Glossary

abate Remove or reduce something, for example, to abate a nuisance or a noise.

abrogate Repeal, cancel or annul.

acquit Find an accused person ‘not guilty’ after trial.

adjourn Put off a court or tribunal hearing, to a particular date or indefinitely.

administrator A person appointed by a court to deal with a deceased person’s estate, for example because the person did not leave a will or did not name an executor.

affidavit A written statement sworn on oath or affirmed to be true before a person with the appropriate authority.

affirmation A declaration by a person that they will tell the truth (for example in court) as an alternative to taking an oath. Affirmations and oaths have the same force in law, and someone who lies under affirmation commits perjury.

amicus curiae A person who advises or addresses the court in a matter in which they are not directly interested.

annuity A sum of money payable yearly.

annul Declare void (see definition) in law. For example, when a marriage is annulled, the court is saying that it never was a marriage in law.

appeal Take a case to a higher court, tribunal or other authority to try to get an administrative or legal decision changed.

appellant A person who makes a formal appeal against a legal or administrative decision.

arbitration The hearing or determination, other than in court, of a dispute between parties by a third party with the power to make an enforceable decision.

arraign Call or bring a person before a court to answer a charge.

arrest Lawfully detain a person who has committed, or is suspected of having committed, a crime.

attestation clause A clause in a document such as a will, stating that witnesses saw a person sign the document and that they then also signed it in the presence of that person and each other.

award The decision of an arbitrator, which has the force of law and can be enforced in the same way as a court order or judgment. A common example in Australia is an industrial award, which specifies conditions of work and the responsibilities of employers and employees.

bail The release from custody of a person who has been charged with an offence, on condition that they will appear in court as required, and sometimes subject to other conditions. Bail can also refer to an amount of money that may be promised or deposited as a condition of release.

bailiff A court officer employed to do such things as serve documents and carry out court orders.

bailment A delivery of goods from one person to another for some purpose, on the understanding that the goods will be returned when the purpose has been fulfilled. For example, delivering clothes to a dry-cleaner creates a bailment.

balance of probabilities The likelihood that something is more likely than not to be true – the standard of proof required in civil law cases.

bankruptcy The legal situation of someone a court has declared to be unable to pay their debts.

beneficiary A person who is left something in a will; a person for whose benefit property is held by trustees or executors.

bequeath Make a gift of personal property in a will.

bill of exchange An unconditional authorisation or order to pay a specified sum of money to a named person.

bill of sale A transfer of ownership of goods, usually temporarily as security for a loan.

bona fide In good faith; genuine.

bond (a) An undertaking not to commit an offence, or to obey a court order, for a specified period. (b) Money paid by a tenant as a security against any damage to rented premises.

burden of proof The obligation on one party or the other in a case to produce enough evidence to prove their case to the required standard.

care order An order made by the Family Court or the Local Court giving a person day-to-day parental responsibility for a child.

caveat A notice given to an appropriate officer ordering them not to take a certain step (for example, registering land title or granting probate) until the person giving the notice has been given a hearing.

certificate of title A document showing details of land registered under the Torrens title system. In NSW certificates of title are registered by Land and Property Information NSW (formerly the Land Titles Office).

charge In criminal law, a formal accusation that a person has committed an offence.

civil law Law that is not criminal or church law, for example, law relating to contracts, negligence and nuisance. Throughout this book civil law means non-criminal law.

codicil A document signed by a will-maker that alters or adds to their will.

collateral contract A separate contract which precedes or exists alongside the main contract.

committal proceedings A hearing in which the Local Court hears evidence on an indictable charge (see definition) and decides whether an accused person should be sent for trial.

common law The part of English and Australian law traditionally based on the decisions of judges in the courts, rather than Acts of Parliament.

complainant A person who begins a prosecution against someone else in the Local Court; a plaintiff.

composition an agreement to accept part payment, or payment by instalments, in full satisfaction of debts owed.

conciliation A procedure for resolving disputes which involves a neutral third party who tries, without seeking to impose their own terms of settlement, to help the parties in dispute to settle their differences.

condition An important term in a contract, which cannot be breached without compromising the whole contract.

consent orders Orders of the court that are binding and enforceable, but are based upon the agreement of the parties.

consent award Binding decision by an arbitrator based on an agreement by parties in a dispute.

consideration Something of value in legal terms, given in return for something else. Usually it means the price paid by one party to a contract; it may also mean an act or service.

contact The time a child spends with or communicates with the parent they do not live with. Formerly called access.

contempt of court Failure to obey a court order, or an act which shows a disregard for the authority of the court or judge. A person in contempt may face imprisonment.

contract A legally enforceable agreement.

contributory negligence A defence in an action for damages, in which it is claimed that the injured party’s own negligence caused or contributed to their injuries.

corroboration Independent evidence that supports the main evidence.

counterclaim A claim made by a person against someone who is making a claim against them.

covenant An agreement between two or more parties to do or refrain from something; a contract.

creditor A person to whom money is owed.

custody (a) A term previously used in family law meaning the daily care and control of a child. Custody orders are now called residence orders. (b) Legal detention, for example when under arrest or in prison.

damages The amount ordered by a court to be paid by one party to another in a civil case as compensation for some sort of injury.

debtor A person who owes money to someone else.

debtor’s petition The application to be made a bankrupt.

decree absolute The final order in divorce proceedings.

decree nisi A provisional order made by the Family Court in divorce proceedings, which terminates a marriage. The divorce is not final until a decree absolute is made, usually one month later.

deed A document that is ‘signed, sealed and delivered’, as a record of an agreement. ‘Sealed’ meant literally attaching a seal, which is no longer done. ‘Delivering’ means acknowledging the document – traditionally by saying ‘I deliver this as my act and deed.’

deed of arrangement In bankruptcy legislation, a document setting out an arrangement for a debtor to pay part or all outstanding debts, as an alternative to bankruptcy.

deed of assignment a document in which a debtor appoints a trustee to take charge of property to pay debts, partly or wholly, as an alternative to bankruptcy.

deemed Treated as.

de facto In fact, even if not in law. For example, a de facto spouse is a spouse for all practical purposes, even though not legally married.

defamation Publication of a false and derogatory statement without a lawful excuse.

default Failure in some duty.

default summons A summons alleging that a debtor has failed to pay money owed.

defendant Person against whom legal action is being taken.

deponent A person in whose name an affidavit (see definition) is sworn.

determination Decision.

devise (noun)A gift of real estate in a will; (verb) to make such a gift.

disbursement Money paid out on behalf of someone else. In a solicitor’s bill, this may be for expenses such as filing a form or photocopying.

discharge (a) Perform an obligation. A debt is discharged when it is paid. (b) Release from an obligation or charge.

disclaim Renounce a legal claim.

discovery A procedure by which documents relevant to a civil action are exchanged between the parties before the case comes to court for hearing.

dissolution of marriage Divorce.

domicile The place where a person has their legal home, which therefore determines the laws relevant to that person; for example, someone domiciled in NSW is subject to NSW law.

double jeopardy The situation in which a person may be prosecuted twice for the same offence.

duress Coercion or excessive pressure on a person to do some act.

duty of care The legal obligation to avoid causing damage or loss which could have been reasonably foreseen.

ejectment An action for the recovery of land.

encumbrance A claim over land; for example, a mortgage.

endorse (a) Write on the back of a document. (b) To sign a document.

equity (a) Fairness. A system of legal rules developed by the Lord Chancellor and Courts of Chancery in England to modify the harshness of the common law (see definition). (b) The extent of a person’s ownership of property.

estate The property of a deceased person.

eviction The action of recovering land or property by legal proceedings.

exclusion clause A clause in a contract which attempts to exclude or avoid liability (see definition).

executor The person whose duty it is to carry out the provisions of a will. The term executrix is sometimes used, if the executor is female.

ex gratia A matter of favour. An act done when there is no obligation to do it.

exhibit A document or thing tendered as evidence in a court hearing or referred to in an affidavit (see definition).

ex nuptial Not within marriage.

ex parte An application to the court made ex parte is made by one party to the proceedings without the other party being present. It may also be made by an interested person who is not a party to the proceedings.

extradition A process whereby authorities deliver a person accused of a crime in another country to the authorities in that country.

felony A rarely used term for a serious crime. The expression indictable offence is now more usual.

fiduciary A person to whom someone else’s property is entrusted. A fiduciary duty is the duty to put the other person’s interests first; for example, a trustee has a fiduciary duty to the beneficiaries of a trust; a company director has a fiduciary duty to the company.

foreclosure The forced sale of a property to pay a mortgage or debt.

garnishment A process whereby a person or body who owes money to someone pays it to the person’s creditor. For example, an employer may be required to garnishee the wages of an employee; that is, pay part of their wages to a creditor.

guarantee To undertake, possibly on someone else’s behalf, that a contract or legal act will be performed.

guardian A person who has the right and duty to protect another person, their property and their rights.

guardian ad litem A person who conducts a case on behalf of a defendant who is a child or someone incapable of conducting the case. Compare amicus curiae and next friend.

habeas corpus A prerogative writ (see definition) to a person who holds someone in custody commanding them to bring the person before a court. The name (literally ‘you may have the body’) is from the beginning of the ancient wording of such a writ.

hearsay evidence Evidence of a fact not personally seen or heard by a witness. Hearsay evidence is normally not admissible in court proceedings, but there are exceptions.

indemnity Compensation for a wrong done or an expense or loss suffered. To indemnify is to make up a loss which someone has suffered as a result of the act or default of another.

indictable offence A serious crime for which a person will usually be tried by a judge and jury.

industrial instrument An industrial award or enterprise agreement.

injunction A court order which directs someone to do or not to do something. An injunction may be interim (temporary, until a further order is issued) or permanent.

insolvent Unable to pay debts in full as they fall due.

interpleader A process for determining the true owner of property in bankruptcy or debt enforcement proceedings.

interrogatories Written questions put by one party in a civil action to another on relevant points of the dispute before the court hearing.

intestate A person dies intestate if they do not leave a valid will. In this case, intestacy rules apply, and the deceased person’s property is distributed according to a statutory table of intestacy.

joint tenants People who own land together in undivided shares, with a right of survivorship; that is, on the death of one owner, their interest automatically passes to the surviving owner. The interest cannot be disposed of by will or deed as with tenants in common (see definition).

judgment in default Where the plaintiff is able to obtain judgment in their favour because the other party does not appear, or does not produce a defence.

jurisdiction (a) The authority of a court to decide matters brought before it. (b) The geographical limits within which a court order can be enforced.

lease A document recording an agreement between, for example, a landlord and tenant. Now called a residential tenancy agreement.

leasehold An interest in land for a fixed period.

legacy a gift of personal property in a will.

legatee A person who is left property in a will.

letters of administration Written authority from the court allowing a person to act as administrator of an estate where there is no will.

liability The obligation to do something.

libel The publication of defamatory material in permanent (for example, printed) form.

lien The right to hold a person’s property as security for the performance of an obligation (such as the payment of money owing).

liquidate (a) To determine the value of; (b) to settle an outstanding obligation.

liquidation The process of finalising the affairs of a company or partnership.

liquidated amount A specified sum as opposed to a general claim, for example, for damages.

litigation The act or process of taking a case to court.

locus standi The right to be heard in a court.

mediation A process where the people in dispute meet face to face in the presence of a neutral third party (mediator). The mediator helps them to negotiate an agreement. Mediators do not adjudicate, or impose penalties.

mens rea A guilty mind, the evil intention or knowledge that an act is wrong.

mention The consideration of a case other than for a hearing; for example, to consider an adjournment or hearing date.

mitigation Circumstances which might reduce the damages or punishment ordered against a defendant or prisoner.

mortgage A transfer of real property (land) or personal property (goods) as security for the repayment of money borrowed. The creditor to whom the mortgage is made is called the mortgagee; the debtor who makes it is the mortgagor.

necessary In bankruptcy, goods that are necessary to daily life that cannot be taken by a creditor or bailiff.

negligence A failure to take reasonable care to avoid foreseeable harm to other people or their property.

negotiable instrument A signed document by means of which money may be transferred from one person to another or through several hands, for example, a cheque or bill of exchange (see definition).

next friend A person who conducts a case on behalf of a child (or someone incapable of conducting the case) who is a plaintiff. Compare amicus curiae and guardian ad litem.

non est factum ‘It is not my deed’. A defence raised where a person has completed a deed without really knowing what it is for.

nuisance An indirect and unlawful interference with an occupier’s use or enjoyment of land by such things as water, smoke, noise.

oath A solemn undertaking or promise to tell the truth, usually sworn on a bible or other religious text. Lying under oath is the crime of perjury.

offence A breach of the criminal law; an illegal act.

ombudsman A public official appointed to investigate citizens’ complaints against the administrative agencies of government.

onus of proof The obligation to prove what is alleged.

parenting orders Any order about children made under the Family Law Act (except injunctions).

parole The probationary release of a prisoner before the termination of their sentence.

perjury Lying under oath when questioned about a matter in court proceedings. A person found guilty of perjury may face imprisonment.

plaintiff The person who brings legal proceedings against another in a civil dispute (compare with complainant).

pleadings Submissions of either side during the process of establishing the questions of fact and law to be decided in a court action.

power of attorney A formal written legal document by which one person gives another power to represent them or act in their place for certain purposes.

precedent A judicial decision on a point of law which is binding in all lower courts.

prerogative writ A writ issued by a superior court (such as the Supreme Court) to prevent lower courts and officials from exceeding their powers or to compel them to exercise their functions.

prima facie On the face of it. Prima facie evidence is that which will prove a fact or allegation if no other evidence is produced to the contrary.

privilege The right not to disclose certain information in evidence in court proceedings. Communications between lawyer and client are privileged; that is, they do not have to be disclosed in evidence.

privity of contract A principle that restricts contractual rights and obligations to the immediate parties to a contract.

probate The proving of a will; the acceptance by the Probate Division of the Supreme Court of NSW that the deceased’s will is valid and the last will in existence.

procedural fairness The rules and procedures to be followed by a person or body with the power to settle disputes to ensure that justice is done.

process Types of court documents. A statement of claim or a summons (see definition) is an ‘originating process’.

proponent A person who puts forward a proposal.

recognisance A bond (see definition) which obliges a person to do (or not do) something; for example, to be of good behaviour.

release A document saying that money is accepted in full settlement.

repeal To cancel or abrogate legislation or regulations.

rescission Cancellation (of a contract).

respondent A person against whom a summons has been issued or an appeal brought.

rules of evidence The legal rules which determine whether information is or is not admissible as evidence in court proceedings.

security An interest in property, temporarily given by way of guarantee (see definition) that an undertaking will be fulfilled or a debt repaid.

sequestration order An order that property be seized in satisfaction of a debt.

slander The publication of defamatory material in non-permanent (for example, verbal) form.

specific issues orders An order used in family law that may be about anything apart from residence, contact or maintenance. For example, a specific issues order may be an order about particular needs the child may have such as medication.

standard of proof The level to which something must be proved in court. In criminal matters, the standard is ‘beyond reasonable doubt’; in civil matters, it is ‘on the balance of probabilities’.

statute A law made by parliament (state or Commonwealth).

statutory declaration A written statement which the person making it (the declarant) signs and solemnly declares to be true before a person authorised to witness such declarations.

street offence An offence committed in a public place (see definition). Many actions which would be criminal if done in public are not criminal if done in private.

strict liability Liability (see definition) incurred regardless of the person’s intentions.

subpoena A writ commanding the appearance of a person in court or the production of specified documents.

sue To take legal action in a civil matter.

summary offence A minor offence heard and decided in the Local Court and not sent for trial before a judge and jury.

summons A command to appear at court. In NSW, these have been replaced by court attendance notices (CAN).

surety A person who undertakes to be answerable for someone else. If there is default, the surety will be liable.

tenants in common One or more people entitled to occupy or owning land in common with others. Each person may leave their share to someone else in a will; that is, there is no right of survivorship (compare with joint tenants).

testamentary capacity The ability to draw up a will; the mental capacity to know what is being done.

testator A person who makes a will.

tort A civil wrong, other than a breach of contract, which causes harm intentionally or otherwise for which the injured person may claim damages (compensation).

trespass A tort (see definition) involving the direct and unlawful interference with the possession of land or other property, regardless of the intention of the trespasser.

trustee A person who holds assets for the benefit of another person.

tutor a guardian ad litem or a next friend (see definitions).

ultra vires Beyond the power. An act which is ultra vires is in excess of the authority conferred by law, and therefore invalid.

undertake To promise to do or refrain from some act. An undertaking made in the course of legal proceedings is enforceable by an injunction (see definition).

unliquidated Undetermined, not assigned a monetary value; for example, unliquidated damages are left to a court to determine.

void Of no legal effect.

voir dire A preliminary examination of witnesses by the judge to determine the admissibility of certain evidence; for example, the qualifications of an expert or the admissibility of a confession in a criminal case.

waive To give up a legal right or claim.

warrant In criminal law, a document that gives authority to a police officer to take the action set out in the warrant.

warranty A minor clause in a contract; if the clause is breached, damages can be claimed (compare with conditions).

writ A document in the Queen’s name and under the seal of the crown which commands the person to whom it is addressed to do or refrain from doing some act.