Kinny Legal is known for giving legal advice in language that easy to understand. We do this by only using legal jargon when absolutely necessary. The following is a brief description of some legal jargon that we might use from time to time.
Adverse costs order. A court order requiring a party to a court proceeding to pay for the costs that another party’s legal costs (eg lawyer’s fees, barrister’s fees, witness fees and court filing fees).
Authority (when describing an earlier judgment by the court) (also known as 'precedent'). In this context, the term usually means that the earlier judgment is significant, and the court should or is likely to adopt the reasoning in that earlier judgment when deciding on the case at hand.
Authority (to do certain things). In this context, the term usually refers to a person delegating their ability to do certain things to another person (eg a lawyer, an attorney appointed under a power of attorney instrument).
Barrister (also known as ‘counsel’). A legal practitioner who specialises in advocacy in courts and tribunals. Barristers usually also have expertise in particular areas of law, and can provide written advice in that capacity.
Usually, barristers act as a legal representative to a party in court proceedings. In this role, the barrister prepares legal arguments in support of a court finding in favour of their client, and presents those arguments in court. The barrister may also answer any questions of the court, and ask witnesses questions. See also ‘Examination-in-chief/ Cross-examination’ and ‘Witness’.
Client legal privilege (also known as ‘legal professional privilege’). A client of a lawyer has a right to expect their lawyer to keep confidential any information that the client has disclosed to the lawyer for the purpose of obtaining legal advice.
It is important to note that this right does not apply to any communication to any lawyer in any circumstances. There are circumstances in which client legal privilege will not apply to a communication with a lawyer. For example, if the client has expressly or by their conduct waived privilege or if the lawyer has an obligation to disclose information (eg to prevent a serious crime from occurring).
Common law. Laws that develop over time by court decisions (usually referred to as ‘Authorities’ – see above) rather than by legislation (see also ‘Legislation’).
Contract. A legally binding agreement. A contract does not have to be in writing in order to be binding on a party. However, certain prescribed elements have to be present in order for a contract to form and be binding on the parties.
Damages. An award of money to a party in a court proceeding. The purpose of the award is to compensate that party for a loss proven to have been incurred as a result of another party’s breach of the law. Usually, the amount of money awarded is the amount that the court has determined is necessary to place the party in the same position that the party would have been in but for the actions of the other party.
Debt. A legal obligation to pay an amount of money to another party.
Deed. A legally binding promise. A deed can only be in writing, and is only binding if the document is in a particular form and has been completed in a certain way.
Examination-in-chief/ Cross-examination. Each party may call a witness to give evidence in a court proceeding. Each party has the right to ask the witness questions. If they are legally represented, the questions will be asked by a barrister or lawyer (see ‘barrister’). Questions asked by a party that has called the witness is called an "examination-in-chief". Questions asked by a party that has not called the witness is called a "cross-examination". The law requires that these questions be asked in a prescribed way, and sometimes limits the types of questions that can be asked.
Fiduciary. A person who has a legal duty to act wholly in the interests of another person instead of that person’s own interests. For example, a trustee or attorney appointed under a power of attorney instrument.
Jurisdiction (of a court or tribunal). This term refers to the scope of cases that a court or tribunal has the power to determine, which is generally defined in legislation. A court or tribunal can only make orders in relation to cases that fall within their jurisdiction.
Legislation. Laws that are developed by the Australian Government, and come into force after being enacted by the Australian Parliament.
Onus of proof. Usually, one party to a court proceeding has to convince the court that the facts of a case are in that party’s favour. This obligation is known as the onus of proof, and can be placed on a plaintiff or a defendant depending on the type of case before the court. If a party fails to ‘meet their onus of proof’, the court will not find in favour of the party in relation to that particular issue.
Witness. Usually, this term refers to a person who gives evidence in relation to a matter to be considered by a court in a court proceeding.
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This Glossary does not constitute legal advice and should not be relied upon as such. It is a general commentary only. Formal legal or other professional advice should be sought before acting or relying on any matter specified on this page.