Daily legal terms

[At-Ta'if]

Here I will post a random legal term with a brief explanation every day, insha'Allah.

Statute/Act

Statutes and Acts are laws enacted by parliament. Although the terms 'statute' and 'Act' are interchangeable with 'law', they are specifically used to distinguish between legislative and common law. Statutes/Acts are primary sources of law.

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[At-Ta'if]

Common law/case law

This is law developed by judges through the decisions of courts. Judges make law in areas where there are no existing legislation or by broadening or limited the meaning of an Act. However, the courts must wait until a case comes before them. Since the legislature (parliament) is the primary law-making body, they can introduce an Act at anytime to override the laws made by the courts or codify them. Statute and common law are the only two primary sources of law in Australia.

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[At-Ta'if]

Precedent

It stems from the word precede which means to come before. A binding precedent is a legal principal that must be followed. The doctrine of precedent depends on lower courts following the decisions of higher courts in the same hierarchy. A decision of a higher court must be followed by lower courts in the same hierarchy when deciding similar or "like" cases. For example, in Victoria a judge of the County Court is bound to follow decisions (ratio decidendi) made by a judge of the Supreme Court. Where the facts are sufficiently different from a previous case, the decision in the previous case will not be considered binding. Courts at the same level are not bound by each other's decisions.

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[At-Ta'if]

Hearsay

This is information collected by one person from another person relating to something of which the first person has no direct knowledge/experience. When submitted as evidence, this is called hearsay evidence. For example, in court, a witness can say "I saw Hamza punch Abdullah" but cannot say "I wasn't there but Mark told me Hamza punched Abdullah". Hearsay evidence is generally inadmissible in court. This prohibition is called the 'hearsay rule'. See Evidence Act 2008 - SECT 59

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[At-Ta'if]

Battery

Battery is a tort (civil wrong) which occurs when the defendant directly and deliberately causes a physical contact to occur to the plaintiff without the plaintiff's consent or other legal justification. The defendant must cause physical contact to the plaintiff's body. Contact with the plaintiff's clothes is generally sufficient. Spitting at someone, removing a chair from a person sitting in it constitutes battery.

Direct, positive, physical contact will not amount to battery when it has occurred in the course of the ordinary conduct of daily life. Battery requires physical contact unlike assault which only requires the threat of immediate physical contact.

To have an action in battery it must established that:

1. there was physical contact with the plaintiff's body;

2. the physical contact was direct upon the defendant's act and not consequential;

3. the defendant's act was a positive act; and

4. the act of interference was voluntary and intentional or voluntary and negligent.

To sue someone for battery in Victoria, physical injury is not required.

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[At-Ta'if]

Defamation

Defamation is the publication to a third person of material which damages the reputation of the individual (plaintiff). Government authorities, local government bodies and most corporations cannot sue in defamation. You cannot commence or continue an action for defamation against a deceased person or their estate.

To sue somebody for defamation, you need to prove the following elements:

1. the matter that is the subject of the action must be defamatory;

2. the matter must refer to the individual (plaintiff); and

3. the matter must have been published to a third party.

You don't need to prove special damage to sue somebody for defamation as this requirement was abolished by the uniform defamation legislation.

Defamation Act 2005

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[At-Ta'if]

Will (wasiyyah)

WILLS ACT 1997

A Will is a legal document which outlines the recipients of your assets when you die. If you're over the age of 18 you should make a will. That way, your assets will go to who you choose and your children (if you have any) will be looked after by the guardian you appoint. Matters regarding your funeral can also be addressed. If you die without a Will (dying intestate) your assets are distributed according to the laws of your state.

You can only have 1 will and any new Wills will cancel the previous ones. You can make minor changes to your Will using a codicil (document amending a Will) but if you have major changes, it's better you make a new Will. When making changes to your Will, you must follow certain procedures and formalities, otherwise your entire Will could be void.

"Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable - a duty upon the righteous." (Baqarah:180)

Narrated Abdullah bin Umar: Allah's Apostle said, "It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him." (Bukhari and Muslim, Volume 4, Book 51, Number 1)

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[At-Ta'if]

Conscientious objector

Any person who, for religious or moral reasons, believes it is wrong/refuses to do something. For example, during the Vietnam War, some Australians refused to be conscripted due to their strong beliefs regarding the sanctity of life and wrongfulness of war.

For those who don't vote for this very reason, you can use conscientious objection as a reason for not voting. I tried it during the 2010 federal elections and it worked. Simply use this term and make it clear that this view is backed by some scholars of the religion.

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[At-Ta'if]

Double Jeopardy (rule)

This is a principle of criminal law that you cannot be tried for an offence for which you have already been convicted or found innocent. A person cannot be tried more than once for the same offence, unless the offences have occurred on different occasions.

[At-Ta'if]

Standard of proof

The value or weight given to evidence. In civil cases, the standard of proof is such that one party's version of the law and facts is more likely to be correct 'on the balance of probabilities' than that of the opposing side.

In criminal cases, the standard is higher. The accused must be found guilty 'beyond all reasonable doubt'. If there is any reasonable doubt , the accused must be found not guilty.

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[El Muslima]

Will (wasiyyah)

WILLS ACT 1997


"Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable - a duty upon the righteous." (Baqarah:180)

Narrated Abdullah bin Umar: Allah's Apostle said, "It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him." (Bukhari and Muslim, Volume 4, Book 51, Number 1)

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Any links on how to make an Islamic will ?

[At-Ta'if]

Any links on how to make an Islamic will ?

I'm not exactly sure what you mean by an Islamic will but you can include Islamic provisions in your normal will.

Most people get a lawyer to do their will because they want make sure it's done properly, meaning that certain criteria are met to make the will legally certain and binding. It can cost you anything from a few hundred dollars to thousands depending on how complex your will is. It's best to shop around for a good price. They will assess you for free and give you a no-obligation quote.

It's not recommended to prepare your own will because if you make a mistake, your whole will can be void.

Slater & Gordon online wills service

[At-Ta'if]

Culpable driving

Driving a motor vehicle carelessly, negligently, or while under the influence or drugs or alcohol resulting in injury to another. It's a criminal offence to kill somebody by culpable driving. The maximum prison sentence is 7 years or a $1000 fine, or both. Other penalties include cancellation of a driver's licence and disqualification from obtaining another for a period of 12 months.

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[At-Ta'if]

False imprisonment

The confinement of a person without just cause. The burden of proving some reasonable cause rests with the defendant. False imprisonments may give rise to both a criminal prosecution and a civil action for damages.

To be successful, three elements of law must exist: the restraint must be unlawful, total and intentional.

For example, not letting somebody out of your car after they have requested to be let out is false imprisonment.

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[At-Ta'if]

By the way, for those who are following, if you feel that something is unclear, feel free to ask for clarification

[At-Ta'if]

Loophole

A general term used to describe a weakness in legislation (law) and representing a way of getting around the law in such a way that it will not apply to an individual or group as its framers had intended.

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[At-Ta'if]

Duress

Any force or threat of force used to compel a person to perform an act or omission against his/her will.

Duress may be a defence in criminal and civil actions. When used as a defence in criminal cases, it has the effect of reducing the crime (e.g. manslaughter instead of murder). In civil cases, a successful party who has entered a contract under duress may treat it as voidable (invalid).

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[At-Ta'if]

Remission

The reduction of a prison sentence in return for the good behaviour of the prisoner.

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[At-Ta'if]

Nuisance (public and private)

Any inconvenience that plainly and simply interferes with normal physical human comfort.

A nuisance may be one of two kinds: private of public.

A private or common nuisance arises when a person uses his/her land in such a way as to case inconvenience to neighbours or interfere with their enjoyment of their own land, such as freedom from excessive noise and other forms of pollution. The remedy for a private nuisance is an award of damages and/or an injunction.

A public nuisance is any act or omission, whether unlawful or not, that threatens a right belonging to others or endangers their property, health, existence or safety. The appropriate remedy for an individual would be to sue for damages and/or an injunction.

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[Ummi_Abdulmalik]

Cool so this means I can call the cops if my next door neighbour's music is so loud my walls are vibrating and my kids can't sleep?