This page collects and defines terms of art relevant to High Court judgments and litigation that readers who are not practising lawyers may not be familiar with. These terms will help readers understand the posts on the blog, and especially the full-text judgments and documents linked from the blog.
As new cases and posts raise difficult terminology, those terms will be added to the glossary. If there is a technical term that you would like the Editors to add to this glossary, please email us.
The definitions below draw on a number of useful introductory and reference works on Australian law listed at the bottom of the page. We would encourage readers interested in learning more about Australian law to review those works.
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
Account of profits
An equitable remedy which strips a defendant of any profit made in breach of his obligations towards the plaintiff. The remedy is generally only available for breach of trust, breach of fiduciary duties or breach of confidence in Australia.
Act of Parliament: see statute.
Latin for ‘he or she has sworn’. This is a written statement setting out certain facts which the person making the affidavit swears or affirms are true.
Read a Victorian Court of Appeal judgment on the importance of swearing affidavits.
Latin for ‘friend of the court’. An amicus curiae applies to the court for leave to be heard during a proceeding. Unlike interveners, an amicus curiae does not become party to the proceedings. Rather, the role is to offer a perspective that the court thinks is important for resolving the dispute that are unlikely to be fully or adequately raised by the immediate parties to the dispute. While amici curiae and ‘amicus briefs’ (written submissions filed by amici curiae) are fairly common in the United States, Australian courts rarely admit amici curiae into proceedings. See also interveners.
Read Justice Kenny of the Federal Court on amici curiae in the High Court.
An appeal involves a party in a lower court decision asking a higher court to change that decision in some way (most often, to have the opposite decision made). Although in lower courts appeals might be made from a single judge of a court to a larger panel of judges within that same court, appeals in the High Court are in practice always determined by a ‘Full Court’ of five to seven Justices. As the final court of appeal in Australia, the High Court has the power to hear and determine appeals from all judgments, orders, decrees and sentences handed down by a single Justice, a federal court, or a state Supreme Court. However, there is no automatic right to appeal to the High Court: a party must successfully apply for Special Leave, and the decision to grant or refuse that leave lies with (typically) just two judges of the High Court.
A person seeking to appeal a ruling of a lower court. See parties.
An applicant is the name for a plaintiff in the Federal Court and someone seeking special leave to appeal to the High Court. See also plaintiff, parties.
An Attorney-General is the chief law officer of a State, Territory or the Commonwealth government. In each of these jurisdictions in Australia, the Attorney-General must also be a Member of Parliament. The Commonwealth Attorney-General also has ministerial responsibility for the High Court. In addition to other responsibilities related to the law, Attorneys-General are frequently involved in proceedings before the Court, either as plaintiffs, defendants or interveners. As an intervener, an Attorney-General becomes a party to the proceeding. In constitutional cases, Attorneys-General enjoy an automatic right to Intervene, and in such cases often at least one Attorney-General will do so. In certain circumstances, Attorneys-General have the power to challenge the constitutional validity of statutes: for example the Queensland Attorney-General may challenge the validity of a Commonwealth statute that affects the people or interests of Queensland.
Authority has many different meanings in law. In its everyday meaning, authority may mean permission, or a right coupled with the power to compel its enforcement (as in the police have authority to arrest a person). In explaining legal reasoning, an ‘authority’ is usually used to refer to an earlier judgment that has precedential value, meaning that its reasoning should be followed and applied in the case before the court. In this sense, it is an earlier rule that is authoritative and binding on the present court. It may also mean a statute or a highly regarded work of legal scholarship. Authority may also relate to delegation of legal powers: in private law, as in delegating authority to an employee or agent through contract, or in public law, as in the delegation of ministerial powers to a public servant. See also precedent.
Balance of probabilities
Australian courts resolve most factual disputes by deciding whether the factual claims made by one party are more likely than not to be true. This is called proof on the balance of probabilities and is sometimes also called the ‘civil’ standard of proof, because it applies in nearly all non-criminal (i.e. civil) disputes. See also beyond reasonable doubt.
‘Bar’ can mean several things. In the most basic sense, it refers to the symbolic division in Australia courtrooms between the bench, where the judge sit, and the bar table, where counsel sit. (In the United States, the bar divides legal professionals from the public gallery.) In its more common usage, ‘The Bar’ is the professional association of barristers within a jurisdiction. State bars in Australia are usually private, voluntary, non-profit and self-funded associations, and are responsible for regulating the professional conduct of barristers.
Read Justice Kiefel on the Queensland Bar.
A barrister is a Legal Practitioner who specialises in advocacy before courts, and acts a legal representative for a party to litigation. Barristers usually also possess additional expertise in specific areas of the law. A barrister’s role is to prepare the most effective set of legal arguments open to a client and then present those arguments to the court (and respond to the court’s questions) during the hearing.
Barristers are often referred to as ‘counsel’. Senior barristers who have attained the rank of Queen’s Counsel or Senior Counsel are known as ‘silks’ (QC and SC are different terms for the same rank). A barrister who is not a silk is known as a ‘junior’, though that does not imply lack of seniority or youth. High Court litigation usually involves one silk and one junior. The silk takes responsibility for all or most of the oral argument, while the junior provides support in preparing and debating the arguments with the silk, and through his or her presence at the hearing. In disputes involving complex legal issues, or large sums of money, often multiple silks and juniors will be retained by one or more parties.
Although the vast majority of parties involved in High Court litigation retain (employ) barristers to represent them, a litigant may represent him or herself (as in the recent high profile Adelaide Street Preachers case: here). See also: self represented litigants.
Read Justice Kenny on the profession of the barrister; Chief Justice French on trial advocacy; and Justice Hayne on oral advocacy before the High Court.
‘The Bench’ refers literally to the desk where judges in a court sit, and figuratively to the judges of a court.
Beyond reasonable doubt
As a general rule, prosecutors in Australian criminal trials have to prove all the facts beyond reasonable doubt. Australian courts typically refuse to define the term ‘beyond reasonable doubt’, as the High Court has long held that it is an ordinary term and that to define it is to diminish it.
Read the High Court on the danger of defining beyond reasonable doubt, a NSW study of jurors’ understanding of the term and a Victorian law allowing the term to be partially defined.
Latin for ‘in good faith’. If a person is bona fide in performing an action, it means that they do it in good faith and with an honest intention. The opposite is mala fide.
Burden of proof: see onus of proof.
Cause of action
When a plaintiff or applicant attempts to establish that she is entitled to redress from the court, she must make out facts which establish each element of the cause of action. For example, the plaintiff’s cause of action may be breach of contract, in which case she must establish that there was a contract, that it had certain terms and that those terms were breached.
Latin for ‘beware’. In property law, a caveat is a document which is filed with the relevant Land Register office which gives notice that the person who filed it has an unregistered or unregisterable proprietary interest in land under the Torrens system. The main function of the caveat is to protect the person who claims that interest (the caveator), because no further dealings can occur to the land title unless the caveator consents.
Certiorari, writ of: see writs
Personal property (ie, property that is not land).
A chief justice is the head judge in a court. The Chief Justice of Australia is the head of the High Court and fulfils a number of roles. In terms of hearing arguments and writing judgments, the office is largely the same as the other Justices. One significant difference is that in the rare case that the Court is evenly divided on a matter in the Court’s original jurisdiction the Chief Justice holds the casting vote. The Chief Justice is also responsible for controlling oral argument during hearings, and for supervising judgment writing (and especially in exploring whether consensus may be reached among the judges for a ‘judgment of the Court’). In addition to those duties, the Chief Justice has a range of public responsibilities: administering oaths of office to the Governor-General and members of the House of Representatives, consulting with the government where appropriate (particularly in relation to judicial appointments), and educating the public on the function of Australia’s judiciary through speeches, papers and interviews.
Class Action: see representative proceeding.
Commonwealth of Australia
The Commonwealth of Australia is the federal government of Australia and includes both houses of Federal Parliament, the Executive and the Judiciary. In all proceedings in which the Commonwealth is a party, or someone being sued on behalf of the Commonwealth is a party, the High Court holds original jurisdiction.
Commonwealth constitutional powers
The powers of the Commonwealth of Australia are established and ordered by the Australian Constitution. The legislative power of the Commonwealth is outlined in s 51 of the Constitution, which lists the subjects on which the Commonwealth can create new laws. Chapter II outlines the powers and responsibilities of the executive. Chapter III lays out the judicial power of the Commonwealth, which vested in the High Court and other federal courts.
The common law refers to the system of law that is derived from the decisions of courts. These decisions are sometimes referred to as precedents (see precedent). As new cases are heard and decided by superior courts, those judgments become part of the common law, and clarify or depart from earlier decisions (see overruling). Consequently, the common law changes and evolves over time. Legal reasoning in common law systems, both by judges and practitioners, relies on arguments that analogise from earlier rulings. Ideally, the effect of this gradual accumulation of law is consistency, continuity and predictability.
Common law judges are often thought of as custodians of the system: taking care in deciding whether to adhere to a past decision, or develop the law when necessary. In Dietrich v R  HCA 57, Justice Brennan, adapting a quotation from Francis Bacon, said:
The common law has been created by the Courts and the genius of the common law system consists in the ability of the Courts to mould the law to correspond with the contemporary values of society. Had the Courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time.
The common law of Australia comprises the decisions of Australia’s Superior Courts. Because the High Court has appellate jurisdiction over State Supreme Courts, the High Court holds the final say on what Australia’s common law is, and there is a singular common law for all of Australia.
Common law can be contrasted with three other kinds of law. First, common law systems such as those in England and Australia (where judges have a greater freedom to develop the law on a case-by-case basis) can be contrasted to civil law legal systems such as France and Germany (which have a code which governs what the law is). Secondly, common law can also be contrasted with statute law, which is created by Parliament. Finally, the common law was historically administered by common law courts whereas equity was historically administered by the courts of Chancery in England and Wales. See also equity.
Read Chief Justice Gleeson on Australia’s contribution to the common law.
The Constitution of the Commonwealth of Australia is the foundational document of Australia’s legal and political system, creating the Commonwealth and States of Australia in 1901. It may be referred to as the Commonwealth Constitution, the Australian Constitution, or simply, the Constitution. The High Court is the final interpreter of the Constitution, and in this sense is the ‘guardian’ of the document and the system it establishes. The Constitution creates the Federal Parliament and outlines the structure and powers of the Senate and the House of Representatives, the federal Executive and the Judicature (including the High Court), as well as establishing the former colonies as States. In contrast to the United States, the Australian Constitution does not contain a bill of rights, and includes only a few express provisions of constitutional rights. Constitutional law involves disputes over the interpretation and scope of the provisions of the Constitution and the overall structure of government that it establishes.
Read former Justice Kirby on Deakin and the establishment of the Constitution; then-Justice French of the Federal Court on the Constitution and the people; and Justice Kenny of the Federal Court on constitutional interpretation.
A constructive trust arises by operation of law. The court decides on the basis of the relationship between the parties that the defendant is a ‘constructive trustee’ who held property for the benefit of another (usually the plaintiff). A constructive trust can also be more remedial in nature – in other words, the court can order the defendant to hold certain property for the benefit of the plaintiff as a way of ultimately transferring that property to the plaintiff. See also trust and resulting trust.
A legally binding promise or agreement. A contract will only be binding on the parties if the necessary steps for forming a contract are met.
Copyright is the exclusive property rights held by a copyright owner that entitle that owner to do or prohibit certain acts related to copyrighted material. Copyright relates specifically to the material form of an idea or its expression, rather than the content of the idea itself.
Court of Appeal
The Supreme Court of every Australian State and territory can hear appeals from nearly all courts in that state (including decisions by single judges in the Supreme Court), typically before a bench of three Supreme Court judges. In many parts of Australia, the Supreme Court judges who are appointed to mainly or only hear appeals of this sort are referred to as the Court of Appeal. Sometimes there is also a separate Court of Criminal Appeal, for appeals from criminal trials. In courts that do not have specialist appeal judges (such as the Federal Court of Australia), the appeals are made to a ‘Full Court’. When the High Court hears appeals, its role is usually to review the decision of a Court of Appeal or a Full Court. An intermediate court of appeal is an appellate court that hears appeals from lower courts, and whose decisions can be appealed to a higher court (that applies to all State Supreme Courts).
Read Justice Rares of the Federal Court on intermediate courts of appeal.
Counsel: see barrister.
The criminal law defines when and how people can be subjected to criminal punishment (including being sent to prison or fined) in order to denounce what those people did, give them their just deserts or prevent future misdeeds. The criminal law differs from state to state in Australia and there is a separate federal criminal law. Nearly all crimes in Australia are defined in statutes and most parts of Australia have special statutes called ‘Criminal Codes’ that set out general rules about when people can be held responsible for their actions. In NSW, South Australia and Victoria, a handful of crimes and many of the general rules of responsibility are instead defined by the common law.
The ‘Crown’ refers both to the Queen of Australia and to the government of the Commonwealth, or of a state or territory. In serious criminal cases and some administrative law cases, the prosecution or plaintiff is regarded as acting on behalf of the Queen and is sometimes described in the case’s name as ‘R’ or (in High Court criminal appeals) ‘The Queen’. Where the Crown is party to a civil action, usually the relevant ministerial office (for example, the Minister for Immigration) is used instead. See also executive.
Court of first instance
The court in which a matter is first heard. Courts of first instance hear evidence, determine the facts of the dispute, and apply the relevant law to decide the case, which may then be appealed. A court of last instance is the final court to which a decision may be appealed: in Australia, that is always the High Court.
A court hierarchy describes the relationships of superiority between a set of courts within a single jurisdiction. Its importance is to indicate where appeals must be lodged, and to show whether a court is bound by an earlier decision of a court.
In less abstract terms, if a party wants to appeal a decision of the Queensland District Court, it lodges an appeal at the Supreme Court of Queensland. While the Queensland District Court is ‘bound’ by precedents set by the Supreme Court of Queensland, the reverse is not true: the Supreme Court may approve or disapprove of a lower court decision, but it is not required to follow it.
Because the High Court sits at the top of the Australian court hierarchy it holds the final say on the interpretation of the Australian Constitution, state constitutions, and federal and state statutes and common law.
Cur adv vult
Short for curia advisari vult which is Latin for ‘the court wishes to consider its decision’. It is often seen in judgments in law reports and indicates that the judgment was not handed down immediately.
Damages are an award of money to compensate a loss or wrong suffered by a party to a lawsuit. Generally, damages aim to place the plaintiff into the position that he or she would have been in had the harm not occurred. Common examples include compensation for medical expenses resulting from treating an injury caused by the defendant, and compensation for losses caused by a defendant breaching a contractual obligation to the plaintiff.
A legal obligation to pay a certain sum to another.
In relation to a court, a decision is a court’s final determination of a dispute between parties. Although lower court decisions may be appealed to higher courts, those decisions still remain ‘final’ in the sense that the parties must abide by that decision.
In administrative law specifically, a decision involves a very broad range of conduct by a decision maker (for example, a Minister’s delegate) including making, suspending, revoking or refusing to make an order, an award, a determination, giving permission, approval or consent, or attaching conditions or requirements to these things.
When a court makes a declaratory judgment, it makes an authoritative proclamation about how a legal or factual issue in a dispute should be resolved, but without the court making any coercive orders against one of the parties. A court may make a later coercive order if one of the parties is dissatisfied with the other party’s response to the declaration.
In criminal law a defence is a response to a criminal charge. The term ‘the defence’ may refer to the lawyer or lawyers representing a criminal defendant at a trial. The term ‘a defence’ may refer to a denial of the prosecution’s allegations (eg, ‘You got the wrong guy!’) or a claim that additional circumstances exist that mean that the defendant should not be punished (eg, ‘It was an emergency!’).
Defence to a statement of claim
The formal reply by a defendant to a statement of claim which denies or admits each allegation contained in it.
A legal person against whom relief is sought in civil proceedings or who the prosecution seeks to have punished in criminal proceedings. See also parties)
Legislation made by a person or body that is not a parliament on the basis of a legal authority granted by an Act of Parliament. Common forms include regulations, by-laws, rules, ordinances, and orders-in-council. Delegated legislation can also be called subordinate legislation, statutory rules, legislative instruments, statutory instruments or subsidiary legislation. The rules of statutory interpretation apply to interpreting the meaning of delegated legislation. Delegated legislation has the same force as the statute that authorises its creation, though it must be within the power delegated to the person making it (which cannot be so uncertain or wide so as to make it a legislative power: Dignan’s Case  HCA 34).
‘Demur’ means ‘to object’. When a party lodges a ‘demurrer’ it makes an objection to the other party’s pleading on legal grounds only, and contends that even if the court accepts the truth of the other party’s statement of the facts of the case, the legal arguments made on the basis of those facts do not hold.
See High Court Rules 2004 r 27.07.
A determination is a decision on a question put to a court or tribunal. In administrative law matters, determination can also mean a decision by a member of the Executive (for example, a minister declining to grant an application).
A directions hearing is where a court manages or organises interlocutory or procedural questions, such as when parties will need to file certain documents, and when the full hearing will take place.
A director is a corporate officer who has management duties in a company, and sits on the board of directors. Directors are usually appointed by shareholders, and are required to fulfil a number of common law and statutory duties in the course of their employment. A proprietary company must have at least one director, and a public company must have at least three directors.
Director of Public Prosecutions
An officer appointed to exercise the statutory power of prosecuting criminal offences within a jurisdiction. Every mainland Australian jurisdiction (the Commonwealth, each State, ACT and NT) has its own DPP responsible for prosecuting offences committed within that jurisdiction. The DPP’s power include commencing and terminating prosecutions and conducting criminal trials and sentencing appeals.
See the Commonwealth Director of Public Prosecutions website.
‘Discretion’ is a decision maker’s power to choose between alternatives, or to make no decision at all. The manner of the exercise of discretion is a common basis for judicial review. When and how discretion may be exercised is often regulated by the statute that grants the decision making power in question.
Discovery is a pre-trial procedure by which parties to a legal proceeding disclose and exchange documents that are relevant to the case. These may include documents like reports, contracts, and internal memoranda. The discovery procedure aims at ensuring that the court has all the relevant factual material before it, and that no party can be ‘ambushed’ by the production of important documents right before trial. The discovery process may also involve the issuing of interrogatories, which are specific written questions relating to the dispute asked by one party of another.
Read the Australian Law Reform Commission summary report on discovery and potential reforms in the Australia’s federal court system.
Where a judge disagrees with the reasoning or orders of the majority of the court, he or she issues a ‘dissenting judgment’. Dissenting judgments do not have any value as precedents, and hence cannot bind a court in a later case. Nonetheless, dissenting judgments (either particular parts of their reasoning, or the position as a whole) may still be useful as sources of arguments in later cases, or may come to convince a higher court called upon to decide them. In High Court appeals, the High Court may take up and eventually agree with the reasoning of a lower court judge who was in the minority on that lower bench.
Read Justice Michael Kirby on dissenting judgments.
Distinguish (a case)
Under the doctrine of precedent, a court will follow the outcome and principles of earlier cases of superior courts within the same court hierarchy. However, a court may decide that an earlier case is not sufficiently similar so as to dictate the outcome in the case under consideration. In these circumstances the court distinguishes the earlier case. This might be due to a difference in the relevant law in question, or a material difference between the facts of the two cases, which means that the law can be applied differently in the two cases.
Domestic law refers to the constitution, statutory law and any customary or common law in effect within a single nation-state. It is the law that is specific to a particular country that resolves disputes arising within that country. See also international law.
Equity is a body of law which is distinct from the common law or statute law. Historically it developed in England in the courts of Chancery, a parallel jurisdiction which was distinct from the common law courts. It developed to correct, control and supplement the common law courts which, because of their inflexibility and strict operation, could result in some kind of injustice or incorrect result.. For example, a plaintiff could only get damages for breach of contract from a common law court, but under its auxiliary jurisdiction, equity would intervene to allow specific performance of a contract where common law damages were inadequate. Equity invokes ideas of fairness, evenness and justice in the adjudication of legal disputes. Many of these principles are reflected in the ‘maxims of equity’. An example of such a maxim is ‘Equity looks on that as done which ought to be done’, which has been said to inform the line of cases which allow for specific performance of contracts for sale of land. Courts in Australia have both common law and equitable jurisdiction, and thus can deal with issues arising from both bodies of law, and apply both bodies of law, within the one legal proceedings.
Read then-Justice Young of the New South Wales Court of Appeal (and Chief Judge in Equity from 2001–2009) on equity.
Error of fact
When a decision maker makes an ‘error of fact’, she makes a mistake about information that is relevant to a legal issue. Simple errors of fact cannot usually be reviewed by a court. However, if the error relates to a fact, the existence of which was required for an administrative power to be exercised, then that failure may be reviewable by a court. See also judicial review.
Error of law
When a decision maker makes an ‘error of law’, he misinterprets or misapplies a legal principle, or applies the wrong legal principle, to an issue of fact. A material (substantial, or relevant to the person’s situation) error of law can be reviewed by a court.
A doctrine which is designed to protect a person from detriment which has arisen because they have relied upon the representation of or assumption created by another. For example, if a family is told that a supermarket chain intends to lease a supermarket on their property, and the family begins to build a large supermarket in reliance upon that representation, the supermarket chain will be estopped from resiling from its promise notwithstanding that there was not yet a contract between the parties (see, eg, Waltons Stores (Interstate) Ltd v Maher  HCA 7). Estoppel may arise in common law or in equity.
In Australian law, ‘the executive’ refers to the government. In each State and at the federal level, the executive is comprised of Members of Parliament who direct government departments to carry out policy, and are responsible to the relevant parliament for proper administration. At the federal level, ch II (ss 61–70) of the Australian Constitution outlines the Commonwealth’s executive government structure, including the executive powers (ss 61–62). Section 61 vests executive power in the Queen, exercisable by the Governor-General, which extend ‘to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. Section 62 establishes the Federal Executive Council, comprised of all current government ministers and parliamentary secretaries, who advise the Governor-General on the exercise of executive power (see here). Powers exercised by the Governor-General on that advice are called powers of the ‘Governor-General in Council’. Each State government also has its own executive.
Read Chief Justice French on executive power, and on the relation between the offices of Governor-General and Chief Justice. Read Justice Moore of the Federal Court on the judiciary and the executive branch.
In its most basic sense, federalism is a political concept by which a group of members (usually states) are bound together under a single political entity (a federation). Nations that are federations divide government power between a central nation-wide government (the federal government) and smaller constituent governments (states, territories, provinces, regions). The United States, Canada, Germany, India and Australia are all examples of federal systems, although federal states (including the ones listed here), vary widely in their structure. The federal and state governments will generally have some areas of power or competence that is autonomous and separate from the other. Those powers are agreed under a constitution (almost always written), that defines which levels of government will hold which powers. As Australia’s ultimate court of appeal, the High Court is responsible for interpreting what federalism means and requires in constitutional disputes.
Read then-Justice French of the Federal Court of Australia on co-operative federalism and on the future of federalism.
Australia’s federal court system includes the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia (formerly the Federal Magistrates Court of Australia). The High Court is explained in the pages listed under ‘The High Court’ above.
The Federal Court of Australia (FCA), hears the bulk of civil matters brought under Commonwealth law. Judges at the FCA may sit individually as trial judges, or on a panel of three judges as the Full Court of the Federal Court (sometimes abbreviated to FCAFC). The FCAFC also hears appeals from some federal administrative tribunals. There are currently 44 Judges at the FCA. The Family Court of Australia (FamCA), has jurisdiction over marriage and many de facto couple disputes and guardianship/parental responsibility over children. (Western Australia has its own separate family court.) The Federal Circuit Court of Australia (FCCA, formerly FMCA) shares the jurisdiction of the FCA and FamCA in several defined areas (including administrative, admiralty, bankruptcy, consumer, copyright, migration, privacy, unlawful discrimination, workplace relations and human rights law). The FCCA currently has 61 judicial officers.
Read Chief Justice Gleeson on the federal judiciary; Federal Magistrate Toni Lucev on the Federal Magistrates Court.
A person who is under a legal duty to act wholly in the interests of another person to the exclusion of his own interests. A trustee is the epitome of a fiduciary.
The Governor-General is the official representative of the Queen in Australia, who exercises the Commonwealth’s executive powers on the advice of the government (see here). See also executive.
Read Chief Justice French on the offices of Chief Justice and Governor-General.
A hearing is the process by which parties to a dispute appear before the Court to make their case. At the High Court, hearings before the Full Court ordinarily last one-half to one-full day, though complex cases may take multiple days. At the hearing, barristers for each party make submissions to the Court, which are assertions of what the law is, and how it applies to the case at hand. During the hearing, judges may often ask questions of counsel, which may include requests for clarification about an argument, or a direct challenge to an argument, and which counsel are expected to address.
Common law courts have long conducted hearings in ‘open courts’; that is, unless there is some compelling reason, a court’s proceedings should be open to the public to attend, and can be freely reported in the media, allowing public and professional scrutiny.
High Court Rules
The High Court Rules 2004 (Cth) are the set of regulations that prescribe the rules of procedure in legal proceedings in the High Court. They are drafted and occasionally revised by a Rules Committee of three High Court Justices.
A title given to judges and some magistrates, eg, ‘Your Honour’, ‘His Honour’ and ‘Her Honour’.
If evidence is inadmissible, it means that a court cannot use it to resolve a factual dispute. If evidence is inadmissible to prove a particular fact, it means that the court cannot use it to find that particular fact, but may still be able to use it in a different way.
In the Torrens title system, once a person becomes a registered proprietor of land, they take title free of any prior unregistered interests (subject to certain exceptions). This is known as indefeasible title. See also Torrens system.
If an offence is indictable, then a jury may determine whether or not the offence was committed. In practice, juries are only mandatory for determining whether the most serious indictable offences (such as murder and rape) were committed (and even then there are exceptions in some cases). For the remainder, the prosecution can instead choose for the offence to be decided by a lower court judge. See also summary offence.
An injunction is a court order that compels an action from a person. Injunctions may vary widely in content and form. A ‘mandatory injunction’ requires a person to do a particular action. A ‘prohibitive injunction’ requires a person to cease doing a particular action. An injunction may be granted on an interlocutory basis (prior to a full hearing) or on a final basis (as the court’s final decision), and it may be permanent, or made for a specified period of time. An applicant for an injunction must persuade the court that the defendant will do (or repeat) the wrong, and, where the cause of action is a common law cause of action, that damages would be an inadequate remedy. If a defendant does not comply with the order, she will be in contempt of court and may be imprisoned or fined, or her property may taken from her possession (‘sequestered’) until she complies.
Latin for ‘among other things’.
‘Interlocutory’ means prior to a full hearing (from the Latin ‘interloqui’ meaning ‘interrupt’). An interlocutory order is intended to maintain the status quo prior to the full hearing of the dispute. Generally speaking, any applicant for an interlocutory order will have to convince the court that there is a ‘prima facie case’ that the court should hear in full, that an injury in the meantime would be irreparable or incapable of being compensated by damages, or that public interest may be seriously affected if the court does not grant the application and that it would not cause unfair or undue inconvenience to the person against whom the application is sought. For example, in a dispute over the demolition of a building, the party seeking to preserve the building would apply to the court for an order that all demolition work cease, pending the hearing and determination of the dispute.
Commonly known as the ‘law of nations’, international law is the body of laws and customs between sovereign states which regulates their conduct (and, more recently the conduct of other international legal persons). International law is usually used as shorthand for public international law, which includes areas like the law of the sea, treaty interpretation, international criminal law, international humanitarian law (the laws of war), and international environmental law. Its sources include rules contained in international agreements, rules emerging from the customs and practices of nations, the general principles of law ‘recognised by civilised nations’ and judicial decisions and academic works throughout the world.
Private international law is the area of domestic law that relates to resolving legal issues involving the laws of another country (such as, for example, a contract dispute between an Australian company and a French company), and relates to establishing which jurisdiction’s law will apply to resolving the dispute. Although it is technically domestic, many areas of private international law are shaped by international agreements.
Read then-Chief Justice Keane of the Federal Court on the international legal order, and Chief Justice French on international and domestic law in Australia.
An intervener is a person who seeks to become a party to a proceeding on the basis that the person has an interest in the outcome of the case that differs from the parties already involved. Before the High Court, interveners are most often other States that are not directly involved in a matter (for example, in a dispute between the Commonwealth and Queensland, New South Wales may wish to intervene and make arguments to the High Court as to how that dispute should be resolved). Once leave to intervene is granted, the intervener may tender evidence and make submissions. See also parties and amicus curiae.
A judgment is the determination of a court. More commonly ‘judgment’ refers to ‘reasons for judgment’, which are the written reasons of a court that explain why the court made the orders that it did. For the immediate parties to the dispute, the orders of the court are what will give them the remedy that they are seeking: for example, a declaration that the defendant is liable for the plaintiff’s harm, and directing the defendant to pay damages to the plaintiff to remedy that harm. For parties to a future dispute, reasons for judgment contain the court’s arguments and reasoning, which may be adapted or raised as having precedential value; that is, that they should be followed in the present case.
When the High Court ‘hands down a judgment’, it makes public its reasons for judgment. Ceremonially, the Court sits and the Justices read out the orders they would make (but not the reasons for those orders). Written judgments are then made publicly available both at the Court and through the internet on austlii.edu. Judgments are also ‘reported’ in various law reports. The principal series for High Court decisions is the Commonwealth Law Reports.
For more on judgments, and on different kinds of judgments in the High Court, see the Opinions on High information page here.
Read Justice Kiefel on reasons for judgment.
When a judge is said to be a ‘judicial activist’, it is usually used as a pejorative term meaning a judge that exercises his or her powers in a way that oversteps the bounds of the office of judge, and in doing so demonstrates a lack of proper judicial restraint. Because of considerable disagreement about what the correct interpretation of legal rules and principles is, and about what it is appropriate for judges to consider or not consider in deciding cases, the term is regarded by many lawyers, scholars and judges to be somewhat ambiguous or effectively meaningless.
Read Chief Justice French on judicial activism and Justice Sackville of the Federal Court on law and social change in Australia.
Judicial power is the power to decide controversies between the subjects of a state, or between the state and its subjects. The judicial power of the Commonwealth is exercised by the judiciary in accordance with ch III of the Constitution. Proper exercise of the power requires a court to ascertain, determine or enforce existing rights in accordance with the law in a decision that is conclusive and enforceable.
Read Chief Justice French on judicial power.
Judicial review is the process by which a court reviews the legality of the exercise of power by an administrative decision maker, such as a minister. Judicial review relates only to questions of law (whether the decision was within the law); it does not examine the merits or worth of the decision as a matter of public policy. An application for judicial review of a decision will often involve applying for a writ that will quash a previously made decision, and a writ that requires the decision maker to remake the decision within the bounds of the law, as declared by the Court.
Jurisdiction means ‘to speak with law’, and relates to a court’s power to hear and decide the facts of a case, interpret and apply the law, and make orders to determine that case. A court or person can have jurisdiction in relation to something else, which might include particular geographic areas (for example, the territory of New South Wales, or of Australia) and particular classes of parties that can appear before the court, the area of law, or the type of remedy that is sought. Limitations on jurisdiction are generally outlined in a statute, and jurisdiction may be challenged on these bases.
Jurisdiction can also refer to a political entity itself: hence the State of South Australia is its own jurisdiction, in addition to being a part of the larger jurisdiction of the Commonwealth of Australia. Where statutes are mentioned in this blog, jurisdiction appears as an abbreviation at the end of the statute title and year of enactment, to indicate where that statute has effect (for example, Income Tax Assessment Act 1936 (Cth)).
Jurisdiction of the High Court, Appellate
Section 73 of the Constitution lays out the High Court’s appellate jurisdiction, and empowers the Court ‘to hear and determine appeals from all judgments, decrees, orders and sentences’ of its own Justices, of any federal or State court, and of an Inter-State Commission (on questions of law only). The High Court’s judgment in each of these instances shall be final and conclusive.
That jurisdiction is exercised subject to exceptions and regulations that the Commonwealth Parliament may prescribe.
The reference to ‘judgments, decrees, orders and sentences’ relates to any formal order of a lower court, regardless of form or subject matter. Consequently, whereas the High Court can only consider matters under its original jurisdiction, its appellate jurisdiction is not limited in that way. When conducting appeals, the High Court can re-determine the facts of the case, and the law that was applied. However, the Court cannot receive fresh evidence in an appeal (Eastman v The Queen  HCA 29), and it must apply the law as it stood at the time of the lower court’s judgment (Dignan v Australian Steamships Pty Ltd  HCA 19).
Jurisdiction of the High Court, Original
The High Court holds original jurisdiction in several important types of legal disputes. Original jurisdiction means that the matter will be brought directly before the High Court, as opposed to appellate matters, which have already been heard and determined by lower courts. Section 75(v) of the Constitution states that the High Court will have original jurisdiction over all matters:
- Arising under a treaty
- Affecting consuls or other representatives of other countries
- In which the Commonwealth, or a person being sued on behalf of the Commonwealth, is a party
- Between States, or between residents of different States, or between a State and a resident of another State
- In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth
An officer of the Commonwealth is a person holding an identifiable, salaried office in the Commonwealth Government and who may be removed from that position by the Government. For the purposes of s 75(v), this includes Commonwealth public servants and Ministers.
Where a court or tribunal purports to exercise its jurisdiction in a way that extends beyond the jurisdiction that is actually conferred on it (by, for example, the tribunal’s establishing statute, or a State constitution), or fails to exercise its proper jurisdiction, the court or tribunal makes a ‘jurisdictional error’. Where a decision involves jurisdictional error, it is regarded at law to be no decision at all.
Read former Chief Justice Spigelman of the New South Wales Supreme Court on jurisdictional error (at 265).
Jurisprudence has a variety of meanings. Academically, it relates broadly to the study of the theory and philosophy of law and legal systems (jurisprudentia, historically meaning the science, learning or knowledge of law). More commonly and as used in courts, it refers to the bulk of legal rules and decisions around a particular area of law, or a particular court’s philosophical approach to an area of law.
Read Justice McHugh on the constitutional jurisprudence of the High Court.
Justiciable means something that is capable of being resolved by the orders of a court. To say that an issue is ‘non-justiciable’ means that a court cannot adjudicate it, for whatever reason.
A series of books released throughout the year that compile important judicial decisions. Law reports are either authorised (meaning they have been reviewed and approved by the relevant court or tribunal) or unauthorised (meaning they have not). The authorised report series for the High Court is the Commonwealth Law Reports (the ‘CLRs’) and for the Federal Court the Federal Court Reports (the ‘FCRs’). Popular unauthorised report series include the Australian Law Reports, the Australian Law Journal Reports, and the Federal Law Reports, all of which report significant decisions of federal and State Supreme Courts. A single judgment may appear in multiple law reports.
The case references used for links in Opinions on High are known as ‘unreported’ decisions, meaning they do not appear published in a law report but are instead issued by the court itself. Unreported versions of court decisions are used on this blog because they are freely available on www.austlii.edu.au.
An agreement whereby one person (the lessor/landlord) gives exclusive possession to the other (the lessee/tenant) for a specified term. Usually rental must be paid.
A lawyer with a current practising certificate: see solicitor; barrister.
A legal person is any entity upon which a legal system confers rights and duties. In Australia, this includes natural persons (that is, human beings), and judicial persons, which are artificial, non-living constructs of the law (like a company). Legal personality is required for legal capacity: personality is being the kind of thing that may be able to enter into legal rights and duties, subject to restraints like age or mental capacity that relate to legal capacity.
Leave to Appeal
A grant of permission by a court to institute proceedings appealing a lower court decision. At the High Court, leave to appeal (as opposed to special leave to appeal) is required to appeal from an interlocutory judgment of a Justice/Justices exercising the High Court’s original jurisdiction. Such judgments are rarely made (ordinarily they are remitted to the Federal Court), and thus leave in this ‘non-special’ sense is also rare. See instead special leave.
Mandamus, writ of: see writs
The High Court only has power to determine a ‘matter’. According to one classic statement, a ‘matter’ requires that ‘there [be] some immediate right, duty or liability to be established by the determination of the Court’ (In re Judiciary and Navigation Acts  HCA 20). This means there has to be a real, ongoing dispute between parties about a question of law that the High Court is capable of actually resolving. Consequently, the Court cannot issue a judgment on a hypothetical case. That may sound obvious enough, but many courts around the world, including the Supreme Court of Canada and the International Court of Justice, are empowered to deliver advisory judgments which can instruct a government on whether the court thinks a law is constitutional, or how a particular provision would be interpreted.
Mistake of fact
A belief about a factual proposition that is incorrect. In criminal law, a mistake of fact may be used (in particular offences) to deny that the mental element of a crime was present or (if the mistake was reasonable) as a defence to some crimes that do not require proof of a mental element. A mistake of fact may also refer to a mistaken belief about factual circumstances that led a person to pay money or confer a benefit on another person.
Mistake of law
A belief about a legal rule or statutory provision that is incorrect (including ignorance or inadvertence). A mistake of law may relate to a person incorrectly thinking they are under a legal obligation to pay money or confer a benefit on another person.
Misleading or deceptive conduct
A phrase used in s 18 of the Australian Consumer Law. Section 18 of the Australian Consumer Law states: ‘A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive’. Section 18 replaces s 52 of the Trade Practices Act 1974 (Cth) and a variety of State legislation.
A communal, group or individual right or interest of indigenous Australians in land or waters that is based on legal recognition of a traditional customary connection to that land that has not been extinguished. In the well-known Mabo case (Mabo v Queensland (No 2)  HCA 23), the High Court held that Australia’s common law recognised the existence of native title, which is now regulated by the Native Title Act 1993 (Cth).
Read then-Justice French of the Federal Court on Mabo and native title in Australia.
Native title determination
A Federal Court decision determining whether native exists, who holds it, what rights and interests are included in it, and what other legal interests interact with those native title rights.
Natural justice relates to basic rights to a fair hearing, the opportunity to present one’s case, the right to be heard by an unbiased and fair-minded decision maker, and the right to have that person’s decision be based on evidence which is known and can be challenged. It is substantially similar to the more commonly-used phrase ‘procedural fairness’. See also procedural fairness.
Negligence is a cause of action in tort law which requires the defendant to exercise reasonable care in her actions towards the plaintiff. In order to make out the cause of action, the plaintiff must prove that the defendant owes her a duty, that the duty has been breached, that the damage was reasonably foreseeable, and that no defences apply to the defendant.
Latin for ‘said in passing’. Relating to reasons for judgment, they are remarks within the reasons that are not strictly part of the essential reasoning in the case. Consequently, under the doctrine of precedent, they are not binding on the court that made them, nor on lower courts in that court hierarchy. However, ‘seriously considered dicta’ of a majority of the High Court must not be disregarded by lower courts: Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22. See also ratio decidendi.
Onus of proof
For nearly every factual dispute before the courts, one party ‘bears’ (has) the legal onus of proof. That means that that party must convince the court that the facts are in her or his favour. If she or he fails to convince the court to the required standard of proof, then the party will lose on that particular issue. The general rule in most cases is that the person making a particular claim (such as the plaintiff in civil disputes) bears the onus of proof. The equivalent rule in criminal cases – that the prosecution bears the onus of proof beyond reasonable doubt – is sometimes referred to as the ‘golden thread’ principle, after a famous affirmation of the requirement by the UK House of Lords in the Woolmington judgment (Woolmington v DPP  UKHL 1). However, despite the rhetoric, the common law and (more often) statutes make exceptions to the requirement in criminal cases, instead requiring defendants to prove some matters in his or her favour on the balance of probabilities (termed a ‘reverse onus’). See also standard of proof.
A command or directive issued by a court or tribunal to enforce the judgment of that body. When the High Court hands down a judgment in a case, the judges sit and read out the orders of the Court in relation to a matter. (Written judgments are then made publicly available; they are not typically read out in full.)
A parliament is the legislative branch of a government. Often composed of hundreds of elected members representing districts throughout a jurisdiction, a parliament’s main function is to pass and amend the laws operating in that jurisdiction. In Australia, the Australian Constitution creates the Federal Parliament, which comprises the Queen, the Senate and the House of Representatives, and makes federal law. Each State constitution creates a State parliament which comprises the Crown and upper and lower legislative houses (except Queensland, which only has a lower house), and makes state law. Parliamentary debates involve structured discussion of proposed laws through speeches, questions and responses. In addition to passing laws, parliaments may create parliamentary committees composed of members of parliament to inquire into specific matters, like the drafting of laws, the expenditure of public money, or scrutinising the conduct of public servants.
The doctrine of parliamentary sovereignty states that parliament has the power to make or unmake any law it desires (in Australia, subject to constitutional constraints, as interpreted ultimately by the High Court).
Read Chief Justice French and former Chief Justice Gleeson on the courts and Parliament.
Parties to a legal proceeding will take up (and may change) their designation based on the kind of proceeding (trial, appeal), and who brought the proceeding before the court. Here is a list defining the most common types of party designations in High Court proceedings:
- Appellant: a person seeking to appeal the ruling of a lower court.
- Applicant: a party making an application. In the Federal Court of Australia, an applicant is any person who make a claim for relief in any proceedings (analogous to a plaintiff). In any interlocutory proceedings, the party seeking relief is an applicant.
- Respondent: a person seeking to oppose an appeal or an application; a person against whom an appeal or application is made.
- Offender: a person who has been found guilty of a crime.
- Defendant: a person against whom relief is sought in civil proceedings or who the prosecution seeks to have punished in criminal proceedings.
- Intervener: a party with an interest in the outcome of the case that differs from the parties presently involved, who the court allows to be joined to the case.
- Complainant: a person who lodges a complaint to a decision maker that is not a court (a tribunal, Minister, ombudsman, board, etc), or a person who commences criminal proceedings by laying a complaint (for example, with the police).
- Petitioner: the party who makes a formal application for a court order (often used in relation to bankruptcy proceedings).
- Informant: the person who charged an accused (often a police officer or government official).
Plaintiffs and defendants, though the basic designation for parties involved in civil trial proceedings, are rarely the correct designation for parties in High Court proceedings. That is because the High Court today never conducts trials (and, historically, only did so very rarely).
Of course, where the High Court refers to parties involved in a case at first instance it will use plaintiff and defendant. A plaintiff is a party seeking relief against another person by any form of proceedings in a court (see Plaintiff). A defendant is a party against whom relief is sought in civil proceedings or whom the prosecution seeks to have punished in criminal proceedings (see defendant).
Party may also refer to an entity involved in a legal agreement with another (as in, ‘parties to a contract’).
A patent is a set of exclusive rights granted to by the Commonwealth to exploit an invention. Patents are personal property, meaning that the patent holder may authorise others to exploit the invention, or may sell, license, assign or will the patent to another person. In Australia, a standard patent expires and becomes part of the public domain within a maximum of 20 years.
Governmental powers or functions conferred onto a specific person by name, rather than onto an office. Persona designata most commonly relates to the conferral of non-judicial power onto an individual who is also a judge, which forms an exception to the constitutional rule that a federal judge cannot exercise ‘non-judicial’ power.
A party seeking relief against another person by any form of proceedings in a court. See also parties).
Although the precise meaning of pleadings differs between jurisdictions in Australia, in general terms they are written documents sent by parties to each other to define the issues that will be decided by the court. Pleadings aim to clearly state the case that must be answered by the other party, and so contain a summary of the material facts on which a party is basing its legal claim. Pleadings do not contain the evidence by which those arguments will be proven. A statement of claim is the written declaration by the initiator of a legal proceeding which states the facts that will be relied upon to demonstrate the legal claim against a defendant and the relief sought. A defence to a statement of claim is the reply to the statement of claim which denies or admits each allegation contained in it.
The doctrine of precedent is a key feature of the common law system and a fundamental constraint on judicial decision-making in Australia. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions, and to apply the common law accumulated from past cases. How judges follow to the doctrine depends on where in the court hierarchy their court sits. All judges sitting in courts lower in the court hierarchy are bound to apply the reasoning of judges of the High Court in past cases — in other words, to ‘follow’ past decisions — when deciding cases that raise similar facts. Within each court hierarchy lower courts must similarly ‘follow’ the decisions of superior courts. The doctrine of precedent also means that judges must take seriously the reasoning of judges in past cases even if they are not bound to apply that reasoning. For instance, while High Court judges are not bound by previous decisions of the High Court, and Supreme Courts are not bound to follow their own decisions, judges must not depart from past decisions without justification.
Read Matthew Harding on the High Court and the doctrine of precedent and former Justice Kirby on precedent in Australia.
Unlimited power to legislate. The Commonwealth Parliament has plenary power to make legislation for the ‘peace, order and good government of the Commonwealth’ but limited to the subject matters outlined in ss 51 and 52 of the Constitution. State Parliaments have (much broader) plenary power as well. Commonwealth and State Parliaments’ plenary powers are subject to the limits of the Commonwealth Constitution.
The common law powers of a sovereign, derived from the historical powers held by the English monarch that have now been inherited and are exercised by the Commonwealth. Prerogative powers include the power to engage in diplomacy, declare war or peace, enter into international agreements, summon and dissolve the Federal Parliament, appoint officers to government departments. Prerogative powers are exercised subject to the Constitution and may be limited or removed by legislation.
The body of law that regulates legal relationships between private individuals. Private law includes the law of tort, contract, property and trusts, among other areas of law. Private law allows legal persons to create and enforce legal rights and obligations against other persons. It involves parties seeking the coercive power of the state to declare and enforce the obligations that another private individual owes to that person. See also public law.
Procedural fairness is a set of common law principles that inform the interpretation of how statutory and prerogative powers should be exercised. Procedural fairness involves three main rules. First, the hearing rule, which requires that a decision maker afford a person whose interests will be adversely affected by a decision a chance to be heard and present her case. Second, the bias rule, which requires that a decision maker have no interest or prejudice relating to the decision made. Third, the no-evidence rule, which requires that the decision be based on logically probative evidence (that is, relevant evidence that is known to the person whose interests may be adversely affected, and can be challenged by that person). A breach of any of these rules is a ground for judicial review.
Read Chief Justice French and Justice Rares of the Federal Court on procedural fairness.
A proprietary company is a company that has no more than 50 non-employee shareholders, cannot make share offers to the public, and has its powers to transfer shares restricted by law. The most common type of proprietary companies are limited (meaning its members are not personally liable for the company’s debts and liabilities), and must have the phrase ‘Pty Ltd’ appear after their name. See also public company.
Prosecution / Prosecutor
A ‘prosecution’ is a legal proceeding in which a person is brought to answer a criminal charge before a court. The ‘prosecutor’ refers to the party bringing criminal proceedings. In most instances of serious crimes, this will be the Director of Public Prosecutions (DPP) at the State or federal level, who is a government officer appointed to exercise the government’s powers to prosecute people for criminal offences. Those powers include commencing or discontinuing a prosecution, conducting a criminal trial on behalf of the State, and conducting criminal appeals against insufficient sentences or defending the Crown against appeals by convicted offenders. For minor offences, a prosecution may be conducted by a police prosecutor, a government or statutory agency or (rarely) a private individual. A prosecutor is sometimes referred to as the ‘Crown’ or ‘Crown prosecutor’ in higher courts.
A public company is a company that may raise funds by offering shares in the company to the public at large. In Australia, public companies are usually listed on a stock exchange, are unrestricted in the number of members that can hold shares in them, and must operate under more stringent reporting and disclosure requirements than proprietary companies. Corporate entities with the phrase ‘Ltd’ are public companies. See also private company.
The body of law that regulates legal relationships between individuals and the state; the powers, rights and duties of the government and its subjects. Public law includes constitutional, administrative, environmental, international and criminal law. Public law can also more broadly refer to the scheme of legislation and regulations that relate to the powers of public officers. See also private law.
Read Chief Justice French on public law in Australia.
Relating to government, a person appointed to fulfil and discharge the duties of a public office and paid by a public fund.
Question of fact
A question that is to be resolved by finding and determining facts and evidence, or inferences arising from those facts. In jury trials, questions of fact are largely for the jury to decide.
Question of law
A question that is to be resolved by interpreting and applying legal principles, to be determined by a judge. In administrative law specifically, a question of law can also mean reviewing whether an administrative tribunal has correctly interpreted the law, and has only taken into account all relevant considerations in reaching its decision.
The ‘reason for deciding’, more commonly referred to as a ratio or ‘the ratio of a case’, meaning any rule of law expressly or impliedly used by a judge as a necessary step in reaching the conclusion in a legal argument.
A registrar is an administrator at the court responsible for maintaining court records, which are held in the registry. Documents relevant to legal proceedings are filed or lodged with the registry to form part of the records of the court.
Regulations: see delegated legislation
A remedy is the means, at law or in equity, by which a person can enforce a right, or prevent a wrong from occurring, or redress or compensate a wrong that has occurred. Legal proceedings are always aimed at requesting a court to issue some kind of remedy, effected by its orders. It is sometimes said ubi jus ibi remedium (Latin for ‘where there is a right there is a remedy’).
Civil remedies include damages, injunctions, an order for specific performance, an account of profits (where the court strips the defendant of any profit), rescission (where a court undoes a transaction where the plaintiff’s consent is vitiated) or a declaration (in which the court declares relevant rights or duties). Relief is the remedy sought by a plaintiff or applicant in a legal proceeding.
Remission means returning a case from a higher court to a lower one. The High Court may send proceedings to a lower court (such as the Federal Court of Australia) through a remittal proceeding. Often, this is used to determine the facts of a dispute that has come directly before the Court (for instance, applications that invoke the Court’s original jurisdiction), which avoids the need for the High Court to run trials.
Removal of proceeding
The transfer of a legal proceeding (or particular questions raised by it) to another jurisdiction, court, or division within a court.
The High Court may agree to hear particular issues in cases currently before lower courts through a removal proceeding. The lower court will outline the issue that it would like the High Court to resolve, and once the High Court hands down its judgment, the lower court will decide how, if at all, the case is to proceed. Often, removals are required where a lower court needs a constitutional issue decided by the court (as in DPP (Cth) v Keating  HCA 20 and here).
A legal proceeding in which one party acts on behalf of several parties who have an identical interest in the proceeding. Representative proceedings are more commonly known as class actions, in which a group or class of persons may, for example, have the same complaint against a company that has manufactured a faulty product which has caused each of them a similar harm. Common areas of class actions include consumer protection, product liability, competition law, financial services/products and shareholder actions.
Read the Federal Court of Australia information page on representative proceedings.
A remedy where a court undoes a transaction where the plaintiff’s consent is vitiated. Each party must return any benefit (or its value) received under the transaction.
Reserved decision; reserved judgment
A judicial decision that is not issued immediately after the hearing, but instead after the court has had some time to consider the factual and legal issues raised during the hearing. Decisions in complex trials and in appellate cases are usually reserved. At the High Court, practically all decisions are reserved (except for special leave hearings, which are ordinarily decided at the end of the hearing or following a brief adjournment).
A person who responds to an appeal against a lower court decision. See parties.
A resulting trust arises by operation of law. It may arise because the relationship between the parties is one where the court presumes that it applies because of the ‘presumption of resulting trust’, or it may arise where an express trust has failed.
Rule of Law
A basic principle underlying the Australian system of law and government which states that every person, organisation and level of government is equally subject to and protected by the law. The precise contours and meaning of the rule of law and its application are open to wide philosophical debate, and it is often seen as a very broad concept. Central to the vast majority of formulations is the guarantee of equality before the law, and the prohibition on arbitrary use of government power.
In Australia, a well-known and influential formulation comes from the British jurist A V Dicey’s ‘three meanings’ formulation of the rule of law: a person can only be punished under the law if it is proven that the person breached a rule of regular law (rather than an arbitrary punishment, issued outside a court); the equal accountability of all people to the law, including members of the government, meaning that no one is above the law; and rights and freedoms of individual citizens come from gradual accumulation of the common law (rather than a constitutional declaration of those rights, as in a bill of rights).
Other scholars and jurists have critiqued or expanded on these basic tenets, to emphasise the need for the law to be clear, understandable, capable of being obeyed, prospective (as opposed to retrospective, or ‘backward-looking’). Institutionally, the rule of law may also be said to require democratic, transparent and independent government, open courts that are accessible to use by all members of the public (which may mandate legal aid for citizens unable to afford legal representation), and a robust and independent media.
Read former Chief Justice Gleeson on courts and the rule of law and Justice Crennan on postmodern challenges to the concept of the rule of law.
Self represented litigants; litigants in person
A self represented litigant is a person who does not retain the services of a Legal Practitioner to act as their representative in a legal proceedings, either by preference or because they cannot or can no longer afford to pay for the practitioner. If the matter comes before a court or tribunal, the person may appear before the court during the hearing and make submissions to the court. Self represented litigants before the High Court are not uncommon, and in 2011–2012 accounted for 41 per cent of special leave applications.
Read Deputy Chief Justice Faulks of the Family Court of Australia on the challenge of self represented litigants.
Separation of Powers
The separation of powers is a founding principle of law and government which considers government to be divided into three arms — the legislature (the parliament); the executive (the government) and the judiciary (the courts) — and each fulfilling a function that is separate and independent from the operation of the others: the parliament passes the law, the government enforces them, and the courts interpret and apply them. Australia’s constitutional system reflects the doctrine of the separation of powers, although as in the United Kingdom, the separation between the parliament and the executive is not strict: heads of government departments must also be members of parliament, and legislative powers may be exercised by the executive (see delegated legislation). See also rule of law, judicial power.
Read former Chief Justice Brennan on the separation of powers and then-Justice Allsop of the Federal Court on court’s control of the executive.
The period for which a court is assembled and conducts its business. This includes hearings, handing down judgments, and ceremonial sittings (to mark special occasions like the swearing in of a new Justice). The High Court has specific sitting days dedicated to hearing special leave applications and uses the remaining sitting days to hear matters (calendar available here).
A solicitor is a legal practitioner who engages in general legal practice, like providing legal advice to clients and preparing legal documents. Solicitors usually only appear in court for summary (relatively short) matters, and for more complex advocacy matters, will ‘brief’ a barrister who will appear before the court by providing instructions on the relevant factual and legal information needed to prepare the case. Solicitors are by definition not part of a Bar association, which means that they are not subject to restrictions on work that barristers have. Unlike barristers, solicitors can operate as a partnership, can engage in more general legal work beyond advocacy before a court or advice work. Solicitors are also entitled to work directly with clients, which barristers cannot do, meaning that they are the intermediaries between the Bar and the public. See also barrister.
The second chief law officer in a government, and not ordinarily a member of parliament (in contrast to the chief law officer, the Attorney-General). Duties include acting as counsel for the government during legal proceedings and providing legal opinions to the Attorney-General.
A special case involves the parties agreeing in stating questions of law which they apply to the High Court to resolve. This case will state the facts and identify the documents that are needed for the Court to resolve the question of law. Special cases often involve parties requesting the Court to interpret a legislative provision, or to rule on whether it exceeds constitutional limits. See also stated case.
See High Court Rules 2004 (Cth) r 27.08.
Most (thought not all) matters brought to the High Court require special leave of the Court to proceed. That means that the Court itself decides when it will hear a case. The following appeals require special leave:
- Appealing a decision of a State Supreme Court
- Appealing a decision of the Federal Court of Australia
- Appealing a decision of the Family Court (absent a certificate by the Full Court that an important question of law or public interest is involved: see
- Appealing the decision of any court of a state exercising federal jurisdiction, even where a state law prohibits any appeals from that court.
Leave (rather than special leave) is required to appeal from an interlocutory judgment of a Justice/Justices exercising the High Court’s original jurisdiction. Because those judgments are rarely made, leave in this ‘non-special’ sense is also rare.
The Court tends to only hear cases where a sufficiently important legal issue is involved, or where a significant irregularity in a lower court has occurred (especially in lower court criminal proceedings). Section 35A of the Judiciary Act 1903 (Cth) requires the Court, in considering whether to grant special leave to appeal, to have regard to:
- Whether the question of law is of public importance
- Whether the Court needs to resolve a difference of opinion between different courts, or within a single court, as to the state of the law
- Whether the interests of the administration justice require the Court to hear the case.
Special leave applications can be dealt with ‘on the papers’, meaning, without any oral arguments. Oral arguments in special leave applications are limited to 20 minutes per party, with a further 5 minutes reply time for the applicant. Special leave hearings are usually conducted by two Justices, but occasionally three. Often the Justices hearing the application will decide it immediately following oral argument, and do not ordinarily issue reasons for their decision.
The vast majority of special leave applications do not succeed: the last High Court Annual Report notes that only 59 of 443 special leave applications were granted (13.31%) with the remainder either dismissed, discontinued, or deemed abandoned by the parties.
Read Justice Hayne on advocacy in special leave applications.
An order for specific performance is an order which requires a defendant to specifically fulfill a contractual obligation which they owe to another party. If the defendant does not comply with the order, he will be in contempt of court and may be imprisoned or fined, or his property may taken from his possession (‘sequestered’) until he complies.
Standard of proof
When factual disputes are brought before courts, it is usually impossible for a court to know with absolutely certainty who is right. Instead, courts only need to be satisfied to an extent defined by the law, known as the ‘standard of proof’. The two most common standards of proof in Australian law are the balance of probabilities and beyond reasonable doubt. See also balance of probabilities, beyond reasonable doubt and onus of proof.
Stare decisis: see precedent.
A stated case occurs where one court asks another court (usually a superior court) for its opinion on a legal question. A stated case before the High Court involves questions that are drafted by a lower court, tribunal, or a single Justice of the High Court, that are to be resolved by the Full Court. Those questions are drafted following a preliminary consideration of the issues raised by the parties to the proceedings. The stated case still involves submissions, a hearing, and judgment. The Court’s ruling is in the form of answers to these questions. Often these relate to the interpretation of a constitutional or statutory provision. A recent example is DPP (Cth) v Keating  HCA 20.
There are six States in Australia, each with its own constitution that establishes and organises the state legislature, executive and judiciary. In Australia the States can pass laws on any matter that is not exclusive to the Commonwealth Parliament under s 51 of the Commonwealth Constitution. Section 109 of the Constitution also provides that Commonwealth laws override state laws to the extent of any inconsistency. State constitutions are easier to amend than the Commonwealth Constitution: in general, they can be amended in the same way as any ordinary legislation, but some provisions require special procedures before they can be amended, such as a special parliamentary majority or a referendum. Because the High Court hears appeals from decisions of State Supreme Courts, it is the final interpreter of State constitutions.
Statement of claim; statement of defence: see pleadings
Standing refers to a party’s right to request a court to make a determination. In general terms, to have standing, a person must have some stake or interest in the outcome of the matter. Although standing is an issue in all courts, it becomes particularly relevant for proceedings in the High Court and especially in matters where the Court is exercising its original jurisdiction. Where a member of the public challenges the validity of a statute or an executive action, that person must have a ‘special interest’ in that they have been affected specifically, more so than the public at large. That requirement is applied flexibly and with consideration of the subject matter of the case. Standing is also related to questions of justiciability and the ‘matter’ requirement.
A statute is a law passed by a parliament, and is synonymous with legislation and the formal title an ‘Act of Parliament’. Prior to passing through the legislature and receiving assent from the governor or Governor-General, a proposed statute is called a Bill. Once passed, it may be referred to as an Act, a statute, a piece of legislation, or simply legislation. Using the same procedure, a parliament may also amend a statute by changing the wording of a particular provision, or repealing (removing it from the law altogether, and removing its legal force from the date of repeal).
Statutes may serve a variety of purposes: enacting policies, creating rights and duties, and so forth. In common law systems, statutes are sometimes used to clarify or replace the common law itself by codifying legal rules that have been developed by the courts.
Statutes contain many different kinds of subdivisions such as sections and parts, which form specific provisions that a decision maker or a court applies specifically. In most legal writing, the full wording of these subdivisions is usually abbreviated, and this blog follows that convention. This table contains the most common abbreviations:
|Article||art / arts|
|Chapter||ch / chs|
|Clause||cl / cls|
|Division||div / divs|
|Paragraph||para / paras|
|Part||pt / pts|
|Schedule||sch / schs|
|Section||s / ss|
Read Justice Crennan on statutes in Australia; and Chief Justice French on the judicial function in the ‘age of statutes’.
While judicial decisions are usually read by lawyers and judges attempting to apply them as the common law, statutes are primarily intended to be read and applied by administrative decision makers. Where the meaning of a statutory provision is at issue in a case, the judge must first interpret and then apply the statute to the facts of the case. Even though modern statutes ideally aim at precision, language is, of course, ever open to competing interpretations, and the task of declaring the ‘correct’ interpretation falls to the courts, which occurs through the process of statutory interpretation (also known as ‘statutory construction’ or ‘construing a statute’).
This process is aided by principles, rules, and presumptions of statutory interpretation, as well as the use of extrinsic materials (any material outside the legislation itself that is relevant to its drafting or passage, such as parliamentary debates on the statute). All Australian parliaments have enacted interpretation statutes stating that their preferred approach is the purposive approach (though of course its precise contours and application are heavily debated): a court should prefer an interpretation of a provision that promotes the purpose or object underlying the Act to an interpretation that would not promote that purpose or object (see s 15AA of the Acts Interpretation Act 1901 (Cth)).
Among the many common law principles of statutory interpretation are important requirements such as these
- Words in a statute are given their ‘plain and ordinary’ within their context.
- Where words have a specific legal meaning, they must be interpreted in accordance with that meaning.
- Where more than one interpretation is possible, the court should prefer an interpretation that ensures the validity of the Act.
Read Chief Justice Gleeson on fundamental rights and statutory interpretation, and Justice Allsop of the Federal Court on context, meaning and enactment history.
Parties may file written submissions that outline the arguments which they will ‘submit’ for the High Court’s consideration (see an example here). They are highly concise documents (no more than 20 pages, unless extended), which may be the basis for many hours of oral argument. Typically, they include a statement of the issues in the matter (the questions that the High Court needs to answer), a statement of the relevant facts, an outline of the party’s argument (with citations to relevant authorities), a set of applicable statutes and authorities, and the precise form of orders which the party would like the Court to make (for example, allow the appeal, make an order for costs). (On oral submissions, see hearing.)
Read Justice Hayne on written advocacy in High Court cases.
A summary offence is one where the question of whether or not the offence was committed is always decided by a magistrate. Because juries (and, often, lawyers) are not involved, and the stakes are relatively low, magistrates typically hear summary offence charges, reach a verdict and determine a sentence much more quickly than trials for more serious offences, hence the term ‘summary’.
In Australia, superior courts include the High Court and all State and Territory Supreme Courts (including their appellate or specialised jurisdictions), and the Federal and Family Court and their appellate jurisdictions.
In its ordinary meaning, territory means the air, land or sea within the jurisdiction of a state. In the Australian constitutional system, there are ten Australian territories that lie under the jurisdiction of the Commonwealth. Of these ten, two mainland territories (the Australian Capital Territory and the Northern Territory) and one off-shore territory (Norfolk Island) have limited powers of self-government.
Section 122 of the Constitution empowers the Commonwealth Parliament to make laws for the government of territories, and may allow for Territory representatives to sit in Parliament ‘to the extent and on the terms which it thinks fit’. Although many restrictions apply to the Commonwealth’s relations with the States (see federalism), the apparent breadth of s 122 means that the Court has often had to determine whether federalism concerns also apply to Commonwealth powers over the territories.
Read Chief Justice French on the constitutional history of the Northern Territory.
The ownership rights held over property that are recognised by a legal system (as in title to land, title to goods). Title can be conferred in many ways, but is done so most commonly by legal documents (for example a conveyance or will), or through possession (as with a person who temporarily borrows goods).
A system of land title where a register is maintained of all ownership of land. Registering a person’s name on the title guarantees indefeasible title. It originated in South Australia, and is named after Sir Robert Torrens. See here.
A civil cause of action protecting persons from wrongdoing. Torts protect a variety of rights including bodily integrity, real property, personal property, reputation and economic rights. Negligence (a failure to take reasonable care) is a frequently resorted-to tort.
A sign that distinguishes a particular good or service from other similar goods or services, for example a soft drink can logo. Trade marks may be registered under the Trade Marks Act 1995 (Cth), or may exist in an unregistered form under common law. The person who can demonstrate the first use of a trade mark in Australia is entitled to register it. A registered trade mark is the personal property of the trade mark holder, and can be sold or licensed to another person.
A transcript is the written record of proceedings before a court. In trials, transcripts will include evidence given by parties or witnesses, records or exhibits presented to the court, and arguments made by counsel. In appeal proceedings, it is largely the arguments of counsel and statements or questions by the judge or judges that are contained in the transcript.
All official proceedings before the High Court are now transcribed and made publicly available on austlii.edu. These include ceremonial proceedings such as the appointment of Senior Counsel (here), or the swearing-in of a new Justice (here), and ordinary business of the High Court, such as hearings on applications for leave to appeal to the Court (here); and hearings before the Full Court (here).
A trial is a legal proceeding heard at first instance. In nearly all civil proceedings and most criminal proceedings, the trial judge is responsible for determining the facts of the case, and deciding issues of law such as whether particular evidence is admissible. In appeal cases, the phrase ‘trial judge’ or ‘at trial’ is used to refer to the first decision made on a case. Because appeals relate to questions of the application of law, appellate courts rely on the factual record produced at trial when considering the case on appeal, and consequently rarely question the facts. Serious criminal cases and occasional civil disputes are decided by jury trials where, following the conclusion of the hearing, the trial judge sums up the case for the jury’s decision, and gives directions to the jury on legal principles, and, where appropriate, commenting on the facts (such as what factual conclusion the jury would have to agree on in order for a legal principle to apply). Many criminal appeals relate to questions of whether or not the trial judge correctly stated legal principles applicable in the case in his/her directions to the jury.
Although courts are in a general sense also tribunals, ‘tribunal’ in Australian law may refer to an administrative officer or body that makes a decision according to law (like granting a licence), or also to an administrative review tribunal, which is an independent body responsible for examining the merits of a decision made by a government authority. Importantly, tribunals do not hold judicial power, although they might exercise some kinds of ‘judicial-type’ functions like hearing evidence from witnesses. In contrast to courts, tribunals are usually somewhat less formal in their proceedings and the rules relating to evidence and appearances before them.
The Administrative Appeals Tribunal of Australia (AAT) provides for independent review of many kinds of decisions made by the Australian Government. Other state-level tribunals, like the NSW Administrative Decisions Tribunal or Victorian Civil and Administrative Tribunal, provide general review of local and state government decisions. Decisions of the AAT can be appealed to the Federal Court of Australia (and ultimately the High Court) on questions of law only. Decisions of state-level tribunals are reviewable by, ultimately, State Supreme Courts on questions of law only (which could then be appealed to the High Court).
Read Chief Justice Brennan on the Administrative Appeals Tribunal.
An arrangement where one person (the trustee) holds property for the benefit of another (the beneficiary). A trustee is a fiduciary which means that she has strict obligations to act wholly in the interests of the beneficiary and not to conflict with or profit from her office. Trusts may be express trusts (which arise because the parties agree that they should) or they may be constructive trusts or resulting trusts (which arise because the court imposes them on the parties).
Unfair, unjust, unreasonable or against conscience. Unconscionability is a concept derived from equity. It is used in a variety of different ways in a variety of different contexts, but its aim including protection of the vulnerable, protecting the integrity of the bargaining process, enforcing reasonable expectations and preventing substantive unfairness.
A writ is a formal order made by a court allowing a person to perform a legal action. One of the most well-known writs, the writ of habeas corpus (‘release the body’), compels any government official who holds a person to bring that person to court, so that the court may determine whether or not the detention is lawful.
Prerogative writs provide remedies against particular kinds of administrative acts and decisions. The High Court has the power to issue writs of mandamus, prohibition or injunction against a tribunal, public body, or officer of the Commonwealth. These are commonly known as ‘constitutional writs’ because they are explicitly mentioned in s 75(v) of the Constitution. A writ of certiorari sets aside an official decision that was not made according to law. A writ of mandamus (‘we command’) requires its recipient to do something that it has failed to do (such as perform a public duty, exercise a discretionary power, or to compel the reconsideration of a decision that has been quashed by a writ of certiorari). A writ of prohibition orders its recipient to cease proceedings that are unlawful.
Abbreviations used in Opinions on High
This section lists some of the abbreviations and acronyms commonly seen in posts on this blog.
Courts and Tribunals
|AATA||Administrative Appeals Tribunal of Australia|
|ACTCA||ACT Court of Appeal|
|ACTSC||ACT Supreme Court|
|AIRC||Australian Industrial Relations Commission|
|FamCA||Family Court of Australia|
|FamCAFC||Family Court of Australia — Full Court|
|FCA||Federal Court of Australia|
|FCAFC||Federal Court of Australia — Full Court|
|FMCA||Federal Magistrates Court of Australia|
|FCCA||Federal Circuit Court of Australia|
|HCA||High Court of Australia|
|HCATrans||High Court of Australia — Transcripts|
|IRCA||Industrial Relations Court of Australia|
|MRT||Migration Review Tribunal of Australia|
|NSWADT||NSW Administrative Decisions Tribunal|
|NSWCA||NSW Court of Appeal|
|NSWCCA||NSW Court of Criminal Appeal|
|NSWDC||NSW District Court|
|NSWSC||Supreme Court of NSW|
|NTCA||Northern Territory Court of Appeal|
|NTCCA||Northern Territory Court of Criminal Appeal|
|NTSC||Northern Territory Supreme Court|
|QCA||Queensland Court of Appeal|
|QCAT||Queensland Civil and Administrative Tribunal|
|QDC||District Court of Queensland|
|QSC||Supreme Court of Queensland|
|RRT||Refugee Review Tribunal of Australia|
|SADC||District Court of South Australia|
|SASC||Supreme Court of South Australia|
|SASCFC||Supreme Court of South Australia — Full Court|
|TASSC||Supreme Court of Tasmania|
|TASCCA||Tasmanian Court of Criminal Appeal|
|TASFC||Supreme Court of Tasmania — Full Court|
|VCAT||Victorian Civil and Administrative Tribunal|
|VCC||County Court of Victoria|
|VSC||Supreme Court of Victoria|
|VCA||Victorian Court of Appeal|
|WADC||District Court of Western Australia|
|WASAT||WA State Administrative Tribunal|
|WASC||Supreme Court of Western Australia|
|WASCA||Western Australia Court of Appeal|
|Article||art / arts|
|Chapter||ch / chs|
|Clause||cl / cls|
|Division||div / divs|
|Paragraph||para / paras|
|Part||pt / pts|
|Schedule||sch / schs|
|Section||s / ss|
The glossary above draws on a wide range of introductory and reference works which may be of interest to readers seeking a more detailed introduction to Australian law. See, for example:
- Michael Coper, Tony Blackshield and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001).
- Peter Butt and David Hamer (eds), LexisNexis Concise Australian Legal Dictionary (4th ed, LexisNexis Butterworths, 2011).
- Patrick Parkinson, Tradition and Change in Australian Law (5th ed, Thomson Reuters, 2013)
- H P Lee and Enid Campbell, The Australian Judiciary (2nd ed, Cambridge University Press, 2013)
- Cheryl Saunders, The Constitution of Australia: A Contextual Analysis (Hart Publishing, 2011).
- The definitions of appeal, attorney-general, barristers, chief justice, High Court rules, intervener, judgments, jurisdiction of the High Court, leave to appeal, matter, remittal proceedings, removal of proceedings, special leave are partly adapted from equivalent entries in Michael Coper, Tony Blackshield and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001).
- The definitions of authority, copyright, court of first instance, decision, declaratory judgement, delegated legislation, demurrer, determination, directions hearing, director, discretion, discovery, dissenting judgment, error of fact, error of law, injunction, interlocutory, international law, judicial activism, judicial power, jurisdiction, jurisdictional error, justiciable, legal person, mistake of law, native title, native title determination, natural justice, order, parties, patent, persona designata, pleadings, plenary power, prerogative powers, private law, procedural fairness, proprietary company, prosecution, public company, public law, public officer, solicitor-general, territory, trade mark, writs are partly adapted from equivalent entries in Peter Butt and David Hamer (eds), LexisNexis Concise Australian Legal Dictionary (4th ed, LexisNexis Butterworths, 2011).
- The entries on the Bar and solicitors are partly adapted from information on the Victorian Bar website and Law Institute of Victoria website.
- The entry on federal courts is partly adapted from information on the Federal Court of Australia website.
- The entry on self-represented litigants is partly adapted from information on the Supreme Court of Victoria website.
Other glossaries and useful introductory materials
Federal Court of Australia, ‘Glossary of Legal Terms’.
Australian Law Postgraduate Network, Introductory Modules on Australian Law.