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GLOSSARY OF LEGAL TERMS

These are some of the terms used in the course of this chapter and the rest of the Tasmanian Law Handbook. Anyone who is going to take a more than cursory interest in the law would be advised to invest in a good law dictionary. Terms which are defined elsewhere in the glossary will be shown in bold type.

Aa

Abate  To reduce something. For example, to abate a nuisance (rubbish or noise) is to remove or reduce the nuisance without violence or unnecessary damage. This is an alternative to the bringing of a court action.

Abrogate  To repeal, cancel or annul.

Acquit  To find an accused “not guilty” after trial.

Adjourn  To suspend a court hearing to a future specified day or indefinitely.

Affidavit  A written statement sworn on oath or affirmation before a person with authority to administer it. The person in whose name the document is sworn is called the deponent. Affidavits must contain only facts which the deponent can prove. Generally, affidavits are required in court proceedings in place of Statutory Declarations.

Affiliation order  A Magistrate’s order which requires the putative father of a child to pay maintenance to the mother for the support of the child.

Affirmation  A statement that something is true, which may be made in place of an oath, if an oath is contrary to a person’s religious belief or if the person has no religious belief.

Agent  A person who acts on behalf of another, called the principal. The principal may authorise the agent to enter into a contract and the agent acquires rights or incurs obligations on the principal’s behalf. An agent’s act, done within the scope of his or her authority, binds the principal.

Aggravated damages  Damages which are awarded beyond normal damages to compensate the plaintiff for having their honour or dignity offended.

Ancillary relief  In family law, orders relating to parenting orders, maintenance, and for property of the parties as opposed to the actual divorce or dissolution of marriage, which is called principal relief.

Annexure  Any supplementary material added to an original document, usually sworn such as an affidavit.

Annuity  A sum of money payable yearly, usually out of money invested for that purposes such as superannuation funds.

Annul  To declare void in law. For example, when a marriage is annulled, the court is saying that it never was a marriage in law.

Appeal  To take a case to a higher court in order to rectify an incorrect decision.

Appellant  A person who appeals a decision of a court or tribunal.

Appearance  A document filed in a court announcing that a person will be a party to a court action started by someone else. Also the announcement in court by a lawyer that they represent a party in court.

Arbitration  A procedure for resolving disputes which involve less formality than a court hearing.

Arrest  To apprehend or take into custody a person suspected of having committed a crime.
attachment  A court order that a sum of money is paid, usually out of the proceeds of sale of a particular item of property, because of a breach of an undertaking.

Attestation clause  A witnessing clause, especially in a will. The attestation clause states that the witnesses saw the testator sign and that they signed in the presence of the testator and each other.

Author The human creator of an original work, not necessarily written.

Award  The decision of an arbitrator, for example, in industrial arbitration proceedings. Once it is made it has the force of law and can be enforced in the same way as a court order or judgment.

Bb

Bail  An accused person is given bail when they are allowed to go free whilst awaiting a court hearing. Sometimes they must have a surety, or the accused may simply promise (enter into a recognisance) to appear in court. Failure to appear is an offence. Bail may be on condition.

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 who owns them (the bailor) to another (the bailee) for some purpose, on an express or implied condition that the goods will be re-delivered to the bailor when that purpose has been fulfilled. For example, delivering clothes to a dry-cleaner creates a bailment. Bailment may be implied from the behaviour of the parties, but a bailment may exist with no underlying agreement at all.

Balance of probabilities  The standard of proof needed to determine a civil case, that what is alleged is more likely than not to have happened. This standard is less than the standard for a criminal action.

Bankruptcy  A procedure under which most of a debtor’s property is taken over and distributed amongst their creditors.

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

Bequeath  To make a gift of personal property in a will.

Beyond reasonable doubt  The standard of proof that a jury must be satisfied with before they convict a defendant in a criminal trial.

Bill of exchange  A negotiable instrument in which the drawer orders the drawee to pay a sum of money on a specified date to either the drawee or a third person (the payee).

Bill of sale  A transfer of ownership of goods, usually as security for a loan. Possession remains unchanged.

Bona fide  In good faith, honestly.

Bond  In criminal cases the defendant may enter into a bond to be of good behaviour or a deed under seal in which a person (the obligor) binds themselves to do or to refrain from doing certain things (sometimes referred to as a recognisance).

Burden (or onus) of proof  In criminal cases, the prosecution bears the burden of proof. In civil cases, it is on the plaintiff. Sometimes the burden shifts, for example, if the defendant wants to set up a particular defence.

Cc

Care order  An order made by the Family Court or Magistrates Court which gives day-to-day parental responsibility to the residence provider.

Caveat  A notice given to an appropriate officer ordering him or her not to take a certain step until the person giving the notice (the caveator) has been given an opportunity to object (for example, to a transfer of land).

Caveat emptor  Let the buyer beware. At common law where a buyer of goods had no warranty for them they took the risk as to quality and had no remedy against the seller unless there was fraud. Legislation such as the Fair Trading Act and Trade Practices Act has now restricted greatly the extent to which a buyer is without a remedy.

Certificate of title  A document prepared by the Lands Titles Office which shows details of land registered under the Torrens system, particulars of the location, encumbrances and owners.

Charge/complaint  A form of security for the payment of a debt or the performance of an obligation. In criminal law, the allegation that a person has committed an offence.

Chattel  Any property that is not freehold land or real estate. The property may be a leasehold (then called a "chattel real") or a moveable article of property (chattel personal).

Citizen's arrest  An arrest made by any person other than a police officer.

Civil law  Law which is not criminal, for example, law relating to contracts, negligence and nuisance. Civil cases are generally taken by individuals to recover damages or a debt. Throughout this Handbook Series civil law means non-criminal law.

Civil remedies provision: a provision of the Fair Work Act (Cth) 2009 that allows a complainant to seek compensation or orders against an employer through civil litigation.

Codicil  A document signed by a willmaker which alters or adds to their will.

Collateral contract  A separate contract which precedes or exists alongside the main one.

Committal proceedings  Where a Magistrate’s Court hears evidence on an indictable offence and decides whether the accused should be sent for trial.

Common law  The part of Australian law traditionally based on the decisions of judges in court rather than Acts of Parliament. Another meaning is law which is not equity, statute or ecclesiastical (church).

Complainant  A person who begins a prosecution against another in the Magistrate's Court; a plaintiff; the victim of a crime.

Complaint  a formal allegation that a person has committed an offence, usually a minor offence. Complaints are usually in writing.

Condition  An important term in a contract, the remedy for breach of which is termination of the contract.

Consideration  The price paid for the promise of the other party in a contract.

Contact  The time the child spends with or communicates with the parent they do not live with. Formerly called access.
contempt of court  The 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 partial defence in an action for damages for injuries arising from the defendant’s negligence. The defendant attempts to prove that the plaintiff’s own negligence caused or contributed to the injuries suffered.

Corroboration  Independent evidence which supports the main evidence.
Counterclaim  Where the defendant has an independent claim against the plaintiff, they may raise it in the existing action by adding a statement of the facts on which the claim is made to the statement of defence.

Covenant  An agreement creating an obligation contained in a deed. A covenant may serve the same purpose as a bond.

Creditor  A person to whom a debt is owing.

Criminal Code  An Act of Parliament which embodies the law relating to crime in Tasmania.

Dd

Damages  The amount of money ordered by a judge to be paid by one party to another in a civil case.

Decree absolute  The final order in divorce proceedings.
Decree nisi  A provisional order made by a Family Court judge which terminates the marriage. However neither party can remarry until the decree absolute which is usually one month after the decree nisi is pronounced.

Deed  A written document which is signed, sealed and delivered.

Deemed  To be treated as if.

De facto  “In reality”. For example, a de facto wife is one in reality but not in law.

Defamation  The publication of a false and derogatory statement without a lawful excuse.

Default  To fail in some duty.

Default judgment  Means by which a judgment is entered where the debtor/defendant has failed to enter a defence.

Default summons  A summons which alleges that the debtor/defendant has failed to pay money due and owing.

Defence  A document filed in a court in a civil case setting out the facts on which a defendant relies in opposing a claim.

Defendant  Person against whom legal action is being taken.

Deponent  One who swears or affirms an affidavit.

Devise  A gift of real estate in a will.

Disbursement  Money paid out on behalf of another. In solicitor’s bills it is for such things as filing a form or photocopying. Commonly called ‘out-of-pockets’.

Discharge  To perform or be released from an obligation. A debt is discharged when it is paid.

Disclaimer clause  A clause which renounces a legal claim. An executor may disclaim their position before probate.

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

Dissolution of marriage  Term used for divorce under the Family Law Act.

Domicile  The place where a person has their legal home. It is the place which determines the legal system relevant to that person. For example, someone domiciled in Tasmania is subject to Tasmania laws.

Double jeopardy  The situation in which a person may be punished 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.

Ee

Easement usually found on a Certificate of Title. A right enjoyed by a person in relation to the land of another person. Such a right co-exists with the rights of the land owner, but interferes with the normal rights of that owner.

Ejectment  An action for the recovery of land.

Encumbrance  A charge or liability, for example, a mortgage.

Endorse  To write on a document such at the back of a cheque.

Equitable interest  Interest in property which is created and enforced where it would be against conscience (moral obligation) to permit the legal owner to keep the benefit of the property for themselves.

Equity  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. Tasmania has equitable jurisdiction. Also the extent of a person’s interest in 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.

Execution proceedings  The means of recovering a judgment, for example, a garnishment of wages or the seizure of goods.

Executor  The person whose duty it is to carry out the provisions of a will. Where that person is a female, executrix is traditionally used.

Ex gratia  As a matter of favour. An act done when there is no legal obligation.

Exhibit  A document or thing tendered as evidence in a court hearing or referred to in an affidavit.

Ex nuptial  Outside of marriage, such as an ex nuptial child.

Ex officio By reason of office or position. So, an ex oficio member of a committee would be a member of that committee because of their position, such as they contribute funding.

Ex parte  Where the court deals with a matter involving two parties without the other party being present. The ex parte application may also be made by an interested person who is not a party.

Extradition  The delivery by the authorities of one country (or state) of a person accused of a crime in another place to the authorities in that place.

Ff

Fair dealing Allows for the limited use of copyright materials for certain purposes without requiring permission from the copyright owner.

False imprisonment  Detaining someone in custody without lawful excuse.

Felony  A category of crime less serious than treason and more serious than a misdemeanour. Murder, manslaughter and rape are examples of felonies. This term is not normally used in Tasmania.

Fiduciary  A person who is in a position of trust in relation to another, and who is obliged to look after the interests of the other in preference to their own interests.  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.

Gg

Garnishment  Proceedings to have a person or body who owes money to a debtor, to pay that money instead to a creditor. For example, an employer may be required to garnishee the wages of an employee, that is, paid part of their wages to a creditor.

Guarantee  To undertake with respect to a contract or the performance of a legal act, that it shall be correctly carried out.

Guarantor  The person giving the undertaking in a guarantee.

Guardian  A person who has the right and duty to protect another person, his or her property and rights.

Hh

Habeas corpus  “To have the body”. A prerogative writ directed to a person who holds someone in custody commanding them to produce that person before a court.

Hearsay evidence  Evidence of a fact not personally seen or heard by a witness, but proved by them to have been said by another. Hearsay evidence is normally not admissible in court proceedings, but there are exceptions to this rule.

Hinder  To do something less than prevent. It means rendering an action more difficult to carry out, but not impossible, that is, to be an obstacle or impediment.

Ii

Incite  To rouse or stimulate or prompt action. It does not necessarily mean to originate or initiate.

Indemnify  To make up a loss which someone has suffered as a result of the act or default of another.

Indemnity  Compensation for a wrong done or an expense or loss suffered.

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

Injunction  A court order which directs someone either to do something or to refrain from doing something. An injunction may be interim (temporary, until a further order) or permanent.

Insolvent  Unable to pay debts in full. Another word for bankrupt.

Interlocutory proceedings  A step taken in the course of a legal action to assist either party in proceeding with their case by resolving a particular issue such as liability.

Interpleader  A court hearing that requires competing claimants to property or debt resolve their rights. Can occur in the context of the disposal of property or money under a will, or in bankruptcy.

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

Intestate  One who dies without leaving a valid will. In such a case the deceased’s property is distributed according to a statutory table of intestacy.

Jj

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

Judgment in default  Where the plaintiff is able to obtain judgment in the absence of an appearance or a defence.

Jurisdiction  The extent of a court’s authority to decide matters brought before it, and the geographical limits within which a court order can be enforced.

Kk

Ll

Lease  Agreement or contract between a landlord and a tenant. Someone to whom a lease is granted is called a lessee. Someone who grants a lease is called a lessor.

Leasehold  An interest in land for a fixed period.

Legal interest  An interest enforceable at law as distinct from an equitable interest.

Legatee  A person to whom property is bequeathed.

Letters of administration  If a person has died without leaving a will or without naming an executor, the court can grant letters of administration that authorised someone to administer the deceased person’s estate.

Liability  Legal responsibility, for example, for breaking a contract, committing a crime. It may be civil or criminal, according to whether it is enforced by the civil or criminal court.

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 (for example, the payment of money owing).

Limitation, statutes of  The laws which set out the time limits within which legal action must be taken.

Liquidated amount or claim  A sum which is certain, that is, a stipulated amount, as opposed to a general claim, for example, for damages.

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

Locus standi  "Place of standing"; the right to be heard in a court in relation to a particular action.

Mm

Maintenance  The payment of money to supply the necessaries of life for a person, usually by a parent for a child. Now also know as Child Support.

Manadamus  A form of writ by which actions for review of administrative decisions are commenced in the Supreme Court.

Mediation  A means by which parties reconcile their differences with the aid of a neutral third party.

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

Minor  A person under the age of 18.

Misdemeanour  A crime or indictable offence not amounting to treason or a felony, for example, criminal libel, perjury, conspiracy. In Tasmania it is commonly used to describe minor offences such as traffic offences.

Mitigation  Showing facts which tend to reduce the damages or punishment to be awarded against a defendant or prisoner. Also the obligation on someone to reduce their losses.

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.

Nn

Natural justice  See procedural fairness.

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 a bill of exchange.

Next friend  A person who authorises commencement of proceedings on behalf of an infant and in whose name action is taken.

Nominal damages  Damages of a small amount ordered where a right has been affected but no damage done.

Non est factum  “It is not my deed”. A defence raised where a person has completed a deed in ignorance of its character.

Non-provable debt  Are debts not discharged by bankruptcy. Such as debts acquired after a declaration of bankruptcy. This includes fines or penalties imposed by a court, higher education debts owed to the government, and unliquidated damages from car accidents.

Notary public  A person who attests the signing of any deed or makes certified copies of it in order to make it authentic, especially for use abroad.

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

Oo

Ombudsman  A public official appointed to investigate citizen’s complaints against the administrative agencies of government.

Onus of proof  The obligation to prove what is alleged. Also known as the burden of proof.

Pp

Parenting orders  Orders about children made under the Family Law Act.

Parole  The probationary release of a prisoner prior to the termination of their sentence.

Penalty units  Used in legislation to set the amount payable for a fine, for example, a drink driving charge.

Performer  A person who performs musical, dramatic, literary, circus or variety acts.

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

Plaint  The cause for which the plaintiff complains against the defendant, and for which they obtain a writ or summons. Also describes the formal document stating an action in the Magistrates Court.

Plaintiff  Person who initiates legal proceedings against another in a civil dispute. See also complainant.

Plea in mitigation  A speech made to the judge or magistrate before a person is sentenced for a crime. The aim of the plea is to present reasons why the judge or magistrate should be lenient on the offender. The plea will include facts about the offender’s background, financial situation or events surrounding the crime.

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 the power to represent them or act in their place for certain purposes.

Preliminary examination  See Committal proceedings.

Prerogative writ  A writ issued by a superior court (for example, the Supreme Court) to prevent inferior courts and officials from exceeding their powers or to compel them to exercise their functions, for example, habeas corpus, mandamus, certiorari.

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

Principal relief  In a divorce action, the dissolution itself rather than the ancillary relief.

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 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 make decisions affecting an individual.  Also known as natural justice.

Process  Type of court document. A statement of claim or a summons is an ‘originating process’.

Proponent  A person who puts forward a proposal.

Provable debt  A provable debt is a debt or liability that arose before the bankruptcy or winding up, and must be recognised by a trustee when administering the estate of a bankrupt to satisfy debts.

Qq

Qualified person (IP)  Is an Australian citizen or person (other than a body corporate) resident in Australia; or a body corporate incorporated under a law of the Commonwealth or of an Australian State. A qualified person can claim copyright protection under Australian law.

Rr

Reasonable doubt  The amount of doubt that must be present in a jury’s mind to enable it to find a defendant not guilty.

Rebuttable presumption  A presumption that holds good in the absence of contrary evidence, for example, innocent until proven guilty. Thus the presumption of innocence is rebutted by positive proof of guilt. Almost all presumptions are rebuttable.

Recision  Revocation of a contract so that both parties are put back into the position that they occupied before the contract was made.

Recognisance  A bond, the object of which is to secure the performance of an act by the person bound by it, for example, to be of good behaviour.

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

Remand  To deny a person charged with an offence bail, and keep them in custody until the time of the trial. People charged with murder are almost always remanded in custody. This is also often the case with other serious crimes.

Remedy  The means by which the violation of a right is prevented, redressed or compensated.

Residence  A court order describing where a child will live after separation of the parents.

Respondent  A person against whom a summons is issued or an appeal brought.

Revoke  To cancel or withdraw on offer (in contractual situations) on a court order.

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

Ss

Seal  An impressed wax, an adhesive wafer or an official stamp that is attached to a document as a sign of its authenticity.

Security  An interest in property temporarily given by way of guarantee that an undertaking will be fulfilled or a debt repaid.

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

Set off  A claim for a specific amount raised by the defendant as a defence to a monetary claim of the plaintiff, that is, ‘set off’ against the amount claimed by the plaintiff so that the plaintiff receives the amount claimed less the amount claimed by the defendant.

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

Specific issues orders  Orders 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, or may provide conditions for contact such as not smoking cigarettes during contact visits.

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’.

Statement of claim  Written statement by the plaintiff showing the facts on which they rely to support their claim against the defendant, and the relief which is claimed.

Statute  A law made by parliament (State or Commonwealth).

Statute barred  No legal action is available by statute.

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.

Stay of proceedings  Suspension of proceedings in an action; may be either temporary (until something ordered is done) or permanent.

Strict liability  Liability incurred regardless of intention or fault.

Subpoena  A writ which commands the appearance of a person in court or the production of specified documents.

Sue  To take legal action.

Summary offence  A minor offence heard and decided before a Magistrates Court and not sent for trial before a jury and judge.

Summons  A command to appear at court, usually in the form of a document.

Surety  A person who binds themselves to be answerable for another at the risk of forfeiting a specified amount of money. If there is a default the surety will be liable to pay that sum to the court.

Tt

Tenants in common  One or more people entitled to occupy or own 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 as there is with joint tenants.

Testamentary capacity  The ability to draw up a will; the mental capacity to know what is happening when this is being done.

Testator  A person who makes a will.  Where that person is female, testatrix may be used.

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

Trespass  A tort involving the direct and unlawful interference with the possession of land or other property, regardless of the intention of the trespasser.

Tribunal  Court-like bodies generally of two types. A Domestic Tribunal is a body that exercises jurisdiction over the internal affairs of a particular profession or association. An Administrative Tribunal is a body established under an Act of Parliament to decide claims and disputes arising in connection with the administration of legislative schemes.

Trust  An association between two (or more) people, based on complete confidence, where property is held by one person on behalf of and for the benefit of another.

Trustee  A person who holds property on trust for another.

Uu

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

Undertake  To promise to do or to refrain from doing an act. An undertaking made in the course of legal proceedings is enforceable by attachment or by an injunction.

Unliquidated  Undetermined, unascertained, for example, when damages are left to a jury to determine.

Vv

Vicarious  Liability which falls on one person as a result of an action of another. For example, the liability of an employer for the acts and omissions of an employee in the course of employment.

Void  Of no legal effect.

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

Ww

Waive  To give up a legal right or claim.

Warrant  A legal document that gives authority to a specified person such as a police officer or customs 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 but the contract may not be terminated.

Waste  Something which does lasting damage to land or alters the nature of the property.

Writ  A document in the monarch’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. Many civil court actions are started this way in the Supreme Court.

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