Civil Trials Bench Book Update 53 published

[1-0000] Disqualification for bias

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, in which there was a finding of apprehended bias in a multi-member court, has been added at [1-0020] Apprehended bias, [1-0030] Procedure and [1-0040] Circumstances arising outside the hearing calling for consideration.

Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 has also been added at [1-0040] as an example of a judge having previously shared chambers with a legal practitioner involved in a case not giving rise to a finding of apprehended bias.

At [1-0050] Circumstances arising during the hearing Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 and Odtojan v Condon [2023] NSWCA 129 have been added regarding the limits of judicial interventions and observations.

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

At [2-1800] Consolidation of proceedings ABC v AI [2023] NSWSC 825 has been added as an example where an order was made that two proceedings be heard together pursuant to UCPR r 28.5 in the interests of justice.

[2-2600] Stay of pending proceedings

At [2-2690] Other grounds on which proceedings may be stayed, examples have been added of cases involving historical sexual abuse: MXS2 v Georges River Grammar School [2023] NSWSC 529 (a fair trial would not be possible in the circumstances); BRJ v The Corporate Trusteees of The Diocese of Grafton [2022] NSWSC 1077; cf Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79 (application for permanent stay not made out).

[2-3900] Limitations

Anderson v State of NSW [2023] NSWCA 160 has been added at [2-3920] Provisions applicable to all three categories and [2-3965] Cross references to related topics for its discussion of ss 50F(3) and 6A Limitation Act 1969.

[2-4100] Freezing orders

References to Frigo v Culhaci [1998] NSWCA 88; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 and Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 have been added at [2-4110] Freezing orders.

At [2-4120] Strength of case Samimi v Seyedabadi [2013] NSWCA 279 has been added as an example regarding what constitutes a “good arguable case”, and Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 and Tomasetti v Brailey [2012] NSWCA 6 have been added for their comments on when a freezing order is sought by an unsuccessful litigant pending appeal.

[2-4600] Persons under legal incapacity

At [2-4700] Compromise three cases have been added to exemplify the test of whether the compromise or settlement is in the best interests of the plaintiff: Nolan v Western Sydney Local Health District [2023] NSWSC 671; Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 and Robinson v Riverina Equestrian Association [2022] NSWSC 1613. At Further reading, an article by the Hon P Brereton, “Acting for the incapable — a delicate balance” has been added.

[2-5400] Parties to proceedings and representation

Findlay v DSHE Holdings Ltd [2021] NSWSC 249; Ellis v Commonwealth [2023] NSWSC 550; Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 and Court v Spotless Group Holdings Ltd [2020] FCA 1730 have been added at [2-5500] Representative proceedings in the Supreme Court under the new heading “Settlement/discontinuation of proceedings” regarding considerations when assessing if a settlement is fair and reasonable. Augusta Pool 1 UK Ltd v Williamson [2023] NSWCA 93 has also been added for its discussion on the discretionary nature of s 173 Civil Procedure Act 2005.

[2-7600] Vexatious litigants

The title of the chapter has been changed to “Vexatious proceedings” to be more in keeping with the name of the Vexatious Proceedings Act 2008.

Proietti v Proietti [2023] NSWCA 132 has been added at [2-7610] Inherent jurisdiction and powers of courts and tribunals as an example of the fact that the court has power to make orders appropriately adapted to the circumstances of the case.

A paragraph on Teoh directions has also been added at [2-7610] based on Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125.

[5-2000] Monetary jurisdiction in the District Court

Adjustments have been made throughout to include the new jurisdictional limit in the District Court as at 16/12/2022 of $1,250,000 (previously $750,000), effected by the District Court Amendment Act 2022, s 4(1).

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

At [6-1010] General workers and [6-1020] Dust disease workers some monetary amounts have been updated to accord with the Workers Compensation (Indexation) Order 2023.

[7-0000] Damages

Payne (t/as Sussex Inlet Pontoons) v Liccardy [2023] NSWCA 73 has been added at [7-0030] Contributory negligence for Beech-Jones JA’s analysis of the elements of s 50 Civil Liability Act 2002, along with other Court of Appeal judgments which have opined that ss 50(2) and (3) of the Act are not easily reconciled: Jackson v Lithgow City Council [2008] NSWCA 312 and NSW v Ouhammi (2019) 101 NSWLR 160.

At [7-0050] Pecuniary losses Chen v Kmart Australia Ltd [2023] NSWCA 96 has been added as an example of an appeal regarding assessment of loss of future earning capacity of an injured child where a modest buffer sum was awarded. Cf Clancy v Plaintiffs A, B, C and D [2022] NSWCA 119, where the court found the primary judge’s assessment of C’s damages for future economic loss in the sum of $111,000, by way of a buffer, could not be sustained. See also, Penrith City Council v Parks [2004] NSWCA 201, for a discussion of s 13 Civil Liability Act 2002 and where a buffer was awarded.

[8-0000] Costs

Gokani v Visvalingam Pty Ltd [2023] NSWCA 80 has been added at [8-0120] Legal practitioners regarding application of the tests in Sch 2, cl 5 Legal Profession Uniform Law Application Act 2014 and s 99 Civil Procedure Act 2005.

In Further references the final resource has been updated to the Costs Assessment Rules Committee’s “Guideline: costs payable between parties under court orders”, published 25 May 2023.

[10-0000] Contempt in the face of the court

A [10-0150] General He v Sun (2021) 104 NSWLR 518 and Matthews v ASIC [2009] NSWCA 155 have been added to the discussion of an appropriate penalty for contempt of court.