Civil Trials Bench Book — Update 41 published

The following changes have been incorporated into this update:

[2-0500] Alternative dispute resolution

This chapter has been substantially revised and updated.

New paragraphs have been added at [2-0588] Jurisdiction and rules of evidence, [2-0595] Arbitrations under the Commercial Arbitration Act 2010 and at [2-0598] Role of the court under the Commercial Arbitration Act, which include the cases of Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13 and Ku-ring-gai Council v Ichor Constructions Pty Ltd (2019) 99 NSWLR 260.

The article, U Tahur, “Does mandatory ADR impact on access to justice and litigation costs?” (2019) 30 ADJR 31, has been added to Further reading.

[2-1200] Change of venue and transfer between NSW courts

The case of JK Williams Staff Pty Ltd v Sydney Water Corp [2020] NSWSC 220, regarding the appropriateness of proceedings being heard in the Land and Environment Court, has been added at [2-1210] under the subheading Transfer between Supreme Court and Land and Environment Court.

[2-2600] Stay of pending proceedings

Two new cases have been added at [2-2690] Other grounds on which proceedings may be stayed:

[2-6300] Judgments and orders

A minor amendment has been made at [2-6490] Entry of judgments and orders following the Uniform Civil Procedure (Amendment No 93) Rule 2020, No 140 of 2020 (LW 9 April 2020), which inserts “judicial officer or” before “registrar” in rule 36.11(2A)(a).

[5-0200] Appeals except to the Court of Appeal

Regarding an appeal from an associate judge of the Supreme Court to a judge of that court, the court may receive further evidence (s75A(7)), but only on special grounds if the appeal is from a judgment following a trial or hearing on the merits. For the meaning of “special grounds”, the case of Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (2019) 99 NSWLR 447 at [68]–[70] has been added.

[5-7000] Intentional Torts

This chapter has been revised as follows:

[5-7120] Malicious prosecution

It is noted that in relation to proceedings for damages on the basis of malicious prosecution, an appeal to the Court of Appeal was dismissed in Wood v State of NSW [2019] NSWCA 313.

[5-7170] Justification

In proceedings for false imprisonment, it is necessary to consider first whether the plaintiff was detained and second, if so, whether there was a justification for the detention. The High Court unanimously agreed in NSW v Robinson [2019] HCA 46, that an arrest under s 99 of LEPRA can only be for the purpose, as soon as reasonably practicable, of taking the arrested person before a magistrate and that the arrest in this case was unlawful.

[5-7185] Collateral abuse of process

Following the decision in Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, a new section outlining the tort of collateral abuse of process has been added.

[5-8500] Applications for judicial review of administrative decisions

The case of Li v Attorney General for NSW (2019) 99 NSWLR 630 has been added at [5-8505] Jurisdiction, where in dismissing an appeal pursuant to s 69 of the Supreme Court Act, it was doubted the aphorism that justice must be “seen to be done” was ever intended to be a test of the validity of judicial, let alone administrative, decision-making and does not constitute a separate ground of review or a freestanding test for validity of that decision-making.

[9-0700] Enforcement of foreign judgments

D Butler, “Enforcement of foreign judgments: does an issue estoppel arise from a foreign court’s determination of its own jurisdiction?” (2019) 93 ALJ 558 has been added to “Further references”.