Civil Litigation glossary
Australian civil litigation has its own vocabulary — terms that appear in the Federal Court Rules, state Supreme Court rules, and the Civil Procedure Acts. This glossary covers 40 of the most commonly used terms across federal and state superior courts.
This is a glossary of 40 key terms used in Australian civil litigation. Each term has a plain-English definition and a reference to the Federal Court Rules or relevant authority where applicable. Use it as a reference for client conversations, briefings, or junior lawyer training.
Definitions
Adjournment
A temporary postponement of a court hearing to a later date. Usually granted on application and may be subject to a costs order.
Affidavit
A written statement of facts sworn or affirmed before an authorised person. Used as evidence in interlocutory applications and trials in some courts.
Amendment
A change to a pleading, made by application to the court or by consent. The court has discretion to allow amendments based on prejudice and stage of proceedings.
Application
A formal request to the court for orders. Applications are made by interlocutory application or notice of motion depending on the court.
Bar table
The table at which counsel sit when appearing in court. Submissions are made from the bar table.
Bench
The judge's seat in court. Also used as a collective term for judges (e.g. "the bench of the High Court").
Calderbank offer
A settlement offer made on a "without prejudice except as to costs" basis. Rejected offers can support an application for indemnity costs if the rejecting party does worse at trial.
Cause of action
The legal basis for a claim — a set of facts giving rise to an enforceable right. Each cause of action has specific elements that must be proven.
Counterclaim
A claim made by a defendant against a plaintiff in the same proceedings. The defendant becomes a plaintiff for the purposes of the counterclaim.
Cross-claim
A claim by one defendant against another defendant or third party in the same proceedings. Allows related disputes to be resolved together.
Cross-examination
The questioning of a witness by the opposing party. Designed to test the witness's evidence and credibility.
Damages
A monetary remedy awarded to compensate for loss or harm. Categories include compensatory, aggravated, exemplary, and nominal damages.
Default judgment
A judgment given against a defendant who has not filed a defence within the required time. The plaintiff applies for default judgment after the time has expired.
Discovery
The process where parties disclose documents relevant to the issues in the proceedings. Each party produces a list of documents and makes them available for inspection.
Dismissal
An order ending the proceedings without a determination on the merits. Distinct from judgment, which is a decision on the merits.
Estoppel
A legal doctrine preventing a party from asserting something contrary to a position they have previously taken. Forms include estoppel by representation and issue estoppel.
Evidence
Information presented to the court to prove or disprove facts in issue. Governed by the Evidence Acts (federal and state).
Examination in chief
The first questioning of a witness by the party that called them. Distinct from cross-examination by the opposing party.
Expert witness
A witness with specialised knowledge who gives opinion evidence on matters within their expertise. Subject to court rules requiring objectivity and independence.
Hearsay
A statement made out of court used to prove the truth of its contents. Generally inadmissible, with multiple statutory and common law exceptions.
Interlocutory
Relating to a proceeding or order made during the course of litigation, not on its final determination. Examples include interim injunctions and discovery orders.
Joinder
The addition of a party to existing proceedings. May be allowed by the court where the issues are connected and joinder will be efficient.
Judgment
The court's final decision on the issues in the proceedings. May be entered on consent, after default, on summary judgment, or after trial.
Limitation period
The maximum time after an event within which proceedings can be brought. Set by state Limitation Acts and varies by cause of action.
Mediation
A structured negotiation between the parties facilitated by a neutral mediator, aimed at settling the dispute. Most courts now require mediation before trial.
Notice of appearance
The document filed by a defendant indicating their intention to defend the proceedings. Filing it stops the plaintiff from obtaining default judgment.
Notice to admit
A formal request to the other party to admit specified facts or documents. Failure to admit when reasonable can have costs consequences.
Particulars
Specific details of a pleading, including dates, amounts, and circumstances. Required to inform the other party of the case to meet.
Plaintiff
The party who commences civil proceedings by filing a statement of claim. Bears the burden of proof on the issues in the claim.
Pleading
A formal written document that sets out a party's case — including statements of claim, defences, counterclaims, and reply pleadings.
Privilege
Legal professional privilege protects confidential lawyer-client communications made for the dominant purpose of legal advice or litigation. Privileged documents need not be disclosed.
Quantum
The amount of damages claimed or awarded. Distinct from liability (whether the defendant is liable at all).
Reply
A pleading filed by the plaintiff in response to the defendant's defence. Addresses new matters raised in the defence.
Res judicata
A matter that has been finally decided by a court and cannot be relitigated. Acts as a defence to later proceedings on the same issues.
Security for costs
An order requiring a plaintiff to provide security for the defendant's costs in the event the claim fails. Protects defendants from unrecoverable costs.
Statement of claim
The document by which a plaintiff initiates most civil proceedings. Sets out the parties, facts, legal basis, and relief sought.
Subpoena
A court order requiring a person to produce documents or attend court to give evidence, or both. Failure to comply can be punished as contempt.
Summary judgment
A procedural mechanism where the court can give judgment without a trial if there is no real prospect of the other party succeeding.
Trial
The hearing at which the issues in the proceedings are determined on the evidence. Includes opening submissions, evidence, and closing submissions.
Without prejudice
A label on communications during settlement negotiations indicating they cannot be used in evidence. Encourages parties to make settlement concessions freely.
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