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.
Stealing someone away from their home, usually a child.
To abolish or cancel something, such as a law, so that it is no longer in force.
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 alsodefence; qualified privilege.
abuse of power -
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.
A person who has been charged with a crime. Also known as a defendant.
To find someone ‘not guilty’ on a charge in a criminal case.
A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.
act of bankruptcy -
An action of a debtor that shows they cannot pay what they owe to their creditors.
act of God -
A natural event such as a cyclone that no-one could see coming or prevent.
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 alsomens rea.
To present evidence to a court. This may be done by showing something to the court, such as a document or an object, or by asking a witness questions.
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 alsofiat; ultravires.
administrative law -
Rules that govern the decisions of public officials, covering their powers and functions and the procedures they have to follow.
(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.
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.
A formal promise to the court that a statement made by a witness, in court or in an affidavit, is true. An alternative to a religious oath.
age of consent -
The age when a young person can legally have sex. In Victoria this is 16.
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 alsodamages.
aggravating factors -
Circumstances that make an offence much more serious. For example, using a gun in a robbery is an aggravating factor, making the offence worse than robbery without a gun.
aiding and abetting -
Helping someone carry out a criminal offence. For example, a person can aid and abet an arsonist by buying petrol for them, knowing they plan to burn down a building.
An answer to a criminal charge that says the accused was somewhere else when a crime was committed, not at the scene of the crime.
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.
A change made to a legal document or Act of parliament.
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’.
A payment or other benefit that is received once a year.
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.
Prior. Something that happened before.
The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision.
A person who appeals a decision of a court or tribunal to a higher court.
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.
Money owed that is due on a certain date and is late being paid (overdue).
To seize a person suspected of breaking the law and hold them in custody. Police have powers to arrest and charge suspected offenders and bring them before a court.
assessable income -
The total of a person’s annual pay and other earnings hat is used to calculate the income tax they must pay.
Legal transfer of some right to use property. For example, putting a lease over farmland into another person’s name, or giving another person copyright in a song you have written.
Refuge or protection from persecution, usually in another country. Historically, also a place for the detention and treatment of the mentally ill.
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.
(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.
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.
bail bond -
A form signed by a person released on bail. It sets out the promises the person has made to the court so they can be released from police control or prison. See alsoundertaking; surety.
bail justice -
An official, usually based at a police station, who is not a judge or magistrate but has the same power as judges and magistrates to grant or refuse bail to an accused person.
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 alsobeyond reasonable doubt.
When a debtor who cannot pay their debts has their money and property taken over and managed by a trustee who uses it to pay back creditors. The debtor is then called a bankrupt.
bankruptcy petition -
A formal action by either a debtor or a creditor to file for bankruptcy of the debtor.
A lawyer who specialises in giving advice in difficult cases and representing clients in court.
(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 alsotrust.
To leave money or other property to someone in a will. For example, a grandmother might bequeath her engagement ring to her granddaughter.
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.
A pre-existing attitude or opinion that favours one side over another in a dispute, so that the judge or other decision-maker is not open to being persuaded.
bona fide -
Honest and genuine.
(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.
breach of contract -
breach of contract Failing to do what was agreed in a contract.
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.
business purpose declaration -
A document signed by a debtor before entering a loan contract, stating that the credit is for business, not domestic, purposes.
Former name of local laws.
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’.
(1) A warning or notice – for example, to a buyer to thoroughly check a product before buying it (seecaveat 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.
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.
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 alsotransfer of land. See alsoencumbrance.
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 alsojurisdiction; prerogative writ.
character witness -
A person who appears in court to give a reference for an accused person. See alsowitness.
(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 alsoreal 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.
clear title -
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.
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).
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.
collateral contract -
A separate contract that exists alongside the main contract.
combined custody and treatment order -
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.
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 alsoindictable offence.
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.
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).
community treatment order -
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.
community treatment order (CTO) -
Treatment of an involuntary patient by a medical practitioner in the community, not in a mental hospital.
Community Visitor -
An independent person, a volunteer, who monitors and reports on the quality of mental health services and the welfare of patients.
community-based order (CBO) -
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.
compensation order -
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.
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 alsoaggravated 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.
comprehensive insurance -
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.
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 alsocumulative sentence.
condition precedent -
A condition that delays the coming into effect of a right, usually under a contract (q.v.), until that condition is fulfilled.
conduct money -
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.
confidential relationship -
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.
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.
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 -
consumer lease A contract to hire goods for a particular period and to make the agreed payments during that time.
contact order -
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.
contempt of court -
Disobeying a court order or doing something that shows disrespect for the authority of the court or a judge.
contest mention hearing -
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.
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.
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 alsocertificate of title.
At the end of a criminal trial, to find the accused guilty of a crime.
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.
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.
corporal punishment -
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 alsoindemnity 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.
cover note -
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 alsoindependent 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.
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.
credit contract -
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.
cumulative sentence -
Two or more terms of imprisonment that are served one after the other, not at the same time. See alsoconcurrent sentence.
custodial 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.