Civil Trials Bench Book — Update 40

Update 40 to the Civil Trials Bench Book contains amendments to:

[1-0240] Broadcast of judgments

JJ Spigelman, “The principle of open justice: a comparative perspective” (2006) 29(2) UNSW Law Journal 147 has been added to “Further references.”

[1-0400] The principle of open justice

This chapter has been revised to include a section on “Take-down orders” at [1-0410Court Suppression and Non-publication Orders Act 2010. It includes a reference to Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229, where take-down orders may be made as a means of preventing the continuation of scandalising contempt. Further, the fact the order may have limited utility or be ineffective is not a reason to refuse to make the order: AB (A pseudonym) v R (No 3) [2019] NSWCCA 46.

[1-0930] Interpreters — implementation

A new paragraph regarding implementation has been added following the amendment of the Uniform Civil Procedure Rules on 8 November 2019, which inserted Pt 31, Div 3 (r 31.55–31.64). This provides for rules concerning interpreters based on the Judicial Council on Cultural Diversity’s Model Rules set out in the Recommended National Standards for Working with Interpreters in Courts and Tribunals.

[2-0010] Case management overview

A reference to Choy v Tiaro Coal Ltd (2018) 98 NSWLR 493 at [36]–[37] has been added, where non-compliance with the requirements as to service in r 2.7 of the Corporations Rules was held to be an irregularity within the meaning of s 63 of the Civil Procedure Act entitling the recipient to apply under s 63(3) for orders setting aside service, but did not of itself invalidate the proceedings or the service. There was no error in the primary judge’s finding that it was appropriate to delay service for the applicant to secure a litigation funding agreement.

[4-1515] Privilege — observations on the operation of s 118

This paragraph has been amended in relation to the “dominant purpose” test, where the Full Court in Douglas v Morgan [2019] SASCFC 76 set out a useful summary of the determination of the criteria for the existence of legal professional privilege at [44]–[53].

[5-4000] Defamation

This chapter has been revised to include the following commentary:

  • The cases of Lazarus v Azize [2015] ACTSC 344; Asmar v Fontana [2018] VSC 382 have been added at [5-4010] as further examples in other jurisdictions where summary judgment applications were brought on the basis that the claim is trivial.
  • In relation to other pleadings at [5-4010], claims for defamation have been brought as a cross-claim to a claim for misleading and deceptive conduct (Madden v Seafolly Pty Ltd (2014) 313 ALR 1) and infringement of copyright (Boyapati v Rockefeller Management Corp (2008) 77 IPR 251) as well as to a claim for defamation (Greinert v Booker [2018] NSWSC 1194).
  • Other interlocutory applications at [5-4040] has been updated to include that applications to strike out defences, and in particular the defence of justification, have been granted in a number of actions in the Federal Court: see for example ABC v Chau Chak Wing [2019] FCAFC 125.
  • The Council of Attorneys Generals’ Review of Model Defamation Provisions Discussion Paper, 22 February 2019, has been added to “Further references”.

[8-0000] Costs

The following commentary has been revised:

  • At [8-0010] Power of the court to order costs, to include the recent High Court decision on the Chorley exception. In Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 the High Court held the Chorley exception does not apply to a barrister: at [3]; [63]; [70]; [99] and further the exception should not be recognised as part of the common law of Australia: at [3], [39]; [57]; [63]; [99]; cf Nettle J at [70].
  • Also at [8-0010], commentary has been updated to reflect changes to the costs assessment regime as a result of the Legal Profession Uniform Law and the Legal Profession Uniform Law Application Act 2014.
  • A respondent’s impecuniosity is not a consideration that is relevant to the proper exercise of the court’s discretion in relation to a costs order. In Northern Territory of Australia v Sangare [2019] HCA 25, included at [8-0050], the court restated that it is basic justice that a successful party should be compensated for expenses it has incurred because it has been obliged to litigate by the unsuccessful party.

[10-0300] Civil and criminal contempt

Commentary at [10-0300] has been revised following Kostov v YPOL Pty Ltd [2018] NSWCA 306, noting the common-law requirement that a criminal trial not proceed unless the accused is fit to plead is a safeguard applicable to civil proceedings for criminal contempt.