Civil Trials Bench Book Update 29 published

Update 29, November 2015

Update 29 contains amendments to a number of chapters.

The Preliminary chapter has been revised to incorporate the following changes to “Disqualification for bias” which includes at [1-0020] a recent judgment on apprehended bias, Isbester v Knox City Council (2015) 89 ALJR 609.

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

  • “Setting aside and variation of judgments and orders” to include Violi v Commonwealth Bank of Australia [2015] NSWCA 152 as an example of a judgment set aside if given or entered irregularly at [2-6600].
  • “Time” includes Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130 at [2-7110] which discusses how the court may extend time, even if the application for extension is made after the time has expired.

The Juries chapter has been revised to include Smith v The Queen (2015) 322 ALR 464 at [3-0045] where the High Court considered appropriate disclosure to the parties of the contents of notes from a jury.

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

  • “Opinion” includes Haidari v R [2015] NSWCCA 126 at [4-0600] which rejected the argument that identification was opinion evidence; [4-0630] includes Verryt v Schoupp [2015] NSWCA 128, where it was held that a psychiatrist’s evidence was not admissible as it was not based on any specialised knowledge of a 12-year-old child’s behaviour in the circumstances of the accident; and BHP Billiton Ltd v Dunning [2015] NSWCA 55 which admitted the evidence of a non-expert witness who was familiar with the operations of the steelworks.
  • “Tendency and coincidence” includes White v Johnston (2015) NSWLR 779 at [4-1140] which discusses the need for caution in using tendency evidence in civil proceedings.
  • A new section “Other matters — the drawing of inferences” has been included at [4-1900]ff to discuss the rules in Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298.

The Particular proceedings chapter has been revised to incorporate amendments to “Intentional torts” at [5-7060] to include State of NSW v McMaster [2015] NSWCA 228 where the availability of self-defence at common law was affirmed.

The Damages chapter has been revised to include:

  • The Nominal Defendant v Aychahawchar [2015] NSWCA 58 at [7-0020] which deals with the onus of proof of mitigation.
  • Sampco Pty Ltd v Wurth [2015] NSWCA 117 and Falco v Aiyaz [2015] NSWCA 202 at [7-0020] deal with causation for pre- and post- injury conditions.
  • Verryt v Schoupp [2015] NSWCA 128 at [7-0030] which deals with contributory negligence.
  • Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 at [7-0040] which held the Competition and Consumer Act did not exclude recovery of non-economic loss under the Civil Liability Act 2002 even though causes of action were available to the plaintiff under both Acts.
  • Cupac v Cannone [2015] NSWCA 114 at [7-0050] which rejected the contention that the award for past income loss should be increased to take account of inflation from the date of the plaintiff’s injury.
  • White v Benjamin [2015] NSWCA 75 at [7-0050] and [7-0060] which rejected the proposition that a wife’s future income loss should be discounted because her husband’s employment might persuade her to abandon her own career ambitions; and the six hour/six month threshold must be separately assessed in respect of both the claim for the plaintiff’s personal loss of capacity and to the claim of lost capacity to care for others.
  • Coles Supermarkets Australia Pty Ltd v Fardous [2015] NSWCA 82 at [7-0050] which held that the requirements of s 13 of the Civil Liability Act 2002 were in accordance with the principles that a plaintiff bears the onus of proof of the extent of injury and of consequential loss of income-earning capacity and the two-stage process of assessment that requires a plaintiff to establish his or her theoretical earning capacity but for injury and the extent to which that earning capacity would, but for injury, have been productive of income.
  • McKenzie v Wood [2015] NSWCA 142 at [7-0060] which held that a plaintiff was entitled to recover the cost of a hip replacement, despite there being a pre-accident progressive condition, due to the accident necessitating urgent intervention.
  • Perisher Blue Pty Ltd v Nair-Smith (2015) 320 ALR 235 at [7-0060] where the Court of Appeal accepted that the plaintiff was entitled to recover damages for the cost of commercially provided services at the established market rate rather than at the lower rate she paid for domestic assistance at the time of trial.
  • Tilden v Gregg [2015] NSWCA 164 at [7-0110] which applied the principle that a civil court, when considering whether it was appropriate to award aggravated or exemplary damages, would ordinarily proceed on the basis that the criminal conviction and sentence of the assailant had adequately dealt with the elements of punishment and deterrence.

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

  • “Contempt in the face of the court” includes Court of Appeal, Registrar of the v Maniam (No 1) (1991) 25 NSWLR 459 at [10-0130] regarding reference to the Supreme Court; and In the matter of Steven Smith (No 2) [2015] NSWSC 1141 regarding refusal to give evidence at [10-0160].
  • “Contempt generally” at [10-0300] includes ASIC v Sigalla (No 4) [2011] NSWSC 62 and Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 where the High Court held that while contempt of court may be criminal in nature, proceedings for punishment of contempt were brought in the civil jurisdiction of the court and were “civil proceedings”; Tate v Duncan-Strelec [2014] NSWSC 1125 at [10-0430] on reprisals; Rafailidis v Camden Council[2015] NSWCA 185 and Brown Brothers v Pittwater Council [2015] NSWCA 215 at [10-0470] on consideration as to the construction of court orders.

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 29.