NSW Bar Exam common mistakes
NSW Bar Exam · Understand the traps and how to avoid them.
When answering an evidence question, the candidate states the rule (e.g. 'hearsay is inadmissible') and stops, without applying it to the specific facts or identifying the exception that saves or excludes the evidence.
Candidates learn evidence as a list of rules and rehearse definitions under time pressure, so they treat naming the rule as the answer. The exam rewards issue-spotting plus application, and a bare statement of law earns little credit.
What to do instead
Adopt a fixed three-step template for every evidence issue: identify the evidence and its purpose, state the rule and any exception, then apply it to the named facts and state the conclusion. Practise by writing answers where every legal proposition is followed by 'here, because...' sentence tying it to the facts.
Candidates discuss the substantive cause of action in a civil procedure question but never address the procedural issue actually asked (e.g. whether leave to amend should be granted, or whether the court should order discovery), or they discuss procedure without linking it to the overriding purpose and case management powers.
Procedure is studied late and thinly, and candidates default to the substantive law they know better. They also memorise rules without the guiding principles (just, quick and cheap resolution) that examiners expect to see applied.
What to do instead
Before writing, underline the procedural verb in the question (amend, strike out, transfer, join, dismiss) and structure the answer around the relevant rule or practice note, the discretionary factors, and the overriding purpose. Keep a one-page checklist of the most examinable procedures and rehearse applying each to a short fact pattern.
In criminal procedure answers, candidates assert that evidence was obtained 'illegally' and conclude it is inadmissible, without working through the discretion to exclude (impropriety, unfairness, public interest balancing) and without separating admissibility from weight.
Candidates conflate unlawfulness with inadmissibility, a common lay intuition, and the exam's discretion-based doctrines are easy to state loosely. Time pressure encourages a conclusion without the balancing exercise.
What to do instead
Memorise the exclusion discretions as a structured test and apply each limb to the facts: identify the impropriety, assess its gravity, consider the effect on the fairness of the trial, and weigh the public interest factors for and against admission. Explicitly state that admissibility and weight are distinct questions.
Candidates answer contract questions by listing elements (offer, acceptance, consideration) abstractly, failing to identify which party is asserting what, whether the issue is formation, terms, vitiating factor or remedy, and failing to reach a remedy.
Model answers are often read as element checklists, so candidates reproduce the checklist rather than diagnosing the dispute. They also stop once liability is established and never quantify or identify the remedy.
What to do instead
Open every contract answer with a one-line dispute map: who wants what from whom and on what basis. Then work through formation, terms and construction, vitiating factors, breach and remedy in that order, skipping stages that are not in issue and always finishing with the remedy and its measure.
In tort questions, candidates identify a duty of care and breach but omit causation, remoteness, defences and the statutory limitation or contributory negligence adjustments, or they apply the wrong duty framework (e.g. general reasonable foreseeability to a case governed by a special duty).
Negligence is taught as a multi-stage test but candidates memorise only the early stages, and under exam pressure they jump from breach to conclusion. Special duties (occupiers, professionals, pure economic loss) are under-revised.
What to do instead
Use a full negligence scaffold: duty (identify the correct category and framework), breach (standard and breach), causation (factual and legal), remoteness, defences and apportionment, then damages. Practise classifying the duty category first, because that choice determines the rest of the analysis.
In equity and trusts questions, candidates merge the three certainties, fail to distinguish a trust from a power or a charge, and do not apply the requirement of writing or the rules on testamentary trusts and secret trusts.
The doctrines overlap and share vocabulary, so candidates who have not practised classification default to a generic 'trust' answer. Formality requirements are easily overlooked because the facts often make the intention obvious.
What to do instead
For every disposition, run a classification sequence: is it a trust, power, charge or condition? If a trust, test intention, subject matter and objects separately, then check formality (writing, signature, testamentary formalities) and constitution. Build a table of the leading distinctions and redraw it from memory weekly.
In property questions, candidates state the Torrens principles (indefeasibility, exceptions) without applying the exception that the facts engage, and they fail to deal with priorities, caveats and the effect of notice.
Torrens is taught as a slogan ('indefeasibility') and candidates under-revise the statutory exceptions and the priority rules, which are the parts examiners test. Notice is often wrongly treated as defeating indefeasibility.
What to do instead
For every registered interest, apply the statutory indefeasibility provision, then test each exception in turn against the facts (fraud, prior folio, easement, short-term lease, omission), then address caveats and priorities. Keep a checklist of the exceptions with the section numbers and rehearse applying them to short scenarios.
In corporations and commercial law, candidates answer with general company law principles while ignoring the specific statutory provision or the commercial instrument in issue (e.g. the personal liability of directors, insolvent trading, or the operation of the PPSA priority rules).
Corporations is a large syllabus and candidates rely on broad principles learned early, while the exam tests precise statutory provisions and commercial statutes. Commercial law is often the least-practised area.
What to do instead
Anchor every answer to the governing provision or instrument and quote its effect, then apply it. Maintain a one-page summary of the most examined provisions (directors' duties, insolvent trading, related-party rules, PPSA attachment, perfection and priority) and practise fact patterns that require choosing between competing provisions.
In administrative and constitutional law, candidates identify the ground of review or the constitutional issue but fail to address jurisdiction, standing, the remedy sought and the limits on judicial review, and they do not distinguish the constitutional heads of power from the statutory decision-making framework.
The subjects combine public law doctrine with statutory machinery, and candidates learn the grounds of review in isolation. Jurisdictional error, standing and remedies are commonly under-revised, as is the separation between constitutional and administrative analysis.
What to do instead
Structure public law answers around a fixed sequence: jurisdiction and justiciability, standing, the ground of review or constitutional issue, the applicable limits (privative clauses, no-invalidity clauses), and the available remedy. Practise identifying which branch of law the question engages before writing, and keep a summary of the constitutional heads of power with the leading characterisation tests.
In legal ethics questions, candidates give a general statement that lawyers must act ethically, without identifying the specific duty engaged (conflict of interest, confidentiality, competence, candour to the court, costs disclosure) and without explaining the practical steps the practitioner should take.
Ethics is often treated as a soft subject that can be answered with common sense, and candidates do not learn the conduct rules closely enough to name the duty and the rule. They also omit the remedial or practical response.
What to do instead
For each scenario, name the duty and the applicable conduct rule, identify the competing duties, apply them to the facts, and state the concrete course of action (decline the retainer, disclose with consent, cease acting, inform the court). Rehearse the most examined duties and the practical steps for each.