Update 59 — significant changes to “Disqualification for bias”, “Stay of pending proceedings”, “Opinion” and “Costs”.
[1-0000] Disqualification for bias
Some case examples have been moved to improve readability.
At [1-0020] Apprehended bias a section describing the attributes of the fair-minded lay observer in an assessment of apprehended bias has been included, with authorities cited including Polsen v Harrison [2021] NSWCA 23; BW v Secretary, Department of Communities and Justice [2024] NSWSC 1354; Isbester v Knox City Council (2015) 255 CLR 135 and SZBLY v Minister for Immigration and Citizenship [2007] FCA 765.
At [1-0030] Procedure NSW v JR [2024] NSWCA 308 has been added. In this case, the appellant’s forensic decision not to make a recusal application during the trial prevented it from asserting on appeal that the trial judge’s interventions prior to the exchange with counsel were not the subject of a waiver.
At [1-0050] Circumstances arising during the hearing Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 and BW v Secretary, Department of Communities and Justice have been added regarding apprehended bias in inquisitorial proceedings.
At [1-0060] Judicial immunity from suit Queensland v Mr Stradford (a pseudonym) [2025] HCA 3 has been added on the scope of immunity afforded to superior court judges and inferior court judges.
[1-0400] Closed court, suppression and non-publication orders
At [1-0400] The principle of open justice Supreme Court Practice Note SC Gen 23 — Use of Generative Artificial Intelligence, commenced 3/2/2025 has been added regarding entry of certain information into a Gen AI program. Industrial Relations Commission of NSW Practice Note No 33 — Use of Generative Artificial Intelligence, commenced 19/2/2025 has also been added.
[1-0600] Legal aid and pro bono procedures
At [1-0610] Court-based scheme Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41 has been added on considerations relevant to the UCPR r 7.36(1) “interests of the administration of justice” test. Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 88; Amgad v Cairns [2022] NSWCA 101 and Allchin v Hunter Water Corp (No 2) [2024] NSWCA 315 have also been added as examples.
[2-0000] Case management
At [2-0010] Overview Zhou v Birriga Holding Pty Ltd [2024] NSWSC 1425 has been added as an example in which the plaintiff’s claim was dismissed under CPA s 61(3)(a) due to failure to comply with multiple pre-trial directions and failure to attend the hearing.
[2-0700] Amendment
At [2-0780] Limitation periods Commonwealth of Australia v Winston [2024] NSWCA 277 has been added to demonstrate what constitutes “the same (or substantially the same) facts” under CPA s 65(2)(c).
[2-1200] Change of venue and transfer between New South Wales courts
At [2-1210] Transfer of proceedings between courts Riaz v Technical and Further Education Commission [2024] NSWSC 474 has been added for its list of the well-established principles concerning the transfer of matters from the Local Court to the Supreme Court.
[2-2200] Discovery
At [2-2210] Discovery and inspection during proceedings Neil Street Co Pty Ltd v Ibrahim [2024] NSWSC 1382 has been added as an example of a situation in which the issuing of subpoenas had the effect of subverting the operation of Practice Note SC Eq 11 concerning disclosure. Re Mempoll Pty Ltd [2012] NSWSC 1057 (citing The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502) has also been added.
[2-2600] Stay of pending proceedings
At [2-2600] The power Willmot v Queensland [2024] HCA 42 has been added. The High Court stated that while impoverishment of evidence is now to be encountered and expected in historical child sexual abuse cases which would previously have been statute barred, this does not change the content or application of the well-established principles of abuse of process or the right to a fair trial.
At [2-2690] Other grounds on which proceedings may be stayed TT v The Diocese of Saint Maron, Sydney & SS (No 4) [2024] NSWSC 1102 has been added to demonstrate grounds on which proceedings may be stayed ie the ground where a High Court decision in a different case is pending (in this case, Bird v DP [2024] HCA 41). Willmot v Queensland and RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43 have also been added on the impact of the length of time between the alleged abuse and the proceedings on potential evidence.
[2-4100] Freezing orders
At [2-4110] Freezing orders KR Properties Global Pty Ltd t/as AK Properties Group v Kazzi [2024] NSWCA 141 and Atlanta Building Pty Ltd v Abela [2024] NSWSC 1193 have been added for their summaries of the well-established legal principles applicable as to whether a freezing order should be made.
[2-6300] Judgments and orders
At [2-6440] Reasons for judgment the Guidelines for NSW Judges in Respect of Use of Generative AI (issued by the Chief Justice of NSW on 21/11/2024) has been added regarding use of Gen AI in the formulation of reasons for judgment and editing and proofing of draft judgments.
[2-6900] Summary disposal and strike out applications
At [2-6920] Summary dismissal Bott v Carter [2012] NSWCA 89 has been added for Basten JA’s comments on the impact of CPA s 56 on UCPR r 13.4, and Hitchcock v Pratt Holdings Pty Ltd [2024] NSWSC 1292 has been added regarding r 14.28.
[4-0600] Opinion
Supreme Court Practice Note SC Gen 23 — Use of Generative Artificial Intelligence, commenced 3/2/2025 has been added at [4-0600] The opinion rule — s 76 and [4-0630] Exception: opinions based on specialised knowledge — s 79(1). Industrial Relations Commission of NSW Practice Note No 33 — Use of Generative Artificial Intelligence, commenced 19/2/2025 has also been added.
At [4-0630] Exception: opinions based on specialised knowledge — s 79(1) Lederer Group Pty Ltd v Hodson [2024] NSWCA 303 (applying Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 and considering Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705) has been added regarding the weight that could be attributed to expert reports on the issue of causation when the reports were premised upon an incorrect history as to the extent of the plaintiff’s exposure to the aftermath of a fatal accident.
[5-7000] Intentional torts
NSW v JR [2024] NSWCA 308 has been added at [5-7160] Malice in relation to the requirements for a finding of malice.
[5-8500] Applications for judicial review of administrative decisions
At [5-8505] Jurisdiction Ming v DPP (NSW) (2022) 109 NSWLR 604 has been added on adequacy of reasons for a decision by a non-superior court.
[7-0000] Damages
At [7-0000] General principles Miller v Jennings (1954) 92 CLR 190 and El Assaad v AI Haje [2024] NSWCA 306 have been added regarding caution as to appellate review in relation to an award of general damages for pain and suffering resulting from personal injury.
[8-0000] Costs
At [8-0040] Departing from the general rule: apportionment Zurich Australian Insurance Ltd v CIMIC Group Ltd [2024] NSWCA 229 and Zurich Australian Insurance Ltd v CIMIC Group Ltd (No 2) [2024] NSWCA 276 have been added on the decision to make an issues based costs order, and Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304; Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd (No 2) [2024] NSWCA 274 and Zurich Australian Insurance Ltd v CIMIC Group Ltd (No 2) have been added on the meaning of “dominant or separable” issues.
At [8-0090] Self-represented litigants (including lawyers) Birketu Pty Ltd v Atanaskovic [2025] HCA 2 has been added. This case confirmed the entitlement of a litigant solicitor or unincorporated law firm to recover costs of work done by their employed solicitors despite the High Court’s dismissal of the Chorley exception in Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 and overruled the contrary approach of the Victorian Court of Appeal in United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15.
At [8-0160] Quantification of costs Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39; Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 and M1 v R1 [2024] NSWCA 256 have been added for discussion of CPA s 98(3) and (4) and UCPR r 36.16 in relation to gross sum costs orders and time limits.