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Legalese

Legalese

Every profession has its own language or “jargon” peculiar to its own profession. Every few issues, we will provide a list of common words and phrases unique to the legal profession and their meanings for your understanding.

Here are a few legal phrases and their every-day explanation

If you come across any that confuse you, don’t hesitate to email me at admin@mcdonnellschroder.com.au

Adjourn – Put off a court or tribunal hearing to a particular date or indefinitely.

Affidavit – A written statement sworn on oath or affirmed to be true before a person with the appropriate authority.

Amicus curiae – A person who advises or addresses the court in a matter in which they are not directly interested.

Appeal – Take a case to a higher court, tribunal or other authority to try to get an administrative or legal decision changed.

Arbitration – The hearing or determination, other than in court, of a dispute between parties by a third party with the power to make an enforceable decision.

Arraign – Call or bring a person before a court to answer a charge.

Attestation clause – A clause in a document such as a will, stating that witnesses saw a person sign the document and that they then also signed it in the presence of that person and each other.

Award – The decision of an arbitrator, which has the force of law and can be enforced in the same way as a court order or judgement. A common example in Australia is an industrial award, which specifies conditions of work and the responsibilities of employers and employees.

Balance of probabilities – The likelihood that something is more likely than not to be true – the standard of proof required in civil law cases

Bail – The release from custody of a person who has been charged with an offence, on condition that they will appear in court as required, and sometimes subject to other conditions. Bail can also refer to an amount of money that may be promised or deposited as a condition of release

Bequeath – Make a gift of personal property in a will

Covenant – An agreement between two or more parties to do or refrain from something; a contract

Creditor – A person to whom money is owed

Custody – (a) A term previously used in family law meaning the daily care and control of a child

Damages ­– The amount ordered by a court to be paid by one party to another in a civil case as compensation for some sort of injury

Decree absolute – The final order in divorce proceedings

Decree nisi – A provisional order made by the Family Court in divorce proceedings, which terminates a marriage. The divorce is not final until a decree absolute is made, usually one month later

Defamation – Publication of a false and derogatory statement without a lawful exercise

Default – Failure in some duty

Deponent – A person in whose name an affidavit is sworn

Disbursement – Money paid out on behalf of someone else. In a solicitor’s bill, this may be for expenses such as filing a form or photocopying

Intestate – A person dies intestate if they do not leave a valid will. In this case, intestacy rules apply, and the deceased person’s property is distributed according to a statutory table of intestacy

Joint tenants – People who own land together in undivided shares, with a right of survivorship; that is, on the death of one owner, their interest automatically passes to the surviving owner. The interest cannot be disposed of by will or deed as with tenants in common

Legacy – A gift of personal property in a will

Letters of administration – Written authority from the court allowing a person to act as administrator of an estate where there is no will

Mens rea – A guilty mind, the evil intention or knowledge that an act is wrong

Mortgage – A transfer of real property (land) or personal property (goods) as security for the repayment of money borrowed

Slander – The publication of defamatory material in non-permanent (for example, verbal) form

Statute – A law made by parliament (state or Commonwealth)

Statutory declaration – A written statement which the person making it (the declarant) signs and solemnly declares to be true before a person authorised to witness such declarations

Subpoena – A writ commanding the appearance of a person in court or the production of specified documents

Summary offence – A minor offence heard and decided in the Local Court and not sent for trial before a judge and jury

Tenants in common – One or more people entitled to occupy or own land in common with others. Each person may leave their share to someone else in a will; that is, there is no right of survivorship (compare with joint tenants)

Testator – A person who makes a will

Trustee – A person who holds assets for the benefit of another person

Undertake – To promise to do or refrain from some act

Complaints to the Ombudsman

Who can complain?

Any member of the public (or their representative, such as a welfare officer, member of parliament, relative, solicitor or accountant) can make a complaint to the Ombudsman, as can companies, organisations and associations

What should be in a written complaint?

A written complaint should include:

  • Copies of any essential correspondence with the government official or body
  • Any other relevant documents
  • The nature of the complaint
  • The facts of the dispute
  • The preferred remedy or solution

What can the Ombudsman investigate?

The Ombudsman has the power to investigate such things as:

  • An agency’s administrative actions
  • An agency’s decisions or recommendations
  • Refusal or failure to make a decision or recommendation
  • Failing to give reasons for conduct
  • Delays in making a decision

The Ombudsman can act on their own initiative, without having to receive a complaint

What can’t the Ombudsman investigate?

The Ombudsman cannot investigate:

  • The actions of a government minister
  • The actions of a judge, magistrate or coroner
  • Disputes about employment between the government and its employees (unless there are special circumstances
  • Certain actions of government authorities that are specifically excluded in schedules to the federal and NSW Ombudsman Acts

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