1 Any word or phrase shown in bold italic type is defined elsewhere in the glossary
2 Some words have an ordinary meaning as well as the specific legal meaning given here.
Lawyers often use technical terms. This guide to common legal words will make it easier for you to understand the law and Victoria’s legal system. It will help you understand the legal information you need to read when you have a legal issue or problem.
abate To reduce, remove or minimise harm to a property, or stop something that prevents the owner of renter using the property fully. To abate a nuisance is to remove or reduce it without violence or unnecessary damage. Abatement is a self-help alternative to bringing a court action.
absolute privilege The protection given to parliamentary and court proceedings so that any information produced or revealed in them cannot be used as the basis for a defamation lawsuit. See also defence; qualified privilege.
abuse of process Using a legal right or process in a way that is unfair or improper. For example, starting a court procedure out of malice when the claim has no good legal basis, or causing delay on purpose, to get some advantage over the other party.
actus reus Actions or omissions that must be proved before a court can find someone guilty of a criminal offence. The acts are different for different offences. For example, armed robbery includes the act of using or pretending to use a weapon. See also mens rea.
adjourn To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die.
adjournment without conviction In a criminal case, a sentencing order which includes a good behaviour bond. A conviction does not go on the defendant’s record if they keep the promises they made in the bond. Also known as a deferred sentence or suspended sentence.
administrative act A decision or action by a government department or agency. Government departments are given power by Acts of parliament, and they can only do what is allowed by the Act. If they do things they do not have power to do, their actions can be challenged in a court or tribunal. See also fiat; ultra vires.
administrator (1) (wills) Someone who takes legal responsibility for the possessions of a person who has died without making a will, or who is still alive but cannot manage their own possessions. For example, an administrator may be appointed to manage the money, house or other possessions of a person who has a severe mental disability. (2) (companies) A manager appointed by the directors of a company that is in financial difficulty. This may give creditors a better chance of getting their money back because the company can keep trading under supervised management instead of being wound up.
ADR (alternative dispute resolution) A way of resolving a dispute outside the court system. There are different kinds of alternative dispute resolution, including arbitration, negotiation and mediation.
adversary system The system used to decide court cases in Australia. In this system, barristers for each opposing party question witnesses and present arguments and evidence to the judge, who then decides between them and makes orders about what is to happen. Also called the adversarial system. Compare an inquisitorial legal system. See also barrister; court.
affidavit A document that presents written evidence in a court case, setting out what a witness says is true. The witness must swear that it is true and correct in front of an authorised official. This can be done on oath or by affirmation. The person in whose name the document is sworn is called the deponent.
agent A person who acts for someone else. They can make decisions, carry out tasks or make agreements for the other person. For example, if you ask someone to bid for you at an auction they will be acting as your agent.
aggravated damages Money ordered by a court as extra compensation, more than normal compensatory damages. A court can make this order when a party caused damage by some wrongful act, but made it even worse by adding to the mental distress of the other party. See also damages.
alleged Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it.
amenity The pleasantness, benefits and enjoyableness of an environment. While individual features such as a toilet block are called ‘amenities’, amenity in planning law is a quality, not a location or a thing. For example, building a toilet block will add to the number of public amenities in the area, but it may also decrease the amenity of the near neighbours.
amicus curiae A person who is not a party to a dispute but appears in a case to help the court, either to advise the court independently (without representing a party) or to help a party pro bono (without charging them) by, for example, explaining complicated laws to them in a balanced way. Also known as a ‘friend of the court’.
annul To cancel the legal effect of something, as if it never happened; to make it void. For example, a court can annul a marriage, which means it was never valid, in contrast to making a divorce order, which means a valid marriage is ended.
arbitration A form of alternative dispute resolution where the parties appoint an independent person (an arbitrator) to sort out their dispute. Arbitration is often the method choose to solve commercial construction and shipping disputes. It is less formal than a court hearing. An arbitrator’s decision is final and generally cannot be appealed.
at large Having escaped from control, for example, person who has committed a serious offence and has not yet been captured, or who has escaped from legal custody. Animals at large have escaped from secure confinement on their owner’s property.
attachment of earnings A court order that tells an employer to hold money back from an employee’s wages and pay it to a creditor. A share of the debtor’s wages go to the creditor every payday until the debt is paid off.
attestation clause Words in a document that say a witness was there when the document was signed, and that they saw another person sign that document. The witness signs their name next to the attestation clause.
award (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries.
bail The procedure that allows a person who has been charged with an offence to be released from police control or prison until the hearing of the case. Courts can add conditions to bail. For example, they can require that people released on bail promise to come to the court on a set date, or put up an amount of money that they cannot get back if they do not appear as they promised. See also undertaking.
bailment Looking after another person’s goods. The person looking after the goods must return them in good condition, as agreed. For example, when you give your watch to a jeweller for repairs, they must look after it until the repairs are done and paid for. Bailment has nothing to do with bail in criminal cases.
balance of probabilities More likely than not. The plaintiff in a civil case (a non-criminal case) must prove that what they are arguing is more likely to be true than false. This is called the standard of proof. See also beyond reasonable doubt.
beneficiary (1) Someone whose money or property is being looked after for them by someone else (called a trustee). (2) A person who is left something in a will, also sometimes called a legatee. See also trust.
beyond reasonable doubt The level of proof (or standard of proof) required in criminal trials. If there is any reasonable doubt about the case made by the prosecution, the offence has not been proved, and the defendant will be found not guilty.
bond (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent.
burden of proof The obligation on one legal party to prove their case in court. In a criminal trial, this obligation is on the prosecution. The standard of proof is beyond reasonable doubt. In a civil trial, the plaintiff has the burden of proof, and they must prove their claim on the balance of probabilities. The burden of proof is also called the onus of proof.
capacity The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult.
case law Law based on the reasons judges have given for their decisions in court cases, and which judges in later, similar cases are bound to follow. Under the doctrine of precedent, lower courts, such as the Magistrates’ Court of Victoria, are bound to follow relevant decisions of higher courts, such as the Supreme Court of Victoria. Case law is also called ‘common law’ and ‘judge-made law’.
caveat emptor ‘Let the buyer beware’. In the past, buyers who purchased goods could not easily get a refund if there was something wrong with the goods. These days buyers can get refunds or exchanges much more easily because consumer protection laws say goods must be of reasonable quality, work properly and do what they are supposed to do.
caveat (1) A warning or notice – for example, to a buyer to thoroughly check a product before buying it (see caveat emptor). (2) A notice filed with Land Victoria warning anyone who searches the land title that someone claims ownership or some other right in the land.
CBO (community-based order) A sentencing order made as an alternative to imprisonment. It requires an offender to undertake unpaid or educational work in the community for a set number of hours under the supervision of the Office of Corrections.
certificate of title A document created by Land Victoria that gives details of where a piece of land is, who owns it, any mortgage on it, and other restrictions on the title. Certificates of title are official copies made from registers kept for all land in the state. See also transfer of land. See also encumbrance.
certiorari An order made by a higher court, such as the Supreme Court of Victoria, that cancels the legal effect of a decision that was incorrectly made by a lower court, public official or authority, or one they had no power to make. Now termed ‘an order in the nature of certiorari’. See also jurisdiction; prerogative writ.
chattel Anything that can be owned as personal property. It may be a leasehold, called a chattel real, or a movable article of property, such as jewellery, called a chattel personal. See also real property; personal property security.
child maintenance order A parenting order that sets out arrangements for the financial support of a child, including making regular payments to the other parent to help with the costs of bringing up the child.
citizen’s arrest An arrest by any person who is not a police officer or who does not have a warrant to arrest. A person who sees a serious crime taking place can stop the offender committing the crime and keep them under control until the police get there. The rule is based on old case law.
civil action A court case in which one person or organisation sues another for compensation, or for some other court order. This is different from a criminal case, where the police bring criminal charges and the court may give the defendant a penalty, such as time in prison, if they are found guilty. Also called a lawsuit, a civil claim, a civil matter or a proceeding.
civil law Non-criminal law. The area of law that covers disputes between organisations, companies or individuals, such as the law relating to contracts. Civil law is not criminal law or church law. It can include actions against the state. In discussions about the law in different countries, civil law means law based on the Roman law system, as opposed to our common law system.
code of practice Guidelines setting out proper practice in an industry or occupation. For example, the franchising code of practice sets out rules for businesses operating under a franchise. Codes can be voluntary or statutory (required by legislation).
committal proceedings A hearing in a Magistrates’ Court that decides whether someone charged with a serious criminal offence should face trial in a higher court. Also known as a preliminary examination. See also indictable offence.
common law defence An answer to a criminal charge or other wrongdoing, based on a precedent that has developed from decisions in court cases, rather than being set out in legislation (a statutory defence).
common law (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws.
community-based order A sentencing order that can be made by a court instead of ordering a prison term. The person sentenced must do unpaid or educational work in the community, supervised by the Office of Corrections.
compensatory damages Payment of money to a successful party, ordered by a court in a civil case; the ordinary damages that make up for the harm that resulted from the actions of the losing party. For example, if a defamation claim is successful, damages must be paid by the defendant to compensate the person whose reputation they have harmed. See also aggravated damages.
complainant A person who begins a criminal prosecution against another in the Magistrates’ Court, or formally starts an action in a court or tribunal or makes a complaint to a complaint-handling body. In a civil action they could also be referred to as a plaintiff or an applicant.
conciliation A form of alternative dispute resolution. The parties negotiate with the help of an independent person called a conciliator. The aim is to sort out the dispute by mutual agreement, rather than having a decision made by a court or tribunal. See also arbitration; mediation; negotiation.
concurrent sentence A prison term that is served at the same time as another sentence. Because the sentences are not served one after the other, there is no extra time in jail for any sentences after the first one. See also cumulative sentence.
confidentiality The principle that private information told to a person must not be revealed to others. Some professionals must keep information confidential, for example doctor–patient and lawyer–client relationships.
conflict of interest A situation where someone’s personal interests or their duties to another person could affect the way they carry out their duties. If there is a conflict of interest in performing up a role, the person generally should not accept that role. For example, a lawyer should not agree to represent the buyer as well as the seller in a sale of land.
contributory negligence A defence to a claim in an action for damages for injuries caused by a defendant’s negligence. The defendant attempts to prove that the plaintiff’s own negligence caused or contributed to the injuries suffered.
conveyance A document used to transfer real property from one person to another. Similar to a transfer of land registered with Land Victoria, but applicable only to the tiny percentage of old system title land that is not under the Torrens title system. See also certificate of title.
cooling-off period The time allowed for a purchaser to change their mind and legally withdraw from a contract after signing it. A contract to buy a house or a car in Victoria will often have a cooling-off period of three business days (excluding weekends and public holidays) after signing the contract.
copyright Property rights over creative works, such as books, music, art, sound recordings, films or broadcasts. Generally only the copyright owner, or someone who has their permission, can reproduce, publish, copy, perform or broadcast the works.
costs The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.
counterclaim A formal statement added to a defence, claiming something in return, instead of suing the other party in a separate court action. For example, if a plaintiff sues a defendant for damage the defendant’s dog caused in his garden, the defendant might make a counterclaim that the plaintiff damaged the fence that would have kept the dog in, and the defendant had to spend money on repairs. The court can then balance the claims, defences and damage, and make an order that takes everything into account.
court An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.
covenant A formal, written agreement that creates a legal obligation, in a deed or on a certificate of title. For example, a property developer might add a covenant to every block of land in a subdivision to stop anyone building a house there unless it is made of brick.
credit charges The fees and interest a consumer will have to pay if they enter into a credit contract, in addition to repayment of the sum borrowed and any interest payable. Includes collection costs, penalty interest and any other amount beyond the sum borrowed.
custody Lawful control over a person which prevents them leaving. A person under arrest is in police custody and is not free to go. A person in prison is serving a custodial sentence that keeps them confined to the prison grounds.
damages A court order for money to be paid to someone to compensate them for a loss suffered as a result of a civil wrong or breach of contract. For example, a person who caused a serious permanent injury to another person can be ordered by the court to pay damages that compensate the injured person for their loss of income from being unable to work. See also aggravated damages; compensatory damages; general damages; liquidated damages; nominal damages; special damages.
de facto In fact, rather than in law. Commonly used to refer to two people living together as a married couple but who are not legally married. They are sometimes said to be in a ‘de facto’ marriage or relationship. See also domestic relationship.
debt agreement An arrangement between a debtor and a creditor for the repayment of an unpaid debt, often by instalments. Generally negotiated because the debtor has been unable to pay the debt as originally agreed.
declaratory order A court’s judgment about the meaning of a point of law in a case. A declaratory order just states the law. It does not itself include a remedy such as damages or an injunction. See also damages; injunction.
decree absolute The final order in divorce proceedings, made by the Federal Circuit Court. The order states that the marriage has been terminated. Both parties are now free to remarry. See also decree nisi; decree of nullity; marriage.
deed A formal legal document that is used for specific purposes, such as trusts, some types of ownership of land, and agreements where no money is going to be paid. Deeds must clearly state that they are a deed, and they usually include the words ‘signed, sealed and delivered’. They are also called ‘contracts under seal’, although attaching a seal with wax is no longer necessary.
deemed Treated by the law as if something is the case, even if that is not the reality. For example, children may be deemed to have the same home as their parents, whether they actually live there or not. Or a person may be deemed to have given their consent to something if they hear about it and do not object. Compare rebuttable.
defamation To damage another person’s reputation by publishing or communicating false statements about them. The old common law distinction between libel (written and published defamation) and slander (spoken defamation) no longer has any legal significance.
default Failure to do something that is legally required. For example, a person who fails to make a payment on their car is in default on the loan; if they continue to be in default the creditor may issue a default summons to take the debtor to court.
defence (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team.
delegation The transfer of responsibilities from a higher authority to a lower one. For example, a government minister may have power to hand their decision-making responsibility for visa applications to a public servant. Whenever there is a delegation, the higher official continues to have the authority to make the decision.
deportation Expelling a non-citizen from a country because they do not have a legal right to remain there. They might have been convicted of a serious crime, or be regarded as a threat to national security.
directions hearing A short hearing between the judge and the lawyers in a case to decide how the case will be run until the hearing starts. For example, information can be given about the legal points the parties disagree about and the evidence that can be admitted.
discoverable date The first date that a person knew, or should have known, that someone was injured, that the defendant caused it and that the injury was serious enough for compensation (damages) to be ordered.
discretion Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit.
divisible property Property belonging to a bankrupt that can be used to pay off debts. Some property such as tools or trade, ordinary household furniture and a low-value car are excluded from the property that can be taken and sold. See also bankruptcy.
divorce The legal ending of a marriage by court order. A marriage is legally divorced when a court issues a decree absolute where there has been an irretrievable breakdown of the marriage. See also decree nisi.
domestic relationship A relationship where people live together as a couple or a family. This describes people’s living arrangements, not their marital status. A domestic relationship can be registered in Victoria.
domicile A person’s permanent home according to the law. The home base where they belong. It is not necessarily the same as ‘residency’, which is where someone is presently living. It is particularly relevant to family law and taxation law.
double jeopardy The principle that no-one should be placed at risk – ‘in jeopardy’ – of being convicted of a criminal offence for which they have already been punished. For example, in most circumstances if you have been on trial and found not guilty you cannot be put on trial for the same offence again even if there is new evidence.
duplicity (1) Deceit. (2) In a pleading in a civil action, ‘double-pleading’ or including two (or more) matters in one plea; in criminal matters, charging a person with more than one offence on the basis of one set of circumstances.
easement A legal right over another person’s land. Easements are usually listed on a property’s title. For example, a right of way to walk or drive across a property to get to another place is an easement.
enduring power Written authority given to a person to make decisions on behalf of another person. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters. See also power of attorney; supportive attorney.
equity (1) Fairness and justice. (2) A right to property that the court will recognise even though it does not amount to full legal ownership. (3) A set of legal rules that aims to reduce any harshness that would result from strict application of the law.
estoppel (1) In general, not being permitted (being stopped) from making a particular argument or claim in court. (2) Equitable estoppel: stopping someone going back on what they did or said they would do, when what they said has been relied on by another person who would be disadvantaged if the situation changed.
eviction The lawful removal of a tenant from a property. If a tenant who has been lawfully told to leave refuses to leave, the owner can take possession back by asking a court to issue an order. The order can then be enforced by the Sheriff’s Office.
excess The amount a person does not get back from the insurer when they make a claim on their insurance. For example, if a car is insured for an agreed value of $10,000 with an excess of $1000, the insurer will pay only $9000 on a claim if the car is written off.
exclusion clause A term in a contract which tries to exclude rights or avoid liabilities. It is also sometimes called a ‘limitation clause’. Many of these clauses are void, especially in consumer contracts.
exemplary damages A court order that a wrongdoer pay the victim a larger amount of damages than would be needed just to compensate them for their loss. Its purpose is to punish the wrongdoer and make an example of them. See also general damages; special damages.
exhibit A document or thing that is provided as evidence in a court case or referred to in a sworn statement. For example, a gun might be produced as an exhibit in a criminal case, and a bank statement might be produced in a civil case.
express warranty A verbal or written promise made about a product when it is offered for sale, which would naturally encourage people to buy the goods (e.g. a sales person saying a toaster will last for six years). Breach of an express warranty can give rise to a right to sue for damages.
extradition The process of allowing an accused person in one country to be taken into custody and sent for trial in another country where it is alleged they committed an offence. When a person is to be extradited, police in the country of residence take them into custody and hand them over to law enforcement officers from the country where the offence was committed.
fair dealing Legitimate use or reproduction of copyright material by someone other than the copyright owner, for specific purposes (parody or satire, study or research, criticism or review, or reporting the news). Not to be confused with the US ‘fair use’ which does not apply in Australia (allowing any copyright material to be used without the copyright owner’s consent if the use is ‘fair’).
false imprisonment Without lawful authority, keeping someone locked up or confined, preventing them leaving against their will. A common law action challenging the legality of someone’s imprisonment seeks a writ of habeas corpus (Latin for ‘have the body’, meaning ‘bring the person before the court’).
family violence intervention order A court order made to protect a family member from violence, intimidation or harassment by restraining a person from harmful or annoying conduct towards that family member. See also intervention order.
fiat An official authorisation to do something, issued in the name of a government official. An example is an Attorney-General’s fiat to allow a person to bring proceedings in a court when they would not normally have the right to do so.
fiduciary duty An obligation to act honestly and for the benefit of another person. The duty only applies to certain relationships where a fiduciary relationship exists; for example, a solicitor owes a fiduciary duty to their client and a trustee owes a fiduciary duty to their beneficiaries.
forensic procedure A method of collecting evidence, such as taking fingerprints or getting a DNA sample, from a person suspected of committing an offence, or by examining a crime scene and collecting samples. Samples may also be taken in a civil action to prove or disprove a paternity claim.
franchise A business arrangement where a person who has worked out a successful business model sets up a chain of businesses and sells licences to others to operate using the same model and branding. A common example is a fast-food chain.
gazumping The practice of making a higher offer on a property after the vendor has agreed on a purchase price with another buyer, and having the higher price accepted. The first buyer has then been gazumped, and loses the deal.
general damages Part of the money a court orders a defendant to pay as compensation. General damages cover losses that cannot be calculated exactly, such as money for pain and suffering, disfigurement or loss of earning capacity or enjoyment of life. See also exemplary damages; special damages.
guarantee A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt.
hand-up brief A collection of documents that the prosecution must give to the accused person in a criminal case and also provide to the court. The brief must contain all the charges and a summary of evidence that will be used against the accused. See also service.
identification parade A police line-up. A group of people that includes a suspect and several other people who look similar but have nothing to do with the case. A witness who saw an offence being committed is asked to say whether anyone in the line is the offender. If they pick the suspected person, it can be used as evidence in court.
implied terms (1) Unwritten promises that a court considers are part of an agreement because it is clear that the parties meant to include them. (2) Terms that, under legislation such as consumer protection laws, are automatically part of some agreements. For example, under legislation all goods sold in Victoria must be of merchantable quality.
implied warranty A promise that goods and services will be of reasonable quality. This does not need to be written into the contract as it automatically applies to all goods and services sold in Victoria.
in loco parentis Someone who is acting in the position of a parent and has authority over a child. For example, a school teacher in charge of children on a school bus trip has the right to give them reasonable instructions.
inadmissible Something that is not allowed as evidence in a court hearing. For example, the fact that someone has been convicted of theft in the past is inadmissible to show that they stole something this time.
incorporated documents Additional papers that are included in a contract or other legal document, such as a planning scheme, by being specifically referred to and stated to form part of the main document.
indemnity A promise to pay compensation to cover losses or expenses that may arise in the future if some stated event occurs. For example, if a business partnership ends and one partner continues to run the business, they generally agree to indemnify the others against any claims against the business in the future. Insurance contracts also indemnify the insured against stated risks.
Independent Third Person (ITP) A person, other than a friend or family member, who provides support to a person with an intellectual disability, brain injury or mental illness when they are being questioned by the police.
independent witness (1) An independent person who sits with a child being questioned by police when their parent or guardian cannot be present. The independent witness ensures that the child is treated with care and understands what is happening. (2) In any legal proceeding, a person who can give evidence of matters before the court but has no particular interest in the outcome. (3) A person who has no interest in the contents of a document such as a will, but watches it being signed, and puts their own name on it as evidence that they saw the signing occur. Compare interested witness.
indictable offence A serious crime that is generally heard before a judge and jury in the County Court or the Supreme Court a criminal case. Examples of indictable offences include assault and armed robbery.
industrial disease Damage to health caused by conditions in a workplace in a particular industry, or connected with a particular type of work. For example, lung disease caused by working in a mine or a wheat silo without a face mask.
informant A person who swears an affidavit stating that an offence has occurred and is named on the documents that start a criminal case in court. The informant is usually a police officer, but can also be the victim of the crime. Not to be confused with an informer.
informed consent When a person freely agrees to a procedure with full understanding of what it involves, and knowing about any risks. For example, a patient can give informed consent to surgery after a surgeon explains the risks involved.
infringement notice A notice stating that a summary offence has been committed. It also states the amount of any fine that has to be paid. Includes many driving and parking offences. Also referred to as an ‘on-the-spot-fine’.
injunction A court order that directs a person to do, or not to do, something. For example, a court can order a developer not to demolish a historic building. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely).
inquisitorial legal system A kind of legal system found outside Australia, where judges can ask witnesses questions and make their own investigations about the facts in a case. See also adversary system.
instrument A formal document, in writing or digitally authorised, which has a legal effect. For example, a transfer of land is an instrument that has the effect of changing ownership from one person to another.
intellectual property Rights given by legislation to make money out of inventions and creative work. It includes copyright, industrial designs, patents, trademarks and plant breeder’s rights. The inventor or creator can keep the rights or sell them. Other people can be sued for making copies without paying royalties.
interested witness (1) In any legal proceeding, a person who gives evidence of matters before the court but has an interest in the outcome, so may have less credibility than an independent witness. (2) A witness to a will or other document who has an interest in the outcome. For example, a spouse who is given property or power under the terms of the will, and also signs it as a witness.
interrogation The asking of questions. In criminal cases, the questioning of suspects by police. In civil proceedings, a pre-hearing process in which one party asks the other party a series of written questions, called interrogatories, which must be answered on oath.
irretrievable breakdown (of a marriage) The final end or collapse of the relationship. If the marriage cannot be saved, the court will grant a divorce if the husband and wife have been separated for 12 months or more. That period of separation is accepted as evidence of the irretrievable breakdown of the marriage.
joint tenants A form of ownership in which two or more people own property together, so that the whole property is undivided and equally shared. There are no separate shares that can be left in a will, because if one of the joint owners dies, the property remains with the other owners. Compare with tenants in common.
judicial review The court’s review of an administrative decision on the basis of a legal error in the decision-making process. For example, a court can review a decision by an official on the ground that the official is biased. Compare review on the merits. See also administrative act.
jury A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases.
letter of demand A letter, usually written by a lawyer for their client, or by a creditor, telling the person who receives it that unless they do what the letter says they will be sued. Often a letter of demand asks a debtor to repay a loan to avoid being sued, but the demand could be about any legal claim.
limitation period The period within which time court proceedings must be issued. This varies according to the type of case and requires legal advice. It is generally 15 years to recover land and 6 years for contracts and torts other than personal injuries (3 years if the injury was discoverable, and early notification requirements may apply, but a more generous long-stop limitation period may also apply).
linked credit provider A credit provider who has an agreement with someone selling goods, for example a car. If a customer wants to buy goods but needs to borrow the money, the seller will suggest the buyer go to that credit provider.
liquidated damages An amount fixed in a contract as the amount the parties agree will be payable if the contract is broken. It must be a realistic amount to compensate the other party, not a penalty. See also damages.
litigation guardian An adult who acts in court for a child or person with an intellectual disability. A litigation guardian must pay for the costs of the court action if it is unsuccessful. See also McKenzie Friend; next friend.
long-stop limitation period In personal injury cases including consumer cases, a period of 12 years from the date of the act or omission that caused death, within which time court proceedings for damages must be issued.
maintenance Money paid to a person to financially support them. When a couple has separated both parents have a duty to support their children, and a court can order a parent to make regular payments to support the children. Maintenance for a spouse is now less common, and must be applied for within 12 months of a divorce. It is usually covered in a final settlement of all property.
mandamus An order made by the Supreme Court requiring a lower court, government body or official to do something that they have a duty to do. For example, the court might order a minister to reconsider an application for a new broadcasting licence they have failed to consider properly.
mandatory Required by law to be done; a law that must be strictly complied with. Under mandatory reporting, people in particular jobs to tell a government agency if they know an offence is being committed – for example, doctors and teachers must report child abuse. Mandatory sentencing requires judges to give an automatic jail term for certain offences.
marriage A voluntary, formal and legally binding agreement between two people to have a permanent relationship together. There must be a statement in front of official witnesses who register the marriage with the authorities. See also cohabitation; de facto; divorce; domestic relationship.
McKenzie Friend The general term used to describe a person who sits with and assists a party in court proceedings if they do not have any legal representation and the court agrees. They assist by taking notes and offering quiet advice. See also litigation guardian; next friend.
means test A list of requirements that a person must meet to qualify for a benefit such as a pension or other financial assistance. Means tests generally take into account a person’s income and assets.
mediation A form of alternative dispute resolution where an independent person (a mediator) is appointed to help the parties come to agreement. Mediators do not decide the outcome of the dispute. They help the parties consider the issues and best possible outcome. Parties may choose to use mediation instead of going to court, or the court may order the parties to go to mediation as a way of avoiding a court hearing. See also arbitration; conciliation; negotiation.
mens rea The mental part of a crime that the prosecution must prove in a trial. For example, an intention to steal is the mens rea for the crime of theft. There is also a physical part of a crime, known as actus reus, that must be proved by the prosecution. A crime may have more than one mental element, such as intention, recklessness, negligence, dishonesty, or malice.
mention date The first day on which a criminal matter is brought before a Magistrates’ Court. On that day, a person tells the court whether they will plead guilty or not guilty to a criminal charge. A case can only be finalised on the mention day if it is a plea of guilty.
moral rights The rights of the creator, not the owner, of an artistic, dramatic or literary work or film to have their authorship acknowledged and to protect the integrity of the work or film. For example, the right not to have someone else’s signature added to their work, or have changes made to it so that it expresses a different idea.
native title The interests and rights of Indigenous Australians to their traditional land. This title is not the same as a certificate of title. It is a connection to land under traditional laws and customs that has not been interrupted by later settlement and permits use of the land for traditional purposes.
natural justice Rules that courts, other dispute settlement bodies and government officials must follow to ensure that decisions are fair to all parties. Examples include the requirement that decision-makers act fairly, without bias, and the right of all parties involved in a case to present their side of a dispute. See also administrative law.
necessaries Things such as food and basic clothes that the law says are needed for people to live a reasonable life. A minor, in Victoria someone under 18 years old, cannot enter a legally enforceable contract, except for necessaries.
negotiation An approach to dispute resolution where both parties discuss the matter in dispute between them, with the aim of reaching a settlement through a consensus, compromise or agreement. See ADR (alternative dispute resolution); arbitration; conciliation; mediation.
nominal damages A small amount of damages a court can order a defendant to pay when a right has been violated but no real damage of monetary value has been done to the plaintiff. For example, a person can sue for trespass if a person goes onto their property without permission. The court would order nominal damages if no harm was done to the property.
non-custodial sentence A sentence for a criminal offence that does not involve imprisonment. The offender would normally be sentenced to a form of rehabilitation. See also ICO (inensive correction order).
nuisance Doing something that stops another person fully using and enjoying land they own or occupy. For example, someone burning off smelly rubbish in their backyard might ruin a neighbour’s enjoyment of their garden. See also private nuisance; public nuisance.
oath A person’s promise when they swear to tell the truth in court, or when signing an affidavit. A person taking an oath places one hand on the Bible or other holy book to demonstrate how seriously they take their promise. See also affirmation.
obiter dictum Words said or written by a judge, when deciding a court case, which are not necessary for the decision. For example, a judge in the Supreme Court of Victoria might say in passing that the law on theft in the United Kingdom is not the same as the law on theft in Victoria. Since the Supreme Court is not bound by United Kingdom law, the judge’s comment about it is not necessary for the court’s decision.
offer The first step in agreeing to make a legally binding agreement. An offer must be accepted before there can be a legally enforceable contract. For example, a person can offer to sell their car for $5000 and a buyer can accept the offer and pay that purchase price.
ombudsman A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority.
Orders-in-Council Laws made by the Governor-in-Council, or at the federal level, by the Governor-General-in-Council. They are made under the authority of relevant Acts of Parliament and may also be known as regulations. See delegated legislation.
own motion Decision by a body to take action, such as starting an investigation, without a complaint having been made. For example, a court can, ‘of its own motion’, without being asked by the parties in a case, find a person guilty of contempt of court.
parenting order A court order for the care of children when their separated or divorced parents cannot reach agreement on a parenting plan. The order covers matters such as where the child will live, contact with the parents and financial support.
parenting plan A written agreement between parents who are separated or divorced, covering arrangements for the care and financial support of their children, including where the children will live and who will pay for what.
parole To free a prisoner after they have served a minimum term, but before the end of their sentence. While on parole the person may be subject to conditions such as having to report regularly to police.
perpetual succession The fact that a company or organisation continues even if one or more of its members dies. Legal ownership of its property is not interrupted by death because everything is owned by the company or group as a whole.
personal property security A legal charge over a chattel or other personal property that guarantees repayment of a debt. The charge stops the debtor selling the property until the debt is paid off, and debtor agrees to give up the property to cover repayments if the debtor fails to pay. Similar to a mortgage over real property (land or real estate).
personal safety intervention order A court order made to protect a person from violence, intimidation or harassment by someone who is not a family member. See also intervention order; family violence intervention order.
portability Able to be moved. For example, mobile phone numbers and health insurance contribution periods are portable (can be moved between suppliers). You can take them with you if you change from one service provider to another.
possession (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property.
power of attorney A formal, written legal document in which one person gives another person power to make decisions or take actions for them in certain situations. See also enduring power; supportive attorney.
precedent The doctrine that courts must follow past rulings of higher courts in very similar cases. For example, the County Court of Victoria must follow relevant rulings of the Supreme Court of Victoria. The precedent comes from the reasons a judge has given for their decision in a case. See also case law.
pre-hearing conference An informal, compulsory and confidential conference between the parties in a court action to try to reach a settlement or clarify any matters in dispute before the full hearing.
prerogative writ An order made by the Supreme Court of Victoria or the High Court of Australia to cancel the claimed legal effect of a decision (certiorari), or to require a body to do something (mandamus), or to prohibit a body from acting outside its authority (prohibition). See also ultra vires.
prescribed owners corporation An owners corporation that levies annual fees in excess of $200,000 in a financial year, or is responsible for a complex of more than 100 lots, including any accessory lots such as car parks or storage areas.
prima facie Something that seems to be the case, on the face of it. For example, if a court requires a prima facie case to exist before a person can start a legal action, there must be enough evidence to suggest, without going into the case in full, that the claim could succeed.
prima facie evidence Enough evidence to convict a person of an offence, if the ‘best case’ of the prosecution is accepted. Prima facie evidence must be capable of proving the elements of the offence beyond reasonable doubt. However, it is always open to the defendant to raise some kind of defence, so the prosecution case may still fail in the end.
principal relief The main things a plaintiff in a civil case is seeking to get from a defendant by taking them to court. It can include getting compensation from the defendant or having them do, or stop doing, something.
private ruling An opinion given by the Australian Taxation Office to an individual taxpayer. The ruling is binding on the ATO, so if the taxpayer acts according to the opinion, the ATO cannot take the taxpayer to court if the opinion later turns out to be wrong.
probate The process of proving that a deceased person’s will is valid and was the last will they made before they died. The Probate Division of the Supreme Court accepts the will and seals it. The executor carrying out the instructions as set out in the will is then safe from legal action.
probation A non-custodial sentence that is served in the community and which does not involve a prison term. It requires good behaviour and supervision by a probation officer for a specified period. See also ICO (intensive correction order).
professional indemnity insurance A type of insurance that covers a person against a claim that they did not take enough care in doing their job. Lawyers and prescribed owners corporations, for example, are required by law to take out professional indemnity insurance.
prohibited name A name that cannot be registered because it is not in the public interest to allow it. For example, an obscene or offensive name, a name that is so long that it is totally impractical, or a name that claims connection with the Olympic Games, can be refused registration.
protected property In bankruptcy, goods owned by a bankrupt that cannot be taken away and sold to pay creditors. This includes clothes, ordinary household furniture, some trade tools, and a car of low value. Compare divisible property.
protection application An application to a court by the Department of Human Services (Victoria) for an authorisation to protect a child from harm. If the application is successful the court may authorise the removal of a child from their family, if the child is in danger of harm because the family or other carers are unable or unwilling to protect them.
prothonotary The title of the chief clerk of the Supreme Court of Victoria, the equivalent of the registrar of other courts. The prothonotary is responsible for the court’s administrative functions, and can review costs and fees charged to parties, conduct mediations and bring charges for contempt of court if someone breaks the court’s rules or shows disrespect towards it.
provable debt In a bankruptcy, a debt accepted by the trustee for proportional payment from available funds. The creditor receives a share of the bankrupt’s estate and the bankrupt is released from having to pay the full amount of the debt.
qualified privilege A defence that gives protection against a defamation lawsuit. It can be used if information was not given to cause harm, and was given to someone who had a public interest in getting it and who acted reasonably when they published it. See also absolute privilege.
quorum The number of people who have to be present in a meeting for a vote passed by the meeting to be valid. For example, one-third of all the senators have to be present in parliament for a Senate vote to be valid.
recognisance A bond or undertaking made to show a person understands what is required and will do something as promised. For example, an accused person can undertake to a court on recognisance that they will appear at a later date for their hearing. A recognisance may include a payment, known as a security, to back up the commitment.
regulations or rules Laws made by a body other than parliament but under its authority. These are made by the Governor of Victoria on the advice of the Victorian government, known as the Governor in Council. The rules are prepared and administered by government departments and statutory bodies under authority granted by a relevant Act of parliament. See also delegated legislation; local laws.
repossession Taking back goods bought on credit from a debtor who still owes money on them. Repossession is an action commonly taken by creditors when a debtor fails to pay a loan on a large item with some resale value, such as a car.
represented person A person whose financial affairs are controlled by an administrator because they are not capable of managing their own affairs due to disability, mental illness, injury or other incapacitating circumstances. State Trustees Limited is the administrator for about half of the represented persons in Victoria.
rescission The ending of a contract in a manner that places the parties to the contract in the position they were in before the contract existed (where restitution is possible). For example, in a rescission of a contract for the sale of a car the seller would get back the car and the buyer would get back their purchase money. See also termination.
responsible authority The government department or agency that is named in an Act of parliament as the body with power to exercise authority in a particular situation, for example granting permits or conducting inspections.
restitution Making good, returning things to the way they were. For example a court can order restitution of stolen goods to someone who is entitled to them; a party to a contract that has been rescinded is entitled to restitution that restores the status quo.
restraining order In family law, a court order that prohibits someone from harassing or molesting another person. See also intervention order; personal safety intervention order; family violence intervention order.
restraint of trade A commercial arrangement that prevents a business from freely buying or selling goods or services. For example, a seller may promise the buyer of a business that the seller will not set up a new business within 10 kilometers for 4 years. A contract like this cannot be enforced if it goes on for too long, or covers a very wide area.
reversed onus of proof The situation where the responsibility to prove something to a court is changed, so that the party that usually does not have the burden of proof now does have it. For example, in a strict liability offence, it is the defendant who has to prove they have a defence. See also onus of proof.
sanction (1) Punishment or threat of punishment to make people do the right thing. For example, a court may impose a penalty on a party who fails to lodge documents on time; a prison sentence is a sanction imposed for an offence. (2) Approval or authorisation. For example, a company director can authorise (sanction) an employee’s spending on travel for work.
secured creditor A person or company that is owed money and has the right to sell a debtor’s property to cover any money that has not been paid by the due date. The payment is secured by a mortgage, charge or lien over the property of the debtor.
self-incrimination Saying something that might be used against you in court. The privilege against self-incrimination is the right, with certain limitations, not to do or say any-thing that might later be used as evidence against you.
serious injury Injury as a result of a car accident or other transport accident that causes serious long-term damage. Includes losing an arm, a leg, or bodily functions, suffering continuing mental or behavioural disturbances, or, for a pregnant woman, losing the baby.
service Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.
servitude (1) Being completely under the control of another, for example in sexual servitude (sex slavery). (2) A legal relationship between two pieces of land, where one is subject to a right that can be exercised over it by the owner of the other (e.g. an easement).
show cause The requirement that a party convince a government authority or a court why some decision should not be made against them. For example, to get bail, an accused person might have to show a court why they should not be held in prison. A defendant who has to show cause has a reversed burden of proof (i.e. it is the defendant, not the prosecution, that has to prove something).
sine die Latin for ‘another day’. Used when a court hearing is adjourned indefinitely, usually when the parties say they have reached agreement. The case can then only be brought back if one of the parties applies to the court. See also adjourn.
special damages Part of the money a court orders to be paid as compensation by a defendant. Special damages cover specific expenses that can be calculated exactly, such as medical expenses or the cost of buying a replacement item. See also damages; general damages.
specific performance Carrying out the precise obligations that are set out in a contract. For example, a contract might require the sale of a piece of land. If the parties do not perform a contract a court can order specific performance.
standard of proof The level of proof required level to prove a case in court. In criminal cases the prosecution must prove its case beyond reasonable doubt. In civil (non-criminal) cases, the plaintiff must prove that their argument is more likely to be true than false. This is known as proof on the balance of probabilities.
standing The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi.
statutory defence Protection against being sued that is stated in legislation. The defence stops a person being found liable in court. For example, a person who is giving evidence in court is can say things would be defamation if they said it anywhere else.
statutory Found in a statute of delegated legislation. For example, a statutory authority or body is a person or organisation that has special powers given by parliament to do work for the public benefit.
strict liability Holding a person responsible for breaking a law, whether or not they intended to break it, or were negligent. Proof that the person broke the law is enough. See also liability; mens rea; negligence.
sufficiently interested party A person or company that is not a party to a contract but has been involved in a transaction in some way. This gives the court reason to allow them to be named as a party in the proceeding.
supervision order An order the Children’s Court may impose upon a young person found guilty of an offence. Under this order, the young person will be supervised by a probation officer and will have to obey any other conditions the court imposes upon them. These conditions can be placed on the young person’s parents or persons with whom the young person is living. Also, a supervision order requires a person arguing substantial mental impairment in a serious criminal case to be admitted to a mental institution.
supportive attorney A person appointed to support someone in making and giving effect to their decisions by accessing their personal information and communicating on their behalf, for example in discussions with medical services. See also enduring power; power of attorney.
surety In criminal law, a person who promises a court that an accused person released on bail will attend court on a hearing date. If the accused person does not attend court, the surety must pay the court the amount of money stated in the bail documents. Also referred to as the guarantor. The sum of money payable if there is a breach is also referred to as the surety.
tenants in common A form of joint ownership in which two or more people own property. Each person has their own separate share, and that share of the property can be left in a will. Compare with joint tenants.
tender To offer or hand over. For example, evidence is tendered in a court. Money is ‘legal tender’ that can be handed over in exchange for goods. A debtor can tender (offer) an amount of money in full payment of a debt, even if the debt is more than the amount tendered. Also, a tender can be a quote offering to construct a building or undertake renovations for a given price.
termination The end of something. Contracts terminate when the parties have done what they agreed. A contract can also be terminated without being completed, for example if one party breaks the contract, or it is impossible to carry out.
terms of reference The formal list of things that a body set up to examine a matter of public interest can investigate and report on. The body must investigate all the matters listed, and it cannot go beyond them.
Torrens title The most common system of land registration, managed by Land Use Victoria, where a person’s ownership of the land is registered and guaranteed by being on the register (unlike the old system of title deeds for general law land that is not yet under this system). See also conveyance.
tort A civil wrong that causes harm, intentionally or otherwise. A person affected by a tort can take action in court to claim compensation for damage caused by the wrong, or an injunction to stop the wrong continuing.
trespass (1) Going onto someone’s land without permission. (2) Trespass to goods is wrongful interference with someone’s personal property, for example doing something that harms someone’s computer. (3) Trespass to the person is doing something that interferes with a person’s body without their permission, for example giving a very drunk person a tattoo.
trust account A bank account in which money is held on behalf another person, not for the use of the account holder. For example, a lawyer’s trust account holds clients’ money. It is regulated by strict accounting rules that safeguard the clients’ interests. For example, a trustee may hold a child’s inheritance for them until they turn 18.
ultra vires ‘Beyond power’. An act of a person or body that is outside their powers under the law. For example, it would be ultra vires for the Victorian parliament to pass laws applying to the New South Wales Police Force because this is a power of the New South Wales parliament, not the Victorian parliament.
unconscionable conduct Behaviour that takes unfair advantage of a vulnerable person in a contract or other transaction. The vulnerability can be due to factors such as poor education, disability, language difficulties or being affected by alcohol.
undertake To promise to do or not do something, such as returning to court on a certain day, or to hand a document over to another party in a legal proceeding. An undertaking is enforceable by attachment or like an injunction.
unliquidated Not yet set as a definite amount. For example, unliquidated damages are damages where the final amount is still to be worked out by a judge or jury; an unliquidated debt has not been paid or cleared balance remains uncertain or in dispute. See also liquidated.
vendor terms A contract of sale of real estate that allows the buyer to pay the seller in instalments over a longer period than usual, for example 3 or 5 years. Ownership remains with the seller until the final payment is made.
vendor’s statement A document that a seller (vendor) of real estate must give to the buyer buyer before a contract of sale is signed. It contains information about the property, such as rates and council planning restrictions that affect it. Also called a section 32 statement.
vexatious Causing trouble without good legal reason. A vexatious litigant repeatedly starts court cases that have no chance of succeeding. Vexatious litigation is a court action that is unnecessary or undertaken only to cause trouble, embarrassment or inconvenience for the other party.
void Having no legal effect. A void agreement has something wrong with it, so it cannot be a legally binding contract. For example, a verbal agreement to buy land would be void, because the law says those contracts have to be in writing.
voidable Able to be cancelled, but having full legal effect until that happens. A voidable agreement is one that may have something wrong with it, so either of the parties could cancel it if they wanted to. There are certain restrictions on what is, and is not, voidable that require advice from a lawyer. See also rescission.
voir dire In a criminal trial, a process where the judge hears legal arguments and evidence from witnesses after the jury has left the room. A voir dire may be used by a judge to decide whether evidence should be heard by the jury or not.
warrant A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate.
witness person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court.
writ (1) A formal legal document in in the Queen’s name, commanding a person to do or refrain from doing some act. (2) The document that starts a court action. It is issued by the court at the request of a plaintiff, and given to the other party so they know there is a legal claim against them. See also summons.
This guide draws on Fitzroy Legal Service Inc.’s online Law Handbook glossary; Trischa Mann (ed.), Australian Law Dictionary, first and third editions (Melbourne: Oxford University Press, 2010, 2017); and the LexisNexis Concise Australian Legal Dictionary (Chatswood, NSW: LexisNexis, 2011). Thanks to the members of the reference group for their valuable contribution in reviewing this guide.