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138 Cards in this Set

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

See also 'judge-made law'.
Judge-made law
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'.
A law or body of laws formally made or enacted.

See also 'statute'.
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.
The Crown
The reigning King or Queen in the capacity of Sovereign, and often signifying the entire administrative edifice of the executive government under the Crown.
Doctrine of precedent
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.
Curia Regis
Latin: 'The King's Court'.
Court of Equity
A court administering the jurisdiction which historically developed from the discretionary justice dispensed by the Lord Chancellor.
Court of Exchequer
An ancient English court set up by William the Conqueror as part of the 'aula regis'.
Judicature system
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.
A judgement that is authority for later cases with similar facts; a case that is authority for the legal principle contained in its decision.
Ratio Decidendi
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.
Obiter Dictum
Latin: 'a remark in passing' Plural: 'obiter dicta'
Judicial observations that do not form part of the essential reasoning of a case.
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.
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.
Adversarial system
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.
Inquisitorial system
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.
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.
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.
Quid pro quo
Latin: 'one thing in exchange for another; something in exchange; a fair equivalent'.
The practice of taking someone else's work or ideas and passing them off as one's own.
Case law
The principles of law arising from judicial decisions. Case law is distinguished from statute law. Also termed 'common law'.
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.
Law report
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.
In relation to copyright, to sanction, approve or countenance an infringing act, or to permit.
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'.
Medium-neutral citation
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.
An Act passed by Parliament. The words 'statute' and 'Act', or 'Act of Parliament', are now considered interchangeable in legal, parliamentary and popular contexts.
Act of Parliament
A decree proclaiming the law, passed by the legislature and given royal assent by the Crown.
Parliamentary Journal
The official record of proceedings in Parliament, published for every sitting day. In the Senate, it is known as the 'Journal of the Senate'.
A clause or section of a formal or legal document, Convention, or treaty.
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.
Articled clerk
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).
Articles of association
Formerly, the rules adopted by a company on incorporation that govern the company's internal affairs.
To submit a document, proposal or resolution to a house of parliament for discussion. A synonymous term is 'lay'.
A court's refusal to follow the decision of another court which is at a lower or equal level in the hierarchy of courts.
Full court
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'.
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.
Inferior court
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.
Federal jurisdiction
The power or authority to adjudicate controversies derived from the Constitution and commonwealth laws. Such jurisdiction vests in the High Court.
Delegated legislation made pursuant to an Act.
A regulation made by courts, government departments or statutory authorities pertaining to the conduct of business within those bodies.
A subsidiary rule, regulating conduct.
Sunset clause
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.
Short title
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.
Long title
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.
Purpose clause
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.
Presumption of interpretation
A presumption, capable of being displaced by the words.
Definitions section
The section of an act in which definitions with application throughout the Act are listed in alphabetical order.
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.
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.
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.
Consolidating Act
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.
Reprinted Act
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.
Literal rule / approach
Words in a statute must be interpreted in the context in which they appear, according to their plain and ordinary meaning.
Golden rule
It is permissible to depart from the grammatical and ordinary meaning of words to avoid an absurd result.
Mischief rule
Words in a statute may be interpreted with reference to the mischief they were enacted to address, so that mischief is suppressed.
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.
Noscitur a sociis
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.
Eiusdem generis / Ejusdem generis
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.
Expressio unius est exclusio alterius
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.
Generalia specialibus non derogant
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.
Interpretation Act
A statute that provides rules for the interpretation of Acts in force within a particular jurisdiction.
Standard of proof
A measure for determining whether a fact or issue has been proved.
Hearsay evidence
Evidence of an out of court statement which is tendered to prove the truth of the facts that the statement asserts.
Double jeopardy
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.
Per incuriam
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'.
A strongly hierarchical system of social and economic organisation with the Crown at the head.
Found to be not guilty of a charge.
Ex parte
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.
Letters patent
Letters from the Crown containing public instructions or directions.
Issue estoppel
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.
Loc cit
(loco citato) At the passage quoted.
Direct evidence
Evidence from an eye witness that, if accepted, immediately proves a fact material to a party's case.
Puisne judge
A judge not being the chief justice; a judge of junior rank.
Standard of proof
The degree of certainty or belief that is required of a fact-finder for a party's version of facts to be accepted.
Cur adv vult
(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.
Retrospective operation
Application of a provision to events occurring before the provision commenced operation.
Purposive approach
Words in a statute may be interpreted so that they promote the purpose they were enacted to address.
The operation of legislations upon persons or things outside the territory of the legislating state.
Something that must be done or performed.
A document that, through the legislative process, becomes an Act of Parliament, a 'draft statute'.
Something that involves choice, or something that may be done or performed or not.
Mens rea
Guilty mind, the mental element of a criminal act.
Occupier's liability
The liability to compensate persons injured on premises, owing to their dangerous state, is generally upon the occupier rather than the owner.
Issue, recognition, rule, application and conclusion.
Sui generis
One of a kind or unique.
Public international law
The body of law governing the rights and obligations of sovereign nations.
Bicameral legislature
A legislative body consisting of two houses of parliament eg. upper and lower house.
Someone who lets a property to a lessee.
Circumstantial evidence
Evidence which, even if accepted, provides only a basis from which a material fact can be inferred.
Person who makes a will.
A court document commanding the person to whom it is addressed to do, or to forbear from doing, some act.
Doctrine of privity
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.
Private international law
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.
(ibidem) 'In the same place' (used in footnotes or bibliographies).
Habeas corpus
A prerogative writ, directed to a person who detains another in custody, which commands that other to produce the person before the court.
Terra nullius
Latin: 'land belonging to no one'.
Per se
Latin: 'of itself', taken alone.
Native title
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.
(idem) 'The same'.
A person against whom an appeal is brought or a petition is presented.
A court document calling upon the person to whom it is directed to attend before a judge or officer of the court.
A person against whom an action is brought or who is charged with an offence.
En ventre sa mere
French: 'In his/her mother's belly'.
A child who not yet born; a fetus in utero.
Note up
Check the subsequent history of the case.
A person or body bringing a civil action.
Privative clause
A provision in a statute purporting to prevent review by a court of a decision made pursuant to a provision in that statute.
One who appeals.
Extrinsic materials
Documentary materials that exist outside the statute being interpreted.
Ultra vires
Latin: 'Beyond the power'.
An act beyond the legal power or authority of a person, institution, or legislation, and therefore invalid.
Inter alia
Latin: 'Among other things'.
Orders in Council
Royal Orders made on political advice.
The part set out at the beginning of an Act stating the reason for and/or purpose of the Act.
Prima facie
Latin: 'At first site'; 'on the face of it'.
The abrogation of a statute or part of a statute.
To annul, cancel, or repeal.
Cestui que trust
A beneficiary under a trust.
A 'cestui que trust' has the equitable, not legal, estate.
Someone who takes a lease of a property.
Op cit
(opere citato) The book or work previously cited.
Restriction of interstate trade with the goal of advancing local economic interests.
The branch of the law dealing with remedies for civil injuries (from the French word for 'wrong').
Imperial Parliament
The British Parliament legislating for the Empire.
Chose in action
A right to proceed in a court of law to procure payment of a sum of money, eg. an interest under a trust.
The body of rules originally formulated and administered by the Court of Chancery.
Radical title
The ultimate ownership rights over land vested in the Crown.
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.
Latin: 'as if'; apparently but not really; a kind of.
Information literacy
The ability to locate, evaluate, manage and use information from a range of sources for problem solving, decision making and research.
Primary sources
Cases and legislation.
Secondary sources
Principally legal texts, encyclopedias, articles, case notes and dictionaries.
Note up
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.
Legally material
Facts determined by the law to be applied.
S.H.A.R.P. (fact analysis)
Situation and subject-matter; Harm suffered; Actors involved in the situation; Remedy or relief sought; Policy considerations.
Statutory authority
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.
Tort law
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.