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LEGAL TERMS
This is not a law dictionary, but it does explain the meaning of many legal words used in
the Law Handbook.

abate To reduce something. For example, to abate a nuisance (such as noise) is to

remove or reduce the nuisance.

abrogate To repeal, cancel or annul.

access order A previous term for an order made by the Family Court enabling a non-
residential parent to see the child at specified or mutually agreed times. Subsequently
called a contact order Now called a parenting order

acquit To find an accused person not guilty at a trial.

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

administrator A person appointed by the court to deal with the estate of a person dying
intestate (without a will) or with a will but without executors.

affidavit A written statement sworn on oath or affirmed before a person with authority
to administer it, such as a Justice of the Peace. The person who swears the affidavit 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 court order which requires the person held to be the father of a child
to pay maintenance to the mother for the support of the child.

affirmation A spoken statement that something is true, which may be made in place of
an oath
.
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 offence An aggravated offence occurs where the circumstances

surrounding the commission of the crime make it more serious. As a reflection of the
greater seriousness of the offence, higher penalties will be applied than for the same
offence without such circumstances. An aggravating circumstance might be where the
offender possessed a weapon at the time of the offence or had a particular intention in
carrying out the offence (for example, as retaliation for testifying in legal proceedings or
to intimidate a witness from testifying). It may also relate to a characteristic of the victim,
for example, their age or particular vulnerability.
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ancillary relief In family law, these orders relate to residence, maintenance, contact
and the property of the parties as opposed to the actual divorce, which is called
principal.

annuity A sum of money payable yearly.

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

appeal To take a case to a higher court in order to challenge a decision. The person
who appeals is the appellant.

arrest To apprehend or take into custody a person suspected of having committed a

crime.

attestation clause A witnessing clause, for example, in a will. The attestation clause
states that the witnesses saw the testator (q.v.) sign and that they signed in the
presence of the testator and each other.

award To give or grant formally, for example, in industrial arbitration proceedings, an

award sets out the minimum standards and conditions in a particular industry or for a
class of employees.
bail An accused person is given bail to allow him or her to go free whilst awaiting a
court hearing. Sometimes money must be paid as a security, or the accused may simply
promise (known as entering into a recognizance (q.v.)) to appear in court. Failure to
appear is an offence.

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

bailment A delivery of goods from one person (the bailor) to another, (the bailee)
usually for a specific purpose. For example, delivering clothes to a dry-cleaner creates a
bailment. A contract may be implied from the behavior of the parties.

bankruptcy A procedure under which most of a debtor's (q.v.) property is taken over
and distributed amongst his or her creditors.

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

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

bill of exchange A negotiable instrument (q.v.) in which the drawer orders the drawee
to pay a sum of money on a specified date to either the drawer or a third person (the
payee).
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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 An agreement to be of good behavior or a deed (q.v.) under seal in which a

person promises to do or to refrain from doing certain things. Sometimes referred to as
a recognizance (q.v.). For a description of bonds in a landlord and tenant situation .

burden of proof In criminal cases, the prosecution bears the burden of proof 'beyond
reasonable doubt'. In civil cases, it is the plaintiff who must prove the case 'on the
balance of probabilities'. See also onus of proof .

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 (q.v.) where a buyer of goods
has no warranty for them, he or she takes the risk of their quality and has no remedy
against the seller unless there is fraud. Consumer legislation has greatly enhanced the
extent to which a buyer can get 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 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 movable article of property (chattel personal).

civil law Law which is not criminal, i.e., law between individuals. It may also refer to law
based on the Roman system as used in most of Europe. Throughout this book civil law
means non-criminal law.
codicil A document signed by a will-maker which alters or adds to the original will.

collateral contract A separate contract which precedes or exists alongside the main
one
commissioner for taking affidavits A person, usually a solicitor, who is authorised to
take affidavits, oaths, affirmations or declarations which can be used in court
proceedings.

committal proceedings Where a magistrate in a court of summary jurisdiction hears

evidence on an indictable charge and decides whether the accused should be sent for
trial.
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common law The body of law evolved through the practice of English courts. Law
made by judges as distinct from law laid down by statute

complainant A person who begins a prosecution against another in a court (a plaintiff ,

eg the victim in an alleged sexual assault.

complaint In criminal law, the way to initiate a prosecution for a summary offence
condition An important term in a contract, the remedy for breach of which is rescission
of the contract. See also warranty consideration In a contract, the price paid for the
promise of the other party.
contact order A previous term for an order made by the Family Court enabling a non-
residential parent to see the child at specified or mutually agreed times. Now called a
parenting order
contempt of court The failure to obey a court order or an act which shows a disregard
for the authority of the court. A person in contempt may face imprisonment.
contract A legally enforceable agreement.
contributory negligence A 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 A claim made by a defendant against the plaintiff asserting an
independent cause of action. For example, A sues B, claiming $20 for an unpaid dry
cleaning account but B counterclaims $90 for alleged damage to the jacket when
cleaned..
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. See
debtor A creditor is a person who gives credit.
damages The amount ordered by a judge to be paid by one party to another in a civil
case.
debtor A person who owes a sum of money (a debt) to another.
deed A written document which is signed, sealed and delivered. When made by only
one person it is called a deed poll.
deemed To be treated as.
de facto In reality. For example, a de facto spouse 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.

defendant Person against whom legal action is being taken.

deponent The person who swears on affidavit

devise A gift of real estate in a will.

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disbursement Money paid out on behalf of another. In solicitor's bills, it is for such
things as filing a form or photocopying.

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
his or her 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 Divorce.

domicile The place where a person has his or her legal home - therefore the laws that
apply to that place apply to that person.

double jeopardy The situation in which a person may not be punished twice for the
same offence.
ejectment An action for the recovery of land.

encumbrance A charge or liability, for example, a mortgage

endorse To write on the back of a document.

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 Also the extent of a
person's interest in property.

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

executor The person whose duty it is to carry out the provisions of a will (Executrix -
female).

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

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

ex nuptial Out of marriage.

ex parte An application to the court made by one party to the proceedings without the
other party being present. It may also be made by an interested person who is not a
party.
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extradition The delivery, by the authorities of a country (or state) to the authorities in
that country or state of a person accused of a crime.
false imprisonment Detaining someone in custody without lawful excuse.

felony A category of serious crime. Has been replaced by the category f major
indictable offence
foreclosure The forced sale of a property to pay a mortgage or debt.

garnishment Proceedings that require someone who owes money to a debtor, for
example, his or her employer or bank, to pay that money to a creditor (called a
garnishee order)
.
guarantee To undertake to carry out a contract or some other legal act. The person
giving the undertaking is called the guarantor.

guardian A person who has the right and duty to protect another person, their property
and their rights. In family law not necessarily the person with residence

habeas corpus 'To have the body'. A prerogative writ directed to a person who holds
someone in custody commanding him or her to produce that person before a court.

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

indemnity To reimburse someone for a loss which he or she has suffered as a result of
an act or default of another.

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

information The way to initiate a prosecution for an indictable offence

injunction A court order which either directs someone to do something or to refrain

from doing a particular thing. An injunction may be interim(temporary, until a further
order) or permanent.
insolvent Unable to pay debts in full.

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 the laws of intestacy.

invalid Not valid

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joint tenants People who own land together in undivided shares. On the death of one
owner his or her 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 by a defendant

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

justice of the peace Person able to witness legal documents. A notary public is
required to witness documents for use by foreign courts or authorities.

lease Agreement or contract between two parties, for example, a landlord and a tenant.

leasehold An interest in land for a fixed period.

legacy A specific gift left to a person rather than a share in the residue of the estate.

legatee A person to whom a gift is bequeathed

letters of administration Where a person dies without a will, or without an executor

named, the court can grant Letters of Administration that authorise someone to
administer the deceased person's estate similarly to an executor

liability Being legally bound or under obligation to do something.

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

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

liquidated amount A set amount of money as opposed to an as yet unquantified

amount, for example, for damages.

locus standi Place of standing; the right to be heard in a court.

mens rea A guilty mind; doing something with intention or knowledge that the act is
wrong.

misdemeanor A minor offence. The term is no longer used and has been replaced by
summary offence (q.v.) or minor indictable offence

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.
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natural justice The rules and procedures to be followed by a person or body with the
power to settle disputes..
negligence Failure to take reasonable care to avoid foreseeable harm to other people
or their property.

negotiable instrument A signed document by means of which money may be

transferred from one person to another or through several hands, for example, a cheque
or bill of exchange nominal damages Damages of a small amount ordered where a
right has been affected but no damage done.

non est factum It is not his or her deed. A defence raised where a person has
completed a deed in ignorance of its character.

notary public A person, usually a solicitor, who prepares, authenticates and witnesses
international documents, in particular for use in non-Commonwealth countries. They
perform similar functions to a Justice of the Peace but are recognized by foreign courts
and authorities and can charge for their services.
nuisance An indirect and unlawful interference with an occupier's use or enjoyment of
land by such things as water, smoke, noise.
oath A solemn spoken undertaking or promise to tell the truth, usually sworn on a bible
or religious text. Where a person requests they can make an affirmation in lieu of an
oath. An affirmation is a solemn undertaking given without swearing on a religious text.
offence A breach of the criminal law - an illegal act.

ombudsman A public official appointed to investigate citizens complaints against the

administrative acts of Government agencies.

onus of proof The obligation to prove what is alleged. Also known as the burden of
proof
parenting order any order relating to issues concerning the welfare and well-being of a
child,
including who the child lives with and spends time with. Parenting orders can also deal
with major long term issues such as education, religious upbringing and medical
treatment.
parole The probationary release of a prisoner before his or her sentence has finished.
perjury Lying under oath (q.v.) when questioned about a material matter in a court
proceeding. A person found guilty of perjury may face imprisonment.

plaintiff Person who initiates legal proceedings against another in a civil dispute.
power of attorney A formal written legal document by which one person gives another
power to represent or act in his or her place for certain purposes.

precedent A judicial decision on a point of law which is binding on all courts lower in the
hierarchy.
preliminary examination See committal proceedings
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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 make them carry
out their functions.
prima facie On the face of it. Prima facie evidence is that which will prove a fact or
allegation if no other evidence is produced to the contrary.

principal relief In a divorce action, the dissolution itself rather than the ancillary relief
privity of contract A principle that restricts contractual rights and obligations to the
immediate parties to a contract.

probate The proving of a will; the acceptance by the Probate Division of the Supreme
Court of that the deceased's will is valid and the last will in existence. A grant of probate
is a court order registering a will and confirming the right of the executor (q.v.) to deal
with the estate.

process Type of court document, such as a statement of claim or a summons

public place A place to which the public has free entry with the consent (whether stated
or implied) of the owner or occupier or where the public is admitted on payment of an
entry fee. A road footpath or thoroughfare is also a public place whether on private
property or not.
putative spouse A person legally recognized as having the same rights as a legally
married spouse.

recognizance A bond to secure the performance of an act by the person bound by it,
for example, to be of good behavior.

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

rescission Cancellation (of a contract).

road A street or thoroughfare, including any footpath, dividing strip, car park and any
place that the public has access to.

security An interest in property, temporarily given by way of guarantee (q.v.) that an

undertaking will be fulfilled or a debt repaid.

slander The publication of defamatory material in non-permanent (for example oral )

form. standard of proof See burden on proof.

statutory declaration A written statement of facts which is signed and solemnly

declared to be true before a person with authority to witness such documents. For
example a justice of the peace or a lawyer. The format to be used is specified in Section
25 of the Oaths Act 1936.
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statute A law made by Parliament (State or Commonwealth).

street offence An offence committed in a public place Many actions which would be
criminal if done in public would not be criminal at all if done in private.

strict liability Liability incurred regardless of intention.

subpoena A writ which commands the appearance of a person in court or the

production of specified documents.

sue To take legal action in a civil matter.

summary offence A minor offence heard and decided in a Magistrates Court and not
sent for trial before a judge and jury.
summons An order to appear at court.
surety A person who binds him or herself to be answerable for another. If there is
default the surety will be called in (or must be paid).
tenants in common One or more people entitled to occupy, or own land in common
with others. Whereby each owns a separate and divisible part of a whole. Each person
may leave his or her share to someone else in a will.
testamentary capacity The ability to draw up a will, the mental capacity to know what
is being done.
testator A person who has made a will. (testatrix - female).

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

trespass A tort involving the direct and unlawful interference to or on land or other
property.

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

undertake To promise to do or refrain from doing an act. An undertaking made in the

course of legal proceedings is enforceable.

unliquidated Undetermined, unascertained, for example, when damages (q.v.) are left
to a jury to determine.

valid Sound and sufficient; legally acceptable; executed with the proper formalities.

void Of no legal effect.

voir dire An examination of witnesses by the judge in order to determine the

admissibility of certain evidence, for example, the qualifications of an expert or the
admissibility of a confession in a criminal case.
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waive To give up a legal right or claim.

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

warranty A minor clause in a contract, if the clause is breached, damages can be

claimed.

will A document in which a person describes how he or she wishes their estate to be
distributed upon their death.