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Legal language – what are they saying?

What on earth are these criminal lawyers talking about?

young man confused by legal language of criminal lawyers

As in many professions there is a particular language that comes with it.  People within the law profession use this legal language regularly but it is rarely used in general day to day conversations.

We are very conscious at Williams Barristers and Solicitors to use common use language when we work with our clients.  We want to ensure that you clearly understand and feel in control of your matters and can make informed decisions.  However there are times when the correct legal language is required and used within the process.

The following terms are just a few of those that you will hear among the Adelaide Criminal Law and Family Law scene.  These and further terms can be found at the following addresses:

http://www.fedcourt.gov.au/attending-court/glossary-of-legal-terms

http://www.ncsmc.org.au/wsas/legal_system/legal_terms_explained.htm

Adjournment

 

Putting off a court event to another time.

Affidavit

 

A written declaration made under oath before a notary public or other authorised officer.

 

Appeal

 

An application to a higher court to review a decision of a lower court or tribunal.

 

Barrister

 

A Lawyer who presents cases in higher courts and specialises in court work.

 

Breach

 

Conditions of an order are broken.

 

Civil Law

 

Law regulating the behaviour of an individual; a form of private law

 

Common Law

 

Case law developed in common courts.  This term is sometimes used to describe all case law or judge made law.

 

Consent Orders

If you are able to come to a final agreement about arrangements for your children, the division of your matrimonial property or financial support for either partner, then you can formalise your agreement without a court hearing. You do this by applying for ‘consent orders’. The Court must approve of the agreement and will then issue consent orders. Consent orders are as binding as any other order made by the Court.

 

Counsel

 

A barrister

 

Criminal Law

 

Laws concerned with both the rights of the individual and of society as a whole

Decree

 

Order made by the court

 

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.

 

Defendant

Person brought to court and charged with a criminal offence.  Applicant, appellants, respondents, defendants etc are generally called ‘parties.

 

Depose

 

Is to testify or provide an affidavit.

 

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.

 

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.

 

Family Dispute Resolution

a term used for a specialised mediation in family law. Family dispute resolution practitioners are registered with the government and can issue a certificate that the parties attempted mediation (this is known as a S.60I certificate). This then allows the parties to start court proceedings if agreement could not be reached at family dispute resolution.

 

Filing

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

 

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

 

Injunction

A court order making a person do, or refrain from doing, something.

 

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).

 

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.

 

Justice of the Peace

 

A person who has formal authority to witness legal documents

Magistrate

The equivalent of a judge in charge of a State Magistrates Court – referred to as Your Honour.

 

Mediation

or (Alternative Dispute Resolution) is 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.

 

Obiter dictum

 

A judge’s statement made during a judgment, but not part of the reason for the decision.

 

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.

Precendents

Quoted as an authority for deciding a similar set of facts; must come from an equivalent or higher court precedent.

 

Pre-Trial Conference

 

Held by a Deputy Registrar before your case is listed for a trial.  It is another opportunity to settle your case but if not possible the Deputy register will determine the need for a trial and set the date.

 

Prima facie

(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.

 

Rule of Law

The concept that everyone obeys the law; no one is above it.

 

Separation of Powers Doctrine

 

Division of the power among legislative, executive and judicial arms of government to provide for checks and balances

Solicitor

a lawyer who may give clients legal advice, help with legal problems and who may appear in court.

 

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 s court directing a person to appear before it.

 

Writ

A written court order to do or refrain from doing something.

 

For advice from trusted criminal lawyers, contact William Barristers and Solicitors on (08) 84517609. We provide 24 hour emergency assistance to those in custody.

Further Information

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