Melbourne Uni law Terminology

Question 1

Affidavit

Answer 1

Latin for ‘he or she has sworn’. This is a written statement setting out certain facts which the person making the affidavit swears or affirms are true.

Question 2

Appeal

Answer 2

An appeal involves a party in a lower court decision asking a higher court to change that decision in some way (most often, to have the opposite decision made). Although in lower courts appeals might be made from a single judge of a court to a larger panel of judges within that same court, appeals in the High Court are in practice always determined by a ‘Full Court’ of five to seven Justices.

Question 3

Appeal to the High Court

Answer 3

As the final court of appeal in Australia, the High Court has the power to hear and determine appeals from all judgments, orders, decrees and sentences handed down by a single Justice, a federal court, or a state Supreme Court. However, there is no automatic right to appeal to the High Court: a party must successfully apply for Special Leave, and the decision to grant or refuse that leave lies with (typically) just two judges of the High Court.

Question 4

Appellant

Answer 4

A person seeking to appeal a ruling of a lower court.

Question 5

Applicant

Answer 5

An applicant is the name for a plaintiff in the Federal Court and someone seeking special leave to appeal to the High Court.

Question 6

Attorney-General

Answer 6

An Attorney-General is the chief law officer of a State, Territory or the Commonwealth government. In each of these jurisdictions in Australia, the Attorney-General must also be a Member of Parliament. The Commonwealth Attorney-General also has ministerial responsibility for the High Court. In addition to other responsibilities related to the law, Attorneys-General are frequently involved in proceedings before the Court, either as plaintiffs, defendants or interveners.

Question 7

Authority

Answer 7

Authority has many different meanings in law. In its everyday meaning, authority may mean permission, or a right coupled with the power to compel its enforcement (as in the police have authority to arrest a person). In explaining legal reasoning, an ‘authority’ is usually used to refer to an earlier judgment that has precedential value, meaning that its reasoning should be followed and applied in the case before the court. In this sense, it is an earlier rule that is authoritative and binding on the present court.

Question 8

Balance of probabilities

Answer 8

Australian courts resolve most factual disputes by deciding whether the factual claims made by one party are more likely than not to be true. This is called proof on the balance of probabilities and is sometimes also called the ‘civil’ standard of proof, because it applies in nearly all non-criminal (i.e. civil) disputes.

Question 9

Bar, The

Answer 9

Bar’ can mean several things. In the most basic sense, it refers to the symbolic division in Australia courtrooms between the bench, where the judge sit, and the bar table, where counsel sit.

State bars in Australia are usually private, voluntary, non-profit and self-funded associations, and are responsible for regulating the professional conduct of barristers.

Question 10

Barristers

Answer 10

A barrister is a Legal Practitioner who specialises in advocacy before courts, and acts a legal representative for a party to litigation. Barristers usually also possess additional expertise in specific areas of the law. A barrister’s role is to prepare the most effective set of legal arguments open to a client and then present those arguments to the court (and respond to the court’s questions) during the hearing.

Question 11

Barristers are often referred to as ‘counsel’.

Answer 11

Barristers are often referred to as ‘counsel’. Senior barristers who have attained the rank of Queen’s Counsel or Senior Counsel are known as ‘silks’ (QC and SC are different terms for the same rank). A barrister who is not a silk is known as a ‘junior’, though that does not imply lack of seniority or youth. High Court litigation usually involves one silk and one junior. The silk takes responsibility for all or most of the oral argument, while the junior provides support in preparing and debating the arguments with the silk, and through his or her presence at the hearing. In disputes involving complex legal issues, or large sums of money, often multiple silks and juniors will be retained by one or more parties.

Question 12

Bench, The

Answer 12

‘The Bench’ refers literally to the desk where judges in a court sit, and figuratively to the judges of a court.

Question 13

Beyond reasonable doubt

Answer 13

As a general rule, prosecutors in Australian criminal trials have to prove all the facts beyond reasonable doubt.

Question 14

Bona fide

Answer 14

Latin for ‘in good faith’. If a person is bona fide in performing an action, it means that they do it in good faith and with an honest intention.

Question 15

Cause of action

Answer 15

When a plaintiff or applicant attempts to establish that she is entitled to redress from the court, she must make out facts which establish each element of the cause of action

Question 16

Caveat

Answer 16

Latin for ‘beware’. In property law, a caveat is a document which is filed with the relevant Land Register office which gives notice that the person who filed it has an unregistered or unregisterable proprietary interest in land under the Torrens system. The main function of the caveat is to protect the person who claims that interest (the caveator), because no further dealings can occur to the land title unless the caveator consents.

Question 17

Chattel

Answer 17

Personal property (ie, property that is not land).

Question 18

Chief Justice

Answer 18

A chief justice is the head judge in a court. The Chief Justice of Australia is the head of the High Court and fulfils a number of roles. In terms of hearing arguments and writing judgments, the office is largely the same as the other Justices. One significant difference is that in the rare case that the Court is evenly divided on a matter in the Court’s original jurisdiction the Chief Justice holds the casting vote. The Chief Justice is also responsible for controlling oral argument during hearings, and for supervising judgment writing (and especially in exploring whether consensus may be reached among the judges for a ‘judgment of the Court’). In addition to those duties, the Chief Justice has a range of public responsibilities: administering oaths of office to the Governor-General and members of the House of Representatives, consulting with the government where appropriate (particularly in relation to judicial appointments), and educating the public on the function of Australia’s judiciary through speeches, papers and interviews.

Question 19

Commonwealth of Australia

Answer 19

The Commonwealth of Australia is the federal government of Australia and includes both houses of Federal Parliament, the Executive and the Judiciary. In all proceedings in which the Commonwealth is a party, or someone being sued on behalf of the Commonwealth is a party, the High Court holds original jurisdiction.

Question 20

Commonwealth constitutional powers

Answer 20

The powers of the Commonwealth of Australia are established and ordered by the Australian Constitution

Question 21

S 51

Answer 21

The legislative power of the Commonwealth is outlined in s 51 of the Constitution, which lists the subjects on which the Commonwealth can create new laws. Chapter II outlines the powers and responsibilities of the executive. Chapter III lays out the judicial power of the Commonwealth, which vested in the High Court and other federal courts.

Question 22

Common law

Answer 22

The common law refers to the system of law that is derived from the decisions of courts. These decisions are sometimes referred to as precedents. As new cases are heard and decided by superior courts, those judgments become part of the common law and clarify or depart from earlier decisions.

Consequently, the common law changes and evolves over time. Legal reasoning in common law systems, both by judges and practitioners, relies on arguments that analogise from earlier rulings. Ideally, the effect of this gradual accumulation of law is consistency, continuity and predictability.

Question 23

The common law has been created by the Courts and the genius of the common law system consists in the ability of the Courts to mould the law to correspond with the contemporary values of society. Had the Courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time.

Answer 23

The common law has been created by the Courts and the genius of the common law system consists in the ability of the Courts to mould the law to correspond with the contemporary values of society. Had the Courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time.

Question 24

Constitution

Answer 24

The Constitution of the Commonwealth of Australia is the foundational document of Australia’s legal and political system, creating the Commonwealth and States of Australia in 1901. It may be referred to as the Commonwealth Constitution, the Australian Constitution, or simply, the Constitution. The High Court is the final interpreter of the Constitution, and in this sense is the ‘guardian’ of the document and the system it establishes.

Question 25

The role of the constitution

Answer 25

The Constitution creates the Federal Parliament and outlines the structure and powers of the Senate and the House of Representatives, the federal Executive and the Judicature (including the High Court), as well as establishing the former colonies as States.

Question 26

Contract

Answer 26

A legally binding promise or agreement. A contract will only be binding on the parties if the necessary steps for forming a contract are met.

Question 27

Copyright

Answer 27

Copyright is the exclusive property rights held by a copyright owner that entitle that owner to do or prohibit certain acts related to copyrighted material. Copyright relates specifically to the material form of an idea or its expression, rather than the content of the idea itself