Legal Terms Explained

Overcoming the jargon

General Legal Terms

Solicitor

A solicitor is a qualified person who is licensed to represent and/or provide legal advice to clients. Solicitors can advocate in court (with the due accreditation) and usually specialise in a certain area of law. Generally speaking the lawyer one sees for any personal legal matter (a will, a divorce, to make a claim against an employer, to set up a company etc) is a solicitor. It is an offence to call yourself a solicitor if you are not one. Solicitors must be admitted to the ‘roll’ to be able to practice and registered as a solicitor on the Law Society register of Solicitors.

Barrister

Traditionally it is the responsibility of a barrister to argue a client’s case before a judge or jury in a court of law. However, the boundary between barristers and solicitors has evolved and solicitors may also advocate for their clients to the court. Barristers undergo extra training to be admitted to the Bar Association and are more specialised in advocacy services – particularly in the higher courts and in complex cases. A solicitor may enlist the services of a barrister if they believe it will improve the strength of their client’s argument, especially if the barrister is a specialist in that area (e.g. personal injury law). In the past Barristers held the title of Queen’s Counsel (QC) or King’s Counsel (KC), but are now referred to as Junior Counsel (JC) or Senior Counsel (SC).

Advocacy services

 

Lawyer

 

Attorney

 

Magistrate

 

Judge

 

Legal aid

 

Initial Consultation Meeting

 

Fixed Cost Services

 

Agreed Cost Services

 

Pay At End

 

Engagement Agreement

 

Trust Account

 

Disbursements

 

Subpoena

 

Advocacy services

The provision of services by a solicitor or barrister to present an argument on behalf of a client to a judge or jury in a court of law.

Lawyer

 

Attorney

 

Magistrate

 

Judge

 

Legal aid

 

Initial Consultation Meeting

 

Fixed Cost Services

 

Agreed Cost Services

 

Pay At End

 

Engagement Agreement

 

Trust Account

 

Disbursements

 

Subpoena

 

Lawyer

The word ‘lawyer’ is a generic term for a member of the legal profession. In Australia lawyers are either solicitors or barristers.

Attorney

In countries that do not separate the roles of barristers and solicitors, Attorney is another term to generically describe a member of the legal profession. Attorney is not generally used to describe legal practitioners in Australia.

Magistrate

 

Judge

 

Legal aid

 

Initial Consultation Meeting

 

Fixed Cost Services

 

Agreed Cost Services

 

Pay At End

 

Engagement Agreement

 

Trust Account

 

Disbursements

 

Subpoena

 

Magistrate

A magistrate is a judge who sits in the NSW Local Court. They must be addressed as “Your Honour” and they preside over matters without a jury.

Judge

Refers to an officer of the state who presides over court proceedings, either alone or as part of a panel of judges. In NSW this may refer to a Magistrate (Local Court) or a Justice (District Court, Supreme Court)

Legal aid

 

Initial Consultation Meeting

 

Fixed Cost Services

 

Agreed Cost Services

 

Pay At End

 

Engagement Agreement

 

Trust Account

 

Disbursements

 

Subpoena

 

Legal Aid

Legal aid is an organisation providing legal services to socially and economically disadvantaged people across NSW. It delivers services of legal defence in most areas of criminal, family and civil law. These services are provided in partnership with private legal practitioners through grants of legal aid.

Initial Consultation Meeting

The initial consultation is a meeting with a solicitor that generally occurs after your initial contact with our team. Once we understand your legal issue and have determined that we can assist, we will arrange a meeting. The consultation can be anywhere from 20 minutes to an hour, depending on the type and complexity of your legal issue. Learn More

Fixed Cost Services

 

Agreed Cost Services

 

Pay At End

 

Engagement Agreement

 

Trust Account

 

Disbursements

 

Subpoena

 

Fixed Cost Services

A Fixed Cost Service is a service offered at a set fee. Learn More

Agreed Cost Services

An Agreed Cost Service is a service offered at a pre-agreed cost. The Agreed Cost will be set out as part of an Engagement Agreement which also sets out, clearly and transparently, the scope of the work (inclusions and exclusions) and any specific deliverables (or outcomes). Learn more

Pay At End

 

Engagement Agreement

 

Trust Account

 

Disbursements

 

Subpoena

 

Pay At End

In some cases we may be able to undertake the work on the basis that you will ‘pay at the end’ of your matter. This is generally only suitable for compensation matters, but it can apply in certain specific circumstances. You can talk to us about whether this is an option for you as part of your initial consultation meeting.

Engagement Agreement

An Engagement Agreement is the contract between us (the client and the law firm) for undertaking the desired legal services. The Agreement is designed to set clear expectations – you of us as well as us of you. It will set out what is in scope, what is out of scope, what fees will be incurred for our work and what other costs you will / may incur as disbursements (for example Doctor’s appointments, expert reports, etc.). It is also very important that you provide us with all the information we request and require, in a timely manner and make all disclosures honestly.

The Engagement Agreement also includes the Agreed Cost and the amount of money that must be deposited into our Trust account before work can commence.

Trust Account

A trust account is a bank account that holds money that is entrusted to a law firm in the course of (or in connection with) the provision of legal services. Trust accounts are tightly regulated and are operated in accordance with the Legal Professions Act 2004. Learn more

Disbursements

Disbursements are any expenses that we may incur on your behalf. This may include fees for work done by other professionals (such as a barrister, experts, valuers, doctors, etc.), Court filing fees, Subpoena fees or any other expenses that you would otherwise incur directly. As these expenses are outside our control, we cannot know exactly what costs you might incur, but we can (and do) provide a reasonable estimate of these costs. In some matters, Disbursements may result in significant additional costs.

Subpoena

A subpoena is a document issued by a court which requires a person (called the addressee) to attend at court to give evidence, or to produce a document or thing to the Court, or do both things. As an order of the Court, a subpoena must be complied with by the addressee. A party (called the issuing party) may apply to the Court for leave to issue a subpoena without notice to any other party. If the Court gives leave to issue a subpoena it will seal the subpoena with the Court seal. The sealed subpoena must be served personally upon the addressee. Conduct money must be given to the addressee if they are subpoenaed to give evidence.

Courts and Tribunals

Federal Courts

AAT - Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) is an independent body that reviews a broad range of administrative decisions made by Australian Government ministers and officials, authorities and other tribunals.

Australian Competition Tribunal

The Australian Competition Tribunal hears applications for review of determinations of the Australian Competition and Consumer Commission.

Commonwealth Courts Portal

The Commonwealth Courts Portal is an initiative of the Family Court of Australia, Federal Court of Australia and Federal Magistrates Court of Australia. It provides web-based services for clients to access information about cases before the courts.

Copyright Tribunal of Australia

The Copyright Tribunal of Australia inquires into the amount of royalty payable in respect of the recording of musical works; fixes royalties or equitable remuneration in respect of compulsory licences; arbitrates disputes in relation to the terms of existing and proposed licensing schemes; and deals with applications for the granting of licences.

COAT – Council of Australasian Tribunals

 

DFDAT – Defence Force Discipline Appeal Tribunal

 

FCA – Family Court of Australia

 

FCC – Federal Circuit Court of Australia

 

FCOA – Federal Court of Australia

 

HCOA – High Court of Australia

 

MRT – Migration Review Tribunal and RRT – Refugee Review Tribunal

 

SSAT – Social Security Appeals Tribunal

 

VRB – Veterans’ Review Board

 

DVA – Department of Veterans’ Affairs

 

COAT - Council of Australasian Tribunals

The Council of Australasian Tribunals facilitates liaison and discussion between the heads of tribunals. It supports the development of best practice models and model procedural rules, standards of behaviour and conduct for members and increased capacity for training and support for members.

DFDAT - Defence Force Discipline Appeal Tribunal

The Defence Force Discipline Appeal Tribunal hears and determines appeals from courts martial and Defence Force magistrates in respect of service offences by Australian Defence Force personnel.

FCA - Family Court of Australia

The Family Court of Australia has jurisdiction over all matrimonial causes and associated responsibilities.

FCC - Federal Circuit Court of Australia

The Federal Circuit Court of Australia (formerly known as the Federal Magistrates Court) was established at the end of 1999. The court is an independent federal court under the Australian Constitution. The jurisdiction of the Federal Circuit Court includes family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices. The court shares those jurisdictions with the Family Court of Australia and the Federal Court of Australia. The objective of the Federal Magistrates Court is to provide a simpler and more accessible alternative to litigation in the superior courts and to relieve the workload of those courts.

FCOA - Federal Court of Australia

The Federal Court of Australia began to exercise its jurisdiction on 1 February 1977. It assumed jurisdiction formerly exercised in part by the High Court of Australia and the whole of the jurisdiction of the Australian Industrial Court and of the Federal Court of Bankruptcy.

HCOA - High Court of Australia

The High Court is the highest court in the Australian judicial system. Its functions are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts.

MRT - Migration Review Tribunal and RRT - Refugee Review Tribunal

The Migration Review Tribunal (the MRT) and the Refugee Review Tribunal (the RRT) provide an independent and final merits review of decisions made in relation to visas to travel to, enter or stay in Australia. The MRT reviews decisions made in respect of general visas (e.g. visitor, student, partner, family, business, skilled visas) and the RRT deals with decisions made in respect of protection (refugee) visas.

SSAT - Social Security Appeals Tribunal

The Social Security Appeals Tribunal is a statutory body established to review decisions made in relation to social security, education or training payments.

VRB - Veterans' Appeal Board

The Veterans’ Review Board is an independent tribunal to review decisions made by the Repatriation Commission on claims for acceptance of injury or disease as war-caused or defence-caused, on claims for war widows’, war widowers’ and orphans’ pensions, on assessment of pension rate for incapacity from war-caused or defence-caused injury or disease, and on claims for the grant, or assessment of, attendant allowance.

DVA – Department of Veterans’ Affairs

 

DVA - Department of Veterans Affairs'

The Department of Veterans’ Affairs delivers government programs for war veterans, members of the Australian Defence Force, members of the Australian Federal Police and their dependants. The DVA administers legislation, including the Veterans’ Entitlements Act 1986, Defence Service Homes Act 1918 Military Rehabilitation and Compensation Act 2004 Safety Rehabilitation and Compensation Act 1988.

NSW Courts

Local Court

Most criminal and civil cases first enter the NSW court system via the Local Court. The NSW Department of Attorney General and Justice administers the NSW Local Court. It deals with the majority of criminal and summary prosecutions in NSW, and conducts committal proceedings in more serious matters to determine whether or not indictable offences are to be committed to the District and Supreme Courts. It also hears civil matters up to claims of $100,000.

District Court

The District Court of NSW is the intermediate Court in the state’s judicial hierarchy. It is the largest trial court in Australia and also hears appeals from the Local Court. It can deal with all criminal offences except murder, treason and piracy. In civil jurisdiction it can deal with motor accident cases, irrespective of the amount claimed, and other claims up to $750,000.

Supreme Court

The Supreme Court is the highest court in NSW. It has unlimited civil jurisdiction and hears the most serious criminal matters. The court has both trial and appellate jurisdictions (meaning decisions heard in lower courts may appeal to the Supreme Court). The appellate courts are the Court of Appeal (for civil matters), and the Court of Criminal Appeal. The trial work of both criminal and civil jurisdictions is divided between the Common Law Division and the Equity Division.

Criminal Law

Habitual Offender*

A Habitual Offender Scheme provides penalties to people who repeatedly commit serious offences. Under this scheme:
Drivers who accumulate 3 convictions for serious offences (as defined in a list) within 5 years will be declared a ‘habitual offender’ by the courts.

They will be disqualified from driving for 5 years unless a court rules otherwise (minimum 2 years). This will be in addition to any disqualification resulting from the third major offence.

The court may order a longer period of disqualification, including disqualification for life.

There is no right of appeal against an additional disqualification period imposed for being declared a habitual traffic offender.
The court may also, at the time of conviction, or at a later time, quash the declaration if it determines that the disqualification imposed is disproportionate and unjust having regard to the total driving record of the person or special circumstances of the case.

For the purpose of the Habitual Offenders Scheme, serious offences include a major offence referred to in section 205 of the Road Transport Act 2013. For example, where a vehicle is involved, the crime of murder or manslaughter or an offence under the Crimes Act 1900, driving at a dangerous speed or in a dangerous manner, driving recklessly, or at speed or in a dangerous manner while engaged in a police pursuit, furious driving, reckless driving, menacing driving, negligent driving where death or grievous bodily harm is occasioned, drink and drug driving offences, fail to stop and give assistance in an accident involving death or injury, driving whilst disqualified, cancelled, suspended or refused, or a conviction for an offence of exceeding the speed limit by more than 45km/h or a conviction for unlicensed, never licensed.

*Source: Roads & Maritime Services http://www.rms.nsw.gov.au/

Professional Driver*

A professional driver is a holder of an unrestricted licence who is:
A motor vehicle driver who transports goods either inter and/or intra-state
or
A bus, taxi or hire car driver who holds an authority issued under the Passenger Transport Act 1990.
The following conditions apply:
You must earn an income for the driving work and drive more than 20 hours per week. Volunteer drivers do not qualify.
You must have been a professional driver on the date of your last demerit point offence and on the date the notice of suspension was given (or the date you were refused a licence).
A professional driver may accumulate 14 demerit points (1 more than an unrestricted license holder).
When can I apply for professional driver status?
An application for professional driver status will be considered if you:
Have been issued a notice of suspension (which has not yet commenced), or
You have been refused a licence renewal and you have held an unrestricted NSW driver licence within the past six months, and
In either case, you have accumulated exactly 13 demerit points.
An application for a professional driver status will not be considered if you have accrued 14 or more demerit points.
You do not need to have been a professional driver for the whole period during which you accrued the demerit points, however you must have been a professional driver at the date of the last offence, which caused you to reach 13 demerit points, and also at the date the Notice of Suspension was issued or your licence renewal was refused.

ODPP – Office of the Director of Public Prosecutions

 

TOIP – Traffic Offenders’ Intervention Program

 

CAN – Court Attendance Notice

 

RMS – Roads and Maritime Services

 

OIC – Officer in Charge

 

Plea of Not Guilty

 

Plea of Guilty

 

Mention Date

 

Reply Date

 

Hearing Date

 

Brief of Evidence

 

License Suspension

 

License Disqualification

 

License Cancellation

 

Conviction

 

Section 10 Dismissal

 

Police Prosecutor

 

Solicitor for the Director of Public Prosecutions

 

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

ODPP - Office of the Director of Public Prosecutions

The ODPP (colloquially known as the DPP) is the independent prosecutorial body in New South Wales. When the police charge a suspect with a serious criminal offence (i.e. indictable offence) they hand the role of prosecuting the suspect to the ODPP. This is to ensure the independence of the party prosecuting the suspect, so that those collecting the facts of the case (the police) are separate from those trying to prove that the facts incriminate the suspect (ODPP).

TOIP – Traffic Offenders’ Intervention Program

 

CAN – Court Attendance Notice

 

RMS – Roads and Maritime Services

 

OIC – Officer in Charge

 

Plea of Not Guilty

 

Plea of Guilty

 

Mention Date

 

Reply Date

 

Hearing Date

 

Brief of Evidence

 

License Suspension

 

License Disqualification

 

License Cancellation

 

Conviction

 

Section 10 Dismissal

 

Police Prosecutor

 

Solicitor for the Director of Public Prosecutions

 

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

TOIP - Traffic Offenders' Intervention Program

The TOIP is an initiative that requires those who have been charged with traffic offences to undertake seven face to face sessions and two self-paced assessment tasks to educate offenders on the dangers, obligations and consequences of driving irresponsibly.

CAN - Court Attendance Notice

A CAN is a notice to appear before the court at a specified date and location. It is issued by the police and is usually a requirement to appear at a Local Court. If the accused does not appear in court, the court may issue a warrant for arrest if it is a serious offence. If it is not a serious offence, the court may find the suspect guilty of not appearing in court (a separate offence), or impose a penalty for the person’s absence (e.g. disqualification of license).

RMS – Roads and Maritime Services

 

OIC – Officer in Charge

 

Plea of Not Guilty

 

Plea of Guilty

 

Mention Date

 

Reply Date

 

Hearing Date

 

Brief of Evidence

 

License Suspension

 

License Disqualification

 

License Cancellation

 

Conviction

 

Section 10 Dismissal

 

Police Prosecutor

 

Solicitor for the Director of Public Prosecutions

 

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

RMS - Roads and Maritime Services

The RMS is the agency that regulates the operations and programs of roads and waterways in NSW. It has brought the previous RTA and Waterways services underneath one roof. Charges such as disqualification of license (e.g. car, truck, boat, motorbike) are conducted through the RMS framework.

OIC - Officer in Charge

OIC is simply the abbreviation used to refer to the police officer who is in charge of the conduct of an investigation.

Plea of Not Guilty

If you plead not guilty, you are disagreeing that you committed the offence that you have been charged with; or that you agree that you committed the offence, but you believe you have a valid defence.

Plea of Guilty

A plea of guilty is an admission that you committed the offence that you have been charged with. Judges will often take early guilty pleas into account when determining the size of the penalty or sentence to be imposed.

Mention Date

 

Reply Date

 

Hearing Date

 

Brief of Evidence

 

License Suspension

 

License Disqualification

 

License Cancellation

 

Conviction

 

Section 10 Dismissal

 

Police Prosecutor

 

Solicitor for the Director of Public Prosecutions

 

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Mention Date

The mention date is the defendant’s first day in court. The prosecution will read out the charges against the defendant, and the defendant or their lawyer will respond to the magistrate as to whether they plead “guilty” or “not guilty”. For less serious offences a defendant may either ask the magistrate to adjourn the case if they require more time, plead guilty whereby the magistrate will hear evidence and decide on a penalty, or plead not guilty whereby the magistrate will set a summary hearing date. If the defendant pleads not guilty for serious offences the magistrate will set a committal hearing in the Local Court to determine if there is enough evidence to send the defendant to trial in either the Supreme or District Courts.

Reply Date

The date at which the defendant can reply to the brief of evidence which has been served by the prosecution (the order to serve a brief of evidence is given on the mention date). The defendant will also advise the court of the prosecution’s witnesses that they wish to cross-examine, and the witnesses they intend to call on behalf of their case. A date for the matter to be heard and determined by a magistrate is also set.

Hearing Date

The date for the matter to be heard before a magistrate. Both prosecution and defence may call any witness they want for cross-examination.

Brief of Evidence

A brief served by the prosecution outlining the case they have against the defendant and what witnesses and evidence they have to support it.

License Suspension

The police may suspend and confiscate a licence either on the spot or within 48 hours of a person being charged or issued a penalty notice for a relevant offence. When a person is charged with one the offences, the suspension remains in place until the offence is heard by a court. If you are found guilty, the court may take into account the suspension period when imposing the disqualification period.

License Disqualification

A licence is automatically cancelled if you are disqualified by a Court from driving. All driving is prohibited until the period of disqualification has expired and a licence is reissued.

License Cancellation

 

Conviction

 

Section 10 Dismissal

 

Police Prosecutor

 

Solicitor for the Director of Public Prosecutions

 

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

License Canellation

Action taken against a NSW Driver or Rider licence to terminate driving/riding privileges for reasons of law enforcement, medical or administrative reasons.

Conviction

A formal decision handed down by a judge or jury that the person charged with an offence is indeed guilty of that offence. A conviction will be followed by the judge’s determination of appropriate penalties during the sentencing process.

Section 10 Dismissal

The expression “section 10” refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. It allows a Court to find the defendant guilty of an offence, but discharge them without recording a conviction. This means that there is no criminal record and no other penalty. Section 10 dismissal’s may be unconditional, or have the conditions of a good behaviour bond or rehabilitation course. Learn More

Police Prosecutor

 

Solicitor for the Director of Public Prosecutions

 

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Police prosecutor

Police prosecutors are police officers that undertake the role of prosecuting (arguing against) the suspect. The prosecutor acts in the interests of the victim of criminal offence. Prosecutors have undertaken a university law degree, but usually they are police officers who have undergone extra training to become a prosecutor. Police prosecutors act in Local, Children’s and
Coroner’s Courts in NSW.

Solicitor for the Director of Public Prosecutions

The solicitor at the ODPP who is in charge of conducting a matter.

Appeal

 

ICO – Intensive Corrections Order

 

Home Detention

 

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Appeal

An appeal may be made to a court with a higher jurisdiction against a decision made by a court with a lower jurisdiction. For example, in NSW this could mean an appeal to the Court of Appeal from a decision by the Supreme Court in civil matters (for criminal matters an appeal is made to the Court of Criminal appeal). An appeal to the High Court of Australia is the final avenue of appeal in Australia, as this is the highest court in the country.

ICO - Intensive Corrections Order

An ICO is an order of imprisonment for not more than 2 years made by a court, which directs that the sentence is to be served by way of intensive correction in the community. An ICO is served in the community under the strict supervision of Corrective Services NSW (CSNSW) rather than in full-time custody in a correctional centre.

Home Detention

Home detention is an alternative to full-time imprisonment whereby an offender is confined to an approved residence for specified periods of time for the duration of the sentence of imprisonment.

Suspended Sentence

 

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Suspended Sentence

A suspended sentence is still a form of imprisonment, however the execution of the sentence is suspended. This is because a sentence must be imposed before it is suspended. A court may decide that the sentence need not be served in custody, or that the offender be released from custody on condition of entering a good behaviour bond. As the sentence has been imposed, the conviction will still go on criminal record.

Non-parole Period

 

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Non-parole Period

A standard non-parole period is the period of imprisonment that an offender must serve before becoming eligible to be released on parole. In NSW these provisions are saved for the most serious offences.

Parole Period

 

Corrective Services

 

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Parole Period

Parole is the early supervised release of a prisoner under certain conditions. These may include no travel outside a certain area, and obviously no criminal reoffending.

Corrective Services

Corrective Services is a division of the Department of the Attorney General and Justice. It manages the correctional services (e.g. prisons, juvenile detention) throughout the state, as well as offenders who have been released or are serving their sentences in the community.

Bill

 

No Bill

 

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Bill

A term that a jury writes on a bill of indictment to indicate that the information presented before it is sufficient to justify the trial of the suspect.

No Bill

A term that a jury writes across the face of a bill of indictment to indicate that the criminal charges against a suspect have not been sufficiently supported by the evidence presented to warrant their criminal prosecution.

Representations

 

Indictment

 

Trial

 

Section 32

 

Summary Offence

 

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Representations

An oral or written statement made by one party relating to a past event or existing fact.

Indictment

An indictment is a formal accusation that a person has committed a crime, and is presented to the court after committal. There can only be one operative indictment before the court, however multiple charges and multiple accused may be included in that indictment.

Trial

A trial is held when the accused person pleads not guilty to an indictable offence and, after the prosecution has presented its evidence to the court, the judge commits the matter from the Local Court to trial in either the District or Supreme Court. A jury will determine the guilt or innocence of the accused. Note, it is possible for some offences to be tried by a judge alone, if the defendant so requests.

Section 32

This expression refers to section 32 of the Mental Health (Forensic Provisions) Act, which allows a Magistrate to adjourn proceedings, grant bail or make any other order they consider appropriate if it appears that the defendant is suffering from mental illness.

Summary Offence

A Summary offence is a less serious criminal offences, however they can still have significant penalties. The maximum penalty of summary offences is two years imprisonment. The maximum fine is 100 penalty units (which equates to $11,000). Summary offences are heard in the Local Court before a Magistrate alone.

Indictable Offence

 

Strictly Indictable Offences

 

Strict Liability

 

Absolute Liability

 

Mens Rea

 

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Indictable Offence

Indictable offences are more serious criminal offences, with penalties up to 25 years imprisonment. Indictable offences, if the defendant pleads “not guilty”, usually require a trial by judge and jury. However some indictable offences may be tried summarily. This means that the accused may decide to have the matter dealt with by a judge alone.

Strictly Indictable Offences

Strictly indictable offences are offences that cannot be dealt with summarily. This means that they must proceed from the Local Court (committal) to either the District or Supreme Court for trial (if the defendant pleads “not guilty”) or sentencing (if defendant pleas “guilty”).

Strict Liability

An offence of strict liability has no requirement that the defendant intended (mens rea) to commit the act which constitutes the offence. This means the prosecution simply needs to prove that the accused committed the act (actus reus) to prove that they are guilty. Under strict liability offences, a defence of an honest and reasonable mistake of fact on behalf of the defendant is available.

Absolute Liability

Absolute liability offences are similar to strict liability offences in that the prosecution is not required to prove that the defendant had the intention to commit the offence, however under these offences there is no defence of honest and reasonable mistake available.

Mens Rea

Mens rea is a Latin expression for “guilty mind”. In the criminal law, it must be proved that the accused both committed the act (see actus reus), and at the same time had the intention in their mind to do that act. Therefore, in legal theory, both the mens rea and actus reus are required to establish a verdict of guilty.

Actus Reus

 

Self Defence

 

Recklessness

 

Negligence

 

Negligent Driving

 

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Actus Rea

Actus reus is a Latin expression for “guilty act”. In the criminal law, the prosecution must prove that the defendant actually committed the acts which constitute the crime. For example, the actus reus in an assault matter may be the physical infliction of harm on another person’s body.

Self Defence

The use of force by one person to protect themselves, another person, or property. It is a defence in many criminal offences.

Recklessness

Heedless or careless conduct where the person can foresee some probable or possible harmful consequence, but decides to continue with their actions regardless. It is a factor the judge may take into account when assessing an accused’s conduct.

Negligence

Is an action in civil law, the elements of which are: the existence of a duty of care (e.g. owed by an insurer to a member), a breach of that duty (e.g. not accepting a claim from a member), and material damage as a consequence of the breach of duty (e.g. injury caused from a motor accident). It is a factor the judge may take into account when assessing the accused’s conduct.

Negligent Driving

Driving without the standard of due care and attention reasonably expected of the ordinary driver. Whether or not driving is negligent is dependent on the particular circumstances.

HRMF – Honest and Reasonable Mistake of Fact

 

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

HRMF - Honest and Reasonable Mistake of Fact

An HMRF is a reference to a mistake about the factual circumstances of a situation, as distinct to a mistake about the law that is relevant to that situation. For example, if a person was caught smuggling drugs through an airport, the defence of HRMF would only be applicable if it was proven that the defendant had no knowledge of the drugs being there. The HRMF defence would not work if the defendant argued that they didn’t realise that it was an offence to smuggle drugs into another country.

Beyond Reasonable Doubt

 

Balance of Probabilities

 

Prima Facie

 

Beyond Reasonable Doubt

Beyond reasonable doubt is the standard of evidence required to find a verdict of guilty in a criminal case. This means that the judge or jury must be convinced that there would be no “reasonable doubt” in the mind of a “reasonable person” that the defendant committed the offence which the prosecution has alleged.

Balance of Probabilities

 

Prima Facie

 

Balance of Probabilities

The balance of probabilities is the legal standard of proof required in civil cases, and some elements of criminal cases. It means that the court will make a finding in favour of one side’s argument if it is “more probable than not”. That is, to win a case a party would have to prove that their argument is more probable than that of the other party’s.

Prima Facie

 

Prima Facie

Prima facie is a Latin phrase than means “at first sight”. In criminal proceedings the prosecution has the burden of proof, requiring it to present a case that could convince a reasonable jury, properly instructed by a judge, to find the defendant guilty. This is what a prima facie case is, and if it is established, then a full trial is necessary to give the defence a chance to answer the prosecutions argument. If the prosecution does not establish a prima facie case, the case may be dismissed without response from the defendant.

Compensation Law

Worker

For the purposes of NSW Workers Compensation, you are a “worker” if you receive wages or commission each week.

Deemed Worker

For the purposes of NSW Workers Compensation you are a “deemed worker” if you are an outworker, contractor, taxi driver, sales representative or casual/part time worker.

WCC - Workers Compensation Commission

The WCC resolves workers compensation disputes between injured workers and employers, including weekly compensation for loss of income, payment of medical expenses and compensation for permanent impairment/pain and suffering.

AMS - Approved Medical Specialist (workers compensation)

This act governs workers compensation claims in NSW. It is administered by WorkCover, and outlines the compensation and rehabilitation of workers and their work related injuries.

MVA - Motor Vehicle Accident

A motor vehicle accident is an accident caused by the fault of the driver of a motor vehicle in the operation of the vehicle which causes the death or injury to a person.

MACA - Motor Accidents Compensation Act 1999

This act aims to regulate the market for insurance claims from motor vehicle accidents by balancing the need to keep premiums affordable by limiting the size of compensation payouts with the desire to minimise the impact that motor vehicle accidents have on people’s lives. It establishes the framework for the Motor Accidents Authority (MAA), through which this Act is administered.

MAA - Motor Accidents Authority

The MAA is the statutory body that administers the NSW Motor Accidents Scheme. It regulates the Compulsory Third Party Insurance Scheme, and is the authority the both insurers and those involved in motor vehicle accidents must go through when a claim has been made.

MAAS - Motor Accident Assessment Service

This is a service that was established by the Motor Accident Authority (MAA) and falls under its authority. Its purpose is to assess medical and claims disputes between claimants and insurers throughout the course of a claim. It consists of the Medical Assessment Service (MAS) and the Claims Assessment and Resolution Service (CARS).

MAS - Medical Assessment Services (car accidents)

he MAS is a service provided by the NSW Motor Accident Authority that oversees medical disputes resulting from motor vehicle accident claims. It can assess medical disputes over whether treatment was reasonable and necessary, whether it was related to the accident, if the person has suffered permanent impairment and whether further medical assessments are required. It also provides a review service if a party believes the decision is incorrect.

CARS - Claims Assistance Resolution Services (car accidents)

CARS is a service provided by the NSW Motor Accident Authority that oversees disputes over insurance claims made in relation to motor vehicle accidents. CARS can determine issues about claims that include whether a claim is exempt from assessment, whether special assessment is required due to procedural issues (i.e. late/incomplete claims) and general assessments that decide if a claimant is entitled to damages and, if so, how much.

WIMS - Workplace Injury Compensation Act, 1998

This Act aims to provide effective management of work-related injuries and compensation for such injuries. It seeks to do this through provision and payment of treatment and management of injuries, necessary rehab programs and compensation for loss of income and permanent impairment or death.

NEL - Non-economic Loss (pain and suffering)

Non-economic loss refers to the pain, suffering and impairment that a person can suffer that cannot be quantified in monetary terms (e.g. economic loss may be lost wages from not working). It can include both physical and emotional distress, disfigurement and the loss of enjoyment of life.

DSS - Department of Social Services

The DSS is the Federal Ministry that administers all forms of government benefits and social support programs (e.g. Centrelink)

S81 Notice - Letter Advising on Liability (MVA's)

A section 81 notice refers to the section of the Motor Accidents Compensation Act that requires an insurer to give written notice to the claimant whether they admit or deny liability for the claim. This must be done as soon as possible, and within 3 months after the claimant has given notice of their claim. If the insurer fails to give notice within the 3 months, they are taken to have denied liability. The insurer must provide sufficient details if they admit liability for only part of the claim, and may admit liability at a later date even if they denied it at first.

Griffiths v Kerkemeyer - Claims for Gratuitous Care

A Griffiths v Kerkemeyer type claim, or a claim for gratuitous care services, refers to damages that can be claimed for the income lost by a person who provides care and services to the injured person free of charge. This is usually a close family member or friend, and they may give up their employment or forego wages in order to take care of the injured person. Alternatively, they may assume a heavy physical or emotional burden without suffering economic loss. The court may award damages where such care has been provided and it is appropriate.

WPI - Whole Person Impairment

Impairment is defined by the Motor Accident Authority as an alteration to a person’s health status or “a deviation from normality in a body part or organ system and its functioning”. It is therefore a medical issue and is appropriately assessed by medical means. An impairment is ‘permanent’ if it is static, well stabilised and unlikely to change substantially (i.e. by 3%) over the next year. The reference to “whole body” simply means that the impairment’s effects on the entire body are taken into account.

ANF - Accident Notification Form for Motor Vehicle Accidents

Anyone injured in a Motor vehicle accident in NSW, regardless of who was at fault, may able to access the benefits available under the Accident Notification Form. The ANF provides for the early payment of reasonable and necessary medical expenses and/or lost earnings up to a maximum of $5,000.

PICF - Personal Injury Claim Form for Motor Vehicle Accidents

There are a number of circumstances under which a person may be eligible to make a claim for personal injury if they have been in a motor vehicle accident. These may include the other driver or owner being at fault, children under the age of 16 involved in an accident (whether the driver is at fault or not) or if there was a blameless accident.

LTCSS - Lifetime Care & Support Scheme

The LTCSS provides treatment, rehabilitation and attendant care services to people severely injured in motor vehicle accidents in NSW, regardless of who was at fault in the accident. To be eligible for the LTCSS, an applicant must have suffered a moderate to severe brain injury, spinal cord injury, severe burns, amputation or permanent blindness as a result of a motor vehicle accident.

WIRO - WorkCover Independent Review Office

WIRO provides an independent body for injured workers to lodge complaints against insurers, including disputes about the acceptance of liability, calculation of premiums and general management of claims. WIRO also offers free and independent advice to help resolve disputes.

S74 Notice - Letter Advising on Liability (workers compensation)

This refers to section 74 of the Workplace Injury Management and Workers Compensation Act 1998. It states that if an insurer disputes liability for an injured workers compensation claim they must provide, among other things, the reason/s why the claim is disputed and evidence in support of their decision.

Family Law

Shared Care

Shared care refers to the arrangement that two separated adults establish over the care of a child, and is relevant to how much family tax benefit they receive. If both parents have care of a child for at least 35% of the time (i.e. one may have 65% over the year, the other 35%), then payment of the family tax benefit may be shared.

FDR - Family Dispute Resolution

FDR refers to legal services that help couples affected by separation and divorce to sort out family disputes. FDR includes all areas that can arise when a family breaks up, including children, property and money. FDR services are provided by private lawyers, Family Relationship Centres, community organisations and legal aid commissions.
Financial and non-financial contributions
Financial contributions refer to the contributions that an individual has made to a marriage that can be calculated in monetary terms. This usually includes income from wages or salary, but also investments in property, other financial assets and the interest generated on those assets. Non-financial contributions not quantifiable in monetary terms, and include caring for children and homemaking.

Equal Shared Parental Responsibility

Equal shared parental responsibility is the presumption that it is usually in the child’s best interests for both parents to equally share parental responsibility. This means that parents are required to consult each other on major decisions concerning their children and make a genuine effort to come to a joint decision. Parental responsibility may be altered by agreed parenting plans or Court orders, however the Court starts with this presumption if the party’s are seeking such an order.

FCC - Federal Circuit Court

The Federal Circuit Court of Australia is a lower level Federal court that provides a more simple and accessible alternative to the Federal Court of Australia and the Family Court of Australia. It operates more informally than other courts and uses streamlined procedures. It also has a larger regional presence with Judges travelling to various rural locations to relieve travel burdens on litigants and their representatives in those areas. Parties can still elect to go through the Family Court, however the FCC is designed to be a quicker and more cost effective option when the matter is a less complex one.

De Facto Relationship

De facto is a Latin expression that means “concerning fact”. In the legal context it often refers to something that exists ‘in fact’, whether with a legal right or not. In Australia, a de facto relationship refers to a relationship between two people (of the same or opposite gender) who live essentially as a married couple – but who are not legally married. However, given that de facto relationships are recognised in Australian law – it is worth noting that de facto relationships are defined in the Family Law Act 1975 – Section 4AA as:

Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship

Abuse

In relation to a child, is defined in subsection 4(1) of the Act. For convenience, the definition is set out under ‘Family Violence’.

Address for Service

The address given by a party where documents can be served on them by hand, post or some other form of electronic communication.

Adjourn

Defer or postpone a court event to another day.

Affidavit

A written statement by a party or witness. It is the main way of presenting the facts of a case to the court. An affidavit must be signed before an authorised person (such as a lawyer or Justice of the Peace) by way of swearing on the Bible or attesting to the truth of the contents of the statement.

Appeal

A procedure which allows a party to challenge the decision made by a court.

Applicant

The person who applies to a court for orders.

Case

When a person makes an application to a court for orders, that becomes the case before the court.

Consent Order

An agreement between the parties that is approved by the court and then becomes a court order.

Contravention

When a court finds a party has not complied with (followed) a court order, that party is in contravention of (or has breached) the order.

Court Hearing

The date and time when a case is scheduled to come before the court.

Court Order

The actions the parties or a party must do to carry out a decision made by a court. An order may be either interim or final.

Divorce Order

An order made by a court that ends a marriage.

Enforcement Order

An order made by a court to make a party or person comply with (follow) an order.

Ex Parte Hearing

A hearing where one party is not present and has not been given notice of the application before the court; usually reserved for urgent cases.

Exposed to Family Violence

Is defined in section 4AB(3) of the Act. For convenience, the definition is set out with the definition of ‘Family Violence’.

Family Consultant

A psychologist and/or social worker who specialises in child and family issues that may occur after separation and divorce.

Family Dispute Resolution

A process whereby a family dispute resolution practitioner assists people to resolve some or all of their disputes with each other following separation and/or divorce.

Family Law Courts

Comprise the Family Court of Australia and the Federal Circuit Court of Australia.

Family Law Act 1975

The law in Australia which covers family law matters.

Family Law Registry

A public area at a Family Law Court where people can obtain information about the court and its processes and where parties file documents in relation to their case.

Family Report

A written assessment of a family by a family consultant. A report is prepared to assist a court to make a decision in a case about children.

Family Violence

Means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. A child is exposed to family violence if the child sees or hears family violence or is otherwise exposed to family violence. See the Family Law Act, section 4AB, which gives examples. Family violence may also amount to child abuse.
Abuse – in relation to a child means,
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is an unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.

Family Violence Order

An order (including an interim order) made under a prescribed law of a State or Territory to protect a person from family violence.

Filing

The procedure of lodging a document at a family law registry for placing on the court file.

Final Order

An order made by a court to bring a case to a close.

Form

A particular document that must be completed and filed at court. Different forms are used for different family law matters.

Independent Childrens Lawyer

A lawyer appointed by the court to represent a child’s interests in a case.

Interim Order

An order made by a court until another order or a final order is made.

Judgement

A decision by a court after all the evidence is heard.

Judicial Officer

A person who has been appointed to hear and decide cases; for instance, a judge.

Jurisdiction

The authority given to a court and its judicial officers to apply the law. For example, the courts have jurisdiction under the Family Law Act 1975 in family law matters.

Parental Responsability

The responsibility of each parent to make decisions about the care, welfare and development of their children. These responsibilities may be varied by agreement or by a court order.

Parenting Plan

A written agreement between the parties setting out parenting arrangements for children. It is not approved by or filed with a court.

Party or Parties

A person or legal entity, such as a corporation, involved in a court case; for example, the applicant or respondent.

Precedent

A decision made by a judicial officer, which may serve as an example for other cases or orders.

Procedural Order

An order made by a court of a practical nature. For example, the court may order the parties to attend family dispute resolution.

Registrar

A court lawyer who has been delegated power to perform certain tasks; for example, grant divorces, sign consent orders and decide the next step in a case.

Respondent

A person named as a party to a case. A respondent may or may not respond to the orders sought by the applicant.

Rules

A set of directions that outlines court procedures and guidelines. The rules of the Family Court are the Family Law Rules 2004 and the rules of the Federal Circuit Court are the Federal Circuit Court Rules 2001.

Service

The process of sending or giving court documents to a party after they have been filed, in accordance with the rules of court. Service ensures that all parties have received the documents filed with a court.

Subphoena

A document issued by a court, at the request of a party, requiring a person to produce documents and/or give evidence to the court.

Transcript

A record of the spoken evidence in a court case. All court hearings are recorded, except uncontested divorce hearings. The court does not order transcripts in all instances and does not provide transcripts to parties. If a party orders a transcript, they will be responsible for the costs.

Conveyancing

(definitions adapted from Butterworths Concise Australian Legal Dictionary)

Tenants in Common

A type of co-ownership where two or more persons own distinct interests in the same piece of property without exclusive possession of any part of the property. For example, there may be three co-owners of a property, with one party owning 60%, one owning 25% and the other owning 15%. Each tenant may deal with their respective share as they wish during their lifetime or devise their share by will.

Joint Tenants

Under joint tenancy, both people own the whole asset equally. This means that the parties own 100% of the asset together, as opposed to each owning 50% of the asset. Joint tenancy is commonly used by married couples or people in similar relationships.

Additionally, joint tenants possess a right of ‘survivorship’. This means that if one of the owners dies the other owner automatically gets the deceased owner’s share of the property. The deceased’s share cannot be passed to another through a will.

Building Inspection

A building inspection is carried out by a licensed building inspector and generally looks at the quality of the improvements on the property. It can pick up issues such as leaking roofs and bathrooms and broken or substandard piers.

Building Certificate

A building certificate is a certificate issued by the local council to confirm that there is no matter that would entitle the council to order the building to be demolished altered added to or rebuilt, take proceedings for an order or injunction requiring encroachment by the building onto land vested in or under the control of council. The council may also issue a building certificate if there are issues with the property but the council does not intend to take any action or issue a work order in respect of those issues.

Special Conditions

The special matters agreed between parties which may vary the provisions of the standard form contract for the sale or land or the statutory terms implied into contracts, or covering additional matters not covered by the standard form or implied terms of the contract of sale.

Owners Corporation

An owners corporation is the legal entity that combines all the lot owners in a strata scheme. They are automatically created when a plan of subdivision contains common property.

Easement

An easement is a proprietary right enjoyed by the owner of land (the dominant land) to carry out some limited activity (short of taking possession) on land owner by another person (the servient land). Common examples are rights of way (the right to cross one parcel of land to gain access to anther parcel of land) and rights of drainage (the right to drain water from one parcel of land across another parcel of land).

Cooling-Off Period

The period during which you can cancel a contract for the purchase of goods, services or property, if you change your mind.

Section 88B Instrument

An instrument under the Conveyancing Act 1919 lodged with a deposited plan or strata plan to create easements, restrictions on the use of land and positive covenants upon registration of the plan as an alternative to the creation of easements via a dealing

Strata Plan

A plan lodged with LPI creating individually-owned lots and common property within a parcel of land defining lots by a cubic space(s). Normally, a strata plan pertains to multiple units within a building.

Title Search

A title search is an inspection of the register which will indicate the current owner or owners of a property and also shows the estate and any other interests that may restrict full control of the property by the owner. These other interests are called encumbrances and could include mortgages, easements, or caveats.

Caveat

A document recorded on a Torrens land title which states a claim of an an interest or estate in the land and may have the effect of an injunction that requires LPI to refrain from registering specific transactions on the land title.

Covenant

Generally a mutual agreement between two or more parties to do, or to refrain from doing, certain acts in relation to land. Often contained in lease agreements, but in these directions it particularly refers to a restrictive covenant (now a restriction on the use of land) or a positive covenant binding a proprietor to do or complete a specified action.

Subject to Finance

A phrase signalling that the parties intend to be immediately bound by the contract but that the obligation to pay the price of the land has been postponed until finance can be arranged.

Deposited Plan

A plan of land deposited in LPI, which was not attached to a dealing or deed, showing land boundary information whether for a new subdivision or other purpose eg identifying the location of an easement, for land acquisition etc.

Drainage Reserve

Land set aside to the public for exclusive use of drainage of water.

Gazump

Occurs when a vendor accepts a purchaser’s offer to purchase land and, before exchanging contracts, repudiates the agreement in order to accept a higher price from another purchase.

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