Civil Trials Bench Book Update 38 published

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

  • [2-2300] Preliminary discovery to assess prospects has been updated following O’Connor v O’Connor [2018] NSWCA 214, where it was held that the documents of which discovery may be ordered are not limited to those relating to the entitlement to make a claim, but extend to documents going only to the quantum of a potential claim: at [90]. Further, the determination of an application for preliminary discovery under UCPR 5.3 does not involve a determination of the merits of the claim, but rather whether it “appears to the court” that a cause of action “may” exist: at [77].
  • Following UBS AG v Scott Francis Tyne as trustee of the Argot Trust (2018) 92 ALJR 968, [2-2680] Abuse of process has been updated. The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power to permanently stay proceedings as an abuse of process: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute: at [1].
  • [2-7670] Applications for leave As to the relationship between ss 9 and 14, Vexatious Proceedings Act 2008, see Quach v NSW Health Care Complaints Commission; Quach v NSW Civil and Administrative Tribunal [2018] NSWCA 175, obiter, at [22]–[26].

Substantial additions have been made to the Evidence chapter:

  • The commentary at [4-1125] Context evidence has been updated to clarify the non-tendency purpose of leading “context” evidence (formerly called “relationship” evidence) is to place the evidence of the specific charged act in its true and realistic context. Johnson v The Queen (2018) 92 ALJR 1018 at [2], decided under s 34P, Evidence Act 1929, SA, has been added which allowed the admission of “discreditable conduct evidence” where its probative value outweighed its prejudicial effect on the accused.
  • [4-1140] The tendency rule — s 97 has been updated following the recent High Court decisions including The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846, regarding the admissibility of uncharged acts as tendency evidence. In Bauer at [48] the High Court held that a complainant’s evidence of an accused’s acts of sexual misconduct not charged on the indictment in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant, whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM v The Queen (2016) 257 CLR 300 or exhibit a special, particular or unusual feature of the kind described in Hughes v The Queen (2017) 92 ALJR 52. The fact that evidence of uncharged acts is given by a complainant does not, of itself, mean it lacks significant probative value. Once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the offences: Bauer at [51]. In McPhillamy v The Queen (2018) 92 ALJR 1045, the High Court held that the tendency evidence did not meet the threshold requirement of s 97(1)(b). While proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, it was not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual assault cases its probative value.
  • [4-1190] Credibility evidence — s 101, has added Tieu v R (2016) 92 NSWLR 94 (at [26]–[36]) and Davis v R [2017] NSWCCA 257 (at [64]–[74]) to exemplify when leave of the court is required to cross-examine a witness about a matter relevant to the assessment of their credibility.
  • Regarding [4-1270] Persons with specialised knowledge — s 108C Hoyle v The Queen [2018] ACTCA 42 has been added, where the ACT Court of Appeal held that expert evidence that a victim of sexual violence may experience a “freeze response” was admissible under this provision to prevent a complainant’s credibility being undermined by her “counterintuitive behaviour … her admitted failure to protest the appellant’s inappropriate conduct” (at [230]) and expert evidence “that delay or failure to report sexual violence was common among victims of sexual violence” was capable of “substantially affecting” the credibility of a complainant “who failed to make an early complaint. … [as i]t served to neutralise the intuitive view that a delay in complaint suggested that there is nothing to complain about” (at [242]).
  • [4-1580] Loss of client legal privilege: misconduct — s 125 has been updated to include DPP v Stanizzo [2019] NSWCA 12. Regarding the loss of privilege, the communication must be made, or the contents of the document prepared, relevantly, “in furtherance of the commission of a fraud or an offence”: s 125(1)(a). In DPP v Stanizzo, the DPP’s privilege was not lost in relation to documents because even if the communication made by the victims and the witness were made in furtherance of the commission of a fraud or an offence (a proposition not established by the evidence), that alone could not remove the client legal privilege enjoyed by the Director: at [42].
  • [4-1630] Exclusion of prejudicial evidence in criminal proceedings — s 137 includes the High Court decision of The Queen v Falzon (2018) 92 ALJR 701, which held that a majority of the Victorian Court of Appeal erred in their approach to s 137 (identical to s 137 Evidence Act 1995 (NSW)) in finding that evidence of cash found at the respondent’s house was inadmissible in being unfairly prejudicial under s 137.

The Particular proceedings chapter includes the following changes:

  • [5-0255] Applications and appeals to the District Court and Local Court in federal proceedings has been updated as a result of amendments made by the Justice Legislation Amendment Act 2018 (commenced 1 December 2018). This amended Pt 3A of the Civil and Administrative Tribunal Act 2013 to enable persons to commence proceedings in the District or Local Court for the determination of original applications and external appeals that the NSW Civil and Administrative Tribunal (the Tribunal) cannot determine because it involves the exercise of federal jurisdiction. These amendments were made in response to a series of cases concerned with whether the Tribunal could exercise federal jurisdiction including Burns v Corbett (2018) 92 ALJR 423.
  • In [5-0260] Review of decisions etc of registrars, notes that decisions of the registrar of the court under cl 11(1) of the Civil Procedure Regulation 2017 are not reviewable by a court under Div 4, Pt 49 of the Rules: (r 49.19(2)).
  • [5-2005] Jurisdiction in “commercial matters” has been added. Doubts as to the jurisdiction of the District Court in commercial matters were dealt with by the Justice Legislation Amendment Act (No 3) 2018. This Act amended the District Court Act 1973 to clarify that the District Court has jurisdiction to determine any action arising out of a commercial transaction in which the amount (if any) claimed does not exceed the court’s jurisdictional limit: s 44(1)(c1) commenced on assent on 28 November 2018 and has retrospective effect from 2 February 1998. The amendment was made retrospective to ensure that past judgments are protected from challenge: Sch 3, Pt 10; Second Reading Speech p 70: Legislative Assembly, 24 October 2018: Gells Pty Ltd t/a Gells Lawyers v Jefferis [2019] NSWCA 59 at [5]–[6].
  • [5-5000] Possession list has been updated in its entirety by his Honour Justice D Davies.
  • [5-7170] Justification has been updated to include a discussion of State of NSW v Robinson [2016] NSWCA 334, where the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed the arrest was necessary for one of the purposes in s 99(3) LEPRA (now repealed) and the decision to arrest must have been made on reasonable grounds: at [27], [44].
  • A new paragraph [5-7190] Damages including legal costs has been added, and includes a discussion of s 70 of the Crimes (Appeal and Review) Act 2001. Section 70 limits the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made. A party cannot avoid the constraints of s 70 by later claiming costs incurred in conducting a criminal appeal in later civil proceedings: State of NSW v Cuthbertson [2018] NSWCA 320.
  • Following the Children and Young Persons (Care and Protection) Amendment Act 2018, which commenced 4 February 2019, a number of amendments have been made to [5-8000] ff Child care appeals from the Children’s Court chapter.

The Costs chapter has been updated at [8-0010] to note that the High Court heard an appeal in Bell Lawyers Pty Ltd v Pentelow and reserved its decision on 9 May 2019.

The Table of Cases and Table of Statutes have been updated to include amendments up to and including Update 38.