Civil Trials Bench Book Update 48 published

The following changes have been incorporated in this Update:

[1-0000] Disqualification for bias

At [1-0020] Apprehended bias, the case of Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307 has been added. The Court of Appeal noted that the possibility a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place.

McIver v R [2020] NSWCCA 343 has been added at [1-0040] Circumstances arising outside the hearing calling for consideration, where it was stated it was particularly important, in circumstances where it was a judge-alone trial and the verdict was to be based on the complainant’s credibility, that there be no circumstance which might give rise to the possibility of pre-judgment, conscious or unconscious, as a result of a prior association.

[2-1600] Service of process outside NSW

Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104 has been added at [2-1600] Service within the Commonwealth of Australia, with respect to the standard of proof required for a stay application.

[2-5400] Parties to proceedings and representation

Fakhouri v The Secretary for the NSW Ministry of Health [2022] NSWSC 233 has been added at [2-5500] Representative proceedings in the Supreme Court. In that case, the court found that while an application “under” Pt 2 of Ch 7 of the Industrial Relations Act 1996 cannot be commenced or maintained on behalf of group members, proceedings under Pt 10 of the Civil Procedure Act can be commenced and maintained seeking relief in respect of any statutory debt that arises in favour of group members in respect of their award entitlements.

[2-5900] Security for costs

A discussion of Zong v Wang [2021] NSWCA 214 and the question of what constitutes special circumstances in relation to an order for security for costs in an appeal has been added at [2-5965] Ordering security in appeals.

[5-0200] Appeals except to the Court of Appeal, applications, reviews and mandatory orders

The general principles which govern an application for leave to appeal as set out in Namoi Sustainable Energy Pty Ltd v Buhren [2022] NSWSC 175 at [34]–[39] have been added at [5-0240] Appeals from the Local Court.

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

This workers compensation section of this chapter has been substantially reviewed and updated by the Personal Injury Commission of NSW.

[9-0700] Enforcement of foreign judgments

It is noted at [9-0740] Procedure that for the registration of a foreign judgment against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985 and Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31.

[10-0300] Contempt generally

Sentencing principles summarised by the court in Commissioner for Fair Trading v Rixon (No 5) [2022] NSWSC 146 at [22]–[28] have been added at [10-0305] Sentencing principles for contempt.