Hearings in court – commonly used words

General Legal Terms

Adjournment: When a hearing is delayed until a later date. An adjournment will not automatically be granted.

Affidavit: A written statement of facts made under oath or affirmed before a notary public, justice of the peace, lawyer or other authorised officer. An affidavit can be used to support an application or can be used as evidence in court.

Affirmation: To confirm a legal decision, particularly (of an appeal court) to confirm a judgment made in a lower court.

Alternative dispute resolution: Various methods of resolving civil disputes otherwise than through the normal trial process. The court will encourage the parties to use an alternative dispute resolution procedure if the court considers this appropriate and should facilitate the use of such procedures.

Appearance: Coming to the court as a party, either in person or through a representative (i.e. a barrister). The judge will often state “I will take appearances” at the start of a hearing. The word “appearance” may also refer to a Notice of Intention to Defend (see below).

Arbitration: In arbitration, a dispute between two or more people will be decided by an impartial third party (called an arbitrator). Arbitration occurs outside the court process but is still binding on the parties. Arbitration may be agreed to by the parties, may be required by a provision in a contract for settling disputes, or may be provided for under statute.

Barrister: A legal practitioner specialising in court work, admitted to plead at the Bar.

Cause of action: A cause of action is the “legal wrong” that entitles a party brings a case to court, e.g. negligence, breach of contract, defamation. Without a cause of action you should not commence a court case because you cannot be successful.

Callover: A court procedure which involves numerous cases being listed before a judge or registrar and each being given a chance to advise the court of the progress of the case. As part of this process, the names of the parties involved in the case are called out. Those parties are then able to directly address the judge or registrar. It is then up to the judge or registrar to determine whether the case is ready for hearing and to provide parties with a hearing date.

Civil law: A broad division of the law that encompasses, among other things, the law governing business, contracts, estates, domestic (family) relations, accidents, negligence. Civil law is to be distinguished from criminal law (see below).

Conciliation: A process where an independent person meets with parties to a dispute in an attempt to assist in them coming to an agreement. The outcomes of a conciliation process will not be legally binding on the parties.

Contempt of court: Contempt of court is an offence resulting out of disturbance to the orderly administration of justice. Contempt typically occurs in one of two ways:

1. Where a person is rude or disrespectful to a judge or causes a disturbance in the courtroom;
2. Where a party wilfully fails to obey an order of the court.

Costs: The legal fees or expenses of a party to matter in the court. A court may order one party to pay all or part the costs of another party.

Costs order: When you engage a solicitor, you pay for their services in the same way that you pay for a plumber’s or computer repairer’s services. When the legal work includes litigation – taking or defending court action – then legal costs can be substantial, because there are many steps involved such as drafting the court documents, disclosing evidence and then the costs of the trial. In our legal system, the usual rule is that “costs follow the event” which means that the losing party pays the costs of the winning party. The law gives the judge the power to decide and order which party pays the costs, and judges can order a party that delays court proceedings or who unduly increases costs to pay them.

Court: A body established by law for the administration of justice by judges or magistrates.

Damages: Monetary compensation ordered by a court in response to a wrong committed by one party against another.

Debt or liquidated demand: A liquidated demand is a claim for a fixed amount, usually under a contract.

Declaration: A written statement made a person (the declarant). If the statement contained in a declaration is knowingly false, the declarant may be liable to punishment for perjury.

Defence: The case presented by or on behalf of the party being accused of a crime or sued in a civil lawsuit.

Defendant: The party sued in a civil lawsuit or the charged with a crime. In some types of cases (such as divorce proceedings) a defendant may be called a respondent.

Default judgment: A judgment that a court makes when a defendant who has been properly served with a claim and statement of claim fails to file a notice of intention to defend and a defence within 20 days.

Directions: Instructions given by a judge before the trial or hearing to assist the parties to properly prepare for the hearing.

Disclosure: The process by which parties to civil litigation are required to provide the other party access to any documents that may be relevant to the particular case.

Discontinuance: Occurs when a party who has started legal proceedings elects to abandon proceedings.

Evidence material: Evidence material, such as the statements of witnesses or contents of documents, that can be used by a party to support a claim made in court. For further detail see our factsheet Evidence and proof in civil proceedings.

Hearing: A proceeding conducted by the court to resolve issues or fact and/or law. The hearing allows the parties to present evidence in support of their claim.

Injunction: A court order forcing a person to do, or refrain from, doing something.

Injury: Infringement of a right or actual harm caused to people or property.

Interlocutory: An interlocutory matter is one that is dealt with between the filing of the application and the giving of the final hearing and/or decision.

Interlocutory hearing: An interlocutory hearing is any court hearing that deals with a procedural issue, and is different from a trial that finally decides the dispute between the parties.

Interlocutory steps: Interlocutory steps are those steps in the civil court cases that take place between the initial filing and then the final determination of the case.

Interrogatories: A series of written questions which one party may ask another party prior to the hearing. Interrogatories are designed to obtain admissions to assist the party asking the questions.

Judgment: The final order or set of orders made by a judge after a court hearing.

Judicial discretion: The right of a judge to make a choice, for example, deciding whether or not to grant an adjournment; deciding how much compensation to award to the party that wins a case.

Jurisdiction: The authority of a court to decide matters brought before it.

Lawyer: A general term for a person who practises law.

Leave: Permission to do something (when given by a court).

Legislation: An act of parliament; a statute.

Limitation date: A limitation period is a period of time within which a cause of action must commence in court or a step be taken in proceedings. The limitation date is the last day for commencing a court action or taking a necessary step in an existing action. Limitation periods vary between causes of action and between jurisdictions. If you have not commenced the action or have not taken the next step in the proceedings before the limitation date expires you may lose your opportunity to make a claim.

Loss: The fact or process of losing something.

Matter: A particular legal proceeding.

McKenzie friend: A “McKenzie friend” is a lay person who is entitled to assist a party present their case in court and sit with you at the bar table. A McKenzie friend is not a lawyer. You do not automatically have the right to have a McKenzie friend appear with you at court, you need to ask the leave of the court.

Mediation: A process in which an impartial third party assists the parties to a dispute in an attempt to bring about an agreed settlement or compromise.

Notice of intention to defend: In civil proceedings, written notice that a person intends to defend against the claim of another party. It must be filed with a defence.

Oath: A promise to tell the truth in court proceedings. A person will be subject to prosecution for the crime of perjury if he or she knowingly lies in a statement made under oath.

Obiter dictum: A statement by a judge made during a judgement which does not form part of the central reasons for the decision.

Order: A demand of the court. If you fail to comply with a court’s order you may be held in contempt of court (see above).

Originating process: A document that starts a proceeding in court.

Particulars: Details of an allegation of fact made by either side in civil proceedings.

Plaintiff: The party who initiates a lawsuit.

Pleadings: Written statements that define the issues to be decided in a case.

Precedents: Previous judgments of the courts relating to the same or similar issues. The term may also refer to examples of forms that must be filed at various stages of a proceeding.

Prosecutor: Generic term for the government’s attorney in a criminal case.

Prima facie case: A case which is supported with enough evidence that it can be said to be established on a preliminary basis. A prima facie case may then be dispelled by the evidence of the other party.

Ratio decidenti: The legal reasoning on which a judgement is based.

Remedy: An order made by a court to make up for a wrong. A remedy will often involve monetary compensation.

Service (serve): The sending or giving of documents to the other party to a case in accordance. The Uniform Civil Procedure Rules 1999 may set down a particular method by which service must take place.

Standing: The right to bring an action.

Statement of claim: A document that sets out the facts that support the claims made in the case.

Solicitor: A legal practitioner admitted to practice.

Statute: Legislation; an act of parliament.

Subpoena: A document issued in a legal proceeding requiring a person to give evidence or to produce documents to the court at a certain place and time.

Submission: A proposal or application submitted for consideration.

Summons: A document issued by a court directing a person to appear before it.

Tribunal: A body that exercises jurisdiction over a particular issue under powers conferred by legislation.

Unliquidated damages: Unliquidated damages are for an amount that the court must assess, for example, if you are injured in a motor vehicle accident, the court must still assess the compensation you are entitled to.

Without prejudice: A statement or offer made on the basis that it will not affect a person’s legal rights in later court action.

Writ: A written court order to do or refrain from doing something.

People in the court room

Agent: An independent person or company with authority to act on behalf of another.

Appellant: A person that starts an appeal in a court. Applicants, appellants, respondents, defendants etc. are generally called “parties”.

Applicant: A person who applies to the court to start a legal proceeding.

Associate: A judge’s personal legal assistant.

Bailiff: A court official, who keeps order in the courtroom and handles various errands for the judge and associate.

Barrister: A lawyer who presents cases in courts.

Counsel: A barrister.

Crown prosecutor: Legal representative of the government who institutes criminal proceedings against an accused person.

Defendant: Person brought to court to answer claims made by a plaintiff or to be charged with a criminal offence.

Litigants: People or companies who are parties to a dispute before a court.

Litigants in person: People who are a party to a dispute before the court, who have no legal representative and are conducting the matter on their own behalf (sometimes called self represented litigants).

Parties: People, organisations or corporations involved in a court case.

Plaintiff: A party who initiates a civil action.

Respondent: The person, organisation or corporation against whom legal proceedings have been started by the applicant.

Solicitor: A person who is qualified to perform legal services. Solicitors may appear on behalf of parties in court proceedings (though, in higher courts this is more commonly done by barristers).