The method › Six shapes and one twist
Six shapes and one twist
Almost every legal rule takes one of six shapes. Any of these six shapes may carry a twist. Know the shape and you know what your paragraph has to do before you know any law.
Why shape comes before content
Exam pressure rewards routine. The four steps above give you the routine for a whole answer. The shape gives you the routine for a single rule. The reason is the syllogism: a rule applied to facts is a major premise fitted to a minor premise, and the shape is the logical form of the major premise. A rule satisfied only when every requirement holds demands different working from a rule satisfied by any one of several routes, and different again from a rule that weighs two interests against each other. The form of the rule dictates the form of the working, so the shape settles the architecture of your answer before the doctrine arrives: how many moving parts the rule has, in what relation they stand, where the contest will sit, and what a complete paragraph must contain. Learn six shapes once and every new rule you meet, in every subject, arrives half learned.
Each rule in the subject guides carries its shape as a small tag. The tag tells you the work your paragraph has to do before you know any of the law. Each shape below is given four ways — what it is, how to work it, where the contest sits, and how to tell it apart from its nearest neighbour — and each ends with the shape at work across the core subjects, with the case or provision it is best known by.
The six shapes
The arrow
Straight to the point
What it means
A single statement with no working parts. It covers the facts or it does not — the arrow either hits or it misses, and nothing about it bends, weighs, or unfolds. State it with its authority, apply it in a sentence or two, then move on.
How to work it
The arrow’s discipline is brevity. The most common error is padding: an arrow paragraph stretched to checklist length signals that the writer cannot tell a simple rule from a complex one. If the arrow carries no twist and the facts are within it, one or two sentences is the complete answer.
Where the contest sits
Rarely inside the rule. If an arrow is contested, the fight is over the facts (did the event happen?) or over an exception the arrow carries — and an arrow with exceptions is a twisted arrow, worked under the twist below.
The tell on the page
A single sentence with no enumeration: no “and”, no “or”, no numbered paragraphs, no list of considerations.
The arrow at work
| Subject | The arrow | Authority |
|---|---|---|
| Constitutional | A proposed law becomes an Act on royal assent | Constitution s 58 |
| Corporations | A company comes into existence on registration | Corporations Act 2001 (Cth) s 119 |
| Contract / Torts | An action must be brought within six years of the cause of action accruing | Limitation of Actions Act 1958 (Vic) s 5(1)(a) |
| Torts | A manufacturer owes a duty of care to the ultimate consumer of its goods | Grant v Australian Knitting Mills [1936] AC 85 |
The checklist
One gap sinks it
What it means
Several requirements, every one of which must be met. One unticked box and the whole rule fails, however strong the rest of the page looks. The order of the boxes is free: you may argue them in whatever sequence the facts make convenient, because no element conditions another.
How to work it
Run every element, but spend your words unevenly. Tick the quiet elements briefly with authority, then dig in where the facts put pressure. A paragraph that gives four elements equal space has not found the issue.
Where the contest sits
At the quiet requirement — the element the examiner has buried while your attention was on the loud one. The proponent bears the burden on every element, so a checklist is attacked at its weakest link, not its strongest.
The tell on the page
Elements joined by “and”, or numbered subsections that must all be satisfied before the consequence follows.
The checklist at work
| Subject | The checklist | Authority |
|---|---|---|
| Criminal | Theft: appropriation, of property, belonging to another, dishonestly, with intent permanently to deprive | Crimes Act 1958 (Vic) ss 72, 74 |
| Torts | Negligence: duty, breach, causation, damage | the cause of action itself |
| Contract / Equity | Equitable estoppel: assumption, inducement, reliance, knowledge or intention, detriment, failure to avoid it | Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 |
| Corporations | Insolvent trading: director, debt incurred, insolvency at that time, reasonable grounds to suspect | Corporations Act 2001 (Cth) s 588G(1) |
| Trusts | The three certainties: intention, subject matter, objects | Knight v Knight (1840) 49 ER 58 |
The keyring
Any key opens the lock
What it means
Several alternative routes, any one of which satisfies the rule. Turning one key opens the rule; the other keys become spares. The claimant leads with the best key and mentions the spares. The defendant must strip every key off the ring, because ruling out one key proves nothing about the others.
How to work it
Choose your key openly: say which route the facts support best and why, run it fully, then dispose of the alternatives in a line each. Defending, never celebrate the elimination of one route — the paragraph is not finished until every key has been shown not to turn.
Where the contest sits
Usually over the cheapest key — the route with the lowest factual threshold — because that is the one the proponent will actually turn.
The tell on the page
Alternatives joined by “or”, or a definition with lettered limbs any of which qualifies.
The keyring at work
| Subject | The keyring | Authority |
|---|---|---|
| Criminal | Murder’s fault element: intention to kill, intention to cause really serious injury, or knowledge that death or really serious injury is probable | R v Crabbe (1985) 156 CLR 464 |
| Corporations | “Director”: validly appointed, de facto, or shadow | Corporations Act 2001 (Cth) s 9 |
| Contract | Termination: breach of condition, sufficiently serious breach of an intermediate term, or renunciation | Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 |
| Equity | Third-party liability for breach of trust: knowing receipt or knowing assistance | Barnes v Addy (1874) LR 9 Ch App 244; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 |
| Administrative | Judicial review: any one of the enumerated grounds suffices | Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1) |
The staircase
Steps in order
What it means
Steps applied in a fixed order, where each step conditions the next and the order is itself part of the law. Step two does not exist until you have stood on step one. Skipping ahead is not a stylistic fault; it is legal error.
How to work it
Take the steps in sequence and say so — “the first question is… only if that is satisfied does the second arise”. If a step resolves the problem, stop there and say why the later steps never arise. The examiner rewards the student who knows where the staircase ends as much as one who can climb it.
Where the contest sits
Usually on one step. Identify which step the facts put in issue, walk briskly to it, and do the real work there.
The tell on the page
Sequencing language: “first”, “then”, “if so”, “having determined”, or a structure in which a later inquiry is defined by reference to the outcome of an earlier one.
The staircase at work
| Subject | The staircase | Authority |
|---|---|---|
| Interpretation | Text first, context next, purpose to confirm or resolve | Project Blue Sky Inc v ABA (1998) 194 CLR 355; SZTAL v Minister for Immigration (2017) 262 CLR 362 |
| Torts | Causation: factual causation first, then scope of liability | Wrongs Act 1958 (Vic) s 51(1) |
| Constitutional | Structured proportionality: suitable, necessary, adequate in its balance | McCloy v New South Wales (2015) 257 CLR 178 |
| Evidence | Relevance first, then the exclusionary rules, then the discretions | Evidence Act 2008 (Vic) ss 55–56, 59 ff, 135, 137 |
The checklist or the staircase? On a checklist the order does not matter and a gap anywhere sinks it. On a staircase the order is the law. If you can tick the boxes in any order it is a checklist. If a box only appears after the one before it, take the stairs.
The compass
Many pulls, one needle
What it means
One standard read through several factors, none decisive and none required. The factors are pulls on a single needle; the needle settles differently in every case, and the conclusion is only as firm as the spread of the factors allows.
How to work it
Group the factors that pull each way, weigh them openly against the standard, and conclude with calibrated confidence — “on balance” is not a weakness on a compass, it is the correct register. The error is treating factors as elements: announcing the claim fails because one factor is absent converts a compass into a checklist and misstates the law.
Where the contest sits
In characterising the factors — whether a given fact counts as a pull at all, and how hard it pulls. Compass paragraphs are won by the side that fights over weight, not over presence.
The tell on the page
“Have regard to”, “including but not limited to”, a non-exhaustive list of considerations attached to a single evaluative standard.
The compass at work
| Subject | The compass | Authority |
|---|---|---|
| Corporations | De facto director: company size, participation in decision-making, how outsiders regard the person, read together and none decisive | Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 |
| Torts | Breach: probability, gravity, burden of precautions, social utility | Wyong Shire Council v Shirt (1980) 146 CLR 40; Wrongs Act 1958 (Vic) s 48 |
| Criminal | Sentencing by instinctive synthesis of all relevant factors | Markarian v The Queen (2005) 228 CLR 357 |
| Property | Fixture or chattel: degree and object of annexation | Holland v Hodgson (1872) LR 7 CP 328 |
| Consumer / Equity | Statutory unconscionability assessed against a non-exhaustive list of considerations | Australian Consumer Law s 22 |
The compass or the scales? The scales have two pans and you weigh one interest against another. The compass has one needle and many pulls on it. If the rule names two competing interests, take the scales. If it names one standard and a list of considerations, take the compass.
The scales
Two pans, to and fro
What it means
Two competing interests, named by the law, weighed against each other, with the conclusion wherever they come to rest. The pans are fixed before you start: you do not choose what to weigh, only what the facts put in each pan.
How to work it
Name both interests with authority first. Then move between the pans point by point — this fact adds weight here, that fact there — rather than building two separate piles and comparing them at the end. The reader should watch the balance move.
Where the contest sits
Over what goes in each pan and how much it weighs. The interests themselves are rarely in dispute; the contest is the loading.
The tell on the page
Two named interests joined by “against”, “outweighs”, or “balance”: the probative value against the prejudice, the plaintiff’s injury against the defendant’s.
The scales at work
| Subject | The scales | Authority |
|---|---|---|
| Remedies / Procedure | Balance of convenience: the plaintiff’s injury without an injunction against the defendant’s injury under one | ABC v O’Neill (2006) 227 CLR 57; American Cyanamid Co v Ethicon Ltd [1975] AC 396 |
| Evidence | Probative value against the danger of unfair prejudice | Evidence Act 2008 (Vic) s 137 |
| Constitutional | The final step of proportionality: the benefit of the law’s purpose against the burden on the freedom | McCloy v New South Wales (2015) 257 CLR 178 |
The twist
The twist · This rule has an unless
Not a seventh shape. The six shapes describe how a rule’s own requirements combine; the twist describes the rule’s relationship to its exceptions, so it sits on a different axis and any of the six can carry it. A twisted rule applies unless a defined exception is made out, or holds as a default until something displaces it.
The twist adds two things a bare shape does not. The first is defeasibility with discipline: the rule is presumptive, and it is displaced only within recognised categories — sympathetic facts that fall outside those categories do not displace it, because a default no one has lawfully displaced still stands. The second is a burden of displacement: always ask who must untwist the rule. The party relying on the exception usually carries that burden, but not always, and locating it is part of the analysis — in self-defence the accused carries only an evidential burden, and once it is raised the prosecution must eliminate the defence beyond reasonable doubt (Zecevic).
How to work it
State the rule with its authority first, in its shape. Only then test the exceptions the facts actually activate, each on its own requirements — an exception is itself a rule and has its own shape. The two classic errors: arguing the exception without ever stating the rule it qualifies, and treating a default as displaced by facts that merely look bad.
The tell on the page
“Unless”, “subject to”, “does not apply if”, “it is a defence that”, or a presumption expressed to yield to evidence.
The twist at work
| Subject | The twisted rule | Authority |
|---|---|---|
| Corporations | Separate legal personality holds; the veil is disturbed only within recognised categories | Salomon v A Salomon & Co Ltd [1897] AC 22 |
| Corporations | The duty of care holds; a director who makes out every element of the business judgment rule untwists it | Corporations Act 2001 (Cth) s 180(1)–(2) |
| Property | The registered proprietor’s title is indefeasible except for fraud and the other statutory exceptions | Transfer of Land Act 1958 (Vic) s 42; Breskvar v Wall (1971) 126 CLR 376 |
| Evidence | Hearsay is inadmissible unless an exception applies | Evidence Act 2008 (Vic) s 59 and the exceptions following |
| Criminal | Criminal liability holds unless self-defence, once raised, is not disproved | Zecevic v DPP (Vic) (1987) 162 CLR 645 |
| Interpretation | Fundamental rights survive unless the words are unmistakably clear | Coco v The Queen (1994) 179 CLR 427 |
| Equity | The presumptions of resulting trust and advancement hold until rebutted by evidence of actual intention | Calverley v Green (1984) 155 CLR 242 |
Three plays to carry with the shapes
The plays are moves, not shapes. A shape describes the structure of a rule; a play describes something you do to a problem. Each play is a question you put to the problem before or after the substantive rules run — and the rule that answers a play’s question has its own shape, which is how the plays and the shapes compose.
The gate
Some questions cannot be answered until you know which gate you are standing at. Classification comes first: the person, the instrument, or the claim must be characterised before any substantive rule applies, because each gate opens onto a different corridor of rules. Walk through the wrong one and every paragraph that follows is wasted. Decide the gate expressly, with its test and authority, before touching the substantive rules — never let the classification be implied.
Where the contest sits
The examiner builds facts that sit near the gatepost — the quasi-director, the marginally relevant document, the borderline consumer. If the classification were easy, the gate would not be in the problem.
The gate at work
ConstitutionalIs the law one “with respect to” a head of power? Characterisation by sufficient connection (Grain Pool of WA v Commonwealth).
CorporationsIs the person a “director” before any duty can bite? The gate is opened by a keyring (s 9).
RemediesAre damages adequate? Only inadequacy opens the corridor to specific relief (Dougan v Ley).
PropertyFixture or chattel? This gate is opened by a compass (Holland v Hodgson).
The measure
Quantification, and not only of money. Fix both ends before you compute: name the comparator positions precisely, run the figures the problem gives you, and state the fallback measure if your primary one is refused. A number computed before both ends are fixed is not a measure; it is a guess with arithmetic. Say the comparator out loud before any figure appears.
Where the contest sits
At the ends, not the arithmetic. Once the comparator positions are fixed, the computation is rarely contested; the fight is over which counterfactual the law adopts.
The measure at work
ContractThe position had the contract been performed (Robinson v Harman; Amann Aviation).
TortsThe position had the tort not been committed (Livingstone v Rawyards Coal Co).
CriminalThe grading of harm: injury against serious injury fixes the offence (Crimes Act 1958 (Vic) ss 15–18).
EstoppelDetriment found by comparing the relying party’s positions (Sidhu v Van Dyke).
The break
Something happens after the wrong and looks like it cuts the chain of causation. Test it. The cut only takes if the intervening event is truly independent and overwhelming — a free, deliberate and informed human act, or an event so abnormal it overwhelms the original wrong — and that is rare. Identify the candidate event, state the subject’s severance standard, and remember the default: the chain holds.
Expect the chain to hold
Most candidates fail. An additional cause is not a break (March v Stramare), nor is the ordinary operation of natural forces (Hallett), nor negligent medical treatment unless inexcusably bad (Mahony), nor a victim’s reasonable act of self-preservation (Royall), nor a rescuer’s intervention (Chapman v Hearse). The paragraph that finds a break must explain why this event, unlike all of those, is genuinely independent of the wrong.
The break at work
TortsA subsequent cause does not break the chain merely by contributing (March v Stramare).
TortsThe break requires a voluntary act or independent abnormal event (Haber v Walker).
CriminalA victim’s escape from a well-founded fear does not break the chain (Royall).
RemediesLoss after a fiduciary breach is cut off only by events truly independent of it (Canson).
Real doctrine is built by combining a small set of structures, not by inventing a new one for every rule, so the pieces nest. Murder is a checklist whose fault element is a keyring (Crabbe). Structured proportionality is a staircase whose final step is the scales (McCloy). Section 180 is a standard of care carrying a twist, and untwisting it means satisfying a checklist — the four elements of the business judgment rule. Indefeasibility is an arrow carrying a twist (s 42). The gate is answered by a keyring in corporations law (s 9) and by a compass in property (Holland v Hodgson). Work at one level at a time: name the shape of the rule in front of you, do the work that shape demands, then zoom back out.
The sorting tests at a glance
Most shape errors are near-miss errors: the right family, the wrong member. Each row below is the single question that separates a pair students most often confuse.
| If you cannot tell… | Ask… |
|---|---|
| Checklist from staircase | Could you argue the elements in any order without legal error? Free order: checklist. Mandated order: staircase. |
| Checklist from compass | Is the absence of one item fatal? Fatal: element (checklist). Merely weakening: factor (compass). |
| Keyring from compass | Can one route alone satisfy the rule? Yes: key (keyring). No single factor ever suffices: compass. |
| Compass from scales | Has the law named exactly two competing interests? Two pans: scales. One standard, open factors: compass. |
| Keyring from twist | Which way do the alternatives run? Routes into satisfying the rule, turned by the proponent: keyring. Routes out of the rule’s application, opened by the opponent: twist. |
| Scales from the measure | Is the question whether or how much? Whether: scales. How much, between two fixed positions: the measure. |
| Arrow from twisted arrow | Does the statute say “unless” or “subject to”? Then the arrow is presumptive and the twist analysis follows. |
| The break from the twist | Is the escape defined in advance by law (twist) or thrown up by the facts as a later event attacking causation (break)? |
Name the shape
Thirty rules from cases and provisions you will meet across Obligations, Public Law, Criminal Law and Corporations Law. Pick the shape each one takes. When you answer, the feedback shows what separates that shape from its neighbours and how the rule cut on the decisive facts of the case. Nothing you answer is saved or sent anywhere.
Put it to work
The shapes earn their keep in practice. Pick a bank and name the shape before you write a word.
Public law practice bank · Remedies practice bank · Corporations practice bank · Criminal law practice bank · Administrative law practice bank