Civil Trials Bench Book Update 54 published

[2-1200] Change of venue

At [2-1210] Transfer of proceedings between courts, the cases Thermasorb Pty Ltd v Rockdale Beef Pty Ltd [2005] NSWSC 361 and Li v Wang [2022] NSWSC 653 have been added as examples of where proceedings may be transferred from the District Court to the Supreme Court for service of process on a resident outside Australia in the absence of statutory provision for the District Court for this purpose.

[2-1400] Cross-vesting legislation

The decision of Re Neil (No 5) (2022) 110 NSWLR 197 has been added to [2-1400] Cross-vesting regarding the jurisdiction of the NSW Supreme Court under Commonwealth Cross-vesting legislation.

[2-2600] Stay of pending proceedings

At [2-2600] The Power[2-2680] Abuse of process and [2-2690] Other grounds on which proceedings may be stayed, the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 has been added. The High Court noted that the decision whether to exercise the power in s 67 Civil Procedure Act is not discretionary in the sense relevant to the applicable standard of appellate review (ie the “correctness standard”): at [23]–[24] and that for proceedings for damages resulting from child abuse, the observations of Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at [78]–[86] must be evaluated in the “radically new context” in which Parliament has chosen to abolish any period of limitation for the commencement of the action: at [43]–[45]. Further, the context underlying the requirement of exceptionality to enliven the power to grant a permanent stay is that the court’s power to refuse to exercise jursidiction operates in light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised which is a basic element of the rule of law: at [3], [18], [21].

[2-3900] Limitations

The case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 has been added at [2-3965] Cross references to related topics. For a person within the relevant class created by s 6A Limitations Act, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders, do not mean that a trial will be unfair and cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay: at [50]–[53].

[2-4600] Persons under legal incapacity

Stoeski v State of NSW [2023] NSWSC 926 has been added at [2-4600] Definition as an example where the plaintiff was granted leave nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act.

[2-5400] Parties to proceedings and representation

The decisions Moussa v Camden Council (No 5) [2023] NSWSC 1135 and Nguyen v Rickhuss [2023] NSWCA 24 have been added at [2-5500] Representative proceedings in the Supreme Court in relation to Merck Orders and the threshold of “… a substantial common question of fact or law …” as that phrase is used in s 157(1)(c) of the CPA.

[2-6600] Setting aside and variation of judgment

The case Maclean v Brylewski [2023] NSWCA 173 has been added at [2-6680] The slip rule as an example where a 6-month delay in correcting a minor error on the face of the record did not cause prejudice to the applicant.

In new paragraph [2-6685] Error on the face of the record, the decision Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182, has been added, where it was noted courts are also empowered to correct obvious drafting errors in all legal documents, including primary and delegated legislation.

[5-0800] The mining list

His Honour Judge Neilson of the District Court of NSW has extensively reviewed and updated the Mining List chapter.

[5-3500] Trans-Tasman proceedings

It is noted that the High Court of Australia unanimously dismissed an appeal from the insurer challenging the application of ss 9 and 10 of the Trans-​Tasman Proceedings Act 2010 (Cth)Zurich Insurance Co Ltd v Koper [2023] HCA 25.

[5-7000] Intentional torts

Commentary at [5-7100] False imprisonment has been updated.and the decision of Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 has been added at [5-7110] What is imprisonment?

Lewis v Australian Capital Territory (2020) 271 CLR 192 has been added at [5-7115] Justification, regarding the onus of proof for false imprisonment.

A discussion on judicial immunity for the tort of false imprisonment, from Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, has been added in new paragraph [5-7118] Judicial immunity. The decision in Burton v Babb [2023] NSWCA 242 has been noted at [5-7130] Proceedings initiated by the defendant.

At [5-7150] Some examples, the appeal of State of NSW v Spedding [2023] NSWCA 180 has been added. Although the appeal was dismissed, it was held the primary judge erred in holding the DPP and various members of the ODPP liable for malicious prosecution: at [259]. The improper or unauthorised purpose of the police officers in arresting and charging the respondent, from which the judge inferred malice on their part, was never disclosed to the ODPP: at [257].

At [5-7190] Damages including legal costs, a discussion of exemplary damages for malicious prosecution in State of NSW v Spedding [2023] NSWCA 180 has been added.

An article, T Tsavdaridis and D Luo, “Immunity of administrative decisions by judicial officers” (2023) 35(2) JOB 14, has been added to Further reading.

[7-0000] Damages

The case of Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 has been added to [7-0100] The Workers Compensation Act 1987, s 157Z. This case has detailed discussions of the provisions of s 151Z.