Glossary C-D

caveat
preserves the status quo of the property title to allow time for the parties who are in dispute to resolve the dispute, either between themselves or through the court system. It is strongly advised to seek legal advice before lodging a caveat.

certified agreement
an agreement made with certain requirements of content and process, between an employer and
a group of employees or their representative union.

certiorari
an order from a higher court to make a lower court deliver the record for a case the higher court is reviewing.

chattels
property that is not freehold land; it may be leasehold (chattel real) or a moveable article of property (chattel personal).

civil law
law regulating the dealings of private citizens (e.g. law relating to contracts, negligence and nuisance), as opposed to criminal or family law.

codicil
an addition to a will, qualifying the will in some way.

cogent
compelling, convincing.

committal hearing
proceedings in a Magistrates Court to determine whether there is sufficient evidence to put a person on trial for an indictable offence; sometimes called a preliminary examination.

common law
body of law that comes from judges’ decisions rather than from parliament; also judge-made law or case law.

community legal centres
organisations that provide free legal advice to the public.

complainant
a person who makes a complaint to a decision maker (e.g. a tribunal) or lays a complaint to start criminal proceedings.

composition (offer of)
where a debtor and two or more creditors agree to reduce the amounts owing, payment of which will fully satisfy the original debts.

compulsory school age
the age at which children are required by law to start schooling.

conciliation
a process where an independent person meets with parties to a dispute to assist in them coming to an agreement.

concurrent sentence
an order for a prison sentence to be served at the same time as another sentence.

consideration
in a contract, something of value given or promised by both parties; a contract is based on the exchange of one form of consideration for another.

consortium
the right of a husband/wife to the comfort, companionship and mutual services of their spouse.

consumer credit
funds made available by a financial institution to an individual to buy consumer goods and services.

contra proferentem
a doctrine that states that clauses in a contract will be interpreted to work against the interests of the party who drafted the contract.

contract
an agreement between two or more parties, which creates legal obligations.

contravention
violation or infringement.

conveyancing
the transfer of property from one legal entity to another.

cooling-off period
the time period during which a party can withdraw from a contract after they have signed it.

copyright
a property right held by the author of an original work.

corroboration
independent evidence that supports the main evidence.

costs
the expenses incurred in presenting a case in court (see lawyer-client costs, party-party costs and indemnity costs).

counsel
a person who appears as an advocate before a court (e.g. a barrister).

counterclaim
a claim brought by a defendant against the plaintiff in addition to the defence in
a civil dispute (e.g. A sues B, claiming $20 for an unpaid dry cleaning account but B counterclaims $90 for damage to the jacket when cleaned).

covenant
an agreement creating an obligation contained in a deed or land title; a covenant may serve the same purpose as a bond.

cover note
a written statement by an insurance agent stating that the insurance is in effect.

creditor
a person to whom a debt is owing.

Criminal Code
an Act of parliament which contains the law relating to crime.

criminal law
a body of law dealing with the criminal behaviour in general, the definition of particular crimes and defences along with the penalties to be applied and the specific rules relating to criminal legal proceedings.

cross-examination
the questioning of a witness by the opposing party in a court case.

cross-vesting
the legal power of one court to exercise the jurisdiction of another (e.g. between state courts and federal courts).

Crown
1. in Australia, the entire executive or administrative arm of government;
2. in criminal law, the prosecution.

culpability
the extent to which an offender is morally responsible for an offence.

cum testamento annexo
with the will attached.

cumulative sentence
an order for a period of imprisonment to be served in addition to a previous sentence.

custody
1. legal detention (e.g. when arrested or in prison);
2. in family law, formally refers to care and control of a child; the term has more generally been replaced by residence.

 

damages
where a person has suffered a loss as a result of a civil wrong or breach of a contract, a court may order they be compensated financially for the specific type of loss they have suffered.

de facto
in fact, even if not in law; for example, a de facto spouse is a spouse for all practical purposes, even though not legally married.

de novo
anew.

debtor
a person who owes a sum of money (a debt) to someone else.

decree absolute
the final order issued by a family court in a divorce proceeding, declaring that the marriage is legally at an end.

decree nisi
a provisional order made by a family court judge that terminates the marriage; however, neither party can remarry until the decree becomes absolute, which is usually one month after
the decree nisi is pronounced.

decree of nullity
an order made by the Family Court stating that a marriage is not valid.

deed
a document that meets certain formal legal requirements that sets out an agreement that has been reached.

deemed, deeming
to treat something as if it were something else.

defamation
the publication of a false and derogatory statement without a lawful excuse.

default
to fail in some duty (e.g. to fail to do something you were meant to do, such as pay a debt).

default judgment
1. a judgment against a defendant who has failed to defend themselves against the plaintiff’s claim;
2. where the plaintiff is able to obtain judgment in the absence of the defendant.

defence
1. a document filed in court in a civil case, setting out the facts on which a defendant relies in opposing a claim;
2. something that justifies an otherwise criminal action.

defendant
a person against whom legal action is taken, including criminal charges.

delegated legislation
a legal rule, usually issued by an administrative authority.

dependant
a person who depends on another, wholly or substantially, for survival, maintenance or financial support.

deponent
a person who signs an affidavit and swears or affirms that the written information is true in the presence of an appropriate witness (e.g. justice of the peace, commissioner for declarations or a lawyer).

 

depositions
the record of evidence given in committal hearings.

derogatory
damaging the character of something.

determination
a decision made by a court or tribunal.

devise
a gift of real estate in a will.

digital signatures
a secure, digital code that is sent with an electronically transmitted message, which confirms the identity of the sender.

directions hearing
a hearing held prior to the full hearing so that the court or tribunal can give directions to the parties about how the action should proceed.

disbursement
money paid out on behalf of another (e.g. in solicitors’ bills, for filing a form or photocopying).

discharge
to perform or be released from an obligation; a debt is discharged when it is paid.

disclaimer
a written clause in which a party refuses to accept legal responsibility for a particular event or situation.

discovery
a procedure by which documents relevant to a civil action are exchanged by the parties before the case comes before the court for hearing.

dissolution of marriage
divorce.

doctrine
a legal principle that is widely adhered to.

doctrine of precedent
the rule that a previous court decision in the same or a higher court must be followed, if similar circumstances arise again.

domicile
the place where a person has their legal home; the place which determines the laws relevant to that person (e.g. someone domiciled in Queensland is subject to Queensland law).

double jeopardy
the situation in which a person is at risk of being punished twice for the same offence, which is generally prohibited.

duress
coercion or excess pressure on a person to do something.

duty lawyer
a lawyer at the court who provides free legal assistance to people appearing in court on criminal charges who have not yet obtained legal advice or representation.

duty of care
the obligation of a person to exercise reasonable care in the conduct of an activity; breach of duty of care, which causes damage or loss to another, may give rise to an action in tort.