Queensland Bar Exam: Practice and Procedure common mistakes
Queensland Bar Exam: Practice and Procedure · Understand the traps and how to avoid them.
Answering a question about which court has jurisdiction over a matter by naming the court with the largest available damages cap, without first checking whether the claim's subject matter (for example a federal statutory claim or an indictable criminal offence) is excluded from that court's jurisdiction entirely.
Candidates memorise monetary thresholds as the sole jurisdictional test and treat them as sufficient, because threshold tables are the most easily recalled feature of Queensland's court structure. Subject-matter limits and the effect of the District Court's and Supreme Court's jurisdictional provisions are learned less thoroughly, so they drop out under time pressure.
What to do instead
For every jurisdiction question, run a two-limb checklist in writing: (1) subject matter - is this type of proceeding one the court may hear at all? (2) monetary amount - does the claim fall within the limit? Only after both limbs are satisfied consider transfer or referral. Practise by classifying ten mixed claims (contract, tort, federal claim, indictable offence, family matter) into courts using both limbs.
Drafting a pleading that states legal conclusions or evidence ('the defendant was negligent because he drove too fast and ignored the red light') instead of material facts, and failing to plead the necessary particulars of negligence.
Candidates confuse the narrative they would give a client with the formal requirements of a pleading. Because the story feels clear, they write it out in full, not realising that conclusions and evidence are liable to be struck out and that particulars must be separately supplied.
What to do instead
Adopt a two-column drafting habit: left column, the material fact; right column, the particulars that support it. Draft the statement of claim for one negligence scenario, then audit each paragraph against the question 'is this a fact, a conclusion, or evidence?' and move anything that is not a material fact into particulars or delete it.
Calculating a limitation period or a procedural deadline from the date of the incident or the date of the letter, rather than from the date specified by the applicable rule or statute, and ignoring how the period is extended when the last day falls on a weekend or public holiday.
Candidates default to the date that is most prominent in the facts. They also assume a simple 'add the number of days' arithmetic applies, forgetting that rules of court and interpretation legislation govern how time is reckoned, when service by post is effected, and when a period expires.
What to do instead
Before computing anything, identify the source of the time limit (limitation statute, uniform civil procedure rules, or a specific practice direction) and write it beside the calculation. Then apply the reckoning rules step by step: start date excluded, last day included, extension where the last day is not a business day. Work through three worked examples with different trigger events.
Serving process by an available method without checking that the method is permitted for that document and that service was effected at the time the rules deem it effected, then assuming the matter can proceed on the original timetable.
Candidates treat service as an administrative step rather than a jurisdictional prerequisite. They remember that personal service is required for originating process but not the exceptions, the deemed-service provisions for post and electronic service, or the consequences of defective service for subsequent steps.
What to do instead
Build a service checklist keyed to document type: originating process, interlocutory application, subpoena, and notice. For each, record the permitted methods, the deemed time of service, and the cure for defective service (dispensing order). Apply the checklist to a scenario where service is attempted by email and by post on the same day and identify the earliest date each is effective.
Opposing or bringing an application for summary judgment or strike-out without addressing the threshold tests separately: no reasonable cause of action, or no real prospect of success, and the discretion to allow a claim to proceed to trial.
Candidates merge summary judgment and strike-out into a single 'weak case' test. Because both are described as filtering mechanisms, they apply a general impression of weakness rather than the distinct elements, and they omit the discretionary and costs consequences that the examiner is testing.
What to do instead
Write out the elements of each application side by side on one page, including who bears the onus, what evidence is admissible, and the residual discretion. Then answer a practice question in the structure: element by element, evidence for and against, exercise of discretion, and costs. Do not merge the two applications in any answer.
Describing the steps of a proceeding in the wrong order - for example discussing discovery before the close of pleadings, or trial preparation before the completion of disclosure and exchange of expert evidence - in a question that asks for the sequence of events.
Candidates learn individual procedures as isolated topics and never build a timeline. Under exam conditions they retrieve whatever procedure they remember best and place it where it seems plausible, rather than reconstructing the actual progression of a civil action.
What to do instead
Draw a single master timeline from client interview to enforcement of judgment and annotate each stage with its trigger, its purpose, and the rule that governs it. Redraw it from memory weekly, then answer sequencing questions only by reference to the timeline before writing prose.
Answering an ethics or conduct question by stating the general duty to the court and to the client, without identifying the specific rule engaged, the competing duties, and the course of action the practitioner must take when instructed to do something improper.
Candidates treat ethics as a values question and write aspirational statements. They do not memorise the concrete prohibitions on misleading the court, communicating with an opponent's client, and acting on instructions that would involve a conflict, so they cannot apply the rule to the facts.
What to do instead
Prepare a one-page table of the core conduct rules with a fact trigger for each. For every ethics scenario, answer in four steps: identify the rule, identify the duty in tension, state what the practitioner must not do, and state the positive step required (for example advising the client and, if necessary, seeking to withdraw). Practise on three scenarios involving inadvertent disclosure and client pressure to run a false case.
Treating the advocate's duties in a criminal trial as identical to those in a civil trial, and failing to address the prosecution's disclosure obligations and the defence's limits on commenting on the accused's silence or failure to give evidence.
Candidates learn advocacy as a generic skill set and do not separate the distinctive obligations that flow from the criminal process, including the prosecutor's role as a minister of justice rather than a partisan litigant. The asymmetry of disclosure and the restrictions on comment are therefore missed.
What to do instead
Create a comparison table with rows for disclosure, comment on the accused's account, examination and cross-examination limits, and closing addresses, and columns for civil and criminal proceedings. Complete it from the rules and authorities, then apply it to two scenarios, one where the prosecutor proposes to comment on silence and one where the defence proposes to attack a witness's character.
Drafting an affidavit or witness statement in the first person as an argument, including submissions, opinions, and hearsay, and failing to identify which paragraphs are objectionable.
Candidates write affidavits the way they write submissions, because both are persuasive documents. They do not apply the rules that an affidavit is confined to facts within the deponent's knowledge, with identified exceptions for expert opinion and matters of information and belief.
What to do instead
Draft one affidavit for a simple debt claim, then mark every paragraph as fact, opinion, submission, or hearsay. Rewrite the objectionable paragraphs so that admissible content is preserved. Repeat with an expert affidavit, expressly identifying the basis for the opinion and the deponent's qualifications.
Answering a costs question by awarding costs to the successful party as a matter of course, without addressing the general rule, the court's discretion, the difference between standard and indemnity bases, and the effect of offers of compromise or Calderbank offers.
Candidates reduce costs to 'winner gets costs'. Because the discretion and the calibrated consequences of settlement offers are the most technical part of the topic, they are skipped, and the answer misses the point the question is designed to test.
What to do instead
Learn costs in three layers: the general rule and the discretion that qualifies it; the bases of assessment and when indemnity costs may be ordered; and the specific consequences of offers of compromise and Calderbank offers, including the presumption of indemnity costs where an offer is not beaten. Answer a practice question where the plaintiff wins but recovers less than its own offer, and work through the consequences step by step.