Australian Law School Set

Front 1

Common law

Back 1

The unwritten law derived from the traditional law of England as developed by judicial precedence, interpretation, expansion and modification.

See also 'judge-made law'.

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Judge-made law

Back 2

The common law deriving from judicial precedent and decisions, as opposed to law having its source in legislation or administrative regulation.

See also 'common law'.

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Legislation

Back 3

A law or body of laws formally made or enacted.

See also 'statute'.

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Parliament

Back 4

1. That part of government in which legislative powers are vested. The Federal Parliament consists of the Queen, the Senate, and the House of Representatives.
2. The State Parliaments each consist of the Crown and an upper and lower house with the exception of QLD, the ACT and the NT, where the Parliament consists of the Queen and the Legislative Assembly only.

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The Crown

Back 5

The reigning King or Queen in the capacity of Sovereign, and often signifying the entire administrative edifice of the executive government under the Crown.

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Doctrine of precedent

Back 6

Stare decisis - Latin: 'the decision stands'.
The doctrine under which a court is bound to follow previous decisions, unless they are inconsistent with a higher court's decision or wrong in law.

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Curia Regis

Back 7

Latin: 'The King's Court'.

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Court of Equity

Back 8

A court administering the jurisdiction which historically developed from the discretionary justice dispensed by the Lord Chancellor.

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Court of Exchequer

Back 9

An ancient English court set up by William the Conqueror as part of the 'aula regis'.

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Judicature system

Back 10

1. The system of administration of common law and equity brought about in the UK by the 'Judicature Act 1873 (UK)' and subsequently followed in most other jurisdictions.
2. Reform under which common law and equitable matters may be heard by the same court. In the event of conflict, the laws of equity prevail.

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Precedent

Back 11

A judgement that is authority for later cases with similar facts; a case that is authority for the legal principle contained in its decision.

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Ratio Decidendi

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Latin: 'reason for deciding'. Plural: 'rationes decidendi'.
A proposition of law that is an indispensable factor in the process of reasoning leading to a judicial decision.

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Obiter Dictum

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Latin: 'a remark in passing' Plural: 'obiter dicta'
Judicial observations that do not form part of the essential reasoning of a case.

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Distinguish

Back 14

To differentiate a decided case from the case under consideration such that the decision in the former case would not, as a matter of precedence, dictate the outcome in the present case.
Although there may be similarities, a decided case may be distinguishable on either a point of law or on material differences in the facts.

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Adjudication

Back 15

The determination of the rights and liabilities in dispute between two or more parties by the final imposition of a decision or judgement of a court of law, tribunal, or a person otherwise sitting in judgement.

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Adversarial system

Back 16

A mode of dispute resolution in which the parties to a dispute present their competing claims and evidence, usually through legal representatives, before an impartial and disinterested third party with the power to impose an authoritative determination.

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Inquisitorial system

Back 17

A mode of dispute resolution in which the judge assumes responsibility for determining how the competing claims of the parties are presented by their legal representatives.

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Pleadings

Back 18

Written or printed statements that alternate between the parties to a dispute and define the issues to be decided in an action. The function of pleadings is to state with sufficient clarity that the case must be met.

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Citation

Back 19

1. A writ commanding the person named to appear on a day set out and do what is required by the writ or show why it should not be done. Has been replaced in most jurisdictions by a form of 'summons'.
2. The year, volume, report series and page reference for a case.
3. The publication details of and page reference in legal secondary sources such as journal articles or books.

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Quid pro quo

Back 20

Latin: 'one thing in exchange for another; something in exchange; a fair equivalent'.

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Plagiarism

Back 21

The practice of taking someone else's work or ideas and passing them off as one's own.

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Case law

Back 22

The principles of law arising from judicial decisions. Case law is distinguished from statute law. Also termed 'common law'.

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Case

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1. An action or proceeding.
2. A party's case is those facts in issue in respect of which that party bears the legal burden of proof.

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Law report

Back 24

A published account of legal proceedings including the judicial opinion and orders made, and usually a statement of facts and reasoning behind the court's decision.

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Authorise

Back 25

In relation to copyright, to sanction, approve or countenance an infringing act, or to permit.

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Authorisation

Back 26

In trade practices law, the grant of immunity by the Australian Competition and Consumer Commission on public interest grounds pursuant to a formal application to engage in conduct otherwise prohibited under 'Competition and Consumer Act 2010'.

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Medium-neutral citation

Back 27

The method of referring to the original version of the reasons for a decision as published by a court or tribunal. The citation identifies the year, court and number assigned by the court or tribunal, eg. [2010] HCA 16.

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Statute

Back 28

An Act passed by Parliament. The words 'statute' and 'Act', or 'Act of Parliament', are now considered interchangeable in legal, parliamentary and popular contexts.

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Act of Parliament

Back 29

A decree proclaiming the law, passed by the legislature and given royal assent by the Crown.

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Parliamentary Journal

Back 30

The official record of proceedings in Parliament, published for every sitting day. In the Senate, it is known as the 'Journal of the Senate'.

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Article

Back 31

A clause or section of a formal or legal document, Convention, or treaty.

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Articles

Back 32

A document outlining an agreement or a set of rules or stipulations, such as the articles of agreement of a clerk, the articles of war, or the articles of association of a company.

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Articled clerk

Back 33

A person employed under written articles of agreement by which he/she agrees to serve a supervising lawyer, in consideration of the latter providing practical training sufficient to entitle that person to qualify for admission to the legal profession (Practical Legal Training, PLT).

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Articles of association

Back 34

Formerly, the rules adopted by a company on incorporation that govern the company's internal affairs.

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Table

Back 35

To submit a document, proposal or resolution to a house of parliament for discussion. A synonymous term is 'lay'.

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Overrule

Back 36

A court's refusal to follow the decision of another court which is at a lower or equal level in the hierarchy of courts.

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Full court

Back 37

A court conducted by a number of judges (not necessarily the entire complement of judges of the court) required to sit and determine applications for leave to appeal, appeals, references on questions of law, cases stated and, in the case of the High Court, the exercise of appellate jurisdiction under ' Commonwealth Constitution'.

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Appeal

Back 38

1. An application to a higher court to reconsider the decision of a lower court, on the ground that there has been an error in the decision of the lower court.
2. More broadly, includes an appeal by way of re-hearing, that is, an application for a new trial, and any proceeding to review the decision or jurisdiction of any court or judge.

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Inferior court

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Any court which is not a superior court; that is, a court of lesser status than the Supreme Court of a State or Territory. Generally, the District or County Court, the Magistrates or Local Courts, and the Children's Courts of each jurisdiction are inferior courts.

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Federal jurisdiction

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The power or authority to adjudicate controversies derived from the Constitution and commonwealth laws. Such jurisdiction vests in the High Court.

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Regulation

Back 41

Delegated legislation made pursuant to an Act.

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Rule

Back 42

A regulation made by courts, government departments or statutory authorities pertaining to the conduct of business within those bodies.

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By-law

Back 43

A subsidiary rule, regulating conduct.

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Sunset clause

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A legislative provision that provides that a piece of legislation, or part of it, will cease to have affect after a certain period of time or from a specified date.

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Short title

Back 45

The name by which and Act is commonly known and cited. The short title of an Act is usually specified in section one of the Act in question. The object of the short title is identification rather than description and accordingly it cannot be used for the purpose of ascertaining the scope of the Act.

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Long title

Back 46

The full, formal name of an Act of Parliament appearing at the beginning of the Act and typically setting out the purpose of the Act. A long title may be examined in order to resolve ambiguities associated with the text of an Act.

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Purpose clause

Back 47

See also 'objects clause'.
A provision in a statute outlining the purpose or objective of the statute. Objects clauses have replaced preambles in most Australian jurisdictions. Objects clauses are commonly referred to by courts when ascertaining the meaning of ambiguous texts in statutes.

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Presumption of interpretation

Back 48

A presumption, capable of being displaced by the words.

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Definitions section

Back 49

The section of an act in which definitions with application throughout the Act are listed in alphabetical order.

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Heading

Back 50

A line of text indicating the subject matter of the following text. Headings appear in an Act or instrument to separate Chapters, Parts, Divisions, Subdivisions or Schedules.

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Schedule

Back 51

An appendix to an Act of Parliament or other legal instrument, containing matters of detail subsidiary to the main purpose of the Act, or instrument. In statutory interpretation, a Schedule is treated by the courts as part of an Act and can be examined if there is any ambiguity in the text.

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Code

Back 52

A complete body of law. A code either exhaustively describes an entire system of law consolidating an entire area or subject of law or brings together legislation for the purposes of rationalisation or reform.

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Consolidating Act

Back 53

A statue that combines all the Acts in force relating to a particular subject area. Existing Acts are repealed and their provisions are re-enacted in a single statute.

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Reprinted Act

Back 54

A reproduction of an existing Act that aims to incorporate all amendments made to it since its enactment. A reprint is not passed by parliament, and where it contains an error, reference should be had to the original legislation.

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Literal rule / approach

Back 55

Words in a statute must be interpreted in the context in which they appear, according to their plain and ordinary meaning.

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Golden rule

Back 56

It is permissible to depart from the grammatical and ordinary meaning of words to avoid an absurd result.

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Mischief rule

Back 57

Words in a statute may be interpreted with reference to the mischief they were enacted to address, so that mischief is suppressed.

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Context

Back 58

The historical, factual or legal setting in which an issue comes to be addressed. The context in which a document came into existence must always be considered in its interpretation.

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Noscitur a sociis

Back 59

Latin: 'It is known by its associates'.
A contextual rule of construction stating that the meaning of a word or phrase may be ascertained from the words accompanying it - the meaning of a word is known from the words that accompany it.

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Eiusdem generis / Ejusdem generis

Back 60

Latin: ' of the same sort, kind or nature'.
If words of a particular meaning are followed by general words, the general words are limited to the same kind as the particular words.

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Expressio unius est exclusio alterius

Back 61

Latin: 'express mention of one is the exclusion of the other'.
A rule of construction requiring the exclusion of matters not expressly mentioned. For example, the express conferral of certain rights precludes the implication of others not conferred.

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Generalia specialibus non derogant

Back 62

Latin: 'general things or words do not derogate from special things or words'.
A rule of statutory interpretation requiring specific provisions of a statute to prevail over general provisions in the same or an earlier statute where there is conflict between the two.

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Interpretation Act

Back 63

A statute that provides rules for the interpretation of Acts in force within a particular jurisdiction.

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Standard of proof

Back 64

A measure for determining whether a fact or issue has been proved.

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Hearsay evidence

Back 65

Evidence of an out of court statement which is tendered to prove the truth of the facts that the statement asserts.

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Double jeopardy

Back 66

Placing an accused person in peril of being convicted of the same crime in respect of the same conduct on more than one occasion. At common law there is a rule against a person being placed in double jeopardy: 'Connelly v DPP [1964] AC 1254' ; amongst others.

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Per incuriam

Back 67

Latin: 'through want of care'.
A decision given 'per incuriam' is given 'in ignorance or forgetfulness' of an earlier relevant case or an inconsistent legislative provision. The doctrine of precedent may not compel a court to follow a decision made 'per incuriam'.

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Feudalism

Back 68

A strongly hierarchical system of social and economic organisation with the Crown at the head.

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Acquittal

Back 69

Found to be not guilty of a charge.

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Ex parte

Back 70

An application in a court proceeding made either by an interested person who is not a party or by one party in the absence of another.

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Letters patent

Back 71

Letters from the Crown containing public instructions or directions.

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Issue estoppel

Back 72

Or res judicata (literally translated as 'the fact has been decided') expresses a general public interest that the same issue should not be litigated more than once even when the parties are different.

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Loc cit

Back 73

(loco citato) At the passage quoted.

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Direct evidence

Back 74

Evidence from an eye witness that, if accepted, immediately proves a fact material to a party's case.

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Puisne judge

Back 75

A judge not being the chief justice; a judge of junior rank.

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Standard of proof

Back 76

The degree of certainty or belief that is required of a fact-finder for a party's version of facts to be accepted.

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Cur adv vult

Back 77

(curia advisari vult) when this notation appears at the top of the judgement(s) in a law report, it means that judgement was not delivered immediately; the case concluded but was handed down later.

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Retrospective operation

Back 78

Application of a provision to events occurring before the provision commenced operation.

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Purposive approach

Back 79

Words in a statute may be interpreted so that they promote the purpose they were enacted to address.

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Extra-territoriality

Back 80

The operation of legislations upon persons or things outside the territory of the legislating state.

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Obligation

Back 81

Something that must be done or performed.

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Bill

Back 82

A document that, through the legislative process, becomes an Act of Parliament, a 'draft statute'.

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Discretion

Back 83

Something that involves choice, or something that may be done or performed or not.

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Mens rea

Back 84

Guilty mind, the mental element of a criminal act.

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Occupier's liability

Back 85

The liability to compensate persons injured on premises, owing to their dangerous state, is generally upon the occupier rather than the owner.

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IRAC

Back 86

Issue, recognition, rule, application and conclusion.

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Sui generis

Back 87

One of a kind or unique.

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Public international law

Back 88

The body of law governing the rights and obligations of sovereign nations.

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Bicameral legislature

Back 89

A legislative body consisting of two houses of parliament eg. upper and lower house.

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Lessor

Back 90

Someone who lets a property to a lessee.

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Circumstantial evidence

Back 91

Evidence which, even if accepted, provides only a basis from which a material fact can be inferred.

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Testator

Back 92

Person who makes a will.

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Writ

Back 93

A court document commanding the person to whom it is addressed to do, or to forbear from doing, some act.

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Doctrine of privity

Back 94

The principle which states that only parties to a contract can sue or be sued with respect to it. Third parties can neither enforce a benefit, nor be made liable, under the contract.

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Private international law

Back 95

The set of principles, also known as 'conflict of laws', which determines issues of forum and choice of law in connection with disputes that cross state boundaries.

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Ibid

Back 96

(ibidem) 'In the same place' (used in footnotes or bibliographies).

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Habeas corpus

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A prerogative writ, directed to a person who detains another in custody, which commands that other to produce the person before the court.

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Terra nullius

Back 98

Latin: 'land belonging to no one'.

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Per se

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Latin: 'of itself', taken alone.

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Native title

Back 100

A right or interest over land or waters that may be owned according to traditional laws and customs by Aboriginal peoples and Torres Straight Islanders.

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Id

Back 101

(idem) 'The same'.

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Respondent

Back 102

A person against whom an appeal is brought or a petition is presented.

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Summons

Back 103

A court document calling upon the person to whom it is directed to attend before a judge or officer of the court.

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Defendant

Back 104

A person against whom an action is brought or who is charged with an offence.

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En ventre sa mere

Back 105

French: 'In his/her mother's belly'.
A child who not yet born; a fetus in utero.

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Note up

Back 106

Check the subsequent history of the case.

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Plaintiff

Back 107

A person or body bringing a civil action.

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Privative clause

Back 108

A provision in a statute purporting to prevent review by a court of a decision made pursuant to a provision in that statute.

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Appellant

Back 109

One who appeals.

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Extrinsic materials

Back 110

Documentary materials that exist outside the statute being interpreted.

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Ultra vires

Back 111

Latin: 'Beyond the power'.
An act beyond the legal power or authority of a person, institution, or legislation, and therefore invalid.

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Supra

Back 112

Above

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Inter alia

Back 113

Latin: 'Among other things'.

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Orders in Council

Back 114

Royal Orders made on political advice.

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Preamble

Back 115

The part set out at the beginning of an Act stating the reason for and/or purpose of the Act.

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Prima facie

Back 116

Latin: 'At first site'; 'on the face of it'.

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Repeal

Back 117

The abrogation of a statute or part of a statute.

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Abrogate

Back 118

To annul, cancel, or repeal.

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Cestui que trust

Back 119

A beneficiary under a trust.
A 'cestui que trust' has the equitable, not legal, estate.

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Lessee

Back 120

Someone who takes a lease of a property.

Front 121

Op cit

Back 121

(opere citato) The book or work previously cited.

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Protectionism

Back 122

Restriction of interstate trade with the goal of advancing local economic interests.

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Torts

Back 123

The branch of the law dealing with remedies for civil injuries (from the French word for 'wrong').

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Imperial Parliament

Back 124

The British Parliament legislating for the Empire.

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Chose in action

Back 125

A right to proceed in a court of law to procure payment of a sum of money, eg. an interest under a trust.

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Equity

Back 126

The body of rules originally formulated and administered by the Court of Chancery.

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Radical title

Back 127

The ultimate ownership rights over land vested in the Crown.

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Infra

Back 128

Below.

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Nisi

Back 129

A decree nisi or order nisi does not take effect until the person affected by it fails to show cause, within a given time, why it should not take effect.

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Quasi

Back 130

Latin: 'as if'; apparently but not really; a kind of.

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Information literacy

Back 131

The ability to locate, evaluate, manage and use information from a range of sources for problem solving, decision making and research.

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Primary sources

Back 132

Cases and legislation.

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Secondary sources

Back 133

Principally legal texts, encyclopedias, articles, case notes and dictionaries.

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Note up

Back 134

To check the subsequent history of the case, ie how later cases have used the case by following it, distinguishing it, or referring to it in judgements.

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Legally material

Back 135

Facts determined by the law to be applied.

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S.H.A.R.P. (fact analysis)

Back 136

Situation and subject-matter; Harm suffered; Actors involved in the situation; Remedy or relief sought; Policy considerations.

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Statutory authority

Back 137

A body set up under its own Act to manage an activity such as roads or competition policy. Often authorised to make delegated legislation on the matters it administers.

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Tort law

Back 138

the study of the rights, obligations and remedies applied by courts in civil proceedings when someone has suffered harm from wrongful conduct such as negligence or defamation.