Civil Trials Bench Book December 2025 update
[1-0000] Disqualification for bias
At [1-0020] Apprehended bias Spargo & Spargo [2025] FedCFamC1A 174 has been added regarding the application of the “double might” test for apprehended bias.
At [1-0050] Circumstances arising during the hearing Khamiss v DPP (NSW) (No 2) [2025] NSWCA 193 was added as an example of a reasonable apprehension of bias amounting to a jurisdictional error resulting from a private discussion in chambers between a magistrate and prosecutor during a self-represented defendant’s cross-examination.
[2-0700] Amendment
At [2-0710] General principles Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 189 was added regarding the extent of “real issues” in proceedings for the purposes of ss 56–58 CPA.
[2-2200] Discovery
At [2-2325] Implied undertaking not to use documents for collateral purpose Unicomb v Blais (2024) 115 NSWLR 155 was added to clarify that the implied undertaking not to use documents for a collateral purpose does not apply where a party who is required by an ordinary timetabling order of the court to provide any affidavits on which they intend to rely at the hearing is not “compelled” to provide them.
[2-5400] Parties to proceedings and representation
At [2-5410] By whom proceedings may be commenced and carried on Daracon Engineering Pty Ltd v Kelsall has been added regarding the exceptional circumstances in which the same defendant may be represented by more than one legal practitioner.
At [2-5500] Representative proceedings in the Supreme Court Kain v R&B Investments Pty Ltd [2025] HCA 28 has been added for its confirmation that the Federal Court has power to make a common fund order (CFO) for litigation funders at the conclusion of proceedings, but not at commencement. The High Court also confirmed the Federal Court does not have power to make a CFO at settlement or judgment in favour of a solicitor, as it would be contrary to the prohibition on contingency fees in the Legal Profession Uniform Law.
[2-5900] Security for costs
At [2-5910] The power to order security for costs and [2-5962] Representative proceedings Laith & Fadi Investments Pty Ltd v Fogo Brazilia Holdings Pty Ltd [2024] NSWSC 1508 has been added regarding the legal principles for making an order for security for costs.
At [2-5950] Nominal plaintiffs Anderson v Beldev MI Pty Ltd [2025] NSWSC 471 has been added as an example of a circumstance in which the existence of the plaintiff’s litigation funding agreement, unknown to the defendants, and where the Funder and the plaintiff had now parted ways, was a material consideration for the making of an order for security for costs already incurred.
At [2-5960] Corporations and [2-5965] Ordering security in appeals SSABR Pty Ltd v AMA Group Ltd [2024] NSWCA 104 and Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67 have been added regarding the power to order security for costs against corporations.
At [2-5997] Applications for release of security Blue Mirror Pty Ltd v Tan & Tan Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 286 is added as an example in which the disqualification of the plaintiff corporation’s sole director from holding office did not preclude the release of security following a successful appeal.
[2-7300] Trial procedure
A new section [2-7470] Use of generative AI in proceedings has been added which discusses the Supreme Court guidelines on the use of Gen AI in the preparation and conduct of trials. The section includes reference to Valu v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 95 and Bell CJ’s observations on the need for judicial vigilance in the use of Gen AI in May v Costaras [2025] NSWCA 178.
An article by the Chief Justice, “Change at the Bar and the great challenge of gen AI”, Address to the Australian Bar Association, Sydney, 29/8/2025, has been added to Further references.
[4-0200] Hearsay
This section has been extensively reviewed and updated by the Honourable Justice Peden and her Honour Judge Kumar with assistance from the Commercial List researcher.
[5-0200] Appeals except to the Court of Appeal, applications, reviews and mandatory orders
At [5-0255] Applications and appeals to the District Court and Local Court in federal proceedings NSW v Wojciechowska [2025] HCA 27 has been added regarding whether NCAT can exercise federal jurisdiction within the meaning of ss 75 or 76 of the Constitution (Cth).
[5-3000] Equitable jurisdiction of the District Court
The monetary jurisdictional limits of the NSW District Court have been updated throughout to reflect amendments to the District Court Act from the District Court Amendment Act 2022 which came into effect on 16 December 2022.
[6-1000] The legal framework for the compensation of personal injury in NSW
Amendment of the following amounts:
- at [6-1010] General workers and [6-1020] Dust disease workers to reflect Workers Compensation (Indexation) Order (No 3) 2025, adjustment date 1/10/2025.
- at [6-1040] Claims subject to the Motor Accidents Compensation Act 1999 to reflect Motor Accidents Compensation (Determination of Loss) Order 2025, commenced 1/10/2025, and [6-1045] Claims subject to the Motor Accident Injuries Act 2017 to reflect Motor Accidents Injuries (Indexation) Order (No 2) 2025, commenced 1/10/2025.
- at [6-1050] Claims subject to the Civil Liability Act 2002 to reflect Civil Liability (Non-economic Loss) Amendment Order 2025, commenced 1/10/2025.
[7-0000] Damages
At [7-0110] Punitive damages Meredith v State of NSW (No 5) [2025] NSWSC 1133 has been added as an example of an award of aggravated and exemplary damages in representative proceedings (the latter not quantified at trial) where the conduct of police officers at a music festival was found to be unlawful.
[8-0000] Costs
At [8-0030] Departing from the general rule: depriving a successful party of costs Merciful Group Inc v Norfina Ltd t/as Suncorp Bank (Costs) [2025] NSWSC 972 and Yowie Group Ltd and Bolton v Keybridge Capital Ltd (No 4) [2025] NSWCA 184 have been added regarding offers of compromise and Calderbank letters.
At [8-0040] Departing from the general rule: apportionment De Martin & Gasparini Pty Ltd v Bartlett (No 2) [2025] NSWCA 95 has been added regarding the question of apportionment of costs where the there is a mixed outcome in proceedings.
At [8-0050] Displacement of the general rule: particular types of proceedings Pethers v Pethers (No 2) [2025] NSWSC 561 is added for its summary of the costs principles to be applied in family provision proceedings.
At [8-0070] Where there is no final judgment: discontinuance and compromise Bluth v Boyded Industries Pty Ltd (No 2) [2024] NSWCA 194 has been added regarding the principles applicable to the exercise of the discretion to “otherwise order” for costs to be payable.
At [8-0130] Basis for assessment: ordinary or indemnity costs Anderson v Canaccord Genuity Financial Ltd (No 2) [2024] NSWCA 161 was added as an example in which the question of the recovery of costs for after-the-event (ATE) insurance taken out by the applicant to provide security for costs was considered.
At [8-0160] Quantification of costs Manariti Plumbing Pty Ltd v Universal Property Group Pty Ltd (No 2) [2025] NSWCA 185 has been added regarding the appropriateness of consideration by the Court of Appeal of a claim for a gross sum costs order in respect of proceedings at first instance as well as on appeal.
[10-0300] Contempt generally
At [10-0490] Implied undertakings in relation to use of documents provided in proceedings Unicomb v Blais (2024) 115 NSWLR 155 has been added to clarify that the implied undertaking not to use documents for a collateral purpose does not apply where a party who is required by an ordinary timetabling order of the court to provide any affidavits on which they intend to rely at the hearing is not “compelled” to provide them.