Civil Trials Bench Book Update 47 published

The following changes have been incorporated in this Update:

[1-0000] Disqualification for bias

The decision of Gleeson v DPP (NSW) [2021] NSWCA 63 has been added at [1-0020] Apprehended bias, as a recent example of where a fair-minded observer would likely be concerned about a close personal relationship between a trial judge and prosecutor who had earlier advised police on the bringing of charges in the case. B Cairns, “Bias and procedural fairness at trial” (2021) 9 Journal of Civil litigation and Practice 182 has been added to Further references.

[1-0900] Interpreters

Commentary regarding the interpretation of words used in a foreign language in a sworn affidavit and the competence of the deponent to provide such interpretation has been added at [1-0900] Introduction. The cases of Maria Coppola v NSW Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (No 2) [2019] NSWSC 948 and Sun v Chapman [2021] NSWSC 955 have been added as examples.

[2-0700] Amendment

Commentary at [2-0710] General principles has been amended to include a discussion of he High Court decision in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175. Additional cases have been added at [2-0730] Grounds for refusal of amendment as examples of other matters which may result in the refusal of an amendment.

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

Local Court Practice Note Civ 1 — Case management of civil proceedings in the Local Court has been added at [2-1200] Change of venue between Local Courts. At [2-1210] Transfer of proceedings between courts, the case of Mahommed v Unicomb [2017] NSWCA 65 has been added, which discusses s 144(2) of the Civil Procedure Act 2005 being mandatory in its terms. Transfer between Supreme Court and Industrial Court has been removed. Part 9, Div 3 and r  4.1 of the UCPR were repealed as of 8 December 2016. Transfer between Small Claims Division and General Division of Local Court has been added, noting that Pt 2, Div 2 of the Local Court Rules 2009 provide for the transfer of proceedings from the Small Claims Division to the General Division where the jurisdictional limit of the Small Claims Division is exceeded (r 2.2) or the matters in dispute are so complex or difficult, or are of such importance, that the proceedings ought more properly to be heard in the court’s General Division: r 2.3(1).

[2-1800] Consolidation and/or joinder of proceedings

Skinner v Shine Pty Ltd [2019] NSWSC 1709 has been added at [2-1800] Consolidation of proceedings, as an example of when consolidation or joint hearings is not appropriate.

[2-4600] Persons under legal incapacity at [2-4630] Tutors/Guardians ad litem has been amended as a consequence of the decision in Choi v NSW Ombudsman (2021) 104 NSWLR 505, and the subsequent amendment of the Civil and Administrative Tribunal Act 2013, commencing 8 December 2021, so that a valid appointment of a guardian ad litem may now be ordered without naming a particular person to be appointed: see s 45(4C).

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

The cases of Lichaa v Boutros [2021] NSWCA 322 and Williams v Harrison [2021] NSWSC 1488 have been added at [2-6700] Denial of procedural fairness.

[7-0000] Damages

The case of Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 has been added under a new heading Loss of amenity of the use of a chattel at [7-0020] Actual loss. In this case, the High Court unanimously agreed that the conclusion of the majority of the NSWCA should be upheld on the basis the respondents suffered heads of damage of physical inconvenience and loss of amenity of use of their negligently damaged motor vehicles, and that it was not unreasonable for them to take steps to mitigate both aspects of their loss by the hire, at a reasonable rate, of an equivalent car for a reasonable period of repair.

[7-1000] Interest

The decision of Tjiong v Tjiong (No 2) [2018] NSWSC 1981 has been added at [7-1070] Interest after judgment.

Practice Note SC Gen 16 — Pre-judgment interest rates and Practice Note DC (Civil) 15 — Pre-judgment interest rates have also been added.

[8-0000] Costs at [8-0090] Self-represented litigants (including lawyers) has been amended to include the decision in Spencer v Coshott [2021] NSWCA 235. The NSWCA held that the High Court’s abrogation of the Chorley exception in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 did not deny the recovery of costs by a solicitor litigant who is represented by an incorporated legal practice of which he or she is the principal and sole director and shareholder, because of the separate legal personality of an incorporated legal practice.

[10-0300] Contempt generally

The decisions of Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 and Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 have been added at a new paragraph [10-0305] Sentencing principles for contempt.