NSW Bar Exam cheat sheet

Uniform Civil Procedure Rules 2005 (NSW): originating process must be filed and served within the time fixed by the rules or court order; personal service is generally required for an originating process.

Pleadings must state material facts, not evidence; a party may apply to strike out a pleading that discloses no reasonable cause of action or is evasive or ambiguous (UCPR r 14.28).

Summary judgment requires the plaintiff's claim or defendant's defence to have no real prospect of success; the court may order trial of an issue instead of final judgment.

Discovery and subpoenas are limited by relevance and legitimate forensic purpose; legal professional privilege and without-prejudice privilege are grounds for objection.

The Evidence Act 1995 (NSW) applies in NSW courts; relevance is the threshold (s 55), and a discretion to exclude unfairly prejudicial evidence exists (s 135).

Hearsay is inadmissible unless an exception applies, including the maker being unavailable (s 65) or the representation being made in a business record (s 69).

Opinion evidence is generally inadmissible unless the witness is an expert with specialised knowledge based on training, study or experience (s 79).

Tendency and coincidence evidence require notice and satisfy the special probative value test (ss 97, 98); in criminal proceedings the credibility rule (s 102) also applies.

Costs follow the event (UCPR r 42.1); the court may order indemnity costs where a party has engaged in unreasonable conduct or made a deliberately false allegation.

Police powers of arrest, search and detention derive from the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW); an arrested person must be brought before a magistrate promptly.

The right to silence is protected; a suspect must be cautioned, and admissions made in the course of official questioning are inadmissible unless recorded or an exception applies (Evidence Act s 281).

Illegally or improperly obtained evidence may be excluded under s 138 of the Evidence Act if the desirability of admitting it does not outweigh the impropriety.

The prosecution must disclose the case and any material that could assist the accused; failure may result in a stay or other remedy.

Committal proceedings determine whether there is sufficient evidence for trial; the accused may elect to proceed by way of a judge-alone trial in some circumstances.

In a criminal trial the prosecution bears the onus of proving each element beyond reasonable doubt; the accused bears no persuasive burden except for specific statutory defences.

The jury must be directed on the elements of the offence, the onus and standard of proof, and any defences raised on the evidence.

A conviction may be appealed on a question of law, or with leave on a question of fact; the court may allow an appeal if there has been a miscarriage of justice.

Double jeopardy generally bars a second prosecution for the same offence, subject to statutory exceptions such as fresh and compelling evidence.

Formation requires offer, acceptance, consideration and intention to create legal relations; acceptance must be communicated and must correspond with the offer.

Consideration must be sufficient but need not be adequate; past consideration is generally not good consideration.

Terms may be incorporated by signature, reasonable notice or a course of dealing; parol evidence is generally not admissible to contradict a written contract.

A condition is an essential term whose breach allows termination; a warranty is a non-essential term whose breach sounds only in damages.

Frustration discharges a contract where a supervening event renders performance impossible or radically different, without fault of either party.

Negligence requires a duty of care, breach of that duty, and damage that is not too remote; the Civil Liability Act 2002 (NSW) modifies the standard and defences.

A duty of care is owed to foreseeable plaintiffs; the salient features approach and the Civil Liability Act govern novel duty categories.

Causation in tort is determined by the 'but for' test, subject to statutory exceptions for multiple sufficient causes.

Defences to tort include contributory negligence, voluntary assumption of risk and illegality; damages are compensatory and aim to restore the plaintiff to the pre-tort position.

Equitable remedies are discretionary; they include specific performance, injunction, rescission and rectification, and are granted only where damages are inadequate.

The fiduciary duty prohibits conflicts of interest and unauthorised profits; the remedy is account of profits or equitable compensation.

A trust requires the three certainties: certainty of intention, subject matter and objects, plus compliance with formalities and vesting rules.

A resulting trust arises where the beneficial interest is not fully disposed of, or where property is purchased in another's name without evidence of advancement.

A constructive trust is imposed by law to prevent unconscionable conduct, including breach of fiduciary duty and unconscionable dealings.

The rule in Saunders v Vautier allows adult beneficiaries of full capacity to terminate a trust and demand distribution of the trust property.

Trustees owe duties to act personally, invest prudently, keep accounts and act impartially between beneficiaries; the Trustee Act 1925 (NSW) supplies default powers.

Equitable estoppel requires a representation or assumption, induced reliance, and detriment; relief is limited to avoiding the detriment.

The doctrine of part performance may take an oral contract for land out of the Statute of Frauds where acts unequivocally refer to the contract.

Torrens title land in NSW is governed by the Real Property Act 1900 (NSW); registration confers indefeasible title subject to statutory exceptions.

Indefeasibility exceptions include fraud by the registered proprietor, prior folio errors, and short-term tenancies; the fraud exception requires actual dishonesty.

A caveat protects an unregistered interest and must be lodged in the approved form; a caveat lapses if proceedings are not commenced within the prescribed period.

Easements require dominant and servient tenements, a benefit to the dominant land and compliance with formalities; easements of necessity arise by implication.

Co-ownership may be joint tenancy or tenancy in common; severance of a joint tenancy occurs by alienation, agreement or course of conduct.

Leases for a term exceeding three years must be registered to confer legal title; a tenancy at will arises where possession is with consent but no fixed term.

Native title is recognised by the Native Title Act 1993 (Cth) and may coexist with other interests; extinguishment must be clear and plain.

Strata schemes are governed by the Strata Schemes Management Act 2015 (NSW); owners corporations make by-laws and maintain common property.

Adverse possession requires open, peaceful and exclusive possession without the owner's consent for the statutory period (generally 12 years in NSW for general law land).

A company is a separate legal entity (Salomon v Salomon); directors owe duties under the Corporations Act 2001 (Cth), including care, good faith and avoidance of conflicts.

Directors may be personally liable for insolvent trading under s 588G if they fail to prevent the company incurring a debt when there are reasonable grounds for suspecting insolvency.

The business judgment rule (s 180(2)) protects directors who make informed decisions in good faith with no material personal interest.

Related party transactions require member approval under Chapter 2E unless an exception applies.

A company may be wound up voluntarily or by court order on grounds including insolvency; the liquidator's role is to realise assets and distribute to creditors.

The Personal Property Securities Act 2009 (Cth) governs security interests in personal property; registration perfects the interest and determines priority.

The Australian Consumer Law prohibits misleading or deceptive conduct (s 18), unconscionable conduct (s 20-21) and unfair contract terms.

Cheques and bills of exchange are governed by the Bills of Exchange Act 1909 (Cth); the holder in due course takes free of defects.

Directors must disclose material personal interests and abstain from voting on matters in which they have a conflict (ss 191, 195).

Judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Supreme Court Act 1970 (NSW) is limited to errors of law, jurisdictional error and procedural fairness.

The grounds of judicial review include natural justice, relevant and irrelevant considerations, improper purpose, inflexible application of policy and unreasonableness.

Procedural fairness requires notice of the case and an opportunity to respond; the content depends on the statutory framework and the interests affected.

The High Court's original jurisdiction under s 75(v) of the Constitution is entrenched; privative clauses cannot exclude it.

The separation of powers means that non-judicial bodies cannot exercise judicial power; the Boilermakers' principle applies.

The corporations power (s 51(xx)) and the external affairs power (s 51(xxix)) are broad heads of Commonwealth legislative power.

The implied freedom of political communication limits laws that burden political communication unless the law is reasonably appropriate and adapted to a legitimate end.

Section 109 of the Constitution renders state law inoperative to the extent of inconsistency with Commonwealth law.

The Crown is generally immune from statute unless expressly bound, and the executive cannot dispense with the law or impose a charge without parliamentary authority.

Solicitors and barristers must comply with the Legal Profession Uniform Law (NSW) and the applicable conduct rules; breach may lead to disciplinary action.

The duty to the court is paramount and overrides the duty to the client; a practitioner must not mislead the court or present false evidence.

Confidentiality protects client information; the duty continues after the retainer ends, subject to statutory exceptions such as disclosure to prevent serious harm.

A conflict of interest arises where the practitioner's personal interest or another client's interest conflicts with the client's interest; informed consent may permit a conflict, but not in all cases.

A practitioner must act competently and diligently, maintain reasonable fees, and provide a costs disclosure and costs agreement in accordance with the Uniform Law.

Trust money must be held in a trust account and not mixed with the practitioner's own money; trust accounts are subject to audit.

A practitioner must avoid misleading conduct in advertising and must not claim specialist accreditation without the relevant authority.

A practitioner must not communicate with a represented party about the matter without the consent of that party's legal representative.

The duty of candour in ex parte applications requires disclosure of all material facts, including those unfavourable to the application.