Civil Trials Bench Book September 2025 update
Update 61 amends the Bench Book to update and revise various chapters. The following chapters have been revised:
[1-0000] Disqualification for bias
At [1-0040] Circumstances arising outside the hearing calling for consideration Gillies v State of NSW [2025] NSWCA 98 and MTH v State of NSW (No 2) [2025] NSWCA 123 have been added to show that where a judge has made an adverse decision or decisions against a party, this is not a sufficient reason for the judge to disqualify himself or herself from dealing with subsequent applications concerning the same party.
[1-0400] Closed court, suppression and non-publication orders
At [1-0410] Court Suppression and Non-publication Orders Act 2010 R v Alex (2024) 115 NSWLR 213 has been added on the capacity of Court Suppression and Non-publication Orders Act 2010, s 8(1)(a) to support an order directed to the protection of the jury from inflammatory or irrelevant material while proceedings are on foot. It has also been added regarding take-down orders and the necessity test under s 8(1).
MA v DPP (NSW); AD v DPP (NSW) [2025] NSWCCA 54 has been added as an example of application of the “calculus of risk” approach under s 8(1)(c).
[1-0600] Legal aid and pro bono procedures
At [1-0610] Court-based scheme Monteiro v State of NSW [2025] NSWSC 632 has been added as an example in which special reasons for further referral were found to exist under UCPR, r 7.36(2A).
[2-0500] Alternative dispute resolution
At [2-0610] Rehearings the jurisdictional limit for the Small Claims Division in the Local Court has been updated to $20,000: Local Court Act 2007, s 29(1)(b).
[2-0700] Amendment
At [2-0730] Grounds for refusal of amendment Joseph v Spencer (No 2) [2025] NSWCA 138 has been added as an example of refusal of amendment due to the application of case management principles.
[2-1400] Cross-vesting legislation
At [2-1400] Cross-vesting Wang v Yun [2025] NSWSC 505 has been added regarding the fact that a proceeding cannot be transferred merely because the parties consent to the transfer, but it must be in the interests of justice.
[2-2400] Dismissal for lack of progress
At [2-2410] Applicable principles Allchin v Hunter Water Corp (No 3) [2025] NSWCA 75 has been added as an example of applicable principles including prejudice to the opposing party by reason of delay and that inappropriate delay or behaviour by a plaintiff being a function of the plaintiff’s mental state is a relevant consideration.
[2-5400] Parties to proceedings and representation
At [2-5500] Representative proceedings in the Supreme Court Lendlease Corp Ltd v Pallas [2025] HCA 19 has been added to multiple sections throughout. The case discusses the opt-out nature of the legislative regime; giving of notices under s 175 CPA; and the distinction between the power of the court under ss 183 and 175(5).
[2-6300] Judgments and orders
At [2-6390] Joint liability Anderson v Canaccord Genuity Financial Ltd (No 2) (2024) 115 NSWLR 1 has been added regarding Civil Procedure Act 2005, s 95 and its interaction with the common law rule regarding release.
[2-6600] Setting aside and variation of judgments and orders
At [2-6650] Absence of a party/undefended judgments a quote from D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (cited in Zhengzhou Lvdu Real Estate Group Co Ltd v Shu (No 2) [2025] NSWSC 405) has been added regarding the application of the principle of finality of litigation.
[2-7300] Trial procedure
At [2-7350] Party absent Allchin v Hunter Water Corp (No 3) [2025] NSWCA 75 has been added on the conflicting authority as to whether UCPR, r 29.7 and equivalent provisions apply where a party initially appears but then leaves the courtroom midway through the hearing.
[2-7600] Vexatious proceedings
Sections [2-7620]–[2-7650] have been reordered and renumbered.
At [2-7620] Vexatious proceedings Collier v Attorney General (NSW) [2023] NSWCA 273 has been added regarding the possibility that a number of “proceedings” may arise within the context of one case.
Potier v Attorney General (NSW) (2015) 89 NSWLR 284 has been added to explain the concurrent operation of the Vexatious Proceedings Act 2008 with the Felons (Civil Proceedings) Act 1981.
At [2-7650] Discretion Collier v Attorney General (NSW); Zepinic v Chateau Constructions (Aust) Ltd [2018] NSWCA 317; and Golden v Howard [2025] NSWCA 117 have been added for their summaries of the four steps necessary to determine whether to make an order against a person under Vexatious Proceedings Act, s 8. Potier v Attorney General (NSW) and Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 have been added on the fact that an order under the Vexatious Proceedings Act is not to be made lightly.
[4-0200] Relevance
This section has been revised and updated.
[5-2000] Monetary jurisdiction in the District Court
At [5-2000] Jurisdiction according to the nature of proceedings the indexed amount awardable for non-economic loss under the Civil Liability Act 2002 has been updated. At [5-2020] Extension of jurisdiction s 51(4) of the District Court Act 1973 has been added.
[5-7000] Intentional torts
At [5-7115] Justification the section has been restructured to more clearly state the LEPRA test in s 99(1). Commentary on State of NSW v Dennis [2025] NSWCA 118 and Reeves v State of NSW [2024] NSWCA 125 have also been added.
Sections [5-7120]–[5-7160] on malicious prosecution have been revised. The sections have been reordered to follow the constituent elements of the tort as stated in Beckett v NSW (2013) 248 CLR 432; the case examples have been moved to the end; and additional pinpoints, cases and commentary have been added throughout. Additional cases added include Toth v State of NSW [2023] NSWCA 206; Mr J (a pseudonym) v State of NSW [2025] NSWSC 406; Edwards v State of NSW [2022] NSWCA 187; Gamage v Riashi [2025] NSWCA 84; and Flowers v State of NSW (No 5) [2021] NSWSC 887.
[10-0000] Contempt in the face of the court
At [10-0070] Initial steps Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638 and Court of Appeal, Registrar of the v Ritter (1985) 34 NSWLR 641 have been added regarding initial steps in proceedings for contempt of court if the contemnor is not present.
At [10-0080] The charge Doyle v Commonwealth (1985) 156 CLR 510; LaserBond Ltd v Hooper [2025] NSWSC 442; and Ronowska v Kus (No 2) [2012] NSWSC 817 have been added on it being highly undesirable for a charge of contempt to proceed in the absence of the alleged contemnor.