Civil Trials Bench Book Update 43 published

The following changes have been incorporated into this update:

[1-0400] Closed court, suppression and non-publication orders

A minor amendment has been made as a result of the repeal of s 35 of the Public Health Act 1991 at [1-0430] Other statutory provisions empowering non-publication orders.

[1-0600] Legal aid and pro bono procedures

This chapter has been revised and updated to include the NSW Bar Association — Duty Barrister Scheme and the Public Interest Advocacy Centre at [1-0600] Pro bono schemes in NSW. The cases Norman v Wall [2020] NSWSC 129 and Norman v Wall (No 6) [2020] NSWSC 211 have been added at [1-0610] Court-based scheme, as examples where the court has ordered a litigant to the registrar for referral to the panel for legal assistance. Hetherington-Gregory v All Vehicle Services [2012] NSWCA 257 has been added as an example where the court was not persuaded that it was in the interests of justice to refer the applicant to the Pro Bono Panel.

[1-0800] Unrepresented litigants and lay advisors

This chapter has been revised and the case of Nobarani v Mariconte (2018) 265 CLR 236 has been added at [1-0810] The role of the court. Two additional references have been added to the “Further references” section.

[2-0200] Adjournment

This chapter has been updated to reflect changes to the various Practice Notes at [2-0330] Procedure.

[2-0500] Alternative dispute resolution

This has been amended to delete repealed Sch 6 Pt 6 cl 19 of the Civil Procedure Act 2005 in “Legislation”. A recent article by TF Bathurst, “The future of alternative dispute resolution” (2020) (Autumn) Bar News 50, has been added to “Further reading”.

[2-2200] Discovery

A minor amendment has been made at [2-2310] Discovery of documents from non-parties to delete reference to repealed Federal Court Rules, Order 15A, r 8.

[2-3400] Joinder of causes of action and parties

This chapter has been updated at [2-3430] Joint or several liability,
[2-3450] Generally[2-3460] Removal of parties and [2-3540] Parties that ought to be joined or are “necessary for the determination of all matters in dispute” following the recent decision in Burton v Babb [2020] NSWCA 331. The court found in that case a defendant is to be regarded as a “proper party” if a party relies upon its conduct to establish the cause of action.

[2-3700] Joinder of insurers

This chapter has been significantly revised and updated as a result of the Civil Liability (Third Party Claims Against Insurers) Act 2017, which followed recommendations of the NSW Law Reform Commission contained in Third party claims on insurance money, Report No 143, 2016.

[2-4900] Pleadings and particulars

The cases of J & E Vella Pty Ltd v Hobson [2020] NSWCA 188 and Clayton v Bant [2020] HCA 44 have been added at [2-5100] The Anshun principle.

[3-0000] Civil juries

The case of Burton v Babb [2020] NSWCA 331 has been added at [3-0000] Introduction regarding whether the interests of justice require a civil jury.

[4-1100] Tendency and coincidence

New commentary has been added as a result of the Evidence Amendment (Tendency and Coincidence) Act 2020. In particular, at [4-1110] Application — s 94,commentary on new subs (4) and (5) has been added. Following the enactment of new s 97A, new text has been added at [4-1145] Admissibility of tendency evidence in proceedings involving child sexual offences — s 97A. The Evidence Amendment (Tendency and Coincidence) Act 2020 also amended the Criminal Procedure Act 1986, inserting a new s 161A. New commentary on this section appears at [4-1148] Tendency and coincidence directions in criminal trials. The Further references list has also been updated.

[4-1500] Privilege

The case of Gibbins v Bayside Council [2020] NSWSC 1975 has been added at [4-1515] Observations on the operation of s 118, where the court held that a document created for two purposes, neither of which is dominant, is not privileged from production.

[5-1000] The Special Statutory Compensation List

This chapter has been substantially revised and updated to reflect legislative changes. The case of See v COP [2017] NSWDC 6 has been added at [5-1030] Police Regulation (Superannuation) Act 1906. Regarding provision for past and future payment, the case of SAS Trustee Corporation v Patterson [2010] NSWCA 167 has also been added. Additional commentary has been provided at [5-1050] Sporting Injuries Insurance Act 1978 regarding the Sporting Injuries Fund Scheme.

[5-3500] Trans-Tasman proceedings

This chapter has been revised and updated. At [5-3560] Subpoenas, the cases of Rauland Australia Pty Ltd v Law [2020] FCA 516 and In the matter of Australasian Hail Network Pty Ltd (No 2) [2020] NSWSC 517, which discuss the matters to be taken into account when granting leave to issue a subpoena under the Trans-Tasman Proceedings Act 2010, have been added.

[5-7000] Intentional torts

A summary of the recent decision of Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 has been added at [5-7188] Misfeasance in public office. The Minister for Agriculture was found to have committed the tort of misfeasance in public office for ordering a “capricious and unreasonable” ban on the live export of cattle to Indonesia which made unnecessary limitations on the common law right of persons to carry on their lawful business.

[8-0000] Costs

The Costs chapter has been extensively reviewed and rewritten by the Honourable Justice Paul Brereton, AM RFD, judge of the NSW Court of Appeal.

[9-0000] Stay of execution

Minor amendments have been made as a result of the repeal of s 67 of the Guardianship Act 1987, s 40 of the Homefund Commissioner Act 1993 and r 49.22 of UCPR.

The IndexTable of Cases and the Table of Statutes have all been updated and are current to Update 43.