Civil Trials Bench Book Update 30 published

Update 30, May 2016

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

  • “Search orders” includes updated extracts from Practice Note SC Gen 13 at [2-1050].
  • “Persons under legal incapacity” includes reference to CPA s 76(3A) at [2-4700] inserted by Courts and Other Justice Portfolio Legislation Amendment Act 2015 dealing with approval to compromise or settlement with persons, under legal incapacity, attaining the age of 18.
  • “Setting aside and variation of judgments and orders” at [2-6600] includes Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190. This held that the focus of r 36.15(1) is whether the judgment or order to be set aside or varied was “given, entered or made irregularly, illegally or against good faith”, rather than on the merits of any decision or the irregularity of other steps in the proceedings, and r 36.15(1) applies with particular force to default or consent judgments or orders and those given or made ex parte. Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4 at [2-6620] discusses the approach to be taken, where it appears that the primary judge has overlooked a significant point in formulating the court’s judgment, which is for an application to be made to the judge pursuant to r 36.16 to set aside or vary the judgment.

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

  • “Opinion” at [4-0630] includes Morgan v R [2016] NSWCCA 25 which held that the principles in Honeysett v The Queen (2014) 253 CLR 122 did not cast doubt on the use of evidence from “ad hoc” expert witnesses.
  • “Tendency and coincidence” at [4-1140] includes Hughes v R [2015] NSWCCA 330 which reiterated the NSW approach to be taken in assessing “probative value” as to whether tendency evidence should be admitted; IMM v The Queen (2016) 90 ALJR 529 at [4-1100] and [4-1140] has resolved the jurisdictional difference between NSW and Victoria that questions of credibility are matters for the jury not the judge; BC v R [2015] NSWCCA 327 at [4-1140] held that in some cases it is not improper, and thus not prejudicial, for a jury to reason that if the accused is a particular “sort of person” (namely a person who has demonstrated the asserted tendency), then he is more likely to have committed the alleged offence.
  • “Privilege” includes Hancock v Rinehart (Privilege) [2016] NSWSC 12 and Rinehart v Rinehart [2016] NSWCA 58 at [4-1500]. Both deal with the procedure to be adopted where a claim of legal professional privilege is taken to documents sought on subpoena.
  • “Discretionary and mandatory exclusions” at [4-1620] includes Crowe-Maxwell v Frost [2016] NSWCA 46, which held that in a given case, statements made in verified pleadings constitute admissible evidence; IMM v The Queen at [4-1630] held that questions of reliability or credibility are matters for the jury, and the judge may proceed on the basis that the evidence is credible and reliable; R v Ali [2015] NSWCCA 72 at [4-1630] applied Evidence Act 1995 s 137 when considering the probative value of the DNA evidence undermined because of the possibility of contamination and doubts about the chain of possession; R v Gallagher [2015] NSWCCA 228 at [4-1640] analysised Evidence Act s 138 in considering whether a police officer was trespassing and thus illegally obtaining evidence.

The Particular proceedings chapter has been revised to incorporate amendments to:

  • “Intentional torts” at [5-7110] includes SU v Commonwealth of Australia [2016] NSWSC 8 which held that two immigrants in detention had been unlawfully arrested and imprisoned as they were taken from the detention centre and detained in the police cells.
  • “Child care appeals from the Children’s Court” at [5-8090] includes Re Mary [2014] NSWChC 7 and Re Timothy [2010] NSWSC 524, which concluded that interim orders can be amended without the need for a Children and Young Persons (Care and Protection) Act 1998 s 90 application.

The Damages chapter has been revised at “Interest” at [7-1070] to incorporate Grills v Leighton Contractors Pty Ltd (No 2) [2015] NSWCA 348 and Grima v RFI (Aust) Pty Ltd [2015] NSWSC 332 on interest after judgment.

The Enforcement of judgments chapter has been revised to incorporate the following changes:

  • “Enforcement of local judgments” includes CPA s 123(2A) at [9-0380] introduced by Courts and Other Justice Portfolio Legislation Amendment Act 2015 dealing with payments by garnishees.
  • “Enforcement of foreign judgments” at [9-0740] includes Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 90 ALJR 228 which discusses the application of the Foreign States Immunities Act 1985 (Cth) to proceedings under the Foreign Judgments Act 1991 (Cth).