Publications news

Civil Trials Bench Book Update 56 published

14 June 2024

[1-0000] Disqualification for bias

At [1-0040] Circumstances arising outside the hearing calling for consideration Mohareb v NSW (No 2) [2024] NSWCA 69 has been added as an example of a claim for apprehended bias where the judges had previously made an adverse decision against the party. NSW v Madden [2024] NSWCA 40 has been added at [1-0050] Circumstances arising during the hearing as an example of a judge engaging in a robust exchange with counsel during a case.

[2-1400] Cross-vesting legislation

At [2-1400] Cross-vesting Huynh v Attorney General (NSW) [2023] NSWCA 190 has been added for its comments on the construction of the phrase “special reasons” in s 6(3) Jurisdiction of Courts (Cross-vesting) Act 1987.

[2-7300] Trial procedure

At [2-7320] Time and place of trial Wang v Yu (No 2) [2024] NSWSC 4 has been added for its discussion of giving evidence and making submissions virtually.

[2-7600] Vexatious proceedings

At [2-7630] “Frequently” Potier v Attorney General in and for the State of NSW (2015) 89 NSWLR 284 and Proietti v Proietti [2024] NSWCA 48 have been added for their analysis of the word “frequently” in the context of s 8(1)(a) Vexatious Proceedings Act 2008.

[5-4000] Defamation

Substantial changes have been made throughout the chapter, including the addition of multiple recent cases.

In particular, at [5-4007] Publications made on the internet a new section entitled Legislative amendments and internet publication has been added which discusses the recent reforms concerning digital intermediaries introduced by the Defamation Amendment Bill 2023, assented to on 30/10/2023; new commentary has been added at [5-4010] The pleadings; and new commentary has been added at [5-4040] Other interlocutory applications in the sections regarding “Summary judgment applications” and “Transfer of proceedings to another court”. The Appendix to the chapter has been deleted, along with a few outdated references.

[5-8500] Applications for judicial review of administrative decisions

At [5-8505] Jurisdiction AAI Ltd t/a GIO v Amos [2024] NSWCA 65 has been added for Adamson JA’s comments on the requirements of procedural fairness depending, in part, on context.

[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 April 2024. Workers compensation amounts are reviewed on 1 April and 1 October each year: Workers Compensation Act 1987, Pt 3, Div 6–6B.

[7-0000] Damages

At [7-0050] Pecuniary losses Palmer v NSW [2024] NSWSC 179 has been added as an example in which the conventional percentage discount for vicissitudes was increased because of the plaintiff’s history of other traumatic events which could not be said to have been caused by the defendant’s conduct and which contributed to her mental illness and diagnoses.

At [7-0130] Intentional torts NSW v Madden [2024] NSWCA 40 (following NSW v Ibbett (2005) 65 NSWLR 168) has been added. This case held that unlawful deprivation of liberty can amount to an “injury” under Civil Liability Act 2002 s 3B(1)(a). NSW v Williamson (2012) 248 CLR 417 has also been added.

[8-0000] Costs

At [8-0090] Self-represented litigants (including lawyers) Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312 has been added. This case held that partners of an unincorporated law firm are entitled to recover costs for work done by the employed solicitors of that firm despite the High Court’s rejection of the Chorley exception in Australia in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29.

At [8-0120] Legal practitioners Hartnett t/a Hartnett Lawyers v Bell (2023) 112 NSWLR 463 has been added as an example of the exercise of the Court’s inherent power. Council of the NSW Bar Association v Siggins [2021] NSWCA 40 has also been added for its comments on the Court’s general jurisdiction: it held that jurisdiction is exercisable against an Australian lawyer from interstate providing legal services in NSW.

At [8-0160] Quantification of costs O’Connor v O’Connor [2022] NSWSC 940 (cited in IC Pipes Pty Ltd v DGS Trading Pty Ltd (No 3) [2023] NSWSC 1146) has been added for Hammerschlag CJ in Eq’s comments on the requirement that there be some good reason to make a gross sum costs order beyond convenience. Zarfati v McMillan [2023] NSWSC 839 has been added as an illustration of factors to be considered when calculating an order. Hartnett t/a Hartnett Lawyers v Bell (No 2) [2023] NSWCA 311 and Gabrielle v Abood (No 4) [2023] NSWCA 100 have been added regarding whether an application for costs to be specified in a gross sum is a “variation” of a costs order.

[10-0000] Contempt in the face of the court

The following cases have been added: Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229; Doyle v Commonwealth (1985) 156 CLR 510; Huang v Liao [2021] NSWSC 1706 and [2022] NSWSC 141; Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; Prothonotary of the Supreme Court of NSW v Ibrahim [2023] NSWSC 1275; R v Coskun (No 4) [2022] NSWSC 696; R v WE (No 15) [2020] NSWSC 332 and Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131.

Cross references to the Sentencing Bench Book [20-155] have been added at the end of [10-0150] and [10-0160].

[10-0300] Contempt generally

A new section [10-0505] Misleading the court has been added including the cases Mahaffy v Mahaffy [2013] NSWSC 245 and Yuan v Huang [2023] NSWSC 1021.

The following additional cases have been added: Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351; Central Coast Animal Care Facility Inc v Wyatt [2023] NSWSC 741; Council of the NSW Bar Association v Rollinson (No 2) [2023] NSWSC 1390; Kiangatha Holdings Pty Ltd v Water NSW; Natale v Water NSW [2022] NSWCCA 280; NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 and Novelly v Tamqia Pty Ltd (No 2) [2023] NSWSC 1091.

[10-0700] Purging contempt

Two cases have been added: Armidale Local Aboriginal Lands Council v Moran [2020] NSWSC 442 and BCEG International (Australia) Pty Ltd v Xiao (No 3) [2023] NSWSC 554. Additional commentary has been added at [10-0720] Disability of party in contempt or prima facie in contempt.