NSW Bar Exam key terms

A final judgment on the merits by a court of competent jurisdiction bars the same parties from relitigating the same cause of action, protecting the integrity of final decisions.

Prevents a party from rearguing a specific factual or legal issue that was necessarily decided in earlier proceedings between the same parties or their privies.

Bars a party from raising a claim or defence in later proceedings that it unreasonably failed to raise in earlier litigation between the same parties, even if not strictly the same cause of action.

Use of court procedures for an improper or collateral purpose, or in a way that is unjustifiably oppressive or brings the administration of justice into disrepute, permitting the court to stay or dismiss.

A formal written statement of a party's material facts and claims or defences, which defines the issues in dispute and confines the evidence and relief available at trial.

Details supplied to clarify a pleading, giving the opposing party fair notice of the case alleged; failure to provide them may lead to an order for further particulars or a strike-out.

A motion asking the court to dismiss all or part of a pleading because it discloses no reasonable cause of action, is scandalous, or is otherwise an abuse of process.

Judgment entered without trial where the court is satisfied the claim or defence has no real prospect of success and there is no need for a full trial.

Protects settlement negotiations from being admitted in evidence, encouraging frank compromise; the protection generally yields to evidence of a concluded agreement or where a fraud or misrepresentation exception applies.

Confidential communications between a client and lawyer for the dominant purpose of legal advice or litigation are protected from disclosure and compulsory production.

An out-of-court representation made by a person, tendered to prove the truth of what it asserts; it is generally inadmissible unless a recognised exception applies.

A statutory or common law basis permitting hearsay evidence, such as admissions, business records, or representations about a person's health, feelings, or family history.

A previous representation made by a party that is adverse to that party's interest in the proceeding, and which is admissible against that party as an exception to the hearsay rule.

Evidence tendered to prove a person had a tendency to act in a particular way or to have a particular state of mind; it requires notice and must have significant probative value.

Evidence of two or more similar events tendered to prove a person did an act or had a state of mind because the improbability of coincidence; notice and significant probative value are required.

A preliminary hearing, usually held in the absence of the jury, to determine the admissibility of evidence or the competence of a witness before the evidence is presented.

The inquiry into whether an accused can understand the charges, instruct counsel, and follow proceedings, allowing a court to determine if a trial can fairly proceed.

The formation of a contract by a clear expression of willingness to be bound on stated terms, met by an unqualified assent to those terms, communicated to the offeror.

Something of value given in exchange for a promise, which must move from the promisee and be bargained for, making the promise enforceable.

The requirement that parties objectively intend their agreement to have legal consequences; presumed in commercial dealings but not in domestic or social arrangements.

Equitable doctrine preventing a party from resiling from a clear assumption or promise where the other party relied on it to their detriment, often used to defeat strict legal rights.

A tort imposing liability where a defendant owes a duty of care, breaches that duty by failing to meet the standard of a reasonable person, and causes damage that is not too remote.

A legal obligation to take reasonable care to avoid foreseeable harm to another; its existence is determined by established categories or a salient features analysis.

The requirement that the defendant's breach was a necessary condition of the harm and that it is appropriate for responsibility to be attributed to that breach.

An obligation of loyalty and good faith owed by a person entrusted with another's interests, requiring them to avoid conflicts and not profit from their position without informed consent.

An equitable remedy imposed by law, regardless of intention, where a person holds property in circumstances making it unconscionable for them to retain the benefit.

A trust arising by presumption where beneficial ownership is not fully disposed of, such as where a purchaser contributes to the price but takes title in another's name.

A trust intentionally created by a settlor, requiring certainty of intention, subject matter, and objects, and (for trusts of land) compliance with writing requirements.

A person entitled to the benefit of trust property, who may enforce the trust and whose interests the trustee must protect in accordance with the trust terms.

A system of land registration in which title is conferred by registration, and a registered proprietor holds indefeasible title subject to statutory exceptions such as fraud.

The principle that a registered proprietor's title is conclusive and immune from challenge except in limited statutory circumstances, such as fraud or prior registered interests.

A statutory notice lodged against a registered title claiming an unregistered interest, which prevents dealings inconsistent with that interest until the claim is resolved.

The recognition at common law of Indigenous rights and interests in land according to traditional laws and customs, which may coexist with but be extinguished by inconsistent Crown grants.

The principle that a company is a distinct legal person from its shareholders and directors, capable of owning property, contracting, and suing in its own name.

A court's exceptional disregard of separate legal personality to hold individuals liable, typically for fraud, sham arrangements, or where a statute expressly imposes liability.

Statutory and general law obligations of care, diligence, good faith, and avoidance of conflicts imposed on company directors and officers in exercising their powers.

Liability imposed on directors who allow a company to incur debts when there are reasonable grounds to suspect it is insolvent, requiring the director to prevent incurring the debt.

An error going to the limits of a decision-maker's power, such as misunderstanding the scope of authority, which may render a decision invalid and reviewable.

The obligation of a decision-maker to give an affected person notice of the case and a fair opportunity to respond before an adverse decision is made.

An act beyond the legal power or authority conferred on a decision-maker or body, which is invalid because it exceeds the limits of the enabling legislation or constitution.

A doctrine inferred from the text and structure of the Constitution, such as the implied freedom of political communication, which limits legislative and executive power.

A situation where a lawyer's personal, financial, or other interest, or duty to another client, may compromise their duty of loyalty and independent judgment for a client.

A client's agreement to a course of action, including a conflict, given after receiving full and frank disclosure of all relevant information and appreciating its implications.

A client's right to refuse to disclose confidential communications with their lawyer made for the dominant purpose of legal advice or anticipated litigation, which the lawyer must protect.