D, E, F

  • 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 -

    Money that is owed by one person or business to another.

  • 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.

  • debtor -

    A person who owes a debt.

  • 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 -

    (1) A command given by a public authority. For example, a health authority might decree that animals with a contagious disease be quarantined. (2) A court order.

  • 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.

  • decree nisi -

    An order that a marriage is to be terminated in one month. Neither party can remarry until the order is finalised (when a decree absolute will be issued).

  • decree of dissolution of marriage -

    Divorce. See decree nisi; decree absolute.

  • decree of nullity -

    A court order stating that a marriage is not legally valid.

  • 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.

  • defendant -

    A person who has been charged with a criminal offence or against whom a civil action has been brought.

  • deferred sentence -

    An adjournment without conviction.

  • delegated legislation -

    Laws made by bodies subordinate to parliament. These laws may be regulations or rules, local laws or Orders-in-Council.

  • 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.

  • deponent -

    A person who swears or affirms an affidavit.

  • 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.

  • deposition -

    A written record of the evidence given on oath at committal proceedings. Depositions may be used if the witness cannot give evidence when the trial takes place.

  • determination -

    A finalisation, especially a decision made by a court or tribunal to finalise (determine) a case. 

  • dictation -

    Improper direction by one person (or body) to another, so that the person who is supposed to make a decision is not absolutely free of outside influence when they make it.

  • direction -

    A legally proper instruction by one person (or body) to another, so that the person is bound to take action, or make a decision, as instructed. Compare dictation.

  • 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.

  • disbursement -

    Money paid by one person on behalf of another person. For example, a lawyer pays the cost of lodging documents on behalf of their client. Also called ‘out-of- pocket’ expenses. 

  • discharge -

    (1) To fulfil an obligation or be released from an obligation. For example, a debtor can discharge a debt by paying it; a prisoner can be discharged (released) from jail.

  • disclosure -

    Providing information to another person or institution as required by a contract or other legal process.

  • 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.

  • discovery -

    Compulsory sharing of facts and documents between parties before a case is heard in court.

  • 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.

  • distrain -

    To seize the property of a debtor to enforce the payment of the debt. Requires a court order, and is done by the Sheriff, not by the creditor.

  • 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.

  • doctrine -

    A framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case.

  • doctrine of precedent -

    See precedent.

  • 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.

  • duress -

    Forcing someone to do something they do not want to do. An agreement signed under duress will be invalid.

  • duty lawyer -

    A lawyer who provides free assistance at court to a person who has been charged with a criminal offence and has not yet had any legal advice.

  • duty of care -

    An obligation to take reasonable care to avoid harming other people or their property. Breach of a duty of care that causes damage or loss to another may give rise to an action in tort.

  • 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.

  • ejectment -

    An action by an owner to get their land back, sometimes involving evicting a tenant or a squatter from the property.

  • encumbrance -

    A legal restriction, such as a mortgage, that prevents the owner from freely dealing with real estate or other property.

  • endorse -

    To support or approve something; to write on and sign a document to indicate its authenticity or ownership, or to indicate willingness to be bound by it.

  • 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.

  • enforce -

    To make people obey a law or the terms of an agreement, using police powers or court orders.

  • entrapment -

    Action, by a law enforcement officer, that tricks or encourages someone to commit an offence that they would not otherwise have committed.

  • 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.

  • estate -

    All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt.

  • 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.

  • evidence -

    Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects.

  • ex gratia -

    Done as a favour, without any legal obligation to do so.

  • ex parte -

    An application to a court made by one party only, where the other party is not present or does not yet know about the court action. 

  • ex-nuptial -

    Out of marriage; illegitimate. Used to describe a child born of the couple.

  • examination in chief -

    An party’s questioning of their own witness in a court case. Questioning of the other side’s witness is called cross-examination.

  • 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.

  • executor -

    The person named in a will as the one who must ensure that the deceased person’s intentions, as stated in the will, are carried out.

  • 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.

  • expulsion -

    The deportation of a non-citizen from a country, or the permanent removal of a person from an organisation or place, especially the expulsion of a student from school. Compare suspension.

  • 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 patient or resident -

    A person detained in a mental hospital or institution after being found unfit to stand trial, or found not guilty because of mental illness or intellectual disability.

  • 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.

  • fraud -

    An intentionally dishonest act, or lack of action, done to deceive someone and bring some advantage over those who have been deceived.

  • freedom of association -

    The right to join or choose to be identified with some group with a common interest, for example, a union or a a religion. Equally, the right not to belong.

  • freedom of information -

    The right of any person to access documents held by government agencies, except documents excluded by legislation.

Back to
Getting help