LPAB Diploma in Law flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Actus Reus

The physical or external element of an offence, which must be voluntary. It may consist of an act, an omission where a duty exists, or a state of affairs.

Mens Rea

The mental element of an offence, ranging from intention and knowledge through recklessness to negligence. The prosecution must prove it for each element unless statute excludes it.

Beyond Reasonable Doubt

The criminal standard of proof borne by the prosecution. It requires the tribunal of fact to be satisfied to a high degree, short of absolute certainty, of the accused's guilt.

Negligence Duty of Care

A legal obligation to take reasonable care owed to persons foreseeably affected by one's conduct, established by salient features including foreseeability, proximity and policy considerations.

Contributory Negligence

A defence reducing a plaintiff's damages where their own failure to take reasonable care contributed to their loss. Damages are apportioned according to the parties' respective shares of responsibility.

Consideration

Something of value bargained for and given in exchange for a promise, making the promise enforceable. It must be sufficient but need not be adequate, and cannot be past.

Promissory Estoppel

An equitable doctrine preventing a party from resiling from a clear assumption they induced, where the other party relied on it to their detriment and unconscionability would otherwise result.

Condition Versus Warranty

A condition is an essential term whose breach permits termination and damages; a warranty is a lesser term whose breach gives damages only. Intermediate terms depend on seriousness of consequences.

Indefeasibility of Title

The principle that registration under the Torrens system confers title free from unregistered interests, subject to statutory exceptions such as fraud, prior registered interests and overriding easements.

Joint Tenancy

Co-ownership where each tenant holds the whole estate together with the others, with unity of title, time, interest and possession. Survivorship passes the interest to surviving tenants.

Easement Essentials

An easement requires dominant and servient tenements, accommodation of the dominant land, separate ownership, and a right capable of forming the subject matter of a grant.

Fiduciary Duty

A duty of loyalty requiring the fiduciary to avoid conflicts of interest, not profit from their position without authorisation, and act in the beneficiary's best interests.

Constructive Trust

An equitable remedy imposed by operation of law where a person holds property in circumstances making it unconscionable to retain the benefit, often following breach of fiduciary duty.

Specific Performance

A discretionary equitable remedy compelling performance of a contract where damages are inadequate, typically for unique land or goods, subject to the plaintiff's readiness and willingness.

Jurisdictional Error

An error going to the decision-maker's authority to make the decision, such as exceeding power or denying procedural fairness, which remains reviewable despite privative clauses.

Procedural Fairness

The requirement that a decision-maker give affected persons notice of the case and a genuine opportunity to respond, and that the decision-maker be free from actual or apprehended bias.

Section 109 Inconsistency

Where a State law is inconsistent with a Commonwealth law, the State law is invalid to the extent of the inconsistency. Inconsistency may be direct or by covering the field.

Implied Political Communication Freedom

An implication from representative government that limits laws burdening communication on political and government matters, unless the law is reasonably appropriate and adapted to a legitimate end.

Separation of Judicial Power

The constitutional principle that judicial power may only be exercised by courts, and that courts may not exercise non-judicial functions incompatible with their institutional integrity.

Statement of Claim

The initiating pleading in civil proceedings, setting out the material facts constituting the cause of action and the relief sought, without pleading the evidence by which facts will be proved.

Calderbank Offer

A settlement offer made without prejudice save as to costs. If the offer is not accepted and the offeror obtains a better result, the court may award indemnity costs.

Hearsay Rule

Evidence of a previous representation made by a person is inadmissible to prove the existence of a fact that the person intended to assert, subject to statutory exceptions.

Expert Opinion Evidence

Opinion evidence is admissible where the witness has specialised knowledge based on training, study or experience and the opinion is wholly or substantially based on that knowledge.

Browne v Dunn Rule

A party must put to an opposing witness the substance of contradictory evidence to be led, so the witness may explain. Breach may permit recall or attract adverse comment.

Duty to the Court

A lawyer's paramount duty to the court and the administration of justice, which overrides the duty to the client and requires candour, disclosure of law and no misleading conduct.

Client Legal Privilege

A client's right to resist disclosure of confidential communications made for the dominant purpose of obtaining legal advice or for use in existing or anticipated litigation.

Conflict of Interest

A situation where a lawyer's personal interest, or the interest of another client, conflicts with the client's interest. Informed consent may permit some conflicts but not duty-duty conflicts in litigation.

Separate Legal Entity

The principle that a company has a legal personality distinct from its members and directors, so it owns property, contracts and sues in its own name with perpetual succession.

Business Judgment Rule

A defence for directors who make a business judgment in good faith, on an informed basis, without material personal interest and rationally believing it serves the company's best interests.

Insolvent Trading

A contravention where a director allows a company to incur a debt when there are reasonable grounds for suspecting insolvency, creating personal liability for the company's debts.

Ratio Decidendi

The legal principle or rule upon which a court's decision is based. It binds courts lower in the same hierarchy and forms the authoritative part of the judgment.

Purposive Statutory Interpretation

The approach requiring courts to prefer the interpretation that best achieves the statute's purpose, read in context and consistent with legislative intent and extrinsic materials.