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Home

Glossary

Glossary of Legal Terms

Act
Law passed by parliament, known as a 'bill' before assent by governor or governor
general.
Adjournment
When a case is put off to a later date.
Administrative law
The rules governing decision making by public officials.
Administrative Notices
Provide guidance on practice and procedure required or followed by the Court in the
District Registry to which the notice relates to supplement what might be contained in
statutes or the Courts Rules.
See also Practice Notes and Administrative Notices
Admiralty
The law and court with jurisdiction over maritime affairs in general.
Affidavit
A written declaration made under oath before a notary public or other authorised
officer.
Agent
An independent person or company with authority to act on behalf of another.
Alternative dispute resolution
See mediation
Appeal
An application to a higher court to review a decision of a lower court or tribunal. For
example, an appeal from a decision of the Federal Circuit Court of Australia may be
made to the Federal Court, and a decision of a single judge of the Federal Court may
be the subject of an appeal to the Full Court of the Federal Court.
Appellate jurisdiction
The power given to a court to hear appeals in certain matters.
Appellant
Person, person's organisation or corporation that starts an appeal in a court.
Applicants, appellants, respondents, defendants, etc., are generally called 'parties'.

Appellate courts
Courts to which an appeal is made.
Applicant
The individual, organisation or corporation who/which applies to the Court to start
legal proceedings against another person or persons. Also known as plaintiff in
admiralty and corporations matters and in some other courts.
Application
The document that starts most proceedings in the Federal Court.
Bar
The practicing members of the legal profession.
Barrister
A lawyer who presents cases in higher courts.
Case at first instance
A case for which no precedent is set.
Case law
The area of law developed by the courts while hearing and determining disputes.
Cause of action
A term used in the Federal Courts case management system to classify proceedings
commenced with the Court. There are sixteen main causes of action and five
supplementary causes of action.
Civil law
Laws regulating the behaviour of individuals; a form of private law.
Class actions
See Representative proceedings
Common law
Case law developed in common courts. This term is sometimes used to describe all
case law or judge made law.
Constitution
A set of rules or principles according to which a state or other organisation is
governed. A body of laws governing those who make laws. The Australian
Constitution is an Act that sets out the structure of federal government and the powers
of federal parliament.
Counsel
A barrister.
Copyright
A right that gives the author of an artistic work, for a limited period, the exclusive
privilege of making copies of the work and publishing and selling the copies.

Criminal law
Laws concerned with both the rights of the individual and of society as a whole.
Cross appeal
An application by a respondent in an appeal also seeking a review of the lower court
or tribunal decision and made in response to the appeal. A cross appeal is not required
if the respondent is simply seeking that the decision of the lower court or tribunal be
upheld.
Cross claim
A claim made in a proceeding by one party against a co-party, such as the first
respondent (or defendant) against the second respondent (or defendant). However, if
the claim in the proceeding is by one party against an opposing party, such as the
respondent (or defendant) against the applicant (plaintiff), it is called a counter claim.
A cross claim has to be closely connected to what is in dispute in the original claim or
a counter claim.
Crown prosecutor
Legal representative of the Crown who institutes criminal proceedings against the
accused.
Custom
A long established tradition or usage that becomes customary law if it is (a)
consistently and regularly observed and (b) recognized by those states observing it as
a practice that they must follow.
Customary law
The way people live and their rules including ceremonies, songs, stories; a way of life
governed by a system of beliefs.
Damages
Compensation (usually money); most common outcome of civil cases.
Defence
In the defence the respondent must answer each allegation made by the applicant in
the statement of claim. Matters in dispute should be apparent when the defence is
delivered. Points of disagreement between the parties are referred to as issues.
Where facts are admitted they cease to be an issue in the proceedings. Consequently,
they need not be proved at the trial.
See also Reply
Defendant
Person brought to court and charged with a criminal offence. Applicants, appellants,
respondents, defendants, etc., are generally called 'parties'.
Determination of fact
The court's role to discover the truth.
Directions
Orders made by the Court or a judge in relation to the conduct of a proceeding. Before

the trial or hearing of a matter a judge may give directions so that the parties involved
will be properly ready. The directions usually set down a list of steps to be taken by
the parties and the deadline for those steps. The steps usually involve filing of
material and defining the issues that require a decision by the Court.
Disclosure
Revealing all relevant information.
Discovery
A process by which the parties involved in a legal proceeding must inform each other
of documents they have in their possession and which relate to the matters in dispute
between the parties.
Discretion
The ability to choose whether to, or whether not to, proceed with a decision.
Discretionary
When the decision is made on what seems fit for the circumstances.
Dissent
To differ in opinion.
Docket system
A system by which each case is allocated to a particular judge who will then see the
case through to completion. In the Federal Court the system is called the Individual
Docket System (IDS).
Equity
The body of rules applied to where there is no relief under common law. equity:
(From Latin quitas: 'even' or 'fair.') Being just, impartial, and fair. Justice applied in
circumstances not covered by rules of law.
estoppel
(From Old French estoupail: 'stopper' or 'bung.') Legal rule that one cannot make an
allegation or denial of fact that is contrary to one's previous actions or words.
Evidence
Evidence is material that tends to prove or disprove a particular fact or facts. Evidence
might be an object or thing, it might be a document or it might be oral testimony from
a witness. Whether evidence can be used in a hearing will depend on its
admissibility. This may depend on a number of matters and there are many rules of
evidence which take account of such matters as the relevance and reliability of
evidence.
Exhibit
A document or item produced in court for the purpose of becoming part of the
evidence in a proceeding.
Extinguish
To wipe out, make nonexistent.

Filing of documents
The process of the Court accepting a document or documents lodged by a party to a
proceeding.
First instance
A proceeding heard in the Courts original jurisdiction.
Fixed costs
See Lump sum
Full Court
Three or more judges sitting together to hear a proceeding.
Hearing
That part of a proceeding where the parties present evidence and submissions to the
Court.
Human rights
Basic rights intended to protect all people from cruel and inhumane treatment, threats
to their lives, and persecution.
Injunction
A court order making a person do, or refrain from doing, something.
Intellectual property
Abstract property, such as a manuscript or computer software, over which the owner
has legal possession.
Interlocutory application
Interlocutory proceedings are for dealing with a specific issue in a matter - usually
between the filing of the application and the giving of the final hearing and decision.
An interlocutory application may be for interim relief (such as an injunction) or in
relation to a procedural step (such as discovery).
Interrogatories
A method of formal discovery wherein a lawyer serves upon the other party's lawyer a
written document consisting of a set of questions. The party served must answer the
questions, under oath and in writing.
Judgment
The final order or set of orders made by the Court after a hearing, often accompanied
by reasons which set out the facts and law applied in the case. A judgment is said to
be reserved when the Court postpones the delivery of the judgment to a later date to
allow time to consider the evidence and submissions. A judgment is said to be ex
tempore when the Court gives the judgment orally at the hearing or soon after.
Judicial discretion
The right of a judge to make a choice, eg. in punishment.

Jurisdiction
The extent of legal authority or power of the Court to apply the law. The Federal
Court has jurisdiction under more than 150 Acts of the Commonwealth Parliament
and has original and appellate jurisdiction.
Law
A rule established by authority, society, or custom.
Legislation
An act of parliament or piece of delegated legislation.
Litigants
Individuals, organisations or companies who/which are the parties to a proceeding
before the Court.
Lump sum (or fixed costs)
The Court may fix an amount for professional costs to avoid the need to have the
costs taxed.
Mediation or (Alternative Dispute Resolution)
A process in which an impartial third party (the mediator) assists the parties in an
attempt to bring about an agreed settlement or compromise, without requiring a
decision of the Court.
Natural justice
Rules of fair play originally developed in the common law courts.
Obiter dictum
A judge's statement made during a judgment, but not part of the reason for the
decision.
Original jurisdiction
The authority or legal power to hear a case in the first instance.
Parties
People involved in a court case. Applicants, appellants, respondents, defendants, are
generally called parties.
Party and party costs
Costs that have been fairly and reasonably incurred by the party in the conduct of the
litigation.
Plaintiff
A party who initiates a civil action.
Pleadings
Pleadings include formal written statements of an applicant's claim and a respondent's
defence. All of the material facts the parties intend to allege at the trial and the issues
in dispute are defined in the pleadings. The pleadings show what facts are in dispute
and what issues the Court will need to determine.

Within the Federal Court Rules 2011, pleadings are defined to include: statement of
claim, statement of cross claim, defence and reply. It does not include originating
application, interlocutory application or affidavit.
Practice Notes and Administrative Notices
The Court publishes Practice Notes and Administrative Notices. Practice Notes are
issued by the Chief Justice on advice of the judges of the Court. Administrative
Notices are issued by each District Registrar at the request, or with the agreement, of
the judges in the District Registry to which the notice relates.
Practice Notes
Provide guidance on practice and procedure required or followed by the Court
nationally to supplement what might be contained in statutes or the Courts Rules.
See also Practice Notes and Administrative Notices
Precedents Judgments
quoted as an authority for deciding a similar set of facts; must come from an
equivalent or higher court. precedent: (From Latin prcedens: 'going before in time').
Prima facie case
(Prima facie is Latin for 'at first sight' or 'on first consideration.') A showing of
sufficient evidence to initially establish a petitioner's case. If such a case is made out,
the opposing party is then required to respond; if not, the case will be dismissed.
Procedural fairness
The just administration of rules that provide how parties go about enforcing their legal
rights.
Proceeding
The regular and orderly progression of a lawsuit, including all acts and events
between the time of commencement and the judgment.
Professional costs
Costs paid to the lawyer who represents a party to the proceeding.
Ratio decidendi
The legal reasoning on which a judgment is based.
Regulations
The Federal Court and Federal Circuit Court Regulation 2012 which prescribe the
filing and other fees that must be paid in relation to proceedings in the Federal Court.
Remedy Redress
make up for a wrong.
Repeal
Cancellation of a statute or part of a statute or act.
Reply
The applicant may respond to the defence with a reply, although not for the sole

purpose of denying the allegations in the defence. A reply is to raise facts and matters
in answer to the allegations in the defence. See also Defence
Representative proceedings
Representative proceedings are commonly referred to as class actions. A class action
allows one claimant to bring an action in court on behalf of a group of people. There
are no limitations on the types of claims that can be brought through the class action
system. Some Examples of class actions that have been brought in Australia include:
shareholder class actions; cartel class actions; product liability class actions; financial
services and planners class actions.
Respondent
The individual, organisation or corporation against whom/which legal proceedings are
commenced. Also known as a defendant in admiralty and corporations matters and
in some courts. In an appeal it is the party who/which did not commence the appeal.
Rites
Religious or solemn ceremonies that must be observed.
Rule of law
The concept that everyone obeys the law; no one is above it.
Rules
Rules made by the judges which set out the procedures for conducting a proceeding.
The current rules of the Federal Court are the Federal Court Rules, Federal Court
(Corporations) Rules 2000 (for proceedings under the Corporations Act 2001) and
Federal Court (Bankruptcy) Rules 2016 (for proceedings under the Bankruptcy Act
1966).
Rules of standing
Determining who is allowed to appear before the court.
Self represented litigant
A party to a proceeding who does not have legal representation and who is conducting
the proceeding on his or her own behalf.
Separation of powers doctrine
Division of the power among legislative, executive and judicial arms of government
to provide for checks and balances.
Statement of claim
In the statement of claim the applicant alleges all of the material facts that show that
the applicant has a cause of action that is enforceable against the respondent. The
statement of claim may formulate any question of law that the Court will be asked to
determine. It must set out the orders sought by the applicant against the respondent.
Statutes
Acts of parliament.

Statutory rule
The generic name for all types of delegated legislation.
Subpoena
A subpoena compels the appearance of a person at a trial to testify and to produce
documents. A subpoena is a court order, and if properly issued and disobeyed, the
disobedient person could be in contempt of court.
Summons
A document issued by a court directing a person to appear before it.
Sunset clause
A legal clause giving a final date after which no remedy may be sought, regardless of
the grounds of complaint.
Taxation of costs
The process by which a party in whose favour a costs order is made may apply to a
taxing officer to have their costs quantified.
Terra nullius
Empty land; land belonging to no one.
Tort
A civil wrong where one person unreasonably interferes with the rights of another.
Trial
Judicial examination and determination of issues between parties with or without a
jury.
Tribunal
A specialised adjudication body. The term is generally used to refer to administrative
dispute resolution bodies other than courts.
Ultra vires
Where a body has acted outside its lawmaking powers.
Writ
A written court order to do or refrain from doing something.