This glossary of terms is not meant to be a complete legal dictionary. It offers definitions of commonly-used legal terms. If you have any words or phrases you would like included in this glossary, please email your suggestions.

A | B | C| D | E | F | G | H | I | J | K| L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z

A

a vexatious proceedings order is an order made under the Vexatious Proceedings Act 2005 to prevent someone taking further legal action in a Queensland court.

Aboriginal cultural heritage see cultural heritage.

account at a financial institution, includes a share account that allows withdrawals.

accredited specialists these are lawyers who have passed a series of special exams and can be regarded as specialists in their particular area of law. It does not mean that lawyers who are not accredited are less qualified.

Act of Parliament  a law made by Parliament; a Bill which has passed all three readings and received the Royal Assent.

ad hoc latin term 'for this purpose'.

ad infinitum latin term 'forever, without limit, to infinity'.

ad litem a legal term referring to a party appointment by a court to act in a lawsuit on behalf of another party who is deemed incapable of representing themselves.  An individual who acts in this capacity is called a guardian ad litem.

adjournment this happens when a court (or tribunal) case is postponed until another day. Usually the court decides if a case will be postponed.

administrative law the law governing the relationship between the government and the people that are governed.

affidavit a written statement made by a person to be used in a court proceeding. A person who makes an affidavit must swear on oath or make an affirmation that the contents of the affidavit are true, and can be cross-examined about it.

affidavit of service a sworn statement by someone stating that the application or order has been given to the respondent.

affirmation a declaration made instead of an oath.

agency agreement an agreement which allows one party (the Agent) to sell products or goods of another party (the Principal) in return for commission payments.

agent a person authorised to carry out activities on behalf of a Principal and to enter into agreements by which the Principal will be bound. The term usually refers to a businessperson who finds business for a commission, but is not limited to this kind of relationship.

aggrieved  the person or people who need protection.

aggrieved person the person/s named in a Domestic Violence Protection Order who needs protection in addition to the partner. These people are usually family members and other associates who are also danger. 

allocatus administered after a plea or guilty verdict following arraignment, the defendant is asked if they have anything to say about why they should not be sentenced.

allocatus not administered if no plea or a plea of guilty is entered but sentence is adjourned to another day.

alternate director under the Articles of Association of a company, a director can appoint another person to hold office and act in his/her place as a director on a temporary basis. An alternate director can vote at board meetings and carry out the same functions as his/her appointing director in his/her absence. The alternate carries full legal responsibility and liability as a director. Sometimes alternates may only be appointed from other members of the board to avoid the introduction of outsiders.

alternative count either one or the other e.g. stealing or alternatively receiving.

amendment a change to a law that already exists.

Annual General Meeting (AGM) under the Corporations Act 2001, a company must hold a meeting of shareholders each calendar year to deal with matters such as the adoption of the previous year's financial statements, rotation of directors and the appointment of auditors. Shareholders may also use the opportunity to ask questions of the board at the AGM.

appeal this means you ask a higher court to review the decision of a lower court or tribunal. For example, you can appeal a decision of the Magistrates Court to the District Court; you can appeal a decision of the Guardianship and Administration Tribunal to a single judge in the Supreme Court.

appellant the person who asks for an appeal.

application a person or organisation who commenced proceedings by filing an application.

application on notice applications served on the other party (e.g. an order that the other party provide further and better particulars)

applications not on notice applications not required to be served on the other party (e.g. an application for an enforcement hearing)

approved form forms approved by legislation for use in court proceedings.  Forms submitted to the court should substantially comply with the approved forms.

appurtenance any attachments to land or property e.g. buildings, strucural improvements. An example is a claim for recovery of possession of land and appurtenances.

arbitration a dispute resolution mechanism that parties can choose as an alternative to litigation. The parties are free to determine the procedure and the decision-maker by agreeing upon the arbitrator. The arbitrator's decision which is handed down at the conclusion of the arbitration is called an arbitral award. It is binding upon both parties and can only be appealed in very limited circumstances.

arbitral award a decision by a single arbitrator or an arbitral tribunal which determines the outcome of an arbitration. Arbitral awards can be subject to certain formal and other requirements.

arbitral tribunal the arbitral tribunal is the adjudicative body in an arbitration. It is set up in accordance with the will of the parties or by appointment through an appointing authority. Usually, a tribunal is comprised of one of the three arbitrators. However, the parties are free to determine any number of arbitrators for their arbitration. Tribunal members usually have to disclose any affiliation with any of the parties. Even remote affiliation may lead to a challenge of the arbitrator. It is generally possible to challenge an arbitrator for bias, denial of natural justice or incompetence.

arraignment process during a criminal trial when the defendant is called on to make a plea (guilty/not guilty).

articled clerk articled clerks are trainee solicitors who are either enrolled in or have completed a Bachelor of Laws (LLB) or an accredited course of legal studies or are eligible for admission as a solicitor or barrister.

Articles of Association The Memorandum of Association is the first constitutional document of a company containing fundamentals such as the name, the company's objects and powers, and its original share capital. Any restrictions on the company in the Memorandum of Association are no longer of material significance, at least for third parties dealing with the company. The Articles of Association contain the internal regulations and bylaws covering procedure, shares, meetings, directors and other administrative issues.

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assignment an assignment is the immediate transfer of an existing proprietary right from one person (the assignor) to another person (the assignee). The subject matter of the assignment is ownership. A classic example is the assignment of the right to be paid in lieu of paying monies owed. The assignor assigns its right to be paid to the assignee, who is then entitled to receive the payment instead of the assignor.

attestation clause a group of words in a document that guarantee the validity of the signature of the person that signed it.

attorney the person(s) named in a power of attorney to make certain legal decisions on behalf of another person.

Attorney-General as the State's first law officer, the Attorney-General has a range of unique functions by virtue of the office, including:

• the full authority over legal matters of the State including acting on its behalf in litigation;
• acting as the guardian of the public interest and balancing conflicting private and collective interests;
• providing legal advice to Cabinet and the Executive Council and advises them on judicial appointments;
• the authority to initiate or terminate criminal proceedings, advise on the exercise of the prerogative of mercy, grant immunities from prosecution, and appear in a case as amicua curiae (friend of the court).
   
  Australian Securities and Investment Commission (ASIC) The federal regulator for companies and financial markets and products. http://www.asic.gov.au/ (This link will take you to another website.)

Australian Securities and Investment Commission (ASIC) the federal regulator for companies and financial markets and products.

auditor a person appointed and authorised to audit or examine accounts, compare charges with vouchers, examine the parties and witnesses, allow or reject charges, and state the balance. The general rule is that every company, unless it is a small proprietary company which does not have to prepare a financial report, must appoint an auditor to carry out an audit of its accounts. The rule is relaxed for dormant companies or those with a low turnover. The appointment (or re-appointment) of an auditor is made by shareholders at the annual general meeting of the company at which the accounts are read.

Australian Government Solicitor a body corporate performing solicitor functions on behalf of the Commonwealth, including acting for such persons or body as the Attorney-General may request. http://www.ags.gov.au/ (This link will take you to another website.)

authorised share capital under the Corporations Act 2001 , shares may be issued by the company to shareholders in return for cash or other value equal to or greater than its nominal value. Shares in the authorised share capital are available to be issued. The issued share capital refers to shares which have been allotted and issued and held by shareholders. Not all of the authorised share capital needs to be issued. When shares are issued, the person subscribing must pay cash or equivalent value of at least the nominal amount. Where the share is worth more than its nominal amount, a premium may also be paid. Also known as nominal share capital.

AVO Apprehended Violence Order.

B

bail order an order of the court containing specific conditions which releases a person held in custody on criminal charges.

bankruptcy an order made under the Bankruptcy Act 1966 (Cth) against an individual debtor — not a limited company — which signifies that person is unable to pay his/her debts and deprives that person of their property which is distributed among creditors. As a result of bankruptcy, a bankrupt cannot trade or act as a company director.

balance of probabilities means more probable than not (51% to 49%).

Bar the term used to describe the organisation that represents barristers as a whole.

barrister a lawyer who mainly works in courts as an advocate, and has been accepted as a member of the Bar.

beyond reasonable doubt is the standard of proof applying in a criminal trial usually before a jury and is not applicable to disciplinary bodies.

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Bill  an Act in draft form which needs to be passed by Parliament and receive Royal Assent before becoming a law.

bill of costs an itemised list of expenses incurred by an applicant or an applicant's solicitor in presenting their case to a court.

bona fide Latin term 'sincere, in good faith'.

bona vacantia Latin term 'goods without an owner'.

breach  where a defendant does not comply with conditions imposed in certain orders e.g. probation, community service, suspended sentence.

breach of contract where two (or more) parties have entered into a valid contract and one party fails to perform that party's obligations, then that party is said to have 'breached the contract'.

breach of duty of care negligent or careless conduct, or failure to act, by a person who owes a duty of care to another and who fails to maintain the standard of care necessary to fulfill that duty.

brief the documents a solicitor prepares to explain to a barrister the details of a court case.

Briginshaw Test is a test which requires that something be proven to the 'reasonable satisfaction' of the decision maker.

business assets the undertaking and assets of an economic entity — as distinct from a company — are known as business assets. It is not a distinct legal person and its components — goodwill, plant, contracts etc — belong to the company or individual which owns them. Where a business is referred to as a going concern, it means it carries the benefit of orders, contracts, customers and other aspects of revenue generation on a continuing basis.

bylaw laws passed by a council that affect the people living or visiting that area.

C

callover when a judge, in consultation with the parties, allocates a date of hearing for matters awaiting trial..

case law the rules of law that have been established by judges in previous cases. This can also be called the common law.

certificate of indictment a certificate used for court proceedings containing the defendant's charge and sentence details.

certificate of registration a company is a separate legal entity, governed by the Corporations Act 2001 , which conducts activities on its own behalf and is distinct from the persons who own and control it. Shareholders are the owners and control the company, but their liability in relation to the company's creditors is limited. Registration or incorporation is the process by which the company is registered with the Australian Securities and Investments Commission (ASIC) and thereby comes into existence as a separate legal person. A Certificate of Registration is sent to the company by ASIC upon registration of the company.

chairperson the procedure for appointing a chairperson of a company and his or her functions are contained in the Articles of Association. Usually s/he is appointed by the directors and will officiate as chairperson of meetings of the directors and shareholders. If s/he is not able to act as chairperson of a meeting for any reason, there ought to be a mechanism in the Articles of Association to select another chairperson. His or her role is primarily procedural. S/he does not carry greater obligations or legal responsibility than other directors. S/he may however, have a casting vote on a voting tie.

challenge the expression used in a criminal court when the defendant or their counsel exercises the right to object to a person being sworn in as a juror.

charge details of what the defendant is being accused of, including the date, time and place.

Chief Justice the most senior judge of a court, for example the Chief Justice of the High Court.

circumstantial evidence is evidence tending to establish a conclusion from known facts (e.g. a witness saw the accused with a blood stained knife standing by a door of a house in which the deceased was found mortally wounded. If the witness' statement is believed then it can be relied upon to infer that the accused caused the wound with the knife).

Civil judgments  

• affidavit - a document that states certain facts and is sworn or affirmed in front of a justice of the peace or solicitor.
• affidavit of service - a sworn document showing exactly how a document is to be served on someone.  It must include how the person is to be identified, when (including time of day, day and date) and what documents are to be given to the person concerned.
• enforcement - the court processes enabling the judgment to be carried out.
• judgment - a final order which may be enforced by the court.
• judgment creditor - the party in whose favour judgment has been made.
• judgment debtor - the party who must comply with the judgment.

civil law Laws that deal with things other than crimes.

cogent evidence means convincing, compelling or forceful evidence.  

common law Laws that are made by judges, as opposed to legislation that is passed by Parliaments.

common law is made by judges, as opposed to legislation that is passed by Parliaments.

common law claim a common law claim is the claim made by an injured worker who starts common law action through the courts against their employer for negligence (in other words, they are 'suing' their employer). The courts award common law damages payments for economic loss, pain and suffering, legal costs and medical and hospital costs. In 1999/2000, the average cost of a common law claims was approximately $80,000. WorkCover may pay all damages awarded to the injured worker, including legal and investigative costs as part of its Policy of Accident Insurance. Also called a 'damages claim'.

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common law damages a common law claim is the claim made by an injured worker who starts a common law action through the courts against his/her employer for negligence. In the case of a common law claim, WorkCover may pay all damages and expenses awarded by the courts to the employee, including legal and investigative costs, if the worker has successfully sued for negligence.

company a company is a legal entity either registered or recognised under the Corporations Act 2001 which conducts activities on its own behalf and is distinct from the people who own and control it. Shareholders control the company but their liability is limited. Incorporation is the process by which the company is entered on the register of the Australian Securities and Investments Commission (ASIC) . Also see corporation.

company seal traditionally, a company executed deeds and other instruments, including share certificates, under seal. This is a device for impressing the company's name onto a red seal attached to the document in a position where two directors or one director and the secretary can sign as witnesses. It is optional whether companies have a common seal. Even if a company already has, or adopts, a common seal, it is optional whether the company actually uses it.

complainant a person who starts a case in the Magistrates Court.

conciliation a way of settling disputes that avoids the court. Decisions are made when the participants agree, rather than by the judge.

concurrent existing together or to be served at the same time.

Conduct money an amount of money paid by an enforcement creditor to an enforcement debtor to pay for their travel or to meet reasonable expenses of complying with the enforcement hearing summons.

Conduct money money paid to the enforcement debtor to cover the cost of travelling to and from a court outside the district in which they live or work.  this is usually a nominal amount to cover the cost of public transport.  It cannot be claimed as an additional cost.

confidential means that information or other matters must be kept secret. A duty to keep such material confidential can be imposed expressly or by the circumstances. This needs to be in respect of keeping information secret, preventing disclosure to third parties or being used with a view to going into competition. A separate confidentiality agreement or a term in another agreement should address such issues both during and after the relationship.

confidential information a contract will commonly contain a clause forbidding disclosure of trade secrets or other 'secret' information to third parties during and after the contract. It will also often require company material to be kept secure and returned (with any copies) when the contract ends. In the case of employment contracts, post-termination restraints must be reasonable.

consent  when the respondent agrees to the protection order.

consideration Something promised, given or done that has the effect of making an agreement a legally enforceable contract.

Constitution the document that sets out the way our Government is run, especially with regard to Parliament and courts.

consultancy there is a distinction between someone who works full time for a company on an exclusive basis (as an employee) and someone who is engaged occasionally to assist or provide advice but who provides similar services to a range of businesses (consultant).

contempt means offensive conduct before a court or inquiry body which might include insults, disruption or attempts to improperly influence the court or inquiry.

contest  when the respondent opposes the protection order.

contract 1. a legally-binding promise or agreement. A promise or agreement is not legally binding and enforceable as a contract unless the requirements for contract formation, including consideration and certainty of agreement, are satisfied. 2. the form or document that embodies the terms of an agreement between parties.

contract of service a contract of service is an employment relationship which exists whenever there is a master/servant relationship between an employer and their worker. A large part of the workforce works under a contract of service including those:

• on a salary or wage;
• who work only for one employer;
• who have set hours of work;
• who are supervised; or
• who may be disciplined or dismissed by the employer. 

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conveyancing a term often used to describe the buying and selling of a property.

corroborative evidence is independent evidence which supports other evidence on a relevant point and which implicates/points to the alleged offender/respondent as the person who carried out the act in question. Commonly 'corroboration' can have a wider meaning as including evidence which 'confirms' that the act may have happened. (e.g. a telephone record confirms a telephone call took place, but not the contents of the call).  

Counsel another word for a barrister when they are in court.

Counsel assisting means a person, usually a barrister, appointed to assist a Tribunal so far as the presentation of evidence and the interpretation of the Act or questioning of witnesses is concerned.

count what a charge is called when the defendant is called on to make a plea.

court the place where you go to settle a dispute, which is heard by a judge or a magistrate.

Court of rendition the court where the money order/judgment was first made.

copyright this is governed by the Copyright Act 1968 and is intended to protect against others copying and exploiting the form in which a copyright exists (a 'work'). However, it does not protect the idea behind the work. The copyright, whether it be in a literary, dramatic, musical and artistic work, or mechanical rights (sound recordings, film etc) is generally owned by the author unless s/he assigns the rights to another. In addition to works already created, the author can agree to assign the rights of works to be created in the future.

coroner a public officer whose primary function is to investigate by inquest any death thought to be of other than natural causes.

coronial inquest an inquest or inquiry concerning the death or suspected death of a person held before a coroner.

corporation for the purposes of the Corporation Act 2001, 'corporation' is defined to include any body corporate formed or incorporated within or outside Australia. The term includes companies and unincorporated bodies which may sue or be sued or may hold property. 'Corporation' is the wider term while 'company' is only used with reference to a body registered under the Corporations Act 2001.

corporate constitution refers to either replaceable rules (basic rules necessary for internal management) or a specific constitution adopted by the company. Companies existing before 1 July 1998 may still rely on their existing memorandum and articles.

credit means the believability of evidence, in particular a person who gives evidence.

creditor (enforcement creditor) a party entitled to enforce an order for the payment of money.  A party who benefits, or will benefit, from the execution of the warrant.

Crime and Misconduct Commission (CMC) The Crime and Misconduct Commission started in January 2002 after a merger between the former Criminal Justice Commission (CJC) and Queensland Crime Commission (QCC). The role of the Crime and Misconduct Commission is to combat and reduce the incidence of major crime, to improve the integrity of the public sector and to reduce the incidence of misconduct in the public sector. http://www.cmc.qld.gov.au/ (This link will take you to another website.)

criminal law Legislation and common law rules that are about crimes and the penalties attached to them.

Crown the reigning King or Queen in the capacity of Sovereign and often signifying the entire administrative edifice of the executive government under the Crown. In the Australian federal system, the Crown acts 'in the right of' the Commonwealth and each of the States and Territories.

Crown grant Grant of land title by the Crown.

Crown immunity the presumption that a statute does not bind the Crown unless by express mention or necessary implication.

Crown land broadly, land that is the property of the Commonwealth, a State or Territory (Cth).

Crown lease a lease of land from the Crown, granted under the Crown lands legislation.

cultural heritage is defined in the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 to be anything that is:

1. a significant area in Queensland to Aboriginal or Torres Strait Islander people;
2. a significant object to Aboriginal or Torres Strait Islander people; and
3. evidence, of archaealogical or historic significance, of occupation of an area in Queensland by Aboriginal or Torres Strait Islander people.

Under the Acts, the significance of an area or object is as interpreted by Aboriginal or Torres Strait Islander people with reference to their tradition or history, including contemporary history in an area.

Unlike native title, which has been extinguished in certain land such as freehold, cultural heritage may exist in any part of the State.

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cumulative time to be served at completion of sentence presently being served.

cypres the doctrine or principle where a charitable intention by a testator does not fail simply because there is no institution specified by the testator in his/her will. The gift will be used for some similar purpose resembling as much as possible the specified object or intent.

D

damages Compensation that is awarded by a court for an injury or some loss suffered by a person.m.

debenture Companies can issue a series of debentures or debenture stock which essentially means secured loan stock. The document or instrument creates indebtedness owing by the company to the holder, usually carrying interest and maturing on a particular date when the principal amount is repaid. Debentures tend to be secured by a floating charge and/or a collection of fixed charges over the company's assets.

Debtor (enforcement debtor) a party required to pay money under a court order to an enforcement creditor.

deed an alternative to a simple contract and a way of making binding obligations on the parties to that deed. Usually a deed is required to complete a transaction. In a commercial situation, the most common use is where a variation or concession is made without the other party giving anything in return. A deed is enforceable regardless of the legal requirements for contracts such as the need for consideration. Where a deed is necessary, there are special requirements for a company wishing to enter into such an arrangement which may either involve use of the company or the signature of two directors or a director and a company secretary.  

de facto  Latin term 'in fact'. Couples that live together as if they were married. 

defence an approved form setting out the reasons why the defendant is disputing the claim

defendant the person who is taken to court by another person or the police.

de novo a matter is heard over again from the beginning. A trial de novo is a retrial.

deponent the person who makes a statement in an affidavit.

directions instructions by a court or tribunal as to the procedures to be followed by the parties in preparing or presenting their cases. Directions relate to matters such as the exchange of evidence before a hearing.

directions conference a conference involving the parties to a proceeding before the Magistrate or the registar to try to resolve the action or narrow the issues.

directions hearing this may be held to deal with procedural matters such as exchange of affidavits, statements or documents or clarification of issues or determination of the venue for a hearing. A directions hearing may also be held to give directions to progress a matter where there has been undue delay by a party.

directors those appointed to the board of directors under procedures contained in the Articles of Association are the directors of the company. Shadow directors may also be treated as directors in some circumstances. Executives whose job title describes them as a director but are not members of the board are not treated as directors, although they may have ostensible authority to bind the company as if they were.

disbursements monies paid by your solicitor to another person on your behalf, for example the costs the court charges to lodge a document. The solicitor will pay these costs, but you will pay them as part of the bill.

Disciplinary Committee is a committee empowered to decide upon whether a professional has breached the standard of the profession.

disclosure (Also known as discovery) the process where, prior to going to trial, the parties give each other access to all documentary evidence relevant to the facts in issue in a dispute. A failure to disclose documents without any excuse is contempt of court. 1. Making available information to the public in general or to limited classes of people. 2. A pre-trial procedure where a party to proceedings makes available for inspection all relevant documents to the other parties.

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discrimination Under a range of different legislation, the law prohibits discrimination against various sectors of the workforce. Conduct is generally discriminatory where it may be considered to disadvantage a person of a particular sex or race, union members or non-members, ex-offenders, or the disabled. It may occur at recruitment, whilst employed or through termination. It is particularly important because in sex or race discrimination cases, the qualifying period of continuous employment for bringing a claim for dismissal does not apply when based upon discrimination and in such cases the limit on the amount an industrial tribunal may award is not applicable.

dispute resolution the many ways that a dispute can be settled without going to court.

Dispute Resolution Branch (DRB) the branch within the Department of Justice and Attorney-General where a dispute may be resolved through mediation, without the need to attend court.  This process involves the parties and a qualified mediator.

dividend in relation to a company, a dividend is the profit of trading divided among the members in proportion to their shares and in accordance with their rights as shareholders. Dividends may be payable in respect of preference shares and ordinary shares, the payment first being made in respect of preference shares. There may be one or more interim dividends as well as a final dividend. Shareholders cannot insist on the payment of dividends, even where the profits are amply sufficient, if the directors decline to declare a dividend, except in the case of fraud. Dividends must be paid in cash unless the Articles of Association of the company state that payment may also be made in paid up shares or debentures.

due diligence the process by which a purchaser of or an investor in a company or business investigates the records of the target to support its value and find out whether there are 'skeletons in the cupboard'. Professional reports from accountants and solicitors may be included. The due diligence process is covered by confidentiality undertakings and supported by warranties.

E

Earnings of an enforcement debtor, includes any of the following that are owing or accruing to the debtor:

•  wages, salary, fees, bonuses, commissions, overtime pay, other compensation for services or profit arising from office or employment.
• pensions, benefits or similar payments.
• annuities.
• an amount payable instead of leave.
• retirement benefits.

EC Enforcement Creditor

ED Enforcement Debtor

electronic form  a transcript copy stored or recorded on a computer disc, CD-ROM, computer hard drive or file sent by email.

employer of an enforcement debtor, means a person (including the state) who, as prinicpal rather than as a servant or agent, pays, or is likely to pay, earnings to the debtor.

employer's liability the liability of an employer to pay damages to employees for personal injuries sustained in the course of employment. In general, an accident arising out of the course of employment will be deemed, in the absence of evidence to the contrary, to have arisen out of that employment.

employment contract the contractual agreement between employer and employee governing their employment relationship. There must also be a written statement of the terms containing certain minimum conditions of employment which have to be included by statute. Certain terms may be implied by common-law (e.g. fidelity) by custom and practice or by collective agreements.

Enforceable money order of a court, means:

• a money order of the court.
• a money order of another court or tribunal filed or registered in the court for enforcement.

Enforcement process where the money owed to an enforcement creditor is recovered.

Enforcement creditor a person owed a debt who is entitled to enforce an order for payment of the money.

Enforcement debtor a person who owes money and is required to pay money under an order.

Enforcement money order a money order of  the court. A money order of another court or tribunal filed and registered under an Act in the court for enforcement.

Enforcement officer a person appointed by the courts to serve documents and execute the enforcement actions.  Previously referred to as a bailiff or sheriff's officer.

Enforcement warrant a warrant issued under the provisions of the Uniform Civil Procedure Rules 1999.

Enforcement warrant for recovery of possession of land a document directing the enforcement debtor to hand over possession of land to the enforcement creditor.

Enforcement warrant for seizure and sale of property a document authorising an enforcement officer to seize and sell real estate and personal property belonging to an enforcement debtor.

EO Enforcement Officer

equity a branch of the law that deals with ideas of fairness. For example, the grant of a trust that allows a de facto partner to have an interest in a property when they are not the legal owner on the title.

estoppel a rule of evidence or law that prevents (or 'estops') a person from denying the truth of a statement they have made or from denying certain facts that they have alleged to exist. The statement or denial must have been relied upon by another person (normally to their disadvantage) who changed their position on the faith of the statement or denial.

evidence is information either verbal or documentary or electronic which must be reliable and relevant to the proof of an allegation.

evidence of fresh complaint refers to evidence that the complainant made a statement shortly after the alleged offence/happening complaining of the event.  The statement made is self-serving but is admissible and assists in giving the charge/allegation stronger weight and consistency. Strictly speaking it is not corroborative evidence.  

exempt property property that cannot be seized or sold because it is exempt: in accordance with the Bankruptcy Regulations 1996 (Cwth) - Regulation 6.03 and the Bankruptcy Act 1966 (Cwth) Section 116.  If the enforcement officer is satisfied that the household property, including sports and recreation equipment, is reasonably necessary for the debtor and his/her family to maintain their standard of living.

ex gratia Latin term 'out of kindness, voluntary'.

exhibits any object or document presented at a hearing to illustrate or support verbal evidence.

ex-officio indictment the indictment gets presented on the day of the sentence when the accused has waived their right to committal and elected to have the matter go straight to the higher court.

ex parte Latin term 'proceeding brought by one person in the absence of another'.

ex-tempore (ex-temp) immediately.

extraordinary general meeting any meeting of the shareholders other than an annual general meeting is known as an extraordinary general meeting. The length of notice depends on the nature of the resolutions being put to the meeting.

F

Family Court this federal court was set up in 1975 by the Family Law Act. It deals with all sorts of issues about families for most Australians, including divorce, the welfare of children, property, maintenance etc.

family law this is the branch of the law that deals with the rules about family relationships.

Federal Court  a court that deals with some Commonwealth laws, for example bankruptcy.

final sentence takes into account the extent to which the offender has complied with the IDRO.  It must not be more than the initial sentence.

finding means the resolution of a question of evidence, fact or allegation.

fixed charge see floating charge.

floating charge a type of security over assets other than land. It creates a charge over particular assets as security for borrowings or other indebtedness. There are essentially two types of charge — floating and fixed. A floating charge is appropriate to assets and material which is subject to change on a daily basis, such as stock. Individual items move into and out of the charge as they are bought and sold in the ordinary course of events. The floating charge crystallises over property if there is a default or similar event. At that stage the floating charge is converted to a fixed charge over the assets which it covers at that time. A floating charge is not as effective as a fixed charge but is more flexible. It is similar to a mortgage but can be taken over anything other than land.

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force majeure a superior force. An event that no human foresight could anticipate or which, if anticipated, is too strong to be considered e.g an industrial strike which leads to loss of profits. Circumstances must be abnormal and unforeseeable so that the consequences could not have been avoided through the exercise of all due care.

franchising Business format franchising consists of selling a package of marketing experience and other business assistance to franchisees, who set up a business using the trade marks or service marks and the general get up of the franchiser. The franchisee will typically have a territory within which to sell the goods or services.

fraud something done in an effort to deceive another person, for example, naming items as stolen for insurance purposes when this is not true.

Freedom of Information commonly called 'FOI', it is the opportunity to ask a government body to release information to a person who requests it. There is Commonwealth and State legislation that sets up the rules for the release of the information.

fully paid in relation to a company, when a share is issued, the person applying for it must pay to the company, in cash or equivalent value, the amount of its nominal value together with any premium required by the company. Shares are fully paid when the whole amount has been received by the company (or exceptionally when the shareholder has given an undertaking to pay the whole amount). Shares may also be issued on the basis that only part of their price is to be paid at the outset with the remainder being required when called for by the company.

functus officio Latin terms meaning having spent your power or discharged your duty.

G

general meeting Companies are ultimately controlled by their shareholders voting in general meeting. Meetings of shareholders are convened by formal notice. The procedure is contained in the Articles of Association. Ordinary resolutions are passed by a simple majority of shareholders present in person or in proxy voting at the meeting. Special Resolutions require a 75 per cent majority.

GOC Government Owned Corporation.

Graduation when an offender successfully completes all phases of the program.

guarantees a guarantor undertakes that s/he will repay a debt incurred by another person or company to a bank or other creditor and the bank or other creditor can require her/him to pay the outstanding amount if that person cannot or will not pay their indebtedness. Proprietors and directors of companies are often asked to give personal guarantees for their company's borrowings to provide additional security. A bank will commonly require the guarantee to be secured, for example a mortgage over a director's house. In the case of co-guarantors, each guarantor will be fully liable for the outstanding amount; it is up to guarantors to resolve their respective obligations between themselves.

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guarantor a guarantor undertakes that he will repay a debt incurred by another person or company to a bank or other creditor and the bank or other creditor can require him to pay the outstanding amount if that person cannot or will not pay their indebtedness. Proprietors and directors of companies are often asked to give personal guarantees for their company's borrowings to provide additional security. A bank will commonly require the guarantee to be secured, for example a mortgage over a director's house. In the case of co-guarantors each guarantor will be fully liable for the outstanding amount; it is up to guarantors to resolve their respective obligations between themselves.

guardian in relation to a person with a disability, it means a person who makes lifestyle decisions for the disabled person following an order of the Guardianship and Administration Board. In relation to a child, a person who has the legal decision-making right on behalf of that child.

Guardianship and Administration Tribunal (GAAT) this Tribunal came into being on 1 July 2000, replacing the Intellectually Disabled Citizens Council of Queensland (IDCCQ). The Tribunal has the authority to appoint guardians and administrators for adults with impaired decision-making capacity. The Tribunal works from the following principles:

• most people with disabilities don't need a legally-appointed guardian or financial manager;
• GAAT is the last resort and should only be used when a person is incapable of making their own decisions and when all other suitable alternatives have been tried;
• GAAT's main concern is the welfare of the person with impaired decision-making capacity.

guardianship order an order of the Guardianship and Administration Board that appoints a guardian to make lifestyle decisions for a person with a disability.

H 

hearing appearance of parties and witnesses before a court or tribunal to determine a matter.

hearsay evidence (rule against) refers to preference of Courts for first hand evidence from an actual witness. The rule prevents the use of an out of court statement as proving the contents of the statement. Interrelates with 'best evidence' rule. Hearsay evidence is allowed in Tribunals, but the weight of the evidence may be affected.

Higher courts the Supreme and District courts.

High Court this is Australia's highest court, established by the Constitution. It hears appeals from lower courts, and interprets the Constitution. It usually sits in Canberra, and is made up of the Chief Justice and six other Justices.

Home court the original court which makes the judgment/order.

host employer sometimes injured workers are unable to participate in rehabilitation or suitable duties with their original employer. When this happens, they participate in suitable duties with another employer called a host employer.

I

in camera Latin term 'in private'. A hearing where the court considers it desirable — in the interests of justice or in order to prevent undue hardship to any person — to order specified persons or all people (except those specified) to remove themselves from the court room during the whole or any part of the proceeding. For example, it occurs in court proceedings involving children.

incompetence or negligence in the person's performance as a valuer means a failure to meet a standard of care toward the client, including a failure to take certain steps or do certain things to so the work to a proper and accepted standard.

incorporation a company is a separate legal entity governed by the Corporations Act 2001 , which conducts activities on its own behalf and is distinct from the people who own and control it. The proprietors control the company but their liability in relation to the company is limited. Also known as registration.

indemnity an agreement by one party that s/he will pay to another the amount of liability which may be suffered by the second party is known as indemnity.

Indicative assessment the initial assessment undertaken by Queensland Health personnel to determine drug dependence and whether to refer the case to the Drug Court.

indicia Latin term 'marks, signs'.

indictable offence a more serious crime for which the accused is tried by a judge and/or jury.

indictment part of a criminal file. The document sets out the offence/s that a defendant is alleged to have committed and for which the defendant must stand trial and be sentenced if found guilty. An indictment is presented to the relevant court (Supreme or District court) so that the court is aware of the offence/s for which the defendant must stand trial.

informed consent this is the consent a person gives when they have all the facts they need to make the decision. For example, a person should not consent to a medical procedure unless they have all the relevant information.

Initial sentence is the offender's sentenced term of imprisonment which is suspended to enable the Drug Court IDRO to be undertaken.  If and when the offender completes the program, the Intensive Drug Rehabilitation Order (IDRO) is vacated, and a final sentence is imposed.

injunction an order of the court which requires a party to a proceeding to do, or refrain from doing, a particular thing.

injury for a workers' compensation claim to be accepted, employment must be a significant contributing factor to the injury. An injury, as defined by the Workers' Compensation and Rehabilitation Act 2003 , can include a cut or fracture; disease (example asbestos or Q-fever); industrial deafness, psychiatric or psychological disorders such as stress or depression; aggravation of a pre-existing condition; and death from an injury, disease or aggravation of a disease.

in solidum Latin term meaning 'for the whole'. Where there are several co-obligants bound 'in solidum', each is liable in full payment or performance, and the creditor may choose which of the obligants s/he will sue. Every person whose name appears on a bill, whether as acceptor or endorser, is liable in full payment of its contents although he may after payment do diligence against the others for relief. Those who in a joint obligation are not bound for the whole but only for their share are said to be liable  'pro rata'.

insolvency this means being unable to pay your debts. For a company, this essentially means that there is a deficit in your balance sheet; your tangible assets are less than your liabilities, and your business does not generate sufficient surplus revenue to fill the gap. If you have surplus assets in your balance sheet but are making losses, you become insolvent when the losses consume the surplus assets. Solvency is measured in the context of voluntary winding-up and similar procedures when the directors can declare that the company will be able to pay its debts as they fall due for the next 12 months.

intellectual property the term given to various forms of protection against infringement by unlawful copying, reproduction or other forms of 'theft' of intangible aspects of a product, service or business. Creativity may be protected by patents, appearance by designs and copyright, and reputation by trade or service marks.

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Intensive Drug Rehabilitation Order (IDRO) the order the offender is subject to under the Drug Court program.  The order is tailor-made to maximise opportunities to stop drug use and re-establish viable life goals.

inter alia Latin term 'amongst other things'.

interlocutory application an application to resolve procedural matters before a hearing.

ipso facto Latin term 'by that very fact'.

irrevocable election if a worker is assessed as having a work-related impairment of less than 20 per cent, they have a choice to make what is called 'irrevocable decision'. It is a choice between accepting the statutory lump sum compensation offered by WorkCover Queensland or making a common law claim against their employer.

J

joint and several liability where two or more people enter into an obligation such as a guarantee together, joint and several liability means that the lender or creditor can recover the whole indebtedness from any one of them. They are then left to sort out their respective contributions between themselves.

joint venture when two independent businesses wish to combine forces in a business project, they may form a joint venture to operate the new project as a separate enterprise. This can take the form of a simple contractual arrangement or a joint venture company.

joint venture agreement when two independent businesses wish to combine forces in a business project, they may form a joint venture to operate the new project as a separate enterprise. This can take the form of a simple contractual arrangement, a partnership or a joint venture company.

Judge the person who hears a case in court. They are not public servants, and usually cannot be sacked, so they are not under the control of the government.

Judgment enforceable order of a court.

Judgment/money order an order for the defendant to pay the plaintiff an amount of money.

Jurat the wording at the end of an affidavit stating where and when the affidavit was sworn followed by the signatures of the person swearing the affidavit and the witness.

jurisdiction the power of a court or judge to entertain an action, petition or other proceeding. When a proceeding in respect of a certain subject matter can only be brought in one court, that court is said to have exclusive jurisdiction; when it can be brought in any one of several courts, they are said to have concurrent jurisdiction. Jurisdiction also signifies the district or geographical limits within which the judgments or orders of a court can be enforced or executed.

jury the people who hear and decide the truth of facts that are presented in certain court cases. In criminal cases a jury is made up of twelve people; in civil cases it may only be four people.

Justice of the Peace a person who is allowed to do limited judge-like things. For example, to witness some documents.

K

L

legal professional privilege this is one of the corner stones of the lawyer-client relationship. It protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court. The current principles of legal professional privilege were developed by the High Court in Esso Australia Resources Limited v The Commissioner of Taxation of the Commonwealth of Australia [1999] 201 CLR 49. In this case, the High court ruled that the proper test for whether the privilege will attach to a particular communication is the “dominant purpose” test. The test is fulfilled if the communication between the lawyer and the client was made for the dominant purpose of giving or obtaining legal advice or was made for the dominant purpose of providing legal services. It is important to note that this privilege belongs to the client, not the lawyer. Accordingly, only the client is in a position to waive this privilege. In government, the privilege belongs to the State and the Attorney-General determines whether privilege should be waived.

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legislation the instruments embodying the creation and promulgation of laws by the Commonwealth and State legislatures. Laws made by Parliament, that is statute law or Acts of Parliament.

liability an obligation that you have to another person, usually an amount of money that is owed.

lien the right to hold the property of another as security for the performance of an obligation or the payment of a debt.

limitation period a period during which a cause of action or prosecution may be started in court or an interlocutory step taken in proceedings.

limitation period a period during which a cause of action or prosecution may be started in court or an interlocutory step taken in proceedings.

limited company all companies have limited liability except for those incorporated as unlimited companies. The latter are rarely encountered and tend only to be used to serve specific tax or accounting arrangements.

limited liability Shareholders in a limited company are only liable to third parties to the limit of their shareholding. Other participants (e.g. directors) would not normally have any personal liability, except with respect to creditors where there has been wrongful or fraudulent trading or when personal guarantees or other such undertakings have been given by directors or others.

liquidation is a process by which the affairs of a company are finalised by winding up. Under the Corporations Act 2001 , there are three separate procedures — a member's voluntary winding up where a company is solvent, a creditors' voluntary winding up for insolvent companies and a compulsory winding up by the court. Once the process starts the company is administered by a liquidator who disposes of all assets, and distributes the proceeds to creditors and any remainder to shareholders. When the liquidation process is complete, the company is struck off the Companies Register and ceases to exist.

litigation the conduct of legal proceedings by parties before a court.

lodge usually refers to placing a document with a court. If you are lodging by post, the document will not be considered to be lodged until it is received.

lower courts The Magistrates Court

LPT Legal Practice Tribunal

LSC Legal Services Commission

lump sum compensation if a worker is permanently impaired as a result of their work-related injury, they are entitled to lump sum compensation. If a worker receives lump sum compensation, they will no longer be entitled to statutory compensation. If a worker has a work related impairment of less than 20 per cent, they will need to choose between lump sum compensation or making a common law claim (this is called the 'irrevocable election').

M

Magistrate a type of judge who is appointed to hear cases at the Magistrates Court. A magistrate can make decisions about disputes and enforce those decisions.

Magistrates Court a court that deals with certain criminal and civil cases. It is often the busiest court and is located in most suburbs, regional centres and the city.

malfeasance misconduct or wrongdoing, especially by a public official.

mediation a process where both parties come together to attempt to settle a dispute through an independent third party.

Medical Assessment Tribunals The Medical Assessment Tribunals (MATs) provide an independent medical assessment of injury or impairment for workers' compensation claims. The Tribunal makes a decision about work-related injury based on the clinical examination, medical information available and submissions made by the worker or their representative. The MATs are run by Q-COMP, the workers' compensation regulatory service of Queensland.

Medical Enduring Power of Attorney a medical enduring power of attorney is a legal document. By signing it, you authorise a person to make health care decisions for you if you are unable to make decisions yourself.

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Melbourne Corporation Principle an implied limitation upon the legislative power of the Commonwealth to legislate with respect to the States. The Commonwealth cannot discriminate against a State or States, or their agents and instrumentalities, by imposing a special burden or disability upon them, nor can it curtail the continued existence of the States or their capacity to function as governments.

Memorandum of Association this, together with the Articles of Association, comprised the corporate constitution. It contained fundamental conditions upon which the company was to be incorporated. It provided for the name, the company's objectives and powers and its original share capital. The Corporations Act 2001 has dispensed with these documents for registration.

mention  no hearing will take place on this day but submissions may be made for a determination, or a date of hearing will be set..

minority shareholder a shareholder holding less than 50 per cent of the voting rights attached to the equity and accordingly subject to the control of another shareholder or group of shareholders with the majority. There is a further 25 per cent threshold below which the minority can prevent special resolutions being passed.

minutes a written record of the proceedings of director's or shareholder's meetings. Usually a summary of the discussion at meetings and a record of formal resolutions passed. The minutes of a meeting are usually prepared by the secretary and then presented and approved at the next meeting and signed by the chairman. The completed minutes are prima facie (but not conclusive) evidence of the proceedings of the meetings.

misconduct in a professional respect means conduct which violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

misconduct behaviour which does not conform to existing standards or laws.

misfeasance a trespass; a wrong done; the improper doing of an act which a person might lawfully do.

money order an order by the court or registrar for the payment of money including an amount of claim, costs and interest.

Mortgagee the person to whom the mortgage is granted - the lender of the money.

Mortgagor the person who mortgages their property - the borrower.

mutatis mutandis Latin term meaning things being changed which are to be changed.

N

native title is defined in the Native Title Act 1993 (Cth). The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters where:

• the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by Aboriginal and Torres Strait Islander people; and
• Aboriginal people or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
• the rights and interests are recognised by the common law of Australia.

natural justice Inter-changeable with the term 'procedural fairness'. Two main aspects of the concept of natural justice:

1. The opportunity to be heard. A person should be given the opportunity to be heard before a decision that could adversely affect him or her in an individual way, is made. This is called the 'hearing rule'.
2. No bias. A decision-maker must not be biased.

negligence an action in tort law, the elements of which are the existence of a duty of care, breach of that duty and material damage as a consequence of the breach of duty.

negligent misrepresentation/negligent misstatement a statement of fact, advice or opinion made in a business context which is inaccurate or misleading.

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nexus Latin term 'connection'.

Nolle prosequi a legal motion by a prosecutor or plaintiff to drop legal charges.

non-delegable duty a duty which cannot be passed on or delegated to another and so relieve the delegator of responsibility or liability.

non-executive director a director who is not an employee of the company and who only dictates part of his available time to the company is known as a non-executive director, usually a person with particular experience or skills who holds a seat on the board to exercise a steadying influence on board decisions. His legal obligations to the company and creditors of skill and honesty are the same as those of an executive director.

nonfeasance the omission or failure by a person or public body to do something which that person or public body has agreed or is likewise liable to do.

non sequitur Latin term 'an inconsistent statement, it does not follow'.

notary public a person who attests the execution of deeds, affidavits etc or makes certified copies of them in order to declare them authentic, especially for overseas use.  A fee is usually charged for their services.

notice of assessment the document issued by WorkCover Queensland or a self-insurer when a worker has been assessed with a permanent impairment resulting from a work-related injury.

notice of intention to defend an approved form that notifies the plaintiff and the court that the defendant is defending the claim.

notice of intention to defend and defence to a minor debt claim an approved form that notifies the plaintiff and the court that the defendant is defending the minor debt claim, along with the reasons why the defendant is disputing the claim.

Nunc pro tunc when a court order has a starting date earlier than the day on which it was actually made by the court.  Something that has retroactive effect i.e. is effective from an earlier date.

O

oath a solemn promise made by a witness to tell the truth. The oath is made to God or other revered being in which the person believes.

obligations of confidentiality where information is original and not publicly known, it may be considered to be confidential information. If you need to disclose it to another, an obligation of confidentiality must be imposed on the recipient (preferably by way of written agreement). This will allow you legal remedies against the recipient if the obligation is broken. In certain circumstances, where trust is implicit in an arrangement (e.g. between a client and a professional advisor) that obligation may be implied even where there is no written agreement. With employees, implied obligations of confidentiality apply during employment; post employment restrictions in relation to confidential information should generally be expressly agreed in writing, preferably in the employment contract.

offence what a charge is called after a verdict or plea of guilty.

ombudsman the person appointed to act as an independent umpire in disputes between the public and certain government bodies.

order a command made by a court that must be followed.

order debt the amount of money payable under a money order.

ordinary resolution a resolution passed by a simple majority of members present at a general meeting of a company is known as an ordinary resolution.

originating application applications made to start a civil proceeding (e.g. applications under Property Law Act 1974, Credit Act 1987)

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ordinary shares a share entitling its holder to a dividend, if any, after the payment of the fixed dividend in respect of preference shares. Ordinary shares carry the residual economic value of a company. They carry rights to distribution of profits through dividends, to the surplus assets of a company on a winding up and to votes at general meetings of the company.

P 

paralegal legal support officers who undertake a range of legal tasks for lawyers. Paralegals work closely with Crown Law's lawyers in the conduct of matters and provide a range of research and administrative services including compiling legal briefs, filing and serving legal documents, file review, trial preparation, preparing correspondence, client communications and file management.

parent company a company may own one or more other companies which are its subsidiaries. The relationship between parent and subsidiary depends on majority control of the voting rights of shares or the ability to appoint the majority of directors.

Parliament the elected body that has the power to make legislation. There are State and Commonwealth Parliaments.

parliamentary counsel an officer responsible for the drafting of Bills for introduction into either House of Parliament and of amendments of Bills which are being considered by either House.

parliamentary debates the full reports of the speeches of Members of the House of Representatives. Also known as Hansard reports. www.parliament.qld.gov.au/hansard (This link will take you to the Hansard section of the Queensland Parliament website.)

partly-paid when a share is issued, the person applying for it must pay to the company, in cash or equivalent value, the amount of its nominal value together with any premium required by the company. Shares are fully paid when the whole amount has been received by the company (or exceptionally when the shareholder has given an undertaking to pay the whole amount). Shares may also be issued on the basis that only part of their price is to be paid at the outset (hence partly-paid) with the remainder being required when called for by the company.

partnership under the Partnership Act 1891, a partnership is a business, which is not a limited company, carried on by two or more people, whether or not on an equal sharing basis, with a view to profit. A partnership is regulated by a partnership agreement which sets out the duties and responsibilities of the partners during the subsistence of the partnership and also upon its dissolution.

patent this is the most frequently used legal means of intellectual property protection. According to IP Australia http://www.ipaustralia.gov.au/, a patent is a right granted for any device, substance, method or process which is new, inventive and useful. (The link will take you to the IP Australia website.)

permanent impairment impairment is any loss or abnormality of psychological, physiological, or anatomical structure or function. It will be permanent if it is stable and stationary and is unlikely to change in spite of further medical or surgical treatment. If the impairment will not change by more than three months in the next 12 months, it is likely to be considered permanent.

petition a written application asking for relief or remedy, as in a petition for divorce. A petition is available only where statute or rules of procedure specifically prescribe it as a mode of procedure. Thus, a petition is necessary for applications for administrative orders, winding-up and bankruptcy orders.

PIPA with the Personal Injuries Proceedings Act 2002 (PIPA), the Government introduced legislation comprehensively regulating a pre-court procedure. This procedure must be followed before court action can be taken to obtain damages arising form a personal injury. The PIPA contemplates a four-tiered pre-court dispute resolution process:

• offer to settle the dispute, contained in the Notice of Claim;
• offer in the response to the Notice of Claim;
• compulsory conference; and
• final offer.

The opponents may proceed to trial only if the parties cannot reach a solution to their dispute through any of the above steps. The PIPA was amended by the Civil Liability Act 2003 http://www.legislation.qld.gov.au/ (This link will take you to Legislation Online.)

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plaintiff  the person (or company) who takes out an action against a defendant.

post mortem Latin term 'after death'.

poundage this is the fee collected by the sheriff/registrar after the enforcement of a warrant.  It is similar to commission and is a percentage of the sum paid to the creditor or a percentage of the annual rental of a house or premises returned to the creditor by the enforcement officer. The rate is prescribed in the court scale of fees.

pre-sentence report report compiled prior to sentence containing relevant aspects of the defendant's life and offending history to date.

prima facie Latin term 'on the face of it'.

printed form  a handwritten or typed transcript copy and stored or recorded on paper or by mechanical or electronic means 

probative means evidence which is capable of proving something either by itself, or in conjunction with other evidence.

pro bono work undertaken voluntarily by a lawyer at no expense. A term often used to refer to lawyer's work that is not charged for.

promissory estoppel  a form of equitable estoppel (the other being proprietary estoppel) which applies when a person promises (by words or conduct) to a second person not to enforce their rights (either fully or partially) under a contract. As long as the second person has acted in reliance on that promise, the maker of the promise will be bound by the promise and therefore, cannot sue on the contract. See also estoppel.

pro rata Latin term meaning 'proportionally; for a proportion'. Where several debtors are each liable for the whole debt, they are said to be liable 'in solidum' but where each is liable for his own share or proportion only, they are said to be bound 'pro rata'. An example of both phrases may be found in the liability of partners; each is liable 'in solidum' for the debts of the partnership in relation to creditors, but each is liable only 'pro rata' in relation to between themselves.

protection order  a court order to protect an aggrieved person/s from acts of domestic violence by the respondent.

proxy a person appointed by a shareholder to vote for him at a meeting. Any member of a company entitled to attend and vote at a meeting of it is entitled to appoint another person (whether a member or not) as his proxy to attend and vote instead of him. A proxy appointed to attend and vote instead of a member of a private company also has the same right as a member to speak at the meeting. But unless the Articles of Association otherwise provide, a member of a private company is not entitled to appoint more than one proxy to attend on the same occasion, and a proxy is not entitled to vote except on a poll.

Public Advocate the person appointed by Parliament to look after the legal affairs of people with disabilities. 

Q

Q-COMP Q-COMP is the Workers' Compensation Regulatory Authority. Q-COMP's objective is to ensure equitable, impartial and balanced regulatory services for Queensland's injured workers, employers and insurers. These regulatory services include claim and premium review, self-insurance, workplace rehabilitation, medical assessment tribunals and scheme development.

QGIF The Queensland Government Insurance Fund (QGIF) came into operation on 1 July 2001. QGIF is predominantly an administrative funding arrangement which seeks to enhance the Government's commitment to the fiscal principle of managing financial risk through identifying, providing for and funding the State's insurable liabilities. Prior to the establishment of QGIF, most departments either absorbed insurable losses from their existing budget or sought budget supplementation.

quantum Latin term 'how much, an amount'. Term used in relation to the apportionment of damages.

Quasi criminal matter  a matter or charge that is not brought under the Criminal Code.

Queen's Counsel usually called a QC. It is the title given to a senior barrister in recognition of outstanding work. 

quid pro quo Latin term 'consideration, something for something'.

quiet enjoyment implied obligations of a landlord that a tenant's peaceful enjoyment of the premises shall not be interfered with by the landlord or by any person who claims under him. 'Quiet' is not restricted to an absence of noise; it has been interpreted as 'uninterrupted'. The tenant's remedies for breach of his/her quiet enjoyment are damages and injunction.

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quorum the number of shareholders or directors at board meetings who must be present at a meeting to allow proceedings to be validly and effectively conducted. The quorum required for a meeting of a company's shareholders and directors is usually two people present in person or for shareholder's meetings by proxy. The quorum can be varied to suit particular needs and the requirements are contained in the Articles of Association. Any resolutions passed at a meeting without the required quorum are invalid, but may be notified at a subsequent quorate meeting.

R 

recognizance a document signed by a person acknowledging their obligation to perform an act or abide by a decision of the court. It could be to appear in court, keep the peace or be of good behavious for a specified period.

refer for assessment the process where the Drug Court adjourns a matter so the offender can be interviewed by Queensland Health and Corrective Services personnel.  The interview results in a report which is tendered to the court.  It outlines the findings and if applicable, recommends a rehabilitation plan tailored to the applicant.

referral a formal process where an offender is transferred to the Drug Court jurisdiction.

referee the judicial officer who hears and decides claims in the Small Claims Tribunal, usually a magistrate.

register of members one of the statutory registers required to be maintained by the company under the Corporations Act 2001 . It shows the name and address of the shareholder, the number of shares held, the amount paid up, the number of relevant transfers and any transfers or acquisition of shares. It determines who is and who is not a shareholder at any given time.

registrar an officer of a court or tribunal, who performs administrative tasks and in some courts (for example the Family Court) also has a judge-like role.

regulations these are laws that often contain the detail not covered in a specific Act. For example, the Road Safety Regulations say what penalties apply for offences listed in the Road Safety Act.

remand (also remand in custody) where a defendant is held in a correctional facility until the court releases them on bail, the defendant is sentenced or the crown discontinues the proccedings.

Residential Tenancy Authority (RTA) holds bond money and provides information to the public and real estate agents about the Residential Tenancies Act 1994.

resolution a decision of the members of a company or the board of directors of a company.

respondent the person that is taken to court by another person (the applicant). For example, in the Family Court, the spouse who receives an application for divorce is called the respondent. Also, the person (in a Domestic and family violence proceeding)  you need protection from and who the order is taken out against.

restitution  (compensation) restitution is the law of unjust enrichment. The act of restoring to the rightful owner something that has been taken away, lost or surrendered. Also see unjust enrichment.

restrictive covenant a restrictive covenant is where an obligation is imposed on an employee or director either in an employment contract or financing document preventing the employee/director from doing something during or after his employment has terminated. This usually covers engaging in competitive businesses or poaching staff or customers. Particularly where post-employment issues are addressed (e.g. competition), care is required in drafting as the terms may be unenforceable if they are unreasonably wide.

rewards when the court recognises the offender's progress by reducing obligations to report, perform community service and undertake other activities as mandated by the program.

royal assent the approval given by or on behalf of the Queen to a Bill passed by the Commonwealth Parliament or a State Parliament.

rules of evidence are the technical rules relating to whether the court can take account of particular types of evidence e.g. a second hand rumour would not be accepted as evidence in a court. Before a tribunal or decision making body it may be allowable if sufficiently creditable but be treated cautiously on its own. 

S

sanctions the court increases the offender's obligations to report and undertake community service.  Sanctions are proportional to the offender not meeting program conditions, and can include up to 15 days in custody for each breach, to a maximum of 22 days for each court appearance.

security this is the deposit paid by the creditor to cover costs such as enforcement fees and mileage, hire of transport to move goods seized, advertising sales in newspapers, poundage and court fees.

security for costs the deposit of moneys with a court or the provision of some other acceptable form of security to meet the possibility that the party ordered to provide security will fail in the proceedings and will be unable to pay costs ordered against that party in favour of the party seeking security.

self incrimination refers to answering questions or producing documents which would point/lead to the guilt of the person.

sentence punishment imposed by the judge after a verdict of guilty, or alternatively where the defendant enters an initial plea of guilty.

sentence remarks  these contain penalty details and reasons for the order.

Separation of Powers the doctrine that the three arms of government — executive, judicial and legislative — are separate and that their respective functions and powers are mutually exclusive.

service contract an agreement between a company and its directors or senior managers setting out their terms of service, in particular the minimum term and notice period. It differs from the normal conditions of employment in that it is more detailed and includes terms which are usually the subject of more 'arms length negotiation' such as restrictive covenants.

served  when the application or order is delivered to the respondent.

service of process the act of delivering or exhibiting documents by an authorised person to a person party to an official proceeding.

service of documents to formally deliver court documents to another party. The rules of court prescribe certain procedures that must be followed to serve court documents. 

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set aside a court or tribunal may set aside a decision under review. This means that the court or tribunal disagrees with the original decision and makes a new decision in the applicant's favour.

share the unit of economic value of a company to which are attached rights to vote and to participate in dividends and capital distributions of the company.

shareholders agreement an agreement between shareholders of a company containing their agreement on the regulation of their relationship and on the administration of the company. There will be an overlap with the Articles of Association but it is not, unlike the Articles of Association, subject to public scrutiny.

significant contributing factor a number of factors are considered to determine whether employment is 'a significant contributing factor' to an injury. These are:

• time and place of injury;
• nature of, and particular tasks involved in, the employment;
• probable development of that injury occurring if that employment had not taken place — the 'but for' test;
• lifestyle of the worker and activities of the worker not related to the employment; and
• other medical factors relevant to the injury.

similar fact evidence is a type of circumstantial evidence illustrating a person's scheme or propensity to breach the law in a highly distinctive manner, therefore proving a similar offence by the person. (eg person uses same vehicle, weapon, time of night, inflicts same wound, uses same drug to sedate etc.) 

simpliciter the simple charge e.g. with unlawful use of a motor vehicle with a circumstance of aggravation, the simpliciter would be unlawful use of a motor vehicle (no circumstance).

Sine die adjourned to a date to be fixed.  Indefinitely. In modern legal context, it means there is nothing left for the court to do, so no date for further proceedings is set.

Small Claims Tribunal order a decision given by a referee of the Small Claims Tribunal usually at the end of the hearing.

Solicitor-General the Government's most senior law officer after the Attorney-General. The statutory functions of the office include acting as counsel for the executive government, the provision of opinions to the Attorney-General on matters of law and such other functions ordinarily performed by counsel as may be requested by the Attorney-General. See role of Solicitor-General (This link will take you to another section of the site.)

solvent the term is applied to a range of corporate issues. A company in liquidation is not solvent unless the directors can declare that it can pay all creditors within 12 months. A company is commonly assumed to be solvent if the value of the company's assets is more than its liabilities, taking account of contingent and future claims or that it will generate sufficient surplus revenue from its operations to make up the deficit.

sovereignty in international law, the independence of a State; freedom from external interference in the conduct of a State's affairs.

SEPA  Service and Execution of Process Act 1992. Commonwealth legislation which governs the registration of interstate judgments.

stamp duty a tax on documents relating to specific transactions, share transfers and property transactions.

standby the expression used in a criminal court when the Crown Prosecutor exercises their right to object to a person being sworn in as a juror. 

statute a law established by an act of the legislature.

statutory compensation this may include weekly payments as income replacement, lump sums to compensate for permanent impairment, and hospital and medical expenses. These payments and benefits are prescribed in the Workers' Compensation and Rehabilitation Act 2003.

statutory declaration a written statement of facts which the person making the declaration must sign and solemnly declare to be true. It must be witnessed by a Justice of the Peace, a Commissioner for Declarations, a notary public or a lawyer.

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stay orders an order of a court or tribunal to suspend the implementation of the decision under review until the matter is determined or resolved.

stayed the suspension of a judgment, order or proceedings can be temporary, permanent or conditional on certain things happening. 

stet Latin term 'do not delete, let it stand'.

subordinate legislation Legislation authorised by an Act of Parliament delegating authority to a Minister, department, court, local or statutory authority to make orders, regulations, bylaws or rules having the force of law.

subpoena document requiring a person to be present to give evidence or to produce certain documents at a specified time and place for a specified purpose. Failure to do so constitutes contempt..

subsidiary company a company controlled by another company.

summary offence a minor criminal charge decided in a Magistrates Court.

summing up this is the address by the judge to the jury following the addresses by counsel at the conclusion of evidence being given in a trial.  After this the jury considers its verdict.

summons  a notice issued by an inferior court or tribunal compelling a person to appear before it at a particular time and place, either to give evidence or to produce documents.

superior court of record the Supreme Court, Federal Court and the High Court are all superior courts. They also have wide jurisdiction and their decisions are binding on courts beneath them in their respective hierarchies.

Supreme Court the highest court in each State, which is able to hear any kind of case.

surety generally a condition of bail - when a person promises to pay a sum of money in the event that another person fails to fulfill an obligation e.g. appear in court.

T 

temporary order  a short-term order made until your case is finalised.

tenant under a lease or tenancy agreement, the party who is given by the landlord the right to occupy the property on an exclusive basis in return for rent. The term will include a new tenant who takes an assignment of the new tenant's interest in the lease.

termination hearing occurs if the court receives a submission from the participant, police or corrective services to have the program terminated.  The court will hear all sides of the case and make a decision on whether to terminate the program and continue sentencing the offender.

terra nullius - Latin – land belonging to no-one. Land which has never belonged to any state, or where its previous Sovereign has stopped exercising authority over it with the intention of abandoning it. Such land is subject to claim, and its sovereignty may be acquired only through occupation and control amounting to first possession of the territory.  The principle of terra nullius was widely used by British colonists to deny the existence of indigenous peoples, their law, and government. Territories inhabited by non-European peoples and their institutions were regarded as legally non-existent.  The validity of the terra nullius principle in international law is questionable, and in Australia, it has been disapproved as a common law doctrine (Mabo v Queensland (No 2)).

trade mark a trademark is a name, symbol or logo which belongs to a company or person and is capable of being associated with its products or services. Its value lies in the goodwill associated with the mark in the minds of customers. Ownership and protection of trademarks is important. Those trademarks which qualify can be registered with the Trade Marks Registry. The use of trade marks can be licensed to third parties. The owner can prevent unauthorised use or infringement of trademarks which are registered - even if not registered a passing off action may be available.

Trade Marks Office administers the procedure for the registration of trademarks. It determines whether they qualify and maintains a register of trademarks which is open to public inspection. http://www.ipaustralia.gov.au/ (This link will take you to the IP Australia website.)

trade secrets a contract will commonly contain a clause forbidding disclosure of trade secrets and confidential information to third parties during and after the contract. It will also often require company materials to be kept secure and returned (with any copies) when the contract ends. In the case of employment contracts, post termination restraints must be reasonable.

transcription a typed, handwritten or word processed record of proceedings in a Queensland court or tribunal.

transfer of shares a transfer of shares is where an existing shareholder transfers issued shares to another person who is then registered as the holder of those shares.

trial a case in court where the truth of facts are decided by a judge (and sometimes a jury) according to the rules of the court. 

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tribunal a type of court, usually less formal, that hears and decides disputes between people.

trust a fiduciary relationship where a person holds the title of property for the benefit of another.

trustee a person who holds property for the benefit of another person. For example, if property is left to a child under a will, the trustee might look after it until the child becomes an adult.

U

UCPR Uniform Civil Procedure Rules 1999. Queensland legislation which is subordinate legislation under the Supreme Court of Queensland Act 1999.

ultra vires an ultra vires act is beyond the legal power or authority of a person, institution or legislation and therefore invalid.

under influence improper or unconscionable use of an ascendancy acquired by one person over another for the benefit of him/herself or someone else so that the acts of the person influenced are not his or her free voluntary acts.

undertaking a formal promise to a court to act or refrain from acting in a particular matter.

underwriter a person promising to take up shares in accordance with an underwriting agreement is an underwriter.

underwriting agreement an underwriting agreement in one under which, before a company issues shares to the public, a person undertakes in consideration of a commission to take up the whole or a portion of such (if any) of the offered shares as may not be subscribed for by the public.

unfair dismissal the termination of a contract of employment in circumstances that are unfair, harsh, unjust or unreasonable.

unjust enrichment the principle of unjust enrichment is embedded in the legal area of restitution. It is accepted that unjust enrichment comprises four elements:

• enrichment;
• obtained at the plaintiff's expenses;
• in circumstances where a principled ground of recovery exists which makes it unjust that the defendant should retain the enrichment; and
• no defence is available.

A common example of unjust enrichment is the compulsory exaction of monies under the authority of a statute where it is later found that such monies were paid under a mistake of law. In such a case, the person having paid the monies is prima facie entitled to recover them under the principles of restitution.

V

valuer a person who is able to assess a fair price for a property. This can be important in situations where, for example, assets are being valued to allow a Family Court judge to make a property order.

verbatim Latin term 'word by word, exactly'.

verdict a decision by a court.

verdict and judgment record typed record of court order.

vicarious liability an employer is vicariously (and strictly) liable for negligent acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorised by the employer. To avoid vicarious liability, an employer must demonstrate either that the employee was not negligent in that the employee was reasonably careful or that the employee was acting in his own right rather than on the employer's business.

void something that is said not to exist under the law. For example, a contract that cannot be enforced.

voir dire legal argument without jury present. Preliminary examination of a witness by the judge, before trial, in which he/she is required to "speak the truth" with respect to questions put to him/her. Similarly, the judge may examine whether evidence is admissible. 

W

without prejudice a written or oral statement, usually by a lawyer, that is made in an attempt to settle litigation and cannot be mentioned in court. This is to encourage a free discussion of the dispute.

witness

1. A person who sees or hears material relevant to an enquiry.
2. A person appearing at a hearing to give evidence.

work-related impairment a work-related impairment (WRI), from injury, is the amount of lump sum compensation expressed as a percentage of statutory maximum compensation payable in accordance with WorkCover legislation.

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work-related injury an injury where employment was a significant contributing factor.

worker a worker is a person employed under a contract of service regardless of his/her tax paying status. This does not include:

• company directors;
• trustees;
• partnerships; or
• self-employed people.

writ a document that either begins litigation, called a writ of summons, or a written order by a court to do (or not do) something.

Acknowledgements

• Clickdocs UK Legal Documents & Information — English and Latin   legal dictionary
• Flinders University Library — Law.com Dictionary
• Law for you — Plain English legal information Australia
• WorldLII — World Legal Information Institute

Related links

Clickdocs (www.clickdocs.co.uk/glossary.htm) - English and Latin legal dictionary
Law for you (www.law4u.com.au/Qld/) - Plain English legal information Australia

Disclaimer

This information cannot be regarded as exhaustive statements on any of the material discussed. It is intended to be only a guide for further action as well as a ready reference for Government officers.

© Crown Law 2007

No permission, either expressed or implied, is given for the reproduction in any form of this material without the prior specific written consent of the Crown Solicitor.