary of legal terms

Act - Law passed by parliament, known as a 'bill' before assent by governor or governor-general. See also 'Statutes'

Adjournment - When a case is put off to a later date.

Administrative law - The rules governing decision-making by public officials.

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

Affidavit - A written statement of facts made under oath or affirmed before a notary public, justice of the peace, legal practitioner or other authorised officer. It can be used to support an application or can be tendered by a aprty to a proceeding as evidence in court.

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

Appeal - Application to a higher court to alter a decision of a lower court or tribunal, usually because of a mistake in law. A common example would be an appeal from a decision of a single judge, which would go to a bench of three judges (in the Federal Court of Australia). Another example would be an appeal from the Federal Court of Australia to the High Court of Australia.

Appearance - The coming to court as a party, either in person or through counsel. The judge will often state 'I will take appearances.' A party also 'appears' when the file a 'notice of appearance' - this is saying they will take part in the proceeding.

Appellant - 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.

Applicant - Person, person's organisation or corporation who applies to the court to start a legal proceeding against another person or persons. Also known as 'plaintiff' in admiralty and corporations matters and in some other courts. Applicants, appellants, respondents, defendants, etc. are generally called 'parties'.

Application - A document that starts a legal proceeding. Also used as a broad term for what the applicant is doing in the court: he or she is 'making an application'.

Bar - The practicing members of the legal profession.

Barrister - A lawyer who presents cases in higher courts.

Case at first instance - The first time the facts of a case are considered - not an appeal.

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

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

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

Consent orders - Parties may agree to written terms that they wish to court to approve. If the parties agree on the orders they seek, the court will usually make those orders. A judge can make consent orders in court, or in chambers without the parties having to appear in court.

Constitution - 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.

Counsel - A barrister.

Copyright - 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.

Costs - This term is used for the legal fees or expenses of a party to a matter in the Court. On the determination of a case, the court has the discretion to 'award' costs and order that a party pays another party's legal expenses for the matter. It usually awards costs in favour of the successful party.

Court books - Prepared for final hearings which contain the latest copy of all the pleadings and all documents that the parties want to reply upon, usually in a folder or bound.

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

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

Custom - 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.

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

Defendant - Person brought to court to answer claims made by a plaintiff or to be 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.

Directions - Before the trial or hearing of a matter a judge gives directions so that the parties involved will be properly ready for the hearing. Generally it involves setting 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.

Disclosure - Revealing all relevant information.

Discontinuance - Occurs when a party who has started legal proceedings decides to stop them without the court needing to determine the issues in dispute.

Discovery - The process by which the parties involved in legal proceedings inform each other of documents they have in their possession and which relate to the matters in dispute between the parties.

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

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

Dissent - To differ in opinion.

Docket system - System by which each case is allocated to a particular judge who will then see the case through to completion.

Equity - 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.

estoppel - (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.

Exhibit - A document or item produced in court for inspection by the court, to be shown to a witness or because it is referred to in an affidavit.

Extinguish - To wipe out, make non-existent.

Filing of documents - Lodging of documents usually with the court registry and having them accepted by the court.

Hearing - A proceeding conducted by the court to resolve issues or fact and/or law, in which evidence may be taken.

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

Injunction - 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 - Interlocutory proceedings are specific issues in a matter usually dealt with between the filing of the application and the giving of the final hearing and decision. In the Federal Court of Australia, interlocutory issues are usually brought before the Court by a 'notice of motion' or an 'interlocutory process'.

Interrogatories - A set of questions which one party to a court action asks the other party, in order to find out more about the other party's case.

Judgment - The final order or set of orders made by a judge after a court hearing, including reasons that usually set out the facts and law as applied in the case. Judgment is said to be 'reserved' when a judge needs time to consider all the evidence and argument and so postpones the delivery of the judgment from the date of the hearing in court to some later date. Judgment is said to be 'ex tempore' when a judge gives it orally immediately after the hearing of the matter.

Judicial discretion - The right of a judge to make a choice, eg. in punishment or issuing certain orders.

Jurisdiction - The extent of legal authority or power. This means the areas of law that the court has the authority or power to make orders. Examples of types of jurisdiction are: realm of law (Commonwealth or State jurisdiction), type of law (civil or criminal), and level of hearing (original jurisdiction or appellate jurisdiction). The Federal Court of Australia has jurisdiction under more than 150 Acts of the Commonwealth Parliament.

Law - A rule established by authority, society, or custom.

Leave - 'Leave' is permission to do something. For example, if a person has left it too late to appeal (they are over the time set by law), it may be possible for that person to ask the court for permission to appeal anyway. This would be by an application 'for leave to appeal'.

Legislation - An act of parliament or piece of delegated legislation.

Liberty to apply - The right of a party to apply for further orders to be made by the court, without the party having to commence a new action or file a formal document in a proceeding.

Liberty to restore - The right of a party to bring the matter before the court earlier than the next scheduled hearing date.

Listing - An event before a judge or registrar that is usually organised in advance and recorded on the court's case management system and notice boards.

Litigants - People or companies who are parties to a dispute before a court - they are 'litigating' or involved in legal proceedings.

Litigants in person - People who are a party to a dispute before the Court, who have no legal representative and are conducting the matter on their own behalf.

Matter - A matter is the case, or the legal proceeding.

Mediation - (From Latin mediare: 'to be in the middle.') A process in which an impartial third party assists the parties to a dispute in an attempt to bring about an agreed settlement or compromise.

Motion - An interlocutory application to the court in legal proceedings where the parties 'move' the court for particular additional orders, during the conduct of proceedings. Usually, the document specifying the orders sought is known as a 'notice of motion'.

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

Notice to produce - A document in which one party calls upon the other party to bring specific documents to the court at a specified time.

Notice of motion - The document filed by a party to existing proceedings seeking interlocutory orders not included in the original application.

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

On the papers - To deal with an application on the written evidence and submissions filed by the parties, without taking oral evidence or submissions.

Order - Command of the court. In the Federal Court of Australia it is also the chapters in the Federal Court Rules eg. Order 1 Rule 1.

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

Originating process - This is a document that starts a proceeding in the court. It is generally an 'application' to the court. In admiralty it will be called a 'writ' and under the Corporations Act the first document bears the name 'originating process'.

Parties - People, organisations or corporations involved in a court case. Applicants, appellants, respondents, defendants, etc are all called 'parties'.

Plaintiff - A party who initiates a civil action. Particularly in admiralty and corporations matters in the Federal Court of Australia and in other courts (but in most other cases in the Federal Court, known as the 'applicant').

Pleadings - Written statements that define the issues to be decided in a case.

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 an applicant's case. If such a case is made out, the opposing party (the respondent) 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.

Ratio decidenti - The legal reasoning on which a judgment is based.

Remedy - Redress; make up for a wrong usually by compensation or an action.

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

Respondent - The person, organisation or corporation against whom legal proceedings have been started by the applicant. Also known as the defendant in admiralty and corporations matters and in other courts.

Return date - The date on which a matter is next listed before the court.

Rites - Religious or solemn ceremonies that must be observed.

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

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

Security for costs - If the court makes an order that the applicant provide security for costs for a certain sum, then the applicant must provide to the registry, security to that value. This is to ensure that, if the applicant loses the case, and is ordered to pay the respondent's costs, those costs will be paid.

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

Service (serve) - The sending or giving of documents to a party, according to the method in the rules of court. This may require documents to be delivered personally or be sent by mail or document exchange.

Short minutes of order - A draft of the order made by the court pending a formal order being prepared and sealed. In order to save time, a party may prepare the wording of an order to be made by the court as a short minute of order.

Stand over - To adjourn a matter to another date.

Statement of claim - In the Federal Court of Australia this is one of the first documents filed by the applicant. It is a pleading that sets out the facts that support the claims made in the case.

Statutes - Acts of parliament. See also 'Act'

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

Submissions - Legal argument (either oral or written) put to the court at a hearing.

Subpoena - A document issued in a legal proceeding requiring a person to give evidence or to produce documents to the court at a certain place and time. A subpoena is a court order, and if properly issued and served, then disobeyed, the disobedient person could be in contempt of court.

Summons - 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.

Terra nullius - Empty land; land belonging to no-one.

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

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

Tribunal - 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 law-making powers.

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