Civil Trials Bench Book – Update 42 published

[1-0000] Disqualification for biasThe case of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, which held that an intermediate appellate court dealing with allegations of apprehended bias should address the issue of bias first, as the necessary result, if bias is established, is a retrial, has been added at [1-0020] Apprehended bias.


[1-0400] Closed court, suppression and non-publication ordersThe cases of DRJ v Commissioner of Victims Rights [2020] NSWCA 136 and Misrachi v The Public Guardian [2019] NSWCA 67 have been added at [1-0410] Court Suppression and Non-publication Orders Act 2010. These cases discuss the interaction between ss 6 and 8 of the Act, with the Court of Appeal rejecting a submission that the principle of open justice under s 6 does not need to be considered if one of the grounds in s 8 is established.Changes made by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, which substituted “indecent assault” and “act of indecency” with “sexual touching and sexual act respectively within the meaning of Div 10 of Pt 3 of the Crimes Act 1900” are reflected under the heading Suppression or non-publication order must be “necessary”. Examples of some species of litigation which are inimical to the notion that anything that occurs in a court should be publicly available have been also added to this paragraph.It is also noted that the Property, Stock and Business Agents Act 2002 has been renamed as the Property and Stock Agents Act 2002 (from 23 March 2020; LW 16.12. 2019) at [1-0430] and in the Legislation section.[2-1600] Service of process outside NSW

The case of Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 has been added at [2-1630] Service outside Australia pursuant to UCPR Pts 11 and 11A. This case considered an application for leave to serve process. An article by the Honourable Justice Andrew Bell on “Private international law in practice across the divisions: some recent developments and caselaw” (2020) 14 TJR 1 has been added to Further reading.

[2-2600] Stay of pending proceedings

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 and The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 have been added to [2-2690] Other grounds on which proceedings may be stayed. A permanent stay will be granted where it is demonstrated on the balance of probabilities that a fair trial would not be possible in the circumstances. Further, a permanent stay may be granted where there is significant delay between the events giving rise to the cause of action and the commencement of proceedings to the extent that the delay has resulted in relevant evidence becoming unavailable or impoverished: Moubarak by his tutor Coorey v Holt.

[2-5400] Parties to proceedings and representation

This chapter has been reviewed and updated, including the addition of Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2020] NSWCA 66 and BMW Australia Ltd v Brewster [2019] HCA 45 at [2-5500] Power of the courtA majority of the High Court in BMW Australia Ltd v Brewster held that s 183 (and the identical s 33ZF of the Federal Court of Australia Act 1976), properly construed, does not empower a court to make a common fund order. In Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia, a five-judge bench of the Court of Appeal held that an order for “class closure” which in effect destroyed a person’s cause of action within the limitation period, without a hearing and with no guarantee that the person would necessarily know of the outcome or consequence of their failure to register, was not an order that was “necessary to ensure that justice is done in the proceedings” or “appropriate … to ensure that justice is done in the proceedings.”

[2-6200] Issues arising under foreign law

A new paragraph has been added at [2-6230] Evidence obtained on commission for proceedings in another court or tribunal relating to the Evidence on Commission Act 1995. This section discusses that the Supreme Court may exercise the court’s powers under the Evidence on Commission Act to render assistance to obtain evidence available in the State in aid of civil proceedings in another court, but that s 33(6), in general terms prohibits an order being made requiring a person to provide discovery of documents: British American Tobacco Australia Services Ltd v Eubanks for the United States of AmericaApplication by the Attorney General of NSW [2020] NSWSC 1007.

[2-6600] Setting aside and variation of judgments and orders

The discretionary power of the court to set aside an undefended judgment is contained in r 36.16(2)(b). The case of Pham v Gall [2020] NSWCA 116, discussing the unfettered, though judicial, discretion of rule 36.16(2)(b) has been added at [2-6650] Absence of a party/undefended judgments.

[3-0000] Civil juries

The case of Flowers v State of NSW [2020] NSWSC 526, involving a discussion of s 85(2)(b) has been added under “Current position” in the Introduction at [3-0000].

[5-4000] Defamation

The chapter on defamation has been updated. At [5-4006] Defamation Amendment Act 2020, information regarding the statutory review of the Australian uniform defamation legislation, resulting in the Defamation Amendment Act 2020 (NSW), which was assented to on 11 August 2020, has been added. The Act has not been proclaimed and has therefore not commenced. That process is unlikely to occur until the cognate legislation has passed though the legislatures of all States and territories. A memorandum as to the principal changes made by the Act appears at Appendix 1.

The cases of Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 (regarding costs consequences) and Nine Network Australia Pty Ltd v Wagner [2020] QCA 221 (regarding aggravated damages) have been added at [5-4010] The pleadings. In Offer of amends, the cases of Mohareb v Booth [2020] NSWCA 49, Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 and Goldberg v Voigt [2020] NSWDC 174 have been added. In Mohareb v Booth, the NSWCA confirmed the correctness of observations in Zoef v Nationwide News Pty Ltd that the mere service of a statement of claim (despite containing no words to indicate it was intended as a Concerns Notice) and the failure to serve an offer to make amends in response to service of proceedings within the 28-day statutory period would prevent reliance upon the defence at trial.

[5-7000] Intentional torts

A further example has been added to [5-7110] What is imprisonment? In Lewis v ACT [2020] HCA 26, where the High Court found that, despite the unlawful detention of the appellant, since the same imprisonment would have occurred lawfully even if the Board had not made an invalid decision, there was no loss for which to compensate the appellant. The case of Owlstara v State of NSW [2020] NSWCA 217, concerning s 99 of LEPRA, has been added at [5-7170] Justification.

A new section on the tort of Misfeasance in public office has been added at [5-7188]. The principles emerging from Northern Territory v Mengel (1995) 185 CLR 307; Sanders v Snell (1998) 196 CLR 329; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; Odhavji Estate v Woodhouse [2003] 3 SCR 263; Sanders v Snell (2003) 130 FCR 149; Commonwealth of Australia v Fernando (2012) 200 FCR 1; Emanuele v Hedley (1998) 179 FCR 290; Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311: Hamilton v State of NSW [2020] NSWSC 700 and the more recent case Ea v Diaconu [2020] NSWCA 127 are discussed. See also Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732.

At [5-7190] Damages including legal costs, the case of Lewis v ACT [2020] HCA 26 has been added. This case considered a claim for false imprisonment, and the High Court held that an independent species of “vindicatory damages”, or substantial damages merely for the infringement of a right, and not for other purposes including to rectify the wrongful act or compensate for loss, is  not supported by authority or principle.

[6-1000] The legal framework for the compensation of personal injury in NSW

It is noted that this chapter may be impacted by the Personal Injury Commission Act 2020 (No 18), assented to 11 August 2020. (Schedules 5 and 6 of the Act are not yet in force.) The Personal Injury Commission (PIC) will be established on the establishment date, expected to be 1 March 2021 (s 6(1)). Section 12 provides that the PIC will have a Workers Compensation Division and a Motor Accidents Division. The impact of this legislation on the chapter is currently being reviewed, and it will be updated accordingly.

[9-0700] Enforcement of foreign judgments

The case of Bao v Qu; Tian (No 2[2020] NSWSC 588 has been added to [9-0700] Introduction. An article by the Honourable Justice Andrew Bell on “Private international law in practice across the divisions: some recent developments and caselaw” (2020) 14 TJR 1 has been added to References.

The Table of cases has been revised and is current to Update 42.