Look up legal terms

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.

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’.

(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.

‘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.

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.

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.

A person who appears in court to give a reference for an accused person. See also witness.

(1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case.

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.

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.

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.

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.

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.

Outright ownership of property, without any debts or charges.

When a debtor moves away from where they live and does not tell their creditors what their new address is.

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).

A document made by a will-maker to change their existing will.

Living together as a couple sharing an emotional and sexual relationship. Also, where a group of people live together on a long-term basis, as members of a family do.

A separate contract that exists along­side the main contract.

A sentence that is served partly in prison and partly in the community so the person convicted of an offence can have supervised alcohol or drug treatment.

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.

(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.

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).

An order that authorises medical treatment for a patient who has been admitted to a psychiatric hospital without their consent. The treatment takes place in the community.

Treatment of an involuntary patient by a medical practitioner in the community, not in a mental hospital.

An independent person, a volunteer, who monitors and reports on the quality of mental health services and the welfare of patients.

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.

An order requiring that someone found guilty of an offence pay for damage to property caused by the offence. The payment is made to the affected person or business.

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.

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.

Car insurance that covers a person for claims against them for damage they do to other people’s property, and also for damage to their own property.

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.

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.

A condition that delays the coming into effect of a right, usually under a contract (q.v.), until that condition is fulfilled.

Money covering the cost of travel to court. A party who requires a witness to appear in court must pay for them to get there.

A relationship where one person trusts and relies up another person.

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.

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.

To agree to something being done, to approve an action or arrangement. See also informed consent.

Something of value, such as money, given by one person to another person as part of a contract.

Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use.

consumer lease A contract to hire goods for a particular period and to make the agreed payments during that time.

A parenting order made by a court, stating how often someone (a parent, or another adult) can see a child who doesn’t live with them.

Disobeying a court order or doing something that shows disrespect for the authority of the court or a judge.

A preliminary hearing in which parties can try to reach agreement on some matters before a full hearing is held.

An agreement that the law will enforce.

To break a legal rule or fail to carry out a legal obligation such as a court order.

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.

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.

At the end of a criminal trial, to find the accused guilty of a crime.

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.

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.

Any physical punishment, but generally meaning something that causes pain, such as hitting.

Independent evidence that confirms or supports evidence given by another witness in court.

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.

A lawyer who appears in court and speaks on behalf of their client, often a barrister.

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.

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.

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.

A document given by an insurer to a client as evidence that temporary insurance is in place while the formal policy document is being prepared.

How believable a witness is in court when they claim to be telling the truth. See also independent witness; interested witness.

A debt that does not have to be paid until some future time. Being allowed to pay later, in the future, for something you are getting now.

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.

A contract relating to the giving of credit.

The person or organisation to whom a debtor owes a debt.

An opposing party’s questioning of a witness in a court case. Questioning of your own side’s witness is called examination in chief.

The process by which a superior court can exercise the jurisdiction of another, for example between state supreme courts and federal courts.

(1) A common term for the legal power and authority of the Commonwealth, state and territory governments. (2) Another name for the prosecution in a criminal trial.

Two or more terms of imprisonment that are served one after the other, not at the same time. See also concurrent sentence.

A prison sentence.

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.