Legal Definitions

• The executive power of the Australian parliamentary system
• Consists of the Prime Minister and senior government ministers who have been placed in charge of a government department.
• A policy-making body that decides which laws should be introduced into parliament

• The Queen's representative
• The governor-general at a federal level - Quentin Bryce
• The governor at a state level - David de Kretser

The party (or parties in a coalition) with the majority of seats in the lower house

A member of parliament who is also a member of the political party that has formed government, and has some responsibility such as being the head of a government department

• The supreme law-making body
• Comprised of all elected members of both houses from all political parties and the Crown

A method of dispute resolution for civil disputes, where a third party (arbitrator) is appointed to listen to both sides of the dispute and make a decision that is binding on the parties

A method of dispute resolution for civil disputes using a third party to help the two disputing parties reach a resolution to their dispute. The third party can make suggestions, but the parties reach the decision between themselves. The decision is not binding

A dispute resolution process that involves the parties to a case presenting their arguments and evidence to a judicial officer (judge) who then makes a binding determination about the outcome of the case

The lawful authority of a court or tribunal to decide a particular care according to its severity

A method of dispute resolution for civil disputes using one or two third parties (mediators) to help the disputing parties reach a resolution. The mediators do not make suggestions, but help the parties feel able to negotiate for themselves. The decision is not binding

The interpretation, by the courts, of law made by parliament

Evidence that demonstrates that the accused has a tendency to commit the type of crime they are accused of, eg prior convictions

The procedures that enable accused people to be released from custody after being charged awaiting their hearing or trial

• Purpose: to allow an accused person to go free until the hearing or trial, to uphold the presumption of innocence until guilt is proven. Allows the accused time out of custody to prepare their case
• The presumption of innocence until guilt is proven balanced with the protection of society

A hearing held in the Magistrates' Court for an indictable offence to assess whether a prima facie case exists, that is, whether the evidence is of sufficient weight to support a conviction by a jury at trial in a higher court

• Purpose:
• *to clarify the issues prior to attending trial and thereby avoid taking a matter to trial when the evidence is flimsy, thus saving the time and resources of a higher courts
• *to determine how the accused proposes to plead to the charge
• *to allow the accused to hear or read the evidence against them, and to allow them to adequately prepare the case before them
• Criminal Procedure Act (Vic.)

When a person is held in custody awaiting a trial, during a trial or awaiting a sentence

Purpose: to protect the community against the actions of an accused person the court believes may reoffend, inflict harm, commit further crimes, or fail to appear before the court for justice to be served

A sum of money granted to a plaintiff in a civil case, paid by the defendant in a settlement of a claim for any loss or injury as a result of a civil wrong

• A civil pre-trial procedure where facts and documents are disclosed between parties which form the basis of the claims and defences
• Allows the parties to get further information on matters that might remain unclear, that is, further details on the facts of the case

• Purpose:
• Reduce the element of surprise at trial
• Ensure all parties have copies of relevant documents
• Allow each party to determine the strength of the other side's case and determine their likelihood of success
• Assist in reaching an out-of-court settlement where applicable

• A court order that stops someone from doing something (restrictive injunction) or compels someone to do something (mandatory injunction).
• These can be interlocutory or interim, meaning that the injunction is awarded quickly and only applies until a final court decision has been made. It could also be a perpetual injunction, which is permanent and granted after the case has been heard

Purpose: to rectify a situation cased by the person who was found to be in the wrong

Written questions sent by one party in a civil case to the other party prior to the trial

Documents exchanged between the two parties in a civil case to establish the reason for the claim and which facts are in dispute. Pleadings include a writ, statement of claim, notice of appearance and statement of defence.

• Purpose: To require the parties to state the main claims and defences of their case
• To compel each party to state the material facts and particulars on which they are relying

The desired outcome of a civil trial, what the plaintiff claims as a result of the civil wrong that has occurred

Purpose: to restore the plaintiff to the position they were in before they were wronged

Notifies the defendant of the nature of the claim, the cause of the claim and the remedy sought

Sets out a response to each of the allgations contained in the plaintiff's statement of claim

A document issued by the plaintiff in civil proceedings explaining the action being taken against the defendant and informing them of the place and mode of trial.

• The most common damages sought
• Aim to restore the party whose rights have been infringed to the position they were in before the infringement.
• Can be specific damages, general damages or aggravated damages

• Can be given a precise monetary value, eg medical expenses or loss of wages
• Easily quantifiable

• A general estimate, not readily quantifiable, eg pain and suffering
• Assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong

Can be awarded to compensate the plaintiff further is the court believes that the defendant's conduct injured the plaintiff's feelings by causing humiliation and insult

• Only a small amount of money is paid by way of damages
• A plaintiff may be seeking to make a point about being legally in the right and to show that their rights has been infringed, but may not be seeking a large sum of money in compensation
• eg, Luxoticca Retail Australia v. Grant (2009), $10.00 in aggravated damages was awarded because the plaintiff had been wronged, but suffered no real loss

When the court feels the plaintiff has a legal right to damages, but does not deserve to be paid damages. In this situation, small damages might be awarded to show contempt for the claim that is made

Seeks to punish the defendant for an extreme infringement of rights. Aim to punish and deter where conduct is malicious or in scornful disregard of the plaintiff's rights.

• Specified under Schedule 1 of the Juries Act 2000 (Vic.)
• People who are prohibited from being on a jurt because of something they have done in the past that makes them unsuitable to serve on a jurt, such as having a criminal record

• People who have been granted permission to not attend jury service by the Juries Commissioner, who is satisfied that they have a good reason.
• Eg, advanced age or ongoing illness/poor helath

• A challenge of a prospective juror before a trial begins, with a reason given that is accepted by the court
• eg, knowing the parties to a case

• Specified under Schedule II of Juries Act 2000 (Vic.)
• People who are not eligible for jury service because of their inability to comprehend the task or because of their occupation, eg someone employed in the legal profession

• A challenge of a prospective juror before a trial begins, without giving a reason.
• 6 peremptory challenges per party in a criminal case
• 3 peremptory challenges per party in a civil case

The reason for a court decision that is followed by another court lower in the same hierarchy, where the facts of the case are similar

A reason for a decision of another court that is of persuasive value only. It is not vinding, but it is relevant to the case and an important statement of law

• Material not part of an act of parliament that may assist a judge to interpret the meaning of the words in the act
• eg, parliamentary debates
• reports from committees and law reform bodies
• dictionaries

• Material found within an act of parliament that may assist a judge to interpret its meaning
• eg, the title
• preambles

A court expresses disapproval of a previous but is still bound by it

A court decides that the material facts of a case are sufficiently different to a precious precedent, and therefore that is does not form binding precedent

When a higher court overrules the precedent set in a lower court in an earlier case

When a higher court reverses the precedent set in a lower court in an earlier hearing of the same case