Daily legal terms

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Medico-legal issues

Questions of law arising in a medical context include medical negligence, medical privilege, and medical trespass (legal aspects of the practice of medicine). More broadly, includes any issues at the intersection of law and medicine, such as euthanasia and medical aspects of the practice of law including forensic medicine and other medical expert evidence.

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Divorce (formerly dissolution of marriage).

The legal termination of a marriage under the Family Law Act 1975 (Cth) s 48(1), which can be instituted by one or both parties.

It is 'no fault' and requires only irretrievable (permanent) breakdown as evidenced by on year of separation.

Parenting issues and property matters are handled separately from the divorce proceedings.

If the court grants a divorce, it takes 1 month for the divorce to come into effect. The time between the granting of a divorce and it coming into effect can be reduced upon order of the court in certain circumstances.

If there is no child of the marriage aged under 18 years, you are not required to attend the court hearing. This applies for both sole and joint applications.

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Cross-admissibility (of evidence)

The situation in which evidence on one count against an accused is capable of being used as part of the proof of another count.

Where there is cross-admissibility the counts will usually be joined.

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Weapon

An object or instrument may be dangerous of offensive per se (i.e. it may be something not in common use for any purpose other than to inflict bodily harm):

R v Hutchinson (1784) 1 Leach 339

It can also be anything capable of being used for offensive purposes even though it is also capable of being used for innocent purposes, if the jury finds that the intention of the accused was to use such an object for offensive purposes:

Van Den Berg v R [1984] WAR 162, 165

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Indecent assault

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An indecent assault occurs when a person assaults another person and, at the time of the assault, or immediately before or after it, commits an act of indecency on or in the presence of that person.

The person assaulted must not consent to the indecent assault and the conduct typically involves acts of a sexual nature not involving sexual penetration.

The relevant statutory provision in Victoria is: Crimes Act 1958 (Vic) s 39.

The elements of the offence are essentially an assault coupled with an act on indecency. There is no requirement that the acts of assault and indecency are to be separate acts by the accused. Any contact of touching that amounts to an indecent act is sufficient to constitute an indecent assault - Fitzgerald v Kennard (1995) 38 NSWLR.

There is no statutory guidance as to what amounts to an act of indecency in any jurisdiction. The case law does not provide a precise definition; rather, indecency has been explained as involving conduct that is sexual in nature but does not amount to sexual intercourse. There is some sexual connotation derived from where on the victim's body he or she is touched by an accused or the part of the accused's body that is used to do the touching - R v Harkin (1989) 38 A Crim R 296.

It is subject to prevailing social attitudes and it has been held that 'an indecent act is one which right-minded persons would consider to be contrary to community standards of decency', that is, the currently accepted standards of decency in the community where the case is being decided - R v Manson

The other element of the offence is that the act of indecency must be committed without the consent of the complainant. There is also a mental element associated with this requirement; the prosecution must prove that the accused either knew the complainant was not consenting or was reckless as to consent. Recklessness can be advertent in the sense that the accused was aware of the possibility of a lack of consent but proceeded anyway, or non-advertent in that the accused failed to advert at all to the question of consent.

There is also an offence called Aggravated Indecent Assault.

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Hoon

Hoon driving is a name introduced by the media to describe some risky driving behaviours that allow police or the courts to immobilise vehicles involved.

Police are able to search for and seize a vehicle if they believe that the vehicle was used when a hoon driving offence happened.

Tier one offences are the most serious driving offfences and are penalised more severely. Tier one offences are:

- driving while disqualified for the second time;
- unlicensed driving (if the driver has never been licensed) for the second time;
- repeat drug driving offences;
- repeat drink driving offences where blood alcohol content of 0.10 or more;
- single offence of driving at speeds of 70 km or more over the speed limit; and
- single offence of driving at a speed of 170 km (in a 110 km zone).


Tier two offences are:

- dangerous or careless driving that involves driving in a way that is dangerous to the public that involves deliberately causing a vehicle to lose traction on one or more wheels;
- driving at a speed of between 45 and 70 km per hour over the speed limit;
- driving in a 110 km per hour zone at a speed of between 145 km and 170 km per hour;
- continuing to drive after being ordered to stop by police;
- driving in or organising a speed trial (a race);
- deliberately or recklessly driving into a level crossing where a train or tram are approaching;
- driving so as to skid or deliberately loose traction on one or more wheels;
- causing unnecessary noise and smoke in circumstances involving improper use of a vehicle; and
- driving with too many passengers, when there are not enough seats and seatbelts.

Road Safety Act 1986 (Vic)

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Inter alia

Commonly used in the field of law; a Latin phrase which means 'among other things'.

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Doctrine of Estates (Real Property Law)

As it stands, individuals cannot legally own land in Australia. The Crown owns all property in Australia 'radically' as British laws were transplanted to Australia during colonisation in 1788. We, as private citizens, can only have an interest in property (land), often referred to as an estate under the torrents system.

There are two classifications of Estates:

1. Freehold.
2. Leasehold.

Freehold type estates are further divided into two categories as follows:

1. Fee simple - closest to absolute ownership and lasts forever.

2. Life estate - In operation for the duration of an individual's life.

The above two interests are further divided into subcategories but for the sake of simplicity, I won't outline them.

Leasehold type estates are of four types:

1. Fixed term lease - lease for specified fixed duration of time.

2. Periodic tenancy - if you continue living at the property while paying rent once your lease has expired, without renewing the lease, you have progressed to a periodic tenancy.

3. Tenancy at Will - tenant is allowed to occupy land but either party (landlord or tenant) can bring the lease to an end at any time subject to a packing-up period.

4. Tenancy at sufferance - Living at the property without paying rent once the lease has expired without landlord's consent. The landlord can re-enter the property at any time without notice.

Then follows the category of Native Title which deserved a post of its own.

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Discovery

This refers to a pre-trial procedure where a party to proceedings discloses and makes available for inspection relevant documents to the other parties, usually upon the close of pleadings.

The method of discovery differs across jurisdictions. For Victoria, see:

Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 29.02.

In most jurisdictions, discovery is in respect of documents relating to a matter in question in the proceeding.

A party may object to the production of a document for inspection on the ground of privilege.

Under principles of case management, and reflecting concerns about the cost of discovery, many jurisdictions no longer allow 'general discovery', but restrict it to defined classes of documents.

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Qiyas (measurement, analogy)

The method of analogical reasoning in Islamic law.

It allows an extension of a Shari'a principle from an original case to a new one by enabling the reasoning in the similar, but not identical, situation to be applied to the issue not already covered in Islamic law.

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Caveat (Real Property Law)

Caveat lector ("let the reader beware")
Caveat emptor ("let the buyer beware")
Caveat venditor ("let the seller beware")

A Latin term which literally means 'beware'.

Lodging a caveat is a method of protecting one's unregistered property interests.

Transfer of Land Act 1958 (Vic) s 89 temporarily forbids the dealings with the land in which the caveat is in force.

s 91 states: “No entry to be made in Register affecting land in respect of which caveat in force”.

Except in certain cases, the caveat will lapse after thirty days notice given to the caveator - s 90

To help you understand better; think of a caveat as a sticky note that is put on the Certificate of Title (COT) saying "beware, I have an interests in this land".

Anybody who might be purchasing a house should check, amongst other important things, if there are any caveats lodged and in force on that particular property.

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Quick question: has anybody here had experience in conveyancing OR is currently a conveyancer?

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Acceleration clause (contract law)

Often used in personal loan agreements; in the event that the borrower fails to make a payment due under the terms and condition of the contract, or breaches any condition relation to mortgage or security agreements, the borrower must pay the entire balance payable to the lender immediately, along with any interest accrued (if any) thereon. In other words, it is a term that fully matures the performance due from a party upon a breach of the contract.

Such a clause is optional and can be modified at the discretion of both parties privy to the contract.

A sample acceleration clause reads like this:

"In the event of default in the payment of any of the said installments or said interest when due as herein provided, time being of the essence hereof, the holder of this note may, without notice or demand, declare the entire principal sum then unpaid immediately due and payable."

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[Dina_]

akhi i should probably say jazakillhu kheir for this thread, beleive it or not but it actually helped me out with a recent legal presentation i had

[At-Ta'if]

akhi i should probably say jazakillhu kheir for this thread, beleive it or not but it actually helped me out with a recent legal presentation i had

Thanks sister, I appreciate it very much.

I'm sorry I have not been able to update it as frequently as I would like.

Which part has helped you and what was the topic of your presentation?

If you ever have any questions, please feel free to ask.

[Dina_]

you're welcome akhi

in class we were creating a script for a roleplay. it's about islam and the many misconceptions surrounding it. in the roleplay islam is to stand trial and i had the part of being one of the lawyers. i took legal studies in year 11 but i really needed to re-familiarise myself with a lot of the legal terms to create my case, my presentation was a draft of my case. alhamdulilah your thread helped a lot

jazakillahu kheir akhi for offering, i will let you know if there is anything else i need

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Sounds interesting

Wa iyyakum sister.

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Tribunals

Tribunals provide other alternative adjudicating bodies that can help to resolve some specific civil disputes. They are legal bodies that operate with less formality than courts, and in a cheaper and quicker manner. Tribunals deal with a specific area of law, and so are specialists in resolving disputes relating to that area of law. Legal representation is uncommon at tribunals.

The Victorian Civil and Administrative Tribunal (VCAT)

VCAT was formed in 1998 as a super-tribunal to amalgamate Victoria's numerous tribunals. There are three divisions of VCAT:

1. The Civil Division - includes disputes in the areas of small claims, credit contracts, building works, tenancies and legal practice.
   
2. The Administrative Division - includes disputes related to land valuation, land planning and development and taxation.
3. Human Right Division - hears complaints relating to discrimination and guardianship issues.

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Directions hearings

A directions hearing allows judges to identify the main issues in a case and give directions to the parties regarding how their action should continue.

The court may refer a matter to arbitration or mediation, with or without the consent of the parties. Their aim is to reduce the time taken for the process before and during trial, which results in a quicker, cheaper and more efficient resolution for the parties as well as the court system.

Ironically, the very process itself can cause delays and lengthen and delay the trial.

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Children and Crime

In Victoria, a child can be tried in an adult court in accordance with the SENTENCING ACT 1991 for the following:

(1) murder
(2) attempted murder;
(3) manslaughter;
(4) child homicide;
(5) defensive homicide;
(6) arson causing death [s.197A of the Crimes Act 1958];
(7) culpable driving causing death [s.318 of the Crimes Act 1958].

Also, a person under 10 years of age incurs no criminal liability in Victoria.

The Children, Youth and Families Act 2005 defines a ‘child’ as someone aged 10 to 17 at the time of the alleged offence and under 19 when court proceedings begin.

Doli Incapax

The principle of Doli Incapax ('incapable of crime') also deserves some attention. The principle has emerged under common law (R v ALH (2003) 6 VR 276 , [2003] VSCA 129) and propagates the idea that a child 10 - 14 is not responsible for a criminal offence unless the prosecution can prove they knew their behaviour was seriously wrong.

Below is an excerpt from the case noted above, which upholds the rule:

"In case of person under the age of 14 but not under the age of 10 the Crown has to prove that they knew their conduct was seriously wrong.

It is a rebuttable presumption that can be rebutted sufficiently by the act or acts constituting the offence in conjunction with the age of the defendant. This was a sex case

Some acts may be so serious, harmful or wrong as properly to establish requisite knowledge in the child; others may be less obviously serious, harmful or wrong or may be equivocal or may be insufficient."

There has been much criticism of the rule in past and recent times and have been calls for unified legislation across all jurisdictions regarding child offenders.

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