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Civil Trials Bench Book: Update 28

Update 28, June 2015

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Persons under legal incapacity” includes Iskanda v Mahbur [2011] NSWSC 1056 and Sperling v Sperling [2015] NSWSC 286 at [2-4650] on appointing tutors.

  • “Setting aside and variation of judgments and orders” includes Grant Samuel Corporate Finance Pty Limited v Fletcher (2015) 89 ALJR 401 at [2-6650]. This held that r 36.16(2)(b) and other provisions of the UCPR do not apply where the court is exercising Federal jurisdiction and the Constitution or the relevant Commonwealth law “otherwise provides”.

The Particular proceedings chapter has been revised to include the following changes:

  • “Appeals except to the Court of Appeal, reviews and mandatory orders” refers to the new r 50.16A at [5-0220] which provides there is an obligation on a defendant who objects to the competency of an appeal to apply for an order dismissing the appeal as incompetent.

  • “Child care appeals from the Children’s Court” includes the recent reforms to the Children and Young Persons (Care and Protection) Act 1998 to include parent responsibility contracts at [5-8053] and parent capacity orders at [5-8056]; the permanency planning principles at [5-8060]; changes to the court’s power to make contact orders at [5-8080]; changes to guardianship orders at [5-8093] and supervision and prohibition orders at [5-8096]; as well as recent judgments, Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 and JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [5-8020] providing failure to raise a specific point of differentiation between the Children and Young Persons (Care and Protection) Act 1998 and the United Nation’s Convention on the Rights of the Child1989 did not constitute error.

“Interest” in the Damages chapter includes Gadens Lawyers Sydney Pty Ltd v Symond [2015] NSWCA 50 at [7-1000] considering issues relating to interest up to judgment.

The Costs chapter has been revised to include the Legal Profession Uniform Law Application Act 2014 at [8-0000]. Section 4 provides that the Legal Profession Uniform Law, which will harmonise regulation of the legal profession in States and Territories of Australia, will apply to NSW. Changes to legal practice and conduct rules, particularly in areas such as the personal liability of legal practitioners as to costs, will result. New judgments have also been included:

  • Milne v Ell [2014] NSWCA 407 and Bernstein v Poon 2015 ONSC 155 at [8-0010] regarding depriving a successful party of costs

  • BlueScope Steel Ltd v Cartwright (No 2) [2015] NSWCA 96 at [8-0070] where the court must apportion the costs of multiple parties on the basis that costs “follow the event”

  • Simmons v Rockdale City Council (No 2) [2014] NSWSC 1275 at [8-0080] comparing Bullock and Sanderson orders

  • Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19, Mitry Lawyers v Barnden [2014] FCA 918 and De Costi Seafoods (Franchises) Pty Ltd v Wachtenheim (No 5) [2015] NSWDC 8 at [8-0110] on the Supreme Court’s inherent power to make costs orders against practitioners

  • Warton v Yeo [2015] NSWCA 115 at [8-0120] on executors’ costs,

  • Colquhoun v District Court of NSW [2014] NSWCA 460 at [8-0170] where a gross sum costs order may be appropriate in proceedings brought under the Children and Young Persons (Care and Protection) Act 1998.

The Contempt chapter has been revised to incorporate the following changes:

  • “Contempt generally” includes Tate v Duncan-Strelec [2014] NSWSC 1125 regarding the time at which an internet publication takes place at [10-0320], criticism of the court constituting contempt at [10-0410] and publication of affidavits served but not deployed in proceedings at time of publication on the internet at [10-0490]; NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456 and Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10 at [10-0420] regarding using statutory powers to gain an advantage; Rumble v Liverpool Plains Shire Council [2015] NSWCA 125 at [10-0460] on validity of orders; Hoxton Park Resident's Action Group Inc v Liverpool City Council [2014] NSWSC 704 at [10-0480] with regards to enforcement by contempt proceedings not being available.

  • “Purging contempt” includes Liverpool Plains Shire Council v Rumble (No 3) (2014) 205 LGERA 170 and Camden Council v Rafailidis (No 5) [2014] NSWLEC 85 at [10-0710] in relation to continuing breaches of court orders, it is open to a court to suspend a fine for a certain period, or to impose a fine for a continuing breach after a specified date; and Young v Jackman (1986) 7 NSWLR 97 at [10-0720], where the rule that a contemnor cannot be heard or take proceedings in the same cause until he has purged his contempt, extends to a case where a party is considered to be prima facie in contempt.

The IndexTable of Cases and Table of Statutes have also been updated to include amendments up to and including Update 28.

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