Ministry of Justice, New Zealand

Many of the words and terms used to describe processes within the courts are not commonly used elsewhere, or may have different meanings in a courtroom context.

Court jargon may be confusing if you are not trained in the law or aren't yet familiar with the court environment.

Some terms are derived from the names of cases from which judgments have established a precedent, or model, for other similar cases.

A lot of court terms and phrases also stem from the Latin language as historically courts were conducted in Latin. Where old terms persist it is often because they best describe processes unique to the courts.

We have set out a range of terms frequently used in today's courtrooms.

A | B | C | D | E | F | G | H | I | J | L | M | N | O | P | R | S | T | U | V | W | Y

A

Absolute

Final, complete and unconditional. An order or rule absolute is one which operates immediately. (Compare with 'nisi'.)

Accused

The term for a defendant in a criminal case in a High Court or District Court trial.

Adjourn

Postpone a hearing to a future date.

Admit (Youth Court)

Where a young person states that they did commit the offence with which they have been charged.

Admonish (Youth Court)

A formal warning or reprimand given by the Youth Court Judge to a young person who has been proven to have committed, or admitted to committing, an offence (i.e. the Youth Court equivalent of 'convicted').

ADR

Acronym for "Alternative Disputes Resolution". A term applied to methods of resolving disputes other than by adjudication by a Judge. For example, mediation is a form of ADR.

Affidavit

A written statement sworn or affirmed before a person who has authority to administer an oath.

Affirmation

A verbal or written declaration, before a person who has authority to administer an oath, saying that a thing is true or right without reference to religious belief. Refer to Oaths and Declarations Act 1957. (See also 'oath'.)

Amicus Curiae

Literally, a "friend of the Court". A person who does not appear on behalf of a party to a proceeding, but who assists the Court by pointing out matters of law or fact that have been overlooked, or who presents opposing arguments so that both sides of a case can be heard.

Anton Piller Order

A civil order designed to prevent a defendant from destroying or concealing evidence prior to trial by enabling a plaintiff to enter and search the defendant's premises.

Application

A request by a party that the Court make an order, direction or decision.

Appellant

The party taking an appeal.

Applicant

A person who makes an application.

Arraign/Arraignment

In jury trials, the bringing of a person before the Court to answer a charge. An arraignment consists of three steps:

1. Calling the person by name;
2. Reading the charges to him/her (see 'Indictment'); and
3. Asking him/her whether s/he pleads guilty or not guilty.

Attachment order

An order requiring an employer to deduct a specified amount from a judgment debtor's salary and to pay it directly to a judgment creditor. (Compare with "garnishee".)

Attestation Clause

(See 'Testimonium Clause'.)

B

Bailiff

A bailiff is an appointed officer of the Court to serve a summons or execute warrants of seizure issued out of any Court.

Bailiwick

The area under the jurisdiction of a Bailiff or Sheriff.

Bench Warrant

A warrant issued by a High or District Court Judge for the arrest of an offender. (See also 'warrant'.)

Brief

A written statement of a client's case prepared by a solicitor to instruct counsel at the trial or hearing.
In the Family Court it is also the set of instructions approved by the Court for report writers and counsel appointed by the Court, e.g. counsel for the child, counsel to assist and psychologists.

C

Case Management

The action taken in relation to the progress of an individual case from filing to deposition.

Caseflow Management

Relates to the time and events required to move cases from filing to disposition. The main aims of caseflow management are to:

• Give every case fair access to justice;
• Dispose of cases depending on their characteristics;
• Maintain a high level of quality justice; and
• Maintain public confidence in the Court.

Cause of action

A cause of action has two meanings:

• Literally, the cause of the action being taken by the plaintiff, such as the subsidence of the house at issue or the breach of the contract in dispute; or
• More generally, the type of law that relates to the incident at issue, such as negligence, or breach of contract.

Caveat

Literally, "let him/her beware". A notice lodged in a Court or other appropriate office to prevent certain action being taken. Caveats may be brought under a number of different statutes, although they often relate to land, marriage or estates. For example, a caveat against a house title means that the house can not be bought or sold until the caveat is removed.

Charge Sheet

A District Court document listing alleged offence(s) when a defendant has been arrested but no information has been laid. (Refer Summary Proceedings Act 1957 s12(2).)

Charge

A term used in the District Court to describe an offence alleged against a person.

Chattels (Personal)

All forms of personal property and leases excluding interest in land, shares and Government debentures.

Chattel Real

A leasehold interest. An interest over property which will expire after a certain time period, or is otherwise less than freehold.

Child

The definition of child depends on the legislation. See, for example: Children, Young Persons, and their Families Act 1989, Care of Children Act 2004, Guardianship Act 1968, Child Support Act 1991.

Chose

There are two kinds of chose:

• Chose in action: something that a person has a right to recover by taking proceedings if withheld but does not actually have possession of at the time (e.g. money in a bank).
• Chose in possession: something tangible that a person has a right to and has actual possession of (e.g. money in the person's pocket).

Closed Court

When the hearing is closed to the general public and only certain people are allowed to attend.

Common Law

This expression is used in two senses:

• The law that has been created by the decisions of the Court (case law) as opposed to the law written in statutes. This is the most common meaning for the phrase in modern Courts.
• That part of the law which was administered in England by the old Courts of Common Law in contrast to "Equity" which was administered by the Courts of Chancery. This has historical significance.

Complainant

The person who begins a complaint against another person, or the person against whom an offender may have committed an offence. Often called the "victim" in criminal proceedings.

Counsel or Lawyer for the Child or Young Person

A barrister or solicitor appointed by the Court to represent a child or young person in Family Court proceedings or in an Appeal to the High Court.

Counts

(See 'Indictment'.)

Covenant

An agreement or promise that binds a party or parties to do something or not to do something.

Cur. Ad. Vult. (C.A.V.)

In full, "Curia Advisari Vult. Literally, "the Court desires to consider". This indicates a reserved decision. (See also 'Reserved Decision'.)

D

Defendant

The person who is prosecuted by information or complaint in the criminal jurisdiction, or the person against whom a claim is made in the civil jurisdiction.

Denied (Youth Court)

When a young person states that they did not commit an offence with which they have been charged, they are said to have "denied" the charge. (i.e. 'denied' is the Youth Court equivalent of a 'not guilty' plea in the criminal court.)

Deponent

A person who gives a signed, sworn or affirmed statement of evidence, either by affidavit or orally, taken in the High or a District Court to be used in proceedings. May be an Affidavit in an ex parte matter and made elsewhere.

Deposition

Written evidence, or oral evidence which is recorded, taken in the District Court and used in criminal proceedings, and, less frequently, in civil proceedings.

Discovery

After a statement of defence has been filed, parties may ask other parties (or non-parties) questions (known as interrogatories) relating to matters in the proceeding which require answers ('discovery of facts'), or they may ask to see copies of documents relating to the matters in the proceeding ('discovery of documents').

Domicile

The country which is considered by law to be the permanent home of a person.

Duces Tecum

Literally, "bring with you". A summons (or subpoena) to appear in Court as a witness and to bring certain documents. The Court may penalise a person who does not appear with the documents after having been summoned in this way. (See 'summons'.)

E

Electable Offence

An offence for which a defendant may elect to be tried by a Judge alone or by a Judge and Jury under Summary Proceedings Act 1957 s66.

Enactment

Any Act, provision in a statute, or Rule of Regulation under a statute.

Enlarge

Put off, or extend the time for doing any step in proceedings. (Compare with 'adjourn'.)

Equity

• A vague synonym for justice.
• A branch of the unwritten law which was, prior to 1873 in England, administered by the Court of Chancery. Equity consisted of a body of rules more or less supplementary to the rules of the common law. Common law and equity were fused into one body of law in 1873 in England; they were never separate in New Zealand.

Ex parte (application)

Literally, 'from the one part'. An application to the Court made by one party, without notice to the other party. (Compare with 'inter partes'.) This is known as "without notice" in the Family Court.

F

Family Group Conference (FGC)

In relation to the Children, Young Persons, and their Families Act 1989:
Under Part II of the Act is a formal meeting convened by a Care and Protection Co-ordinator for the child or young person and their family to consider any matter relating to the care and protection of the child or young person and to make decisions, recommendations and plans as are necessary or desirable having regard to the principles of the Act.
Under Part IV of the Act is a formal meeting convened by a Youth Justice Co-ordinator for the young person, their family and the victim to talk about how the young person can be held responsible for what they have done and how they can be helped to reduce the risk of further offending.

First Instance

That before which an action is first tried

Forensic

Belonging to or applied in the Courts of Justice (e.g. forensic science).

G

Garnishee

A debtor who is required, by order of the Court, to pay his/her debt, not to his/her immediate creditor, but a person who has obtained final judgment against the creditor.

Guardian Ad Litem

A person appointed by the Court to represent an infant or minor or any other person who is unable to represent themselves (for example, because of mental incapacity) in a case.

H

Habeas Corpus (Writ of)

Literally, "you will have the body". A writ for the protection of personal liberty. It is an order of the Court addressed to a person detaining another person, to bring that other person before the Court so that that the legality of the detention may be investigated. (Refer Habeas Corpus Act 2001.)

Hearing

The examination of a case (civil or criminal) by a Judicial Officer who has jurisdiction to deal with it. Commonly used to refer to the consideration of cases before a Judge only . (Compare with 'trial'.)

I

In camera

In private (i.e. in Chambers or in closed Court), as opposed to in open Court.

In Court For Chambers

This relates to a court where motions are dealt with by a Judge. These are usually "on notice" interlocutory applications

Indemnity

Compensation for a loss or wrong. Could also mean protection or insurance against penalties that might be incurred as a result of something one does.

Indictable offence

An offence that must be heard before a Judge or a Judge and Jury, either in the High Court or District Court trial jurisdiction. Indictable offences are the more serious offences, which attract more severe punishments on conviction (e.g. Rape, Murder, Arson, Supply of Class A Drugs). (Compare with 'summary offences'.)

Indictment

The formal written statement of a charge(s) presented at a trial of an accused in the High Court or District Court trial jurisdiction.

Information

A sworn document lodged by the prosecution alleging an offence by the defendant. Often called a CR Sheet.

Informant

A person who provides information, usually to the Police.

Infringement fine

The monetary penalty imposed for an infringement offence after it is filed with the District Court for enforcement.

Infringement notice

The notice issued by a prosecuting authority when an infringement offence is detected.

Infringement offence

An offence, defined by statute, as an infringement offence, which is usually characterised by strict liability, low-level offending and a fixed penalty. It differs from other offences in that no conviction is entered.

Injunction

An order of the Court prohibiting some action. Injunctions may be:

• Provisional or temporary (interim injunctions); or
• Permanent.

Inter Partes

Literally, "between the parts". A type of application, which requires that notice be given to the other party(s) involved in the proceeding. (Compare with 'ex partes'.) Also termed 'on notice'.

Interrogatory

Written question one party asks another party that has to be answered by affidavit.

Inspection (of documents)

Any party to a proceeding may require that another party produce any document for inspection, or the Court may order that any document be produced for inspection.

Inter Alia

Literally, "amongst other things".

Interlocutory application

An application for directions or orders before a substantive hearing usually in relation to the procedure of a case (e.g. substituted service).

Interpleader

A procedure by which a person lawfully holding property on behalf of other(s) (e.g. holding seized property), asks the Court to compel the people claiming a right to the property to take proceedings to decide the claim.

J

Joinder

Joining either causes of action (joinder of causes of action), or joining parties as plaintiffs or defendants (joinder of parties) in one proceedings. (See 'cause of action'.)

Judgment creditor

Person who is owed money, and can enforce their claim to this money, as a result of a judgment given in their favour.

Judgment debtor

Person who owes money, as a result of a judgment given against them.

Jurat

A short statement on the bottom of an affidavit saying when, where and before whom it was sworn.

Jurisdiction

The term jurisdiction is used in four contexts:

• The limit of a Court or Judicial Officer's power or authority.
• The distinction between criminal, civil, and family jurisdictions.
• The distinction between the levels of Courts (e.g. Court of Appeal, High Court, District Court).
• The boundaries of any domestic Court's influence overseas.

L

Lay Advocate

In relation to the Children Young Persons and their Families Act 1989:
In both Care and Protection and Youth Court proceedings, is a person appointed to appear in support of the young person to ensure that the Court is made aware of all cultural matters that are relevant to the proceedings and to represent the interests of the child's or young person's whānau, hapū, and iwi (or their equivalents (if any) in the culture of the child or young person.

Leave

Court's permission to do something.

Litigant

A party to a Court case (e.g. litigant in person = an unrepresented party).

Liquidated demand

A demand, or claim, where the amount in question is a specific sum that can be ascertained from some specific document (e.g. a contract). (Compare with 'unliquidated demand'.)

M

McKenzie Friend

A lay person who assists as a friend of a party in Court. The McKenzie Friend may not act as an advocate (i.e. ask questions or make submissions) and may only give advice or make suggestions to the party and take notes. The title comes from McKenzie vs McKenzie 1971.

Mareva Injunction

A Court order preventing a party from proceedings from disposing of assets so that they can not be the subject of final judgment. In effect it is an order that freezes a party's assets pending the outcome of a case.

N

Next Friend

A person appointed by the Court to represent a minor. They must file an affidavit to show that they are not under a disability and do not have interests adverse to those of the minor. They must also file an undertaking to be responsible for any costs awarded against the minor.

Nisi

Literally, "unless". Something that takes effect only under certain conditions. For example, an order may be made subject to a party appearing and showing why it should not be made. This would be an 'order nisi' and would become an 'order absolute' (see 'absolute') only if those conditions were not met.

Not denied (Youth Court)

Where a young person doesn't deny that they have committed the offence with which they have been charged, but doesn't admit it.

Not proven (Youth Court)

Where the Judge decides that the prosecution has not proved that the young person committed the offence they were charged with (Youth Court equivalent of 'dismissed').

O

Oath

A declaration before a person who has authority to administer an oath, which invokes some religious belief and says that a thing is true or right. For example, a Christian would swear an oath on the Bible. Refer Oaths and Declarations Act 1957. (See also 'Affirmation'.)

Offence

Any act or omission for which a person can be punished on conviction under any enactment. (Refer Crimes Act 1961 ss2 & 9.)

Offender

A person charged with a summary or minor offence.

P

Plaintiff

The party making a claim in the civil jurisdiction.

Practice Note

Guidelines issued by Judges (often the Head of Bench) regarding procedures to be followed in relation to proceedings. Although instructions given in Practice Notes are not binding in the same way that regulations are, the Judges still expect them to be complied with.

Praecipe

Literally, "to admonish or command". Commonly used (in the sense of a 'command') to refer to fixture applications (rare under case management), or applications for execution processes (e.g. charging orders, writs of arrest, writs of sale, etc.).

Preamble

The beginning of a document indicating what it is. For example, in an affidavit the preamble may be: "I ... swear".

Precedents

Previous decisions of Courts that subsequent decisions are based on. Precedents may be either binding or persuasive. A decision in a higher Court will be binding when it involves the same or very similar facts as the new case that has arisen in the lower Court. If the facts are sufficiently different, then the decision of the higher Court is described as persuasive. That means that although the lower Court is not obliged to follow the decision, it must still influence the way in which the new case is decided.

Prima Facie

Literally, "on first face". On the face of it. The prosecution have established a prima facie case when they have sufficient evidence to suggest that there is a case to answer.

Prima Facie Evidence

Evidence used to establish a prima facie case.

Prosecutor

The person who conducts the prosecution of the information in Court. This is nominally the Crown in all criminal cases The Crown is represented by the Police.

Prosecuting authority

An organisation authorised by legislation to issue infringement notices.

Proven (Youth Court)

Where the Youth Court Judge decides that the prosecution has proved that the young person committed the offence they were charged with (Youth Court equivalent of 'found guilty').

R

Remand

To commit a person to prison, or to release them on bail, during a period of adjournment of a hearing of a criminal charge in the High or District Court. When a case is adjourned the defendant is remanded.

Reparation

An order made on conviction for payment of an amount in compensation for harm done as a result of a crime. Reparation is usually paid to the victim of the offence. However, a judge may order that it be paid to a community organisation.

Representative

In the Family Court is a person appointed as either a guardian ad litem or Next Friend. The difference between the two chiefly relates to the method of appointment.

Reserved decision

Following the hearing of a case the Judge may reserve their decision (i.e. defer giving the decision to a later date or time). Often the decision will then be given in writing. (See Cur. Ad. Vult.)

Respondent

The party called to answer an application, or the opposing party to an appeal.

S

Sine Die

Literally, "without day". That is, no date is set to continue the business in hand. For example, if a hearing is adjourned "sine die", it is adjourned without setting a date for the resumption of the hearing.

Subpoena

Literally, "under penalty". An old term meaning 'summons'. (See 'summons' and 'Duces Tecum'.)

Summary Offence

Offences that are heard by a Judge alone (as opposed to a Judge and Jury) in the District Court. They may be purely summary offences, which means there is no right of trial by Jury, or they can be summary offences, triable indictably, which means the accused may elect trial by Jury. Summary offences are the less serious offences, which attract less severe punishments on conviction (e.g. dangerous driving, breach of periodic detention, cannabis supply). (Compare with 'indictable offences'.)

Summons

A document requiring a person to appear before the Court (or Tribunal) on a specified date. The Court may penalise a person who does not appear after having been summoned. (See also 'subpoena'.)

Surety

Person who takes responsibility that another person will fulfil some obligation. For example: Bob borrows money from Anna, with the agreement that he will pay it back. Kate agrees with Bob and Anna to act as Bob's surety. If Bob fails to repay the money as agreed with Anna, Anna is entitled to seek repayment from Kate, as if it were Kate, and not Bob, who borrowed the money.

T

Testimonium Clause

The clause prefacing the signature of a party to a document. "In witness whereof…..". Also known as an "attestation clause".

Tort

A civil wrong that may be pursued by way of an unliquidated demand. That is, a civil wrong, that is not based on a breach of a contract or the breach of a trust. A common tort is the tort of negligence. For example, one person might sue someone else with whom they have no contractual relationship (such as their neighbour) for doing something careless that has caused that person harm (such as chopping down a tree without taking proper care, if the tree then falls on the plaintiff's roof and damages it).

Tortfeasor

A person who commits a tort.

Trial

The examination of a case (civil or criminal) by a judge who has jurisdiction to deal with it. Commonly used to refer to the consideration of cases before a judge and jury. (Compare with "hearing".)

U

Ultra vires

Literally, "beyond powers". An exercise of a power beyond the limits authorised by law.

Unliquidated demand

A demand, or claim, that requires the Court to determine the amount of loss suffered. That is, a claim where the specific sum cannot be ascertained from some specific instrument or document (e.g. a claim for damages resulting from negligence). (Compare with 'liquidated demand'.)

V

Vexatious

A proceeding brought without real merit for the purpose of annoying or oppressing the other party.

View

An inspection by the Court and Jury of a crime scene or the scene of an aspect of a case.

Void

A transaction or document which is absolutely without effect.

Voidable

A transaction or document which can be denied by one or both of the parties but which is of legal force in the meantime.

Voir(e) Dire

An examination of a witness or their evidence intended to test the reliability of the evidence before it is formally admitted. Voire dires are common in criminal trials if the accused says that confession evidence the prosecution want to produce was taken under duress. A voire dire is always heard in the absence of the jury.

W

Warrant

• A document giving authority to some officer to arrest a person or otherwise deal with them according to the law. May be issued by a Judge or (Deputy) Registrar and is obtained by an ex parte application. (See also 'Bench Warrant'.)
• A document conferring some right or authority (e.g. a Registrar's warrant).

Warrant to Seize

A warrant issued by a District Court Registrar authorising a bailiff or constable to seize any property of the defendant, which is then sold to recover fines unless payment is received.

Without Prejudice

Discussions or communications between opposing parties are sometimes made "without prejudice" to enable a freer interchange of view. The effect of this is that if negotiations fail the parties have signalled that they do not want one another to make use of what has passed between them in evidence.

Y

Young person

In the Youth Court jurisdiction, a boy or girl of or over the age of 14 years but under 17 years; but does not include any person who is or has been married.

Youth Advocate (Youth Court)

A barrister or solicitor appointed by the Court to represent a child or young person in Youth Court proceedings.

Youth Justice Co-ordinator

A Department of Child, Youth and Family Services employee who organises and runs youth justice Family Group Conferences.