Australian Legal System and Tort Law Vocabulary

Vocabulary flashcards covering key terms, case law precedents, legal doctrines, constitutional sections, and negligence principles from the Australian Legal System transcript.

Common Law System

A legal system followed by Australia in which judges create legal principles through court decisions while applying laws made by Parliament.

Norman Conquest of 1066

The historical event establishing a strong central government in England, contributing to the development of a uniform common law system across the country.

Equity

A body of law developed to supplement common law, prevent injustice, and provide fair remedies where common law rules were too strict or inadequate.

Case Law

Law created by judges through their decisions in court cases.

Precedent

A previous court decision that guides future cases under the doctrine requiring courts to follow decisions in similar cases, particularly from higher courts.

Ratio Decidendi

Latin for 'the reason for the decision'; the binding legal principle that decided the court case.

Obiter Dicta

Latin for 'things said by the way'; non-essential comments or observations made by a judge that are persuasive only and not binding.

Statute Law

Law made by Parliament, also referred to as legislation or an Act.

Bill

A proposed law before it is passed and receives Royal Assent to become an Act.

Royal Assent

The formal approval that allows a passed Bill to officially become an Act of Parliament.

Literal Approach

A statutory interpretation approach where courts give the words of legislation their ordinary, plain meaning.

Purpose Approach

A statutory interpretation approach where courts look at the purpose or intention behind the law to achieve Parliament's objective.

High Court of Australia

The highest court in Australia and the final court of appeal, whose decisions are binding on all other Australian courts.

Supreme Court of NSW

The highest court in the state of New South Wales.

Alternative Dispute Resolution (ADR)

Processes used to settle legal disputes without going to court, such as arbitration, mediation, and tribunals.

Arbitration

An ADR process where an independent person makes a binding decision to resolve a dispute.

Mediation

An ADR process where an independent mediator helps parties reach a mutual agreement.

Plaintiff

The person or party who initiates a civil law case.

Prosecution

The State, Crown, DPP, or R bringing a criminal case against an accused person.

Director of Public Prosecutions (DPP)

The government agency or official responsible for prosecuting criminal cases.

Defendant

The person or party defending against a civil claim or criminal charge.

Solicitor

A legal professional who gives legal advice, prepares and organises cases, and instructs barristers.

Barrister

A specialist courtroom advocate who presents legal arguments and evidence in court.

Civil Litigation

Legal proceedings involving disputes between individuals or organisations aimed at compensating the party who suffered loss or harm.

Balance of Probabilities

The standard of proof in civil cases, requiring proof that a version of events is more than 50\text{\null}\% likely to be true.

Damages

Monetary payment awarded by a court as compensation for loss or harm.

Injunction

A court order requiring a person or entity to do something or stop doing something.

Criminal Litigation

Legal proceedings involving offences against the law, aimed at punishing offenders, deterring crime, and protecting the community.

Beyond Reasonable Doubt

The standard of proof in criminal cases, requiring the prosecution to prove the accused's guilt so there is no reasonable doubt.

Australian Constitution

The foundational legal document that came into effect in $1901$, establishing the Federation of Australia, the Federal Government, and the legal relationship between Federal and State governments.

Bicameral Parliament

A parliament structure consisting of two houses: a Lower House and an Upper House.

Unicameral Parliament

A parliament structure consisting of only one house, such as the Parliament of Queensland.

Compulsory Voting

The legal requirement for Australian citizens aged $18$ years and over to vote in elections.

Section 51

The section of the Australian Constitution listing powers specifically granted to the Federal Parliament, such as taxation under s 51(ii).

Residual Powers

Law-making powers not specifically granted to the Federal Government that remain with the States, such as education, health, and police.

Section 109

The section of the Australian Constitution providing that when Federal and State laws conflict, Federal law prevails to the extent of the inconsistency.

Section 128

The section of the Australian Constitution setting out the referendum process required to change the Constitution.

Double Majority

The constitutional requirement under Section 128 requiring a referendum to pass with a majority of voters across Australia AND a majority of voters in at least $4$ of the $6$ states.

Executive Branch

The branch of government comprising the King represented by the Governor-General, ministers, and the Public Service, responsible for carrying out and administering laws.

Rule of Law

The foundational legal principle that everyone, including the government, is equal before and subject to the law.

Separation of Powers

The doctrine dividing government authority into three distinct branches: Legislative (makes laws), Executive (administers laws), and Judicial (interprets laws).

Westminster System

The parliamentary system inherited from Britain that forms the basis of Australia's system of government.

Tort

A civil wrong where one person causes harm or loss to another, giving rise to legal liability for compensation.

Negligence

A tort defined as failing to take reasonable care, requiring proof of a duty of care, breach of duty, and causation of damage.

Duty of Care

A legal obligation to take reasonable care to avoid causing harm to others.

Neighbour Principle

The principle established in Donoghue v Stevenson (1932) stating that a duty of care is owed to persons closely and directly affected by one's actions who are reasonably foreseeable.

Donoghue v Stevenson (1932)

The landmark court case that established the neighbour principle in negligence law.

Bolton v Stone

The legal case establishing that the higher the probability of risk, the greater the precautions required to avoid breach of duty.

Paris v Stepney Borough Council

The legal case establishing that if the gravity or seriousness of potential harm is great, a higher standard of care is required.

But For Test

A test used in causation asking whether the plaintiff's damage would have occurred but for the defendant's breach of duty.

Overseas Tankship v Morts Dock (The Wagon Mound)

The landmark case establishing that a defendant is only liable for damage that is reasonably foreseeable and not too remote.

Negligent Misstatement

The tort committed when careless or inaccurate advice causes financial loss to a person who reasonably relied upon it.

Shaddock v Parramatta City Council

The case establishing that a duty of care arises when advice or information is provided and reasonably relied upon by another party.

Esanda Finance v Peat Marwick

The court case concerning auditor liability for negligent advice and the requirement of reasonable reliance.

Vicarious Liability

The legal principle where an employer is held legally responsible for the negligent acts of an employee committed during the course or scope of employment.

Contract of Service

The legal relationship between an employer and employee (master-servant), which gives rise to vicarious liability.

Contract for Services

The legal relationship involving an independent contractor, for which a principal is generally not vicariously liable.

Contributory Negligence

A defence in negligence where the plaintiff failed to take reasonable care for their own safety, resulting in a reduction of damages.

Voluntary Assumption of Risk

A defence, also known as volenti non fit injuria, where the plaintiff knew, understood, and voluntarily accepted a risk, potentially denying or reducing damages.

Mitigation of Loss

The legal duty requiring an injured plaintiff to take reasonable steps to minimise or reduce their overall loss after suffering injury.

Civil Liability Act (NSW)

The New South Wales legislation that modifies common law rules governing negligence, breach of duty, causation, and liability limits.