Civil Trials Bench Book Update 55 published

[2-0200] Adjournment

A cross-reference to [2-2690] Other grounds on which proceedings may be stayed has been made at [2-0280] Concurrent civil and criminal proceedings.

[2-2600] Stay of pending proceedings

At [2-2690] Other grounds on which proceedings may be stayed, the cases of National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404 and Western Freight Management Pty Ltd v Hyde [2023] NSWSC 1247 have been added. Australian Competition and Consumer Commission v Meta Platforms, Inc. (formerly Facebook, Inc) (No 2) [2023] FCA 1234 has been added as an example of where a stay was refused despite concurrent criminal proceedings.

[2-4100] Freezing orders

Firmtech Aluminium Pty Ltd v Xie (No 2) [2022] NSWSC 1142 in relation to UCPR r 25.12 and MTH v Croft [2020] NSWSC 986 regarding UCPR r 25.13 have both been added at [2-4260] Ancillary orders. Ancillary to a freezing or search order, the court may make a “passport order” requiring the delivery up of the defendant’s passport and restraining them from departing the jurisdiction: see Madsen v Darmali [2024] NSWSC 76 at [8]–[11].

[2-5900] Security for costs

The cases Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 and Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 have been added at [2-5900] The general rule. These decisions consider the question of principle regarding the practice of the court in relation to whether an order for security for costs ought to be made in relation to probate proceedings.

[4-0600] Opinion

At [4-0630] Exception: opinions based in specialised knowledge — s 79(1), the High Court decision of Lang v The Queen [2023] HCA 29 has been added where the Court found that no expert evidence was based exclusively on the expert’s training, study, or experience. All fields of specialised knowledge assume “observations and knowledge of everyday affairs and events, and departures from them” it being the “added ingredient of specialised knowledge to the expert’s body of general knowledge that equips the expert to give [their] opinion”.

[4-1600] Discretionary and mandatory exclusions

The recent High Court decision of McNamara v The King [2023] HCA 36, which found that the word “party” in s 135(a) extends to and includes a co-accused in a joint criminal trial has been added at [4-1610] General discretion to exclude evidence — s 135.

[5-0200] Appeals except to the Court of Appeal

An article by the Honourable Justice Robert Beech-Jones, “The Constitution and State Tribunals” (2023) 1 Judicial Quarterly Review 41, has been added to Further references.

[5-3000] Equitable jurisdiction of the District Court

The decision of Bushby v Dixon Homes du Pont Pty Ltd (2010) 78 NSWLR 111 regarding promissory estoppel has been added at [5-3020] Specific equitable jurisdiction under s 134 of the Act.

[5-8000] Child care appeals

As a result of the implementation of some recommendations from the Family is Culture Report in the form of Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022, several amendments have been made throughout the chapter.

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

The figures in this chapter have been updated and are current as at 1 October 2023. Workers compensation amounts are reviewed on 1 April and 1 October each year: Workers Compensation Act 1987, Div 6–6B, Pt 3.