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Victorian Bar Entrance Exam study materials
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Victorian Bar Entrance Exam practice questions

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Question 1General legal knowledge and reasoning

In Australian constitutional law, which body has the power to adjudicate disputes about the constitutional validity of Commonwealth legislation?

  1. The Council of Australian Governments by consensus
  2. The Governor-General acting on ministerial advice
  3. The High Court of Australia exercising its appellate and original jurisdiction Correct answer.
  4. The Parliament through a resolution of both Houses

Explanation

Chapter III of the Constitution vests judicial power in designated courts, and section 75 confers original jurisdiction on the High Court in matters arising under the Constitution. Judicial review of legislative validity is therefore exercised by courts, not by Parliament or the executive.

Question 2General legal knowledge and reasoning

Which standard of proof applies to a civil proceeding in an Australian court?

  1. On a prima facie showing only
  2. To the criminal standard where facts are disputed
  3. Beyond reasonable doubt
  4. On the balance of probabilities Correct answer.

Explanation

In civil litigation the party bearing the onus must prove its case on the balance of probabilities, meaning the tribunal of fact must be satisfied that the occurrence of the event was more likely than not. The criminal standard of beyond reasonable doubt applies only to criminal guilt.

Question 3General legal knowledge and reasoning

A solicitor is retained by a client to draft a will. Which duty is owed to the client in this relationship?

  1. A duty to maximise the solicitor's own fee wherever the retainer permits
  2. A duty owed primarily to the testator's intended beneficiaries
  3. A duty to follow the client's instructions even where they require misleading the court
  4. A duty to act in the client's best interests subject to duties to the court and the law Correct answer.

Explanation

A retainer creates fiduciary and contractual obligations requiring loyalty, competence and confidentiality, tempered by overriding duties to the court and to the administration of justice. The solicitor's own financial interest and third-party expectations cannot displace those obligations.

Question 4General legal knowledge and reasoning

Which of the following best describes the doctrine of precedent in Australian courts?

  1. Precedent applies only to decisions of the High Court and not to intermediate courts
  2. A judge may disregard a superior court's ruling whenever the judge considers it unwise
  3. Only the ratio decidendi of a superior court in the same hierarchy binds lower courts Correct answer.
  4. Every remark made by a judge in a judgment binds all lower courts

Explanation

The binding element of a judgment is the ratio decidendi, the legal principle necessary to the decision, and it binds courts lower in the same appellate hierarchy. Obiter dicta and decisions from other hierarchies are persuasive rather than binding.

Question 5General legal knowledge and reasoning

In a criminal trial before a jury, who determines whether the accused is guilty of the offence charged?

  1. The appellate court on review
  2. The judge alone
  3. The prosecutor by the charges filed
  4. The jury as the tribunal of fact Correct answer.

Explanation

In a jury trial the judge rules on law and procedure while the jury, as the tribunal of fact, decides whether the elements of the offence are proved beyond reasonable doubt. The judge does not enter the verdict of guilt in a jury trial.

Question 6General legal knowledge and reasoning

Which of the following is an essential element of the tort of negligence?

  1. An intention to cause harm to the plaintiff
  2. A written contract between the parties
  3. Proof of actual malice by the defendant
  4. A duty of care owed by the defendant to the plaintiff Correct answer.

Explanation

Negligence requires a duty of care owed to the plaintiff, a breach of that duty, and damage caused by the breach that is not too remote. Intention and malice are irrelevant to negligence, and no contract is needed.

Question 7General legal knowledge and reasoning

Which court is the highest appellate court in the Australian court hierarchy?

  1. The Full Court of the Family Court
  2. The Supreme Court of New South Wales
  3. The High Court of Australia Correct answer.
  4. The Federal Court of Australia

Explanation

The High Court of Australia stands at the apex of the Australian judicial system, hearing appeals and exercising original constitutional jurisdiction. Other federal and state courts operate beneath it within their respective hierarchies.

Question 8General legal knowledge and reasoning

What does the burden of proof in a criminal trial require of the prosecution?

  1. To disprove every conceivable defence raised in argument
  2. To prove guilt on the balance of probabilities
  3. To prove the accused's guilt beyond reasonable doubt Correct answer.
  4. To establish only that the accused had a motive

Explanation

The prosecution bears the persuasive burden of proving each element of the offence beyond reasonable doubt, reflecting the presumption of innocence. It is not required to disprove speculative defences unless they are properly raised on the evidence.

Question 9General legal knowledge and reasoning

A company director signs a contract in the company's name without authority, and the company later refuses to be bound. Which principle most directly determines whether the company is liable to the innocent third party?

  1. The doctrine of part performance in equity
  2. The parol evidence rule governing written contracts
  3. The rule against perpetuities
  4. The doctrine of indoor management and the statutory assumptions of company authority Correct answer.

Explanation

Statutory assumptions in corporations legislation, building on the indoor management rule, allow outsiders to assume that officers and agents properly exercise their authority. A third party dealing in good faith may therefore hold the company to the contract despite the internal irregularity.

Question 10General legal knowledge and reasoning

A statute commenced on 1 March and creates a new licensing requirement. An act done on 20 February, before commencement, is later prosecuted under the statute. Which principle is most relevant to whether liability can attach?

  1. The principle of territorial sovereignty
  2. The doctrine of legitimate expectation
  3. The presumption against retrospectivity Correct answer.
  4. The presumption of regularity

Explanation

Legislation is presumed not to operate retrospectively so as to affect rights or impose liability for past conduct unless the statute clearly says so. Applying a new licensing offence to conduct completed before commencement would ordinarily be precluded.

Question 11General legal knowledge and reasoning

A client consults a lawyer about a pending matter, then discovers the lawyer has acted for the opposing party in a closely related transaction. Which ethical concern is most directly engaged?

  1. A question of whether the lawyer holds a practising certificate in another state
  2. A breach of the lawyer's duty to pay stamp duty
  3. A conflict of interest arising from the lawyer's duty of loyalty and confidentiality Correct answer.
  4. A concern about the lawyer's advertising compliance

Explanation

A lawyer must avoid conflicts between the interests of different clients and must protect confidential information obtained from a former or current client. Acting against a client in a related matter can create both a conflict and a risk of misuse of confidential information.

Question 12General legal knowledge and reasoning

In a civil trial, the plaintiff's case depends entirely on the credibility of one witness, and the evidence is evenly balanced. How should the tribunal of fact decide?

  1. The judge must direct a criminal-standard acquittal
  2. The matter must be adjourned until further evidence emerges
  3. In favour of the plaintiff, because the claim was filed first
  4. In favour of the defendant, because the plaintiff has not discharged the burden of proof Correct answer.

Explanation

The plaintiff bears the burden of proving the case on the balance of probabilities; if the evidence is equally balanced, the plaintiff has not satisfied that standard. The defendant therefore succeeds without needing to prove anything affirmatively.

Question 13General legal knowledge and reasoning

A judge decides a case on a point of statutory interpretation that was not argued by either party and gives no opportunity to address it. Which principle is most directly breached?

  1. The doctrine of precedent
  2. The requirement of a jury in civil trials
  3. The right to a fair hearing, including notice of the issues to be determined Correct answer.
  4. The rule against bias by reason of pecuniary interest

Explanation

Procedural fairness requires that parties receive notice of the issues and a meaningful opportunity to be heard before a decision is made. Deciding on an unargued basis without allowing submissions can deprive a party of that opportunity.

Question 14General legal knowledge and reasoning

Which of the following is the correct description of the relationship between common law and equity in Australia?

  1. Equity applies only in criminal proceedings
  2. The two systems were merged so that equity no longer exists as a body of doctrine
  3. Equity prevails where the rules of common law and equity conflict Correct answer.
  4. Common law always prevails over equitable doctrines

Explanation

Since the judicature reforms, courts administer both common law and equity, and where their rules conflict in the same matter equity prevails. Equity nonetheless remains a distinct body of doctrine operating alongside the common law.

Question 15General legal knowledge and reasoning

An Act defines 'vehicle' as 'any device for transporting persons or goods'. A dispute arises over whether a bicycle falls within the definition. Which interpretive approach best reflects the modern statutory method?

  1. Applying the ordinary meaning in light of the Act's purpose and context Correct answer.
  2. Consulting the minister's private opinion about the intended result
  3. Adopting the narrowest possible reading to avoid liability
  4. Relying solely on the literal dictionary meaning of the word

Explanation

Modern Australian interpretation begins with the text but reads it in context and in light of the statute's purpose, as required by interpretation legislation. A bicycle may well fall within a broad functional definition such as a device for transporting persons.

Question 16General legal knowledge and reasoning

A defendant is charged with an offence requiring proof that the defendant 'knowingly' possessed a prohibited item. The defendant genuinely but unreasonably believed the item was lawful. What is the most accurate analysis?

  1. The belief is irrelevant because reasonableness is the only test of knowledge
  2. The belief transfers the burden of proof to the defendant
  3. The belief establishes automatism and requires an acquittal
  4. The belief may negate knowledge if the prosecution cannot prove actual awareness of the item's prohibited character Correct answer.

Explanation

Where knowledge is an element, the prosecution must prove the defendant was aware of the relevant facts; an honest belief, even an unreasonable one, may prevent that proof. Unreasonableness may affect credibility but does not by itself supply the knowledge the prosecution needs.

Question 17General legal knowledge and reasoning

A plaintiff sues in negligence for psychiatric injury suffered after witnessing an accident involving a stranger. Which factor is most significant in determining whether a duty of care is owed?

  1. Whether the plaintiff falls within a recognised class of persons of normal fortitude who witnessed the event Correct answer.
  2. Whether the plaintiff paid consideration to the defendant
  3. Whether the plaintiff is a close family member of the person injured
  4. Whether the plaintiff had a pre-existing relationship with the defendant

Explanation

Liability for psychiatric injury is confined by recognised control mechanisms, including normal fortitude and the plaintiff's relationship to the accident, such as direct involvement or close ties to those affected. General foreseeability alone does not create a duty to every bystander.

Question 18General legal knowledge and reasoning

A contract contains a clause stating that neither party is liable for any loss whatsoever, including loss caused by the drafting party's own negligence. The other party seeks to rely on the clause. Which principle is most relevant?

  1. Exclusion clauses are void in all commercial contracts
  2. The clause is automatically unenforceable because it is unfair
  3. Exclusion clauses are construed strictly and clear words are required to exclude liability for negligence Correct answer.
  4. The clause is enforceable only if signed in the presence of a witness

Explanation

Courts construe exemption clauses contra proferentem and require clear language before holding that a party has abandoned remedies, especially for negligence. Whether the clause is effective also depends on statutory unfair contract terms and consumer guarantees where applicable.

Question 19General legal knowledge and reasoning

A person is charged with an offence and the prosecution relies on a confession obtained after the person was denied access to a lawyer despite requesting one. Which issue is most directly raised?

  1. The sufficiency of the indictment
  2. The validity of the search warrant
  3. The voluntariness and fairness of the admission, potentially requiring exclusion Correct answer.
  4. The availability of a civil remedy in negligence

Explanation

Confessions must be voluntary, and evidence obtained unfairly may be excluded in the exercise of the court's discretion. Denial of access to a lawyer after a request is a significant factor bearing on fairness and voluntariness.

Question 20General legal knowledge and reasoning

Which of the following best explains the operation of the doctrine of separation of powers under the Commonwealth Constitution?

  1. Legislative, executive and judicial powers are distributed among distinct organs, with judicial power confined to Chapter III courts Correct answer.
  2. The executive may exercise judicial power where efficiency requires it
  3. All governmental power is concentrated in the Parliament
  4. The states are bound to adopt the same separation in identical terms

Explanation

The Commonwealth Constitution structures government into legislative, executive and judicial chapters, and Chapter III courts alone may exercise federal judicial power. The separation is not absolute for all purposes, but it restrains the conferral of judicial functions on non-courts.

Question 21General legal knowledge and reasoning

In equity, which remedy is most appropriate where a party seeks to compel the specific performance of a contract for the sale of unique land?

  1. An injunction restraining the defendant from leaving the jurisdiction
  2. Specific performance, because damages are inadequate for unique property Correct answer.
  3. A declaration that the contract is void
  4. An award of compensatory damages at common law

Explanation

Equitable remedies are discretionary and are granted where common law damages would be inadequate, as with contracts for the sale of land regarded as unique. Specific performance compels performance rather than compensating for breach.

Question 22General legal knowledge and reasoning

A tribunal is given power to determine disputes under a statute and to award compensation. A party argues the tribunal exercises judicial power unlawfully. Which consideration is most central to the analysis?

  1. Whether the function involves a conclusive determination of existing rights and obligations Correct answer.
  2. Whether the tribunal's hearings are held in public
  3. Whether the tribunal is staffed by legally qualified members
  4. Whether the tribunal's decisions are published online

Explanation

The hallmark of judicial power is the binding and authoritative determination of existing rights and liabilities, often between parties, rather than the creation of new rights through administrative policy. Whether a body is a Chapter III court and whether its decisions are subject to review are also relevant factors.

Question 23General legal knowledge and reasoning

A statute provides that a minister may make regulations 'necessary or convenient' for carrying out the Act. A regulation imposes a substantial new licence fee with no connection to any provision in the Act. Which ground of challenge is strongest?

  1. The regulation is invalid because regulations can never impose fees
  2. The regulation is valid because 'necessary or convenient' is unlimited
  3. The regulation exceeds the regulation-making power because it is not authorised by the Act Correct answer.
  4. The regulation is invalid because only courts may make subordinate legislation

Explanation

Subordinate legislation is valid only if it falls within the power conferred by the enabling Act and is consistent with it. A regulation that creates a substantial charge without any connection to the statutory scheme exceeds the authority conferred.

Question 24General legal knowledge and reasoning

A person is tried for murder. The defence raises substantial evidence of self-defence. Which statement best reflects the allocation of burdens?

  1. The defence must prove self-defence beyond reasonable doubt
  2. The prosecution must disprove self-defence beyond reasonable doubt once it is properly raised Correct answer.
  3. The jury must ignore self-defence unless the accused gives evidence
  4. The defence must prove self-defence on the balance of probabilities

Explanation

Once the defence of self-defence is properly raised on the evidence, the legal burden remains on the prosecution to negate it beyond reasonable doubt. The accused bears only an evidentiary burden to raise the issue.

Question 25General legal knowledge and reasoning

A company's constitution contains a provision that directors may only be removed by unanimous resolution of all shareholders. A shareholder seeks to remove a director by ordinary resolution. Which analysis is most accurate?

  1. The provision is valid and the ordinary resolution is ineffective
  2. The provision is valid only if the director consents
  3. The provision is invalid because the statutory power to remove directors by ordinary resolution cannot be displaced Correct answer.
  4. The provision is valid but the director may override it unilaterally

Explanation

Corporations legislation confers a power on members to remove directors by ordinary resolution, and this power is generally treated as inalienable and cannot be displaced by the constitution or a separate agreement. A purported requirement of unanimity is therefore ineffective to defeat the statutory procedure.

Question 26General legal knowledge and reasoning

In a criminal trial, what is the standard of proof the prosecution must satisfy?

  1. To a comfortable satisfaction.
  2. On the balance of probabilities.
  3. By clear and convincing evidence.
  4. Beyond reasonable doubt. Correct answer.

Explanation

In Australian criminal proceedings the prosecution bears the burden of proving each element of the offence beyond reasonable doubt. This high standard reflects the serious consequences of criminal conviction. The balance of probabilities is the civil standard.

Question 27General legal knowledge and reasoning

Which of the following is a primary source of law in Australia?

  1. A law reform commission report.
  2. A newspaper report of a decided case.
  3. An Act of Parliament. Correct answer.
  4. A textbook on constitutional law.

Explanation

Legislation enacted by a parliament and the common law developed by courts are the primary sources of Australian law. Secondary materials such as textbooks, reports and commentary explain or critique the law but do not themselves create binding legal rules.

Question 28General legal knowledge and reasoning

A statute uses the word 'may' in a provision empowering a public officer to take a certain step. How is such a word generally construed?

  1. As prohibiting the officer from taking the step.
  2. As having no legal effect at all.
  3. As conferring a discretion rather than imposing a duty. Correct answer.
  4. As creating a strict obligation the officer must perform.

Explanation

In statutory interpretation, 'may' ordinarily confers a discretionary power, while 'shall' or 'must' imposes a duty. Courts read the words in context, so 'may' can occasionally be mandatory where the purpose of the provision requires it, but the ordinary meaning is permissive.

Question 29General legal knowledge and reasoning

What is the principal role of a jury in a criminal trial on indictment?

  1. To sentence the offender after conviction.
  2. To decide whether the evidence is admissible.
  3. To determine questions of law arising during the trial.
  4. To determine whether the accused is guilty of the charge. Correct answer.

Explanation

In a trial on indictment the jury is the tribunal of fact and decides whether the prosecution has proved the charge beyond reasonable doubt. Questions of law, including admissibility of evidence, are for the judge, who also imposes sentence.

Question 30General legal knowledge and reasoning

Which of the following statements about the criminal burden of proof is correct?

  1. The prosecution bears the burden of disproving a defence once it is sufficiently raised. Correct answer.
  2. Each party bears an equal burden to prove its own case.
  3. The accused must prove innocence beyond reasonable doubt.
  4. The accused must prove any defence beyond reasonable doubt.

Explanation

The prosecution bears the persuasive burden throughout a criminal trial. Where the accused raises a defence such as self-defence and there is sufficient evidence to put it in issue, the prosecution must disprove that defence beyond reasonable doubt. The accused does not have to prove innocence.

Question 31General legal knowledge and reasoning

A court is asked to interpret a statutory provision whose meaning is ambiguous. Which approach is consistent with the modern Australian approach to statutory interpretation?

  1. Give priority to the parliamentary speech of the minister who introduced the bill.
  2. Adopt the meaning that produces the harshest result for the party challenging the law.
  3. Apply the literal meaning of the words even if it defeats the Act's evident purpose.
  4. Prefer the interpretation that best promotes the purpose of the Act, reading the text in context. Correct answer.

Explanation

Australian courts interpret statutes by reading the text in its context and preferring the construction that promotes the purpose of the Act. Extrinsic material such as explanatory memoranda may be considered, but the text remains the starting point. A literal reading that defeats the legislative purpose is not preferred.

Question 32General legal knowledge and reasoning

Which of the following is a characteristic of the adversarial system of justice used in Australia?

  1. The prosecutor acts as legal adviser to the accused.
  2. The parties present their own evidence and arguments before an impartial decision-maker. Correct answer.
  3. The judge investigates the facts and calls the witnesses.
  4. The judge and the prosecutor jointly decide the verdict.

Explanation

In an adversarial system the parties define the issues and present evidence and argument, while the judge or jury decides impartially. The judge generally does not investigate the case or gather evidence. This contrasts with an inquisitorial system.

Question 33General legal knowledge and reasoning

A solicitor acting for a client receives confidential information from the client about a pending transaction. The solicitor then acts for a different client in an unrelated matter against the first client. Which duty is most directly engaged?

  1. The duty to advertise services truthfully.
  2. The duty to keep client money in a trust account.
  3. The duty of confidentiality owed to the former client. Correct answer.
  4. The duty to the court to disclose all relevant documents.

Explanation

A lawyer owes a continuing duty of confidentiality to a former client and must not use confidential information against that client or act where a conflict of interest arises. Trust account rules concern the handling of money, not information. The duty to the court concerns candour in litigation.

Question 34General legal knowledge and reasoning

A Commonwealth Act validly made under a head of power conflicts with a valid State Act on the same subject. Both can be obeyed simultaneously. What is the result?

  1. The Commonwealth Act is invalid because it intrudes on State sovereignty.
  2. The State Act prevails because the States retain residual power.
  3. The State Act is invalid to the extent of the inconsistency under section 109 of the Constitution. Correct answer.
  4. Both Acts are invalid and the matter is left to the common law.

Explanation

Section 109 of the Commonwealth Constitution provides that when a State law is inconsistent with a Commonwealth law, the State law is invalid to the extent of the inconsistency. Inconsistency can arise where the laws cannot be obeyed together or where the Commonwealth law shows an intention to cover the field. The Commonwealth law remains valid.

Question 35General legal knowledge and reasoning

A person is charged with an offence. The prosecution wishes to rely on evidence obtained by police during an unlawful search. Which statement best reflects the court's approach?

  1. The evidence is automatically admissible because it is relevant.
  2. The evidence must be excluded in every case regardless of its probative value.
  3. The court has a discretion to exclude the evidence if its desirability is outweighed by the undesirability of admitting evidence obtained improperly. Correct answer.
  4. The evidence is admissible only if the accused consents to its use.

Explanation

Where evidence is obtained improperly or in contravention of the law, the court retains a discretion to exclude it. The court weighs the desirability of admitting the evidence against the undesirability of admitting evidence obtained in that way, considering factors such as the gravity of the impropriety and the probative value of the evidence.

Question 36General legal knowledge and reasoning

A plaintiff alleges a local council negligently failed to maintain a footpath, causing injury. Which of the following must the plaintiff establish to succeed in negligence?

  1. That the council's conduct was criminal as well as careless.
  2. That the council intended to cause injury to the plaintiff.
  3. That the council owed a duty of care, breached that duty, and that the breach caused damage of a recognised kind. Correct answer.
  4. That the council had previously admitted liability for similar injuries.

Explanation

Negligence requires proof of a duty of care, a breach of the standard of reasonable care, and damage caused by that breach that is not too remote. Intention and prior admissions are not elements of the tort. A criminal characterisation is unnecessary.

Question 37General legal knowledge and reasoning

A contract provides that a party will pay a specified sum if it fails to complete work by a stated date. Is this sum enforceable as agreed?

  1. It is enforceable only if the parties were represented by lawyers.
  2. It is enforceable as a liquidated damages clause only if it is a genuine pre-estimate of loss, not a penalty. Correct answer.
  3. It is always enforceable because the parties agreed to it.
  4. It is never enforceable because agreed damages clauses are contrary to public policy.

Explanation

A clause fixing a sum payable on breach is enforceable as liquidated damages if it represents a genuine pre-estimate of the loss likely to flow from the breach. If the sum is out of all proportion to the likely loss and operates as a punishment, it is an unenforceable penalty.

Question 38General legal knowledge and reasoning

A defendant is charged with an offence. The prosecution proposes to lead evidence of the defendant's previous convictions to prove that the defendant has a tendency to commit crimes. Which statement best reflects the general rule?

  1. Tendency evidence is admissible only if the accused consents in writing.
  2. Tendency evidence is inadmissible in every circumstance.
  3. Tendency evidence is inadmissible unless its probative value substantially outweighs any prejudicial effect. Correct answer.
  4. Tendency evidence is always admissible because it is relevant.

Explanation

Tendency evidence is a form of propensity evidence subject to a heightened threshold: it is inadmissible unless the court thinks its probative value substantially outweighs the danger of unfair prejudice. This reflects the risk that a jury may convict because of the accused's character rather than the evidence of the offence charged.

Question 39General legal knowledge and reasoning

A person is arrested and detained by police. Which of the following best describes the right to silence in Australian criminal procedure?

  1. An accused may remain silent only with the permission of the investigating officer.
  2. An accused must answer all questions put by police or face a separate offence.
  3. An accused may decline to answer questions, and the prosecution cannot generally invite the jury to infer guilt from that silence. Correct answer.
  4. An accused has no right to remain silent once charged.

Explanation

The right to silence means a suspect or accused is not obliged to answer police questions, and the prosecution generally cannot use the exercise of that right as evidence of guilt. This protects the presumption of innocence and the burden of proof borne by the prosecution.

Question 40General legal knowledge and reasoning

A court is asked to decide whether a decision of a government minister was valid. Which ground would support judicial review of the decision?

  1. The decision was less generous than a previous decision on a different matter.
  2. The decision was made without regard to relevant considerations or for an improper purpose. Correct answer.
  3. The decision was criticised by a newspaper editorial.
  4. The decision was politically unpopular with the majority of voters.

Explanation

Judicial review examines the legality of administrative decisions, not their merits. Grounds include failing to consider relevant matters, considering irrelevant matters, acting for an improper purpose, and failing to afford procedural fairness. Political unpopularity or media criticism is not a ground of review.

Question 41General legal knowledge and reasoning

A statute establishes a tribunal and provides that its decisions are 'final and conclusive and not subject to appeal'. What is the effect of such a privative clause?

  1. It removes all judicial review of the tribunal's decisions in every circumstance.
  2. It prevents appeals but does not exclude the supervisory jurisdiction of superior courts for jurisdictional error. Correct answer.
  3. It converts the tribunal into a court of record with unlimited jurisdiction.
  4. It prevents any court from considering whether the tribunal exceeded its jurisdiction.

Explanation

Privative clauses can restrict appeals, but the supervisory jurisdiction of superior courts to correct jurisdictional error cannot be excluded by a State parliament, and at the Commonwealth level such clauses are read narrowly. A clause cannot shield a decision made outside the tribunal's lawful authority.

Question 42General legal knowledge and reasoning

A plaintiff seeks an order requiring the defendant to transfer a unique parcel of land that the defendant agreed to sell. Which remedy is the plaintiff seeking?

  1. An injunction.
  2. Damages.
  3. Rescission.
  4. Specific performance. Correct answer.

Explanation

Specific performance is an equitable order compelling a party to perform its contractual obligation, commonly granted where the subject matter is unique, such as land, and damages would be inadequate. Damages are a common law remedy, an injunction restrains or compels conduct, and rescission unwinds a contract.

Question 43General legal knowledge and reasoning

A company wishes to enter into a contract. Under Australian law, who has the power to make decisions on behalf of the company?

  1. The board of directors, unless the constitution provides otherwise. Correct answer.
  2. The auditor of the company.
  3. The shareholders in general meeting in all circumstances.
  4. The company secretary alone.

Explanation

The business and affairs of a company are managed by or under the direction of its directors, who exercise the company's powers. Shareholders generally do not manage the company, though they may vote on reserved matters. The secretary performs administrative functions and the auditor provides independent assurance.

Question 44General legal knowledge and reasoning

A person is charged with an offence. The prosecution relies on a statutory provision that was enacted after the conduct alleged. Which principle is most relevant?

  1. The principle of legality, which presumes that statutes do not abrogate fundamental rights.
  2. The presumption against retrospective operation of penal statutes. Correct answer.
  3. The rule against double jeopardy.
  4. The doctrine of parliamentary sovereignty.

Explanation

There is a strong presumption that legislation is not intended to operate retrospectively, particularly where it would impose criminal liability for past conduct. Retrospective criminal laws are also constrained by constitutional and human rights protections. The principle of legality concerns the construction of statutes that affect fundamental rights.

Question 45General legal knowledge and reasoning

A judge is asked to decide whether a written statement made by a witness who is unavailable at trial is admissible. Which statement best reflects the general approach to hearsay?

  1. Hearsay evidence is admissible if it is relevant to a fact in issue.
  2. Hearsay evidence is generally inadmissible unless it falls within a recognised exception. Correct answer.
  3. Hearsay evidence is always admissible in civil trials but never in criminal trials.
  4. Hearsay evidence is admissible only if it is corroborated by two witnesses.

Explanation

Hearsay is an out-of-court representation used to prove the truth of what it asserts, and it is generally excluded because it cannot be tested by cross-examination. Statutory and common law exceptions exist, such as certain business records and statements by unavailable witnesses. Relevance alone does not make hearsay admissible.

Question 46General legal knowledge and reasoning

A statute delegates to a minister the power to make regulations. A regulation made under the power imposes a significant fee not mentioned in the Act. Which statement best describes the likely outcome?

  1. The regulation is valid because delegated legislation has the same status as an Act.
  2. The regulation is invalid because delegated legislation is never permitted in Australia.
  3. The regulation is valid because a minister's decisions cannot be reviewed by courts.
  4. The regulation is invalid because it is inconsistent with the Act or goes beyond the power conferred. Correct answer.

Explanation

Delegated legislation must remain within the scope of the power conferred by the enabling Act and must not conflict with it. A regulation that imposes a charge not authorised by the Act may be ultra vires and therefore invalid. Delegated legislation is subordinate, not equal in status to an Act.

Question 47General legal knowledge and reasoning

An accused is charged with murder and raises self-defence, supported by evidence sufficient to put the issue in issue. Who bears what burden in relation to self-defence?

  1. Neither party bears any burden because self-defence is a matter for the judge alone.
  2. The prosecution must prove the accused did not act in self-defence on the balance of probabilities.
  3. The accused bears the persuasive burden of proving self-defence on the balance of probabilities.
  4. The accused bears an evidential burden, and the prosecution must disprove self-defence beyond reasonable doubt. Correct answer.

Explanation

Where the accused raises self-defence and there is sufficient evidence to put it in issue, the accused has discharged an evidential burden. The persuasive burden then rests on the prosecution, which must negate self-defence beyond reasonable doubt as part of proving the charge.

Question 48General legal knowledge and reasoning

A company's constitution provides that a director may be removed only by a unanimous resolution of all shareholders. A majority of shareholders wishes to remove a director. Which statement best reflects the position under Australian law?

  1. The replaceable rule permitting removal by ordinary resolution in general meeting prevails over the constitutional provision.
  2. The provision is invalid because a company cannot restrict removal of directors in any way.
  3. The statutory power of shareholders to remove a director by ordinary resolution in general meeting cannot be displaced by the constitution. Correct answer.
  4. The constitutional provision is effective and prevents removal without unanimity.

Explanation

Australian company law confers on shareholders a power to remove a director by ordinary resolution in general meeting, and this power cannot be taken away by the constitution or a collateral agreement. A provision requiring unanimity or otherwise fettering that power is ineffective to that extent.

Question 49General legal knowledge and reasoning

A court considers whether a duty of care is owed in a novel category of case. Which approach best reflects the contemporary Australian method?

  1. Rely solely on whether the parties had a pre-existing contractual relationship.
  2. Consider whether a duty is recognised by analogy with established categories, and weigh salient features including coherence with statute and policy. Correct answer.
  3. Ask only whether the defendant's conduct was morally blameworthy.
  4. Apply a single universal test of reasonable foreseeability without more.

Explanation

Australian courts approach novel duty cases by reasoning from recognised categories and by weighing salient features such as foreseeability, vulnerability, reliance, control, and coherence with statute and legal principle. Reasonable foreseeability alone is insufficient to establish a duty. Moral blameworthiness and contract are not the governing criteria.

Question 50General legal knowledge and reasoning

A tribunal is established by statute to determine disputes and award compensation. A party argues that the tribunal's power to award compensation is invalid because it exercises judicial power. Which statement best reflects the constitutional position?

  1. A tribunal may exercise judicial power provided its members are legally qualified.
  2. A State tribunal may exercise judicial power if it is a court, but a non-judicial tribunal cannot be invested with judicial power contrary to the separation of powers. Correct answer.
  3. Any tribunal may exercise judicial power because the separation of powers applies only to the executive.
  4. The separation of powers applies only to local government bodies.

Explanation

Chapter III of the Commonwealth Constitution limits the exercise of federal judicial power to courts, and the separation of powers constrains the conferral of judicial power on non-judicial bodies. State constitutions have less rigid separation, but State tribunals still cannot exercise judicial power in a manner inconsistent with the institutional integrity of State courts.