NSW Bar Exam flashcards

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

Originating process

The document that commences civil proceedings in NSW; it must be filed and generally served personally on the defendant within the time fixed by the rules or court order.

Summary judgment

A procedure where a court may give judgment without trial if the claim or defence has no real prospect of success and there is no need for a trial of the issues.

Hearsay rule

Evidence of a previous representation made by a person is inadmissible to prove the existence of a fact asserted in the representation, subject to statutory exceptions under the Evidence Act.

Expert opinion evidence

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

Costs follow the event

The general rule that the unsuccessful party pays the successful party's costs, subject to the court's discretion to make a different order in appropriate circumstances.

Right to silence

A suspect is not obliged to answer questions; admissions made in official questioning are generally inadmissible unless recorded or an exception applies.

Section 138 discretion

Evidence obtained improperly or illegally may be excluded if the desirability of admitting it does not outweigh the impropriety, considering factors such as probative value and gravity.

Beyond reasonable doubt

The standard of proof the prosecution must satisfy in a criminal trial; the jury must be satisfied to that standard of each element of the offence.

Committal proceedings

A preliminary hearing in which a magistrate determines whether there is sufficient evidence for the accused to stand trial on an indictable offence.

Double jeopardy

The principle that a person cannot be tried or punished twice for the same offence, subject to statutory exceptions such as fresh and compelling evidence.

Consideration

Something of value given in exchange for a promise; it must be sufficient but need not be adequate, and past consideration is generally not good consideration.

Condition versus warranty

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

Negligence elements

The plaintiff must establish a duty of care owed by the defendant, breach of that duty, and damage caused by the breach that is not too remote.

Causation in tort

The 'but for' test asks whether the damage would have occurred without the defendant's breach; multiple sufficient causes may be addressed by statute.

Fiduciary duty

A duty of loyalty prohibiting conflicts of interest and unauthorised profits; remedies include account of profits, equitable compensation and rescission.

Three certainties

A valid trust requires certainty of intention to create a trust, certainty of subject matter, and certainty of objects or beneficiaries.

Resulting trust

An equitable trust arising where the beneficial interest is not fully disposed of, or where property is purchased in another's name without evidence of advancement.

Saunders v Vautier rule

Adult beneficiaries of full capacity may terminate a trust and demand distribution of the trust property, provided they are absolutely entitled.

Indefeasibility of title

Under the Torrens system, registration confers title free from unregistered interests, subject to statutory exceptions such as fraud and short-term tenancies.

Caveat

A statutory notice lodged against a folio of the register to protect an unregistered interest and prevent dealings inconsistent with that interest.

Joint tenancy

Co-ownership with the right of survivorship, where each joint tenant holds an undivided share; severance converts it into a tenancy in common.

Easement essentials

An easement requires a dominant and servient tenement, a benefit to the dominant land, and compliance with formalities; it may arise by express grant or implication.

Separate legal entity

The principle from Salomon v Salomon that a company has a legal personality distinct from its shareholders and directors, with its own rights and liabilities.

Insolvent trading

A director contravenes s 588G of the Corporations Act by failing to prevent the company incurring a debt when there are reasonable grounds for suspecting insolvency.

Business judgment rule

A defence for directors who make informed decisions in good faith, for a proper purpose, without a material personal interest, and with a rational belief of benefit to the company.

PPSA security interest

An interest in personal property securing payment or performance; registration on the Personal Property Securities Register perfects the interest and determines priority.

Judicial review grounds

Grounds include breach of natural justice, relevant or irrelevant considerations, improper purpose, inflexible policy, unreasonableness and jurisdictional error.

Procedural fairness

The duty to give notice of the case and a fair opportunity to respond; its content depends on the statutory context and the interests affected.

Section 75(v) jurisdiction

The High Court's entrenched original jurisdiction to review decisions of Commonwealth officers, which cannot be excluded by a privative clause.

Section 109 inconsistency

Where a state law is inconsistent with a Commonwealth law, the state law is inoperative to the extent of the inconsistency.

Duty to the court

A practitioner's paramount duty is to the court and the administration of justice, overriding the duty to the client; the court must not be misled.

Costs disclosure

A practitioner must disclose costs and the basis of charging to the client in writing, and provide a costs agreement in accordance with the Legal Profession Uniform Law.