Currency

Update 39, August 2019

The following changes have been incorporated into this update:

[1-0060] Immunity from suit

It is noted that the Registrar has the benefit of a similar immunity by reason of s 44C of the Judicial Officers Act 1986.

[1-0410] Court Suppression and Non-publication Orders Act 2010

In relation to a suppression or non-publication order being “necessary”, the correct approach to the interpretation of s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 is the “calculus of risk” approach, which requires the nature, imminence and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [55]–[58]; Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [26]–[27], [36]–[37]. Safety in s 8(1)(c) is not confined to physical safety but is apt to include psychological safety.

[1-0900] Interpreters

It is noted that an Addendum to the Recommended National Standards for Working with Interpreters in Courts and Tribunals has been published.

[4-0600] The Opinion chapter has been restructured and revised to incorporate the following changes:

[4-0625] Exception: Aboriginal and Torres Strait Islander traditional laws and customs — s 78A

Reference to the case of Re: Estate Jerrard, Deceased (2018) 97 NSWLR 1106 has been added.

[4-0630] Exception: opinions based on specialised knowledge — s 79(1)

Cases regarding specialised knowledge based on “training, study or experience” have been added:

In Hawkesbury Sports Council v Martin [2019] NSWCA 76, the primary judge erred in admitting expert opinion evidence for the respondent as to matters of visual perception and vision science: at [33]. The expert’s report did not explain how his opinions, based on “specialised knowledge”, in turn based on his “training, study or experience” and on which the opinion is “wholly or substantially based”, applied to the facts assumed or observed so as to produce the opinion propounded as required by s 79 Evidence Act 1995: at [33]; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85].

A police detective may have “the training and experience [placing] him in a position of having knowledge as to the effects on concrete of burning accelerants beyond that of a person lacking that training and experience”: Davies v R [2019] VSCA 66 at [177].

Failure to demonstrate that an opinion is based on a witness’s specialised knowledge based on his or her training, study or experience goes to the admissibility of the evidence, not its weight: Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209].

[4-1010] Applications of ss 91-93

In proceedings seeking an order that the solicitor should pay the costs that were ordered against his client, s 91 of the Evidence Act 1995 (NSW) does not prevent a court, exercising the jurisdiction conferred by s 99 of the Civil Procedure Act 2005 (NSW), from having regard to findings in its principal judgment: King v Muriniti (2018) 97 NSWLR 991. An application for special leave to appeal to the High Court was refused: [2018] HCASL 390.

[4-1270] Persons with specialised knowledge — s 108C

Two Victorian cases, MA v R (2013) 40 VR 564 and De Silva v DPP (2013) 236 A Crim R 214 have been added. It was stated in De Silva that the purpose of such evidence is “educative” in order to impart specialised knowledge the jury may not otherwise have, to help the jury understand the evidence of and about the complainant, and so as therefore to be better able to evaluate it.

[5-6000] Concurrent evidence

It is noted that concurrent and consecutive expert evidence in criminal trials is dealt with by s 275C of the Criminal Procedure Act 1986.

[5-7120] Malicious prosecution

Perera v Genworth Financial Mortgage Insurance Pty Ltd [2019] NSWCA 10 has been added at [5-7130], in which an appeal against the dismissal of an action for malicious prosecution in civil proceedings was refused. Although Perera referred to A v State of NSW (2007) 230 CLR 500 as leaving “open the possibility that the tort applied in relation to proceedings other than criminal proceedings”, it nevertheless required that those proceedings have been brought by the plaintiff against the defendant.

[7-0050] Pecuniary losses

Amaca Pty Ltd v Latz (2018) 92 ALJR 597 has been added. It was held by majority that the inclusion of superannuation pension “losses” in a claim for damages were compensable, however age pension losses were not. By majority, the court considered that superannuation benefits are a “capital asset”, which has a present value, and which can be quantified. The age pension however is neither a part of remuneration, nor a capital asset. It is not a result of, or intrinsically connected to, a person’s capacity to earn and no sum should be allowed on account of the age pension in the calculation of damages for the respondent’s personal injuries.

Update 38, May 2019

The Procedure generally chapter has been revised to incorporate the following changes:

  • [2-2300] Preliminary discovery to assess prospects has been updated following O’Connor v O’Connor [2018] NSWCA 214, where it was held that the documents of which discovery may be ordered are not limited to those relating to the entitlement to make a claim, but extend to documents going only to the quantum of a potential claim: at [90]. Further, the determination of an application for preliminary discovery under UCPR 5.3 does not involve a determination of the merits of the claim, but rather whether it “appears to the court” that a cause of action “may” exist: at [77].

  • Following UBS AG v Scott Francis Tyne as trustee of the Argot Trust (2018) 92 ALJR 968, [2-2680] Abuse of process has been updated. The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power to permanently stay proceedings as an abuse of process: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute: at [1].

  • [2-7670] Applications for leave As to the relationship between ss 9 and 14, Vexatious Proceedings Act 2008, see Quach v NSW Health Care Complaints Commission; Quach v NSW Civil and Administrative Tribunal [2018] NSWCA 175, obiter, at [22]–[26].

Substantial additions have been made to the Evidence chapter:

  • The commentary at [4-1125] Context evidence has been updated to clarify the non-tendency purpose of leading “context” evidence (formerly called “relationship” evidence) is to place the evidence of the specific charged act in its true and realistic context. Johnson v The Queen (2018) 92 ALJR 1018 At [2], decided under s 34P, Evidence Act 1929, SA, has been added which allowed the admission of “discreditable conduct evidence” where its probative value outweighed its prejudicial effect on the accused.

  • [4-1140] The tendency rule — s 97 has been updated following the recent High Court decisions including The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846, regarding the admissibility of uncharged acts as tendency evidence. In Bauer at [48] the High Court held that a complainant’s evidence of an accused’s acts of sexual misconduct not charged on the indictment in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant, whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM v The Queen (2016) 257 CLR 300 or exhibit a special, particular or unusual feature of the kind described in Hughes v The Queen (2017) 92 ALJR 52. The fact that evidence of uncharged acts is given by a complainant does not, of itself, mean it lacks significant probative value. Once the evidence is admitted, and assuming it is accepted, it adds a further element to the process of reasoning to guilt and so, therefore, may be seen as significantly probative of the accused’s guilt of the offences: Bauer at [51]. In McPhillamy v The Queen (2018) 92 ALJR 1045, the High Court held that the tendency evidence did not meet the threshold requirement of s 97(1)(b). While proof of the appellant’s sexual interest in young teenage boys may meet the basal test of relevance, it was not capable of meeting the requirement of significant probative value for admission as tendency evidence. Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual assault cases its probative value.

  • [4-1190] Credibility evidence — s 101, has added Tieu v R (2016) 92 NSWLR 94 (at [26]–[36]) and Davis v R [2017] NSWCCA 257 (at [64]–[74]) to exemplify when leave of the court is required to cross-examine a witness about a matter relevant to the assessment of their credibility.

  • Regarding [4-1270] Persons with specialised knowledge — s 108C Hoyle v The Queen [2018] ACTCA 42 has been added, where the ACT Court of Appeal held that expert evidence that a victim of sexual violence may experience a “freeze response” was admissible under this provision to prevent a complainant’s credibility being undermined by her “counterintuitive behaviour … her admitted failure to protest the appellant’s inappropriate conduct” (at [230]) and expert evidence “that delay or failure to report sexual violence was common among victims of sexual violence” was capable of “substantially affecting” the credibility of a complainant “who failed to make an early complaint. … [as i]t served to neutralise the intuitive view that a delay in complaint suggested that there is nothing to complain about” (at [242]).

  • [4-1580] Loss of client legal privilege: misconduct — s 125 has been updated to include DPP v Stanizzo [2019] NSWCA 12. Regarding the loss of privilege, the communication must be made, or the contents of the document prepared, relevantly, “in furtherance of the commission of a fraud or an offence”: s 125(1)(a). In DPP v Stanizzo, the DPP’s privilege was not lost in relation to documents because even if the communication made by the victims and the witness were made in furtherance of the commission of a fraud or an offence (a proposition not established by the evidence), that alone could not remove the client legal privilege enjoyed by the Director: at [42].

  • [4-1630] Exclusion of prejudicial evidence in criminal proceedings — s 137 includes the High Court decision of The Queen v Falzon (2018) 92 ALJR 701, which held that a majority of the Victorian Court of Appeal erred in their approach to s 137 (identical to s 137 Evidence Act 1995 (NSW)) in finding that evidence of cash found at the respondent’s house was inadmissible in being unfairly prejudicial under s 137.

The Particular proceedings chapter includes the following changes:

  • [5-0255] Applications and appeals to the District Court and Local Court in federal proceedings has been updated as a result of amendments made by the Justice Legislation Amendment Act 2018 (commenced 1 December 2018). This amended Pt 3A of the Civil and Administrative Tribunal Act 2013 to enable persons to commence proceedings in the District or Local Court for the determination of original applications and external appeals that the NSW Civil and Administrative Tribunal (the Tribunal) cannot determine because it involves the exercise of federal jurisdiction. These amendments were made in response to a series of cases concerned with whether the Tribunal could exercise federal jurisdiction including Burns v Corbett (2018) 92 ALJR 423.

  • In [5-0260] Review of decisions etc of registrars, notes that decisions of the registrar of the court under cl 11(1) of the Civil Procedure Regulation 2017 are not reviewable by a court under Div 4, Pt 49 of the Rules: (r 49.19(2)).

  • [5-2005] Jurisdiction in “commercial matters” has been added. Doubts as to the jurisdiction of the District Court in commercial matters were dealt with by the Justice Legislation Amendment Act (No 3) 2018. This Act amended the District Court Act 1973 to clarify that the District Court has jurisdiction to determine any action arising out of a commercial transaction in which the amount (if any) claimed does not exceed the court’s jurisdictional limit: s 44(1)(c1) commenced on assent on 28 November 2018 and has retrospective effect from 2 February 1998. The amendment was made retrospective to ensure that past judgments are protected from challenge: Sch 3, Pt 10; Second Reading Speech p 70: Legislative Assembly, 24 October 2018: Gells Pty Ltd t/a Gells Lawyers v Jefferis [2019] NSWCA 59 at [5]–[6].

  • [5-5000] Possession list has been updated in its entirety by his Honour Justice D Davies.

  • [5-7170] Justification has been updated to include a discussion of State of NSW v Robinson [2016] NSWCA 334, where the Court of Appeal held that for an arrest to be lawful, a police officer must have honestly believed the arrest was necessary for one of the purposes in s 99(3) LEPRA (now repealed) and the decision to arrest must have been made on reasonable grounds: at [27], [44].

  • A new paragraph [5-7190] Damages including legal costs has been added, and includes a discussion of s 70 of the Crimes (Appeal and Review) Act 2001. Section 70 limits the circumstances in which costs in favour of a party who successfully appeals a conviction may be ordered and for the appeal to be the forum in which that determination is made. A party cannot avoid the constraints of s 70 by later claiming costs incurred in conducting a criminal appeal in later civil proceedings: State of NSW v Cuthbertson [2018] NSWCA 320.

  • Following the Children and Young Persons (Care and Protection) Amendment Act 2018, which commenced 4 February 2019, a number of amendments have been made to [5-8000] ff Child care appeals from the Children’s Court chapter.

The Costs chapter has been updated at [8-0010] to note that the High Court heard an appeal in Bell Lawyers Pty Ltd v Pentelow and reserved its decision on 9 May 2019.

The Table of Cases and Table of Statutes have been updated to include amendments up to and including Update 38.

Update 37, October 2018

The Preliminary chapter has been revised to incorporate the following changes:

  • “Apprehended bias” includes Chamoun v District Court of NSW [2018] NSWCA 187 (citing Tarrant v R [2018] NSWCCA 21) regarding the four discrete elements required for the “double might” test at [1-0020].

  • Following amendments made by the Justice Legislation Amendment Act (No 2) 2018 in “Suppression or non-publication order must be necessary”, it is noted that in sexual assault proceedings, a court may make an order under s 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 only if there are exceptional circumstances: s 8(3) and Qiangdong Liu v Fairfax Media Publications Pty Ltd [2018] NSWCCA 159 at [1-0410] .

  • A new section on “Interpreters” has been added at [1-0900] which sets out the legal issues and resources available. Reference is also made to Judicial Council on Cultural Diversity’s Recommended National Standards for Working with Interpreters in Courts and Tribunals.

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Sample orders” at [2-4170] has been updated to note that freezing orders should be drafted to remove any ambiguity: ASIC v One Tech Media Ltd [2018] FCA 1071.

  • “Consent orders” at [2-6320] was updated to clarify that r 36.1A UCPR has been amended following Damm v Coastwide Site Services Pty Ltd [2017] NSWSC 1361.

  • “The slip rule” has been amended to include Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd [2018] NSWSC 4, where it was noted that the court is not necessarily obliged to give notice to the parties before exercising its powers of its own motion under UCPR r 36.17 to correct a mistake/error: see [2-6680].

The Evidence chapter incorporates the following changes:

  • “Exception: business records” has been updated to include Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26, which illustrates the approach to be taken in determining whether representations in business records tendered at a hearing may be accepted as an exception to the hearsay rule: see [4-0390].

  • “Exception: opinions based on specialised knowledge — s 78A” at [4-0630] has been updated to include information on the expert witness code of conduct, including the case of Chen v R [2018] NSWCCA 106 and Wood v R (2012) 84 NSWLR 58.

  • “The tendency rule — s 97” has been updated following the High Court decision in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, setting out the directions which should ordinarily be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence the accused had a sexual interest in the complainant and a tendency to act upon it: see [4-1140].

  • “The coincidence rule — s 98” includes R v Matonwal (2016) 94 NSWLR 1 at [4-1150] where although the tendency evidence was insufficient, the CCA held that it is necessary to give consideration to evidence sought to be tendered as coincidence evidence as a whole, rather than giving separate consideration to each particular circumstance relied upon.

  • “The rule in Browne v Dunn” includes Lardis v Lakis [2018] NSWCA 113 at [4-1900] where it was held the rule in Browne v Dunn had not been infringed.

The Particular proceedings chapter includes the following changes to “Proceedings for defamation in NSW” and “Intentional torts”:

  • “Publications made on the internet” includes Trkulja v Google LLC (2018) 356 ALR 178, regarding publication of “snippets”: see [5-4007].

  • “The pleadings” includes Wing v Fairfax Media Publications Pty Ltd (2017) 255 FCR 61(regulations for civil trials in the Federal Court do not contain provisions for jury trials); Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 and Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 (interlocutory issues generally left to trial in Federal Court, including imputation arguments) and Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 at [5-4010].

  • “The statement of claim” includes Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, regarding claims for damages exceeding the cap under the UDA.

  • “Summary judgment application” includes further cases where the defendant in certain limited circumstances may bring a summary judgment application: see Bleyer v Google Inc (2014) 88 NSWLR 670 (issues of proportionality) and Kostov v Nationwide News Pty Ltd [2018] NSWSC 858 (lack of serious harm) at [5-4010].

  • “Range of damages in defamation actions under the uniform legislation” discusses Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [5-4099]. Further, a number of case examples are provided where proceedings for defamation appear to be increasingly brought in tribunals.

  • “Battery” has been updated to include Croucher v Cachia (2016) 95 NSWLR 117 as authority for the proposition that the defendant who causes physical contact with a plaintiff will commit a battery unless they prove they are “utterly without fault”: see [5-7040].

  • “What is imprisonment?” includes the cases State of NSW v Le [2017] NSWCA 290 (detention while checking identification) and State of NSW v Exton [2017] NSWCA 294 (police direction to “exit the vehicle”): see [5-7110].

  • “Malicious prosecution” has been updated to include the recent case of Wood v State of NSW [2018] NSWSC 1247, discussing whether the prosecutor is “driven by malice”: at [5-7120].

  • The intentional tort of “Intimidation” has been added at [5-7180] including Uber BV v Howarth [2017] NSWSC 54, where a permanent injunction was issued to prevent the defendant from making a series of “citizens arrests”.

The Costs chapter has been updated at [8-0010] to include Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150, concerning whether a barrister acting on his/her own behalf may recover legal costs.

The Enforcement of local judgments chapter has been updated as a result of Uniform Civil Procedure (Amendment No 86) Rule 2018 and the Justice Legislation Amendment Act (No 2) 2017 regarding garnishee orders: see [9-0350] and [9-0390].

The Table of Cases has been updated to include amendments up to and including Update 37.

Update 36, June 2018

The Preliminary chapter has been revised to incorporate the following changes to “Disqualification for bias” which includes at [1-0010] Collier v Country Women’s Association of NSW [2018] NSWCA 36 for a summary of the principles of actual bias and their application.

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Persons under legal incapacity” includes Mao v AMP Superannuation Ltd [2015] NSWCA 252 and Mao v AMP Superannuation Ltd [2018] NSWCA 72 at [2-4610] on dispensing with compliance with r 7.14(2) when commencing proceedings pursuant to CPA s 14.

  • “Separate determination of questions” includes Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Co Ltd [2018] NSWCA 95 at [2-6110] as to the use of separate determinations in defamation matters.

  • “Summary disposal and strike out applications” includes reference to the new s 6(d) Vexatious Proceedings Act 2008 at [2-6920] to provide that vexatious proceedings include proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.

  • New section on “Vexatious litigants” at [2-7600]ff.

The Particular proceedings chapter includes amendments to “Appeals except to the Court of Appeal, applications, reviews and mandatory orders” to add the judgment of Burns v Corbett (2018) 92 ALJR 423 at [5-0255] on the High Court’s dismissal of an appeal from Burns v Corbett [2017] NSWCA 3 and a related decision on applications and appeals to the District Court and Local Court in diversity proceedings.

The Contempt chapter has been revised to incorporate the following changes:

  • “Contempt in the face of the court” has been amended to include Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 at [10-0120] on whether procedural fairness affords a contemnor the right to be heard on whether a direction should be given under r 11(1). Prothonotary of the Supreme Court of NSW v Coren [2017] NSWSC 754 is provided as an example of contempt in the face of the court dealt with by way of direction under r 11(1). At [10-0130], Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 and Prothonotary of the Supreme Court of NSW v Chan (No 23) [2017] NSWSC 535 are authorities for the principle that the referring court must afford procedural fairness to a proposed contemnor before exercising its power of referral. Mohareb v Palmer [2017] NSWCA 281 provides that before referring an apparent contempt, the referring court should make findings of fact in relation to the conduct and determine that it is capable of amounting to contempt. Live Group Pty Ltd v Rabbi Ulman [2018] NSWSC 393 at [10-0150] is an illustration of penalties for contempt of court. Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495 at [10-0160] is on refusal to give evidence.

  • “Contempt generally” includes Mahaffy v Mahaffy [2018] NSWCA 42 at [10-0410] on criticism of the court may amount to contempt; and at [10-0500] on the liability of a director for orders directed to a company; also at [10-0510] on proof required for contempt by failure to comply with a subpoena to produce documents. Live Group Pty Ltd v Rabbi Ulman [2017] NSWSC 1759 at [10-0420] on improper pressure on prospective parties, before any proceedings have been commenced, can constitute a contempt. Doe v Dowling [2017] NSWSC 202 on breach of orders or undertakings amounting to contempt at [10-0480].

  • “Purging contempt” includes Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88 at [10-0700] as an example of the court’s power to discharge a contemnor. Prothonotary of the Supreme Court of NSW v A [2017] NSWSC 495 at [10-0710] as an example of the principle of purgation.

Update 35, March 2018

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Stay of pending proceedings” includes Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639 at [2-2680] and [2-2690] on stay of proceedings due to abuse of process and lack of proportionality.

  • “Limitations” includes a new paragraph [2-3935] on time limits under the Motor Accident Injuries Act 2017 s 6.32.

  • “Setting aside and variation of judgments and orders” includes a new paragraph [2-6735] on setting aside consent orders and the recent decision of The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341.

The Particular proceedings chapter includes amendments to:

  • “Appeals except to the Court of Appeal, applications, reviews and mandatory orders” includes a new paragraph [5-0255] on applications and appeals in diversity proceedings under Civil and Administrative Tribunal Act 2013 Pt 3A and a discussion of Burns v Corbett [2017] NSWCA 3.

  • “Proceedings for defamation in NSW” includes a new paragraph [5-4007] about publications made on the internet, and a revised [5-4005]. New judgments have been added: Crosby v Kelly (2012) 203 FCR 451 on pleadings at [5-4010]; Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191 on jury-related applications at [5-4040]; Cavric v Nationwide News Pty Ltd [2015] NSWDC 107 on the evidentiary problem of preservation of ephemeral records, such as social media at [5-4080]; Rayney v The State of WA (No 9) [2017] WASC 367 on aggravated compensatory damages at [5-4095] and special damages at [5-4099]; seeking other forms of relief at [5-4110] such as contempt of court (Doe v Dowling [2017] NSWSC 1037) or prosecution for a criminal offence: Brown v Commonwealth DPP [2016] NSWCA 333.

The Personal injuries chapter has been updated to include claims subject to the Motor Accident Injuries Act 2017 at [6-1045]. The figures in the chapter are now current as at 1 February 2018 at [6-1000]ff.

The Damages chapter has been revised to incorporate the following changes:

  • “Damages” includes a new paragraph [7-0085] on the Motor Accident Injuries Act 2017 and has been extensively updated to include the following judgments:

    -

    at [7-0000] Gulic v Boral Transport Ltd [2016] NSWCA 269 on the generally accepted practice that the court determine all issues in question to avoid the need for a new trial;

    -

    at [7-0030] Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 and Nominal Defendant v Cooper [2017] NSWCA 280 on apportionment, and Nominal Defendant v Dowedeit [2016] NSWCA 332 on blameless accidents in contributory negligence;

    -

    at [7-0040] State of NSW v Smith [2017] NSWCA 194 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 128 FCR 54 on assessing damages for false imprisonment;

    -

    at [7-0050] Black v Young [2015] NSWCA 71 on income loss, Pham v Shui [2006] NSWCA 373, Brown v Lewis (2006) NSWLR 587, Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125 and El-Mohamad v Celenk [2017] NSWCA 242 regarding certificate of assessment of whole person impairment issued under the Motor Accidents Compensation Act 1999 s 61 is not conclusive in respect of economic loss, and Smith v Alone [2017] NSWCA 287 on vicissitudes;

    -

    at [7-0060] Smith v Alone [2017] NSWCA 287 and Hornsby Shire Council v Viscardi [2015] NSWCA 417 on attendant care;

    -

    at [7-0070] Norris v Routley [2016] NSWCA 367 on compensation to relatives;

    -

    at [7-0110] Cheng v Farjudi (2016) 93 NSWLR 95, State of NSW v Riley (2003) 57 NSWLR 496, MacDougal v Mitchell [2015] NSWCA 389 and State of NSW v Smith [2017] NSWCA 194 on punitive damages including aggravated and exemplary damages.

  • “Interest” includes a new paragraph [7-1045] on the Motor Accident Injuries Act 2017.

Update 34, November 2017

The Evidence chapter has been revised to incorporate the following changes:

  • “Hearsay” at [4-0300] includes Panayi v DC of T [2017] NSWCA 93 which determined the meaning of “not admissible” in Evidence Act s 59 means “not admissible over objection”; Panayi v DC of T and Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68 are included at [4-0390] to define “business records”.

  • “Opinion” includes at [4-0630] Bartlett v ANZ Banking Group Ltd (2016) 92 NSWLR 639 to illustrate that a dispute between experts will seldom be resolved by an examination of the witnesses’ demeanour; Sharma v Insurance Australia Limited t/as NRMA Insurance [2017] NSWCA 55 showing that a failure to establish the opinion expressed by an expert is based on the expert’s specialised knowledge due to training, study or experience goes to its admissibility, not its weight; and Nguyen v R [2017] NSWCCA 4 where a police officer’s identification evidence, based on his listening to intercepted calls over a lengthy period of time, was admissible as expert evidence.

  • “Tendency and coincidence” at [4-1140] includes Hughes v The Queen [2017] HCA 20 where the majority of the High Court approved the NSW Court of Criminal Appeal’s decision not to follow the Victorian Court of Appeal’s statements in Velkoski v R [2014] 45 VR 680 with regards to tendency evidence. Also Aravena v R (2015) 91 NSWLR 258 at [4-1140], where the Court of Criminal Appeal observed that it was not necessary that the conduct occur on a number of occasions for evidence to be admitted as tendency evidence. Even a single incident, in a particular case, may be significant.

  • “Privilege” includes Hamilton v State of NSW [2017] NSWCA 112 at [4-1560] as an example of “common interest” under Evidence Act s 122(5). In Ku-ring-gai Council v West (2017) 220 LGERA 386 at [4-1587] the public interest in the production of the material outweighed any notion of preserving secrecy or confidentiality. At [4-1590], Dowling v Ultraceuticals Pty Ltd (2016) 93 NSWLR 155 held that privilege extends to cover disclosure to a third party provided there is sufficient connection between the subject matter of the original dispute and the latter one.

  • “Discretionary and mandatory exclusions” at [4-1630] includes Perish v R (2016) 92 NSWLR 161, Tieu v R (2016) 92 NSWLR 94, Bayley v R [2016] VSCA 160 and R v Smith (No 3) [2014] NSWSC 771 on exclusion of prejudicial evidence in criminal proceedings.

  • “Other matters — the drawing of inferences” includes SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 and Oneflare Pty Ltd v Chernih [2017] NSWCA 195 illustrating the rule in Browne v Dunn at [4-1900].

The Particular proceedings chapter includes amendments to:

  • “Monetary jurisdiction in the District Court” to include Mahommed v Unicomb [2017] NSWCA 65 at [5-2000] which held that if the District Court decides it lacks, or may lack, jurisdiction to hear and dispose of proceedings, the court must order the transfer of the proceedings to the Supreme Court.

  • “Equitable jurisdiction of the District Court” to include Mahommed v Unicomb [2017] NSWCA 65 at [5-3000].

  • “Proceedings for defamation in NSW” to include O’Brien v Australian Broadcasting Corp [2016] NSWSC 1289 at [5-4010] on the defence of honest opinion; new information about the defence of consent at [5-4010]; Gregg v Fairfax Media Publications Pty Ltd [2017] FCA 1470 and Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [5-4040] on transferring proceedings to another court; Otto (aka Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101 at [5-4050] on limitation periods for electronic publications; Davis v Nationwide News Pty Ltd [2008] NSWSC 693, Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, Al Muderis v Duncan (No 3) [2017] NSWSC 726 and Wilson v Bauer Media Pty Ltd [2017] VSC 521 in the new [5-4095] on aggravated compensatory damages; and new paragraphs on special damages and injury to health at [5-4096], derisory damages and mitigation of damages at [5-4097], evidence of good and bad reputation at [5-4098], and the range of damages in defamation actions under the uniform legislation at [5-4099].

  • “Intentional torts” includes State of NSW v Smith [2017] NSWCA 194 at [5-7170] on justification for detention.

The Enforcement of judgments chapter has been revised to incorporate the following changes to “Enforcement of local judgments” at [9-0350] where Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53 is included as an illustration of matters which should be disclosed on an ex parte application for a garnishee order.

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 34.

Update 33, March 2017

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Service of process outside New South Wales” has incorporated amendments to [2-1630] arising from Uniform Civil Procedure (Amendment No 83) Rule 2016.

  • “Limitations” includes at [2-3960] Prince Alfred College Inc v ADC (2016) 90 ALJR 1085 on deciding liability when an extension of time has been denied. The Table of limitation provisions at [2-3970] has been updated.

  • “Freezing orders” at [2-4100]ff has been extensively revised and updated by his Honour Judge M Dicker SC of the District Court of NSW.

  • “Pleadings and particulars” has been updated at [2-5100] to include Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 91 ALJR 37 on the Anshun principle.

The Juries chapter has been revised at [3-0045] to include Lyons v Queensland (2016) 90 ALJR 1107 which held that a deaf person who requires the assistance of an interpreter in the jury room is not eligible for jury service.

The Particular proceedings chapter includes a new section, “Applications for judicial review of administrative decisions, including decisions of tribunals”, at [5-8500]ff written by the Honourable Justice C Adamson of the Supreme Court of NSW.

The Personal injuries chapter has been extensively revised and updated by his Honour Judge Scotting of the District Court of NSW at [6-1000]ff.

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 32.

Update 32, October 2016

“Disqualification for bias” has been revised to include at [1-0030] and [1-0050] Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128, on apprehended bias arising from the conduct of the trial and private communication by the judge with counsel for the respondents during the course of the trial.

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Pleadings and particulars” includes at [2-5100] Conference & Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118 which discusses the Anshun principle.

  • “Judgments and orders” includes at [2-6490] Katter v Melhem (2015) 90 NSWLR 164 which examines the effect of a judgment being entered on the computerised court record system.

The Evidence chapter has been revised to incorporate the following changes:

  • “Relevance” at [4-0210] analyses whether a miscarriage of justice may have occurred if no objection is taken to “irrelevant evidence”; Perish v R [2016] NSWCCA 89 is an authority for the proposition that “not admissible” means “not admissible over objection”, although in a criminal trial the judge has an overriding duty to ensure a fair trial and to prevent a miscarriage of justice.

  • “Hearsay” at [4-0300] also includes Perish v R [2016] NSWCCA 89. Sio v The Queen [2016] HCA 32 is included at [4-0350] where the High Court examined the requirement in s 65(2)(d), “made in circumstances that make it likely that the representation is reliable”. Section 65 requires that the court identify each material fact that would be proved by a hearsay statement and that the section be applied to that statement.

  • “Opinion” at [4-0630] includes JP v DPP (NSW) [2015] NSWSC 1669 as an example of the admissibility of expert opinion evidence where specialised knowledge based on training, study or experience was demonstrated during cross-examination.

  • “Privilege” at [4-1565] includes El-Zayet v R (2014) 88 NSWLR 534, where a privileged document (the Deputy DPP’s advice as to why a prosecution should be discontinued) was inadvertently handed up to the court. The court unanimously held that the DPP’s privilege had not been waived either expressly or by implication, and the Crown Prosecutor, who had mistakenly handed up the document, had no authority to waive privilege.

  • “Discretionary and mandatory exclusions” at [4-1630] also looks at Perish v R, above. Bayley v R [2016] VSCA 160 and R v Smith (No 3) [2014] NSWSC 771 are mentioned as examples of the Victorian response to IMM v The Queen (2016) 90 ALJR 529.

The Particular proceedings chapter includes the following:

  • “Appeals except to the Court of Appeal, reviews and mandatory orders” at [5-0220] includes a reference to R Wright, “The NSW Civil and Administrative Tribunal”, Judicial Commission of NSW, Supreme Court of NSW Seminar, 16 March 2016, Sydney.

  • A revised and updated section on “Costs assessment appeals” at [5-0500] ff has been inserted.

  • “Monetary jurisdiction in the District Court” also includes Katter v Melhem (2015) 90 NSWLR 164 regarding extension of monetary jurisdiction at [5-2020].

  • “Intentional torts” includes HD v State of NSW [2016] NSWCA 85 at [5-7120] and [5-7160] as an example where prosecution was not motivated by malice.

The Contempt chapter has been revised to incorporate the following changes:

  • “Contempt in the face of the court” includes amendments arising from the Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 at [10-0050]; and In the Matter of Reece George Barnes [2016] NSWSC 133 at [10-0090] where a contemnor is charged by the trial judge, it is accepted procedure that counsel may appear as amicus to assist the judge by way of adducing evidence and making submissions; and Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 as an example of a Local Court referral to the Supreme Court at [10-0130].

  • “Contempt generally” includes Young v Smith [2016] NSWSC 1051 at [10-0480] as an example of a notice of an order being given to legal representatives; and Srotyr v Clissold [2015] NSWSC 1770 where, for the purposes of the law of contempt, an undertaking given to the court is treated as if it was an order.

  • “Purging contempt” includes Malek Fahd Islamic School Ltd v Australian Federation of Islamic Councils Inc [2016] NSWSC 672 at [10-0720] which reviews the principle that a contemnor cannot be heard until the contempt has been purged.

Update 31, June 2016

The section “Costs assessment appeals” has been removed from the Particular proceedings chapter, and a note about the transitional provisions has been included. The chapter is to be rewritten.

The Personal injuries chapter is to be removed and will be rewritten.

Update 30, May 2016

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Search orders” includes updated extracts from Practice Note SC Gen 13 at [2-1050].

  • “Persons under legal incapacity” includes reference to CPA s 76(3A) at [2-4700] inserted by Courts and Other Justice Portfolio Legislation Amendment Act 2015 dealing with approval to compromise or settlement with persons, under legal incapacity, attaining the age of 18.

  • “Setting aside and variation of judgments and orders” at [2-6600] includes Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190. This held that the focus of r 36.15(1) is whether the judgment or order to be set aside or varied was “given, entered or made irregularly, illegally or against good faith”, rather than on the merits of any decision or the irregularity of other steps in the proceedings, and r 36.15(1) applies with particular force to default or consent judgments or orders and those given or made ex parte. Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4 at [2-6620] discusses the approach to be taken, where it appears that the primary judge has overlooked a significant point in formulating the court’s judgment, which is for an application to be made to the judge pursuant to r 36.16 to set aside or vary the judgment.

The Evidence chapter has been revised to incorporate the following changes:

  • “Opinion” at [4-0630] includes Morgan v R [2016] NSWCCA 25 which held that the principles in Honeysett v The Queen (2014) 253 CLR 122 did not cast doubt on the use of evidence from “ad hoc” expert witnesses.

  • “Tendency and coincidence” at [4-1140] includes Hughes v R [2015] NSWCCA 330 which reiterated the NSW approach to be taken in assessing “probative value” as to whether tendency evidence should be admitted; IMM v The Queen (2016) 90 ALJR 529 at [4-1100] and [4-1140] has resolved the jurisdictional difference between NSW and Victoria that questions of credibility are matters for the jury not the judge; BC v R [2015] NSWCCA 327 at [4-1140] held that in some cases it is not improper, and thus not prejudicial, for a jury to reason that if the accused is a particular “sort of person” (namely a person who has demonstrated the asserted tendency), then he is more likely to have committed the alleged offence.

  • “Privilege” includes Hancock v Rinehart (Privilege) [2016] NSWSC 12 and Rinehart v Rinehart [2016] NSWCA 58 at [4-1500]. Both deal with the procedure to be adopted where a claim of legal professional privilege is taken to documents sought on subpoena.

  • “Discretionary and mandatory exclusions” at [4-1620] includes Crowe-Maxwell v Frost [2016] NSWCA 46, which held that in a given case, statements made in verified pleadings constitute admissible evidence; IMM v The Queen at [4-1630] held that questions of reliability or credibility are matters for the jury, and the judge may proceed on the basis that the evidence is credible and reliable; R v Ali [2015] NSWCCA 72 at [4-1630] applied Evidence Act 1995 s 137 when considering the probative value of the DNA evidence undermined because of the possibility of contamination and doubts about the chain of possession; R v Gallagher [2015] NSWCCA 228 at [4-1640] analysised Evidence Act s 138 in considering whether a police officer was trespassing and thus illegally obtaining evidence.

The Particular proceedings chapter has been revised to incorporate amendments to:

  • “Intentional torts” at [5-7110] includes SU v Commonwealth of Australia [2016] NSWSC 8 which held that two immigrants in detention had been unlawfully arrested and imprisoned as they were taken from the detention centre and detained in the police cells.

  • “Child care appeals from the Children’s Court” at [5-8090] includes Re Mary [2014] NSWChC 7 and Re Timothy [2010] NSWSC 524, which concluded that interim orders can be amended without the need for a Children and Young Persons (Care and Protection) Act 1998 s 90 application.

The Damages chapter has been revised at “Interest” at [7-1070] to incorporate Grills v Leighton Contractors Pty Ltd (No 2) [2015] NSWCA 348 and Grima v RFI (Aust) Pty Ltd [2015] NSWSC 332 on interest after judgment.

The Enforcement of judgments chapter has been revised to incorporate the following changes:

  • “Enforcement of local judgments” includes CPA s 123(2A) at [9-0380] introduced by Courts and Other Justice Portfolio Legislation Amendment Act 2015 dealing with payments by garnishees.

  • “Enforcement of foreign judgments” at [9-0740] includes Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 90 ALJR 228 which discusses the application of the Foreign States Immunities Act 1985 (Cth) to proceedings under the Foreign Judgments Act 1991 (Cth).

Reissue and Update 29, November 2015

The Civil Trials Bench Book is reissued to provide a three-ring binder in response to overwhelming subscriber feedback which ascertained subscribers’ preference for a three-ring binder.

For your convenience, Update 29 is already filed within the reissued pages. Update 29 contains amendments to a number of chapters.

The Preliminary chapter has been revised to incorporate the following changes to “Disqualification for bias” which includes at [1-0020] a recent judgment on apprehended bias, Isbester v Knox City Council (2015) 89 ALJR 609.

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Setting aside and variation of judgments and orders” to include Violi v Commonwealth Bank of Australia [2015] NSWCA 152 as an example of a judgment set aside if given or entered irregularly at [2-6600].

  • “Time” includes Lachlan v HP Mercantile Pty Ltd [2015] NSWCA 130 at [2-7110] which discusses how the court may extend time, even if the application for extension is made after the time has expired.

The Juries chapter has been revised to include Smith v The Queen (2015) 322 ALR 464 at [3-0045] where the High Court considered appropriate disclosure to the parties of the contents of notes from a jury.

The Evidence chapter has been revised to incorporate the following changes:

  • “Opinion” includes Haidari v R [2015] NSWCCA 126 at [4-0600] which rejected the argument that identification was opinion evidence; [4-0630] includes Verryt v Schoupp [2015] NSWCA 128, where it was held that a psychiatrist’s evidence was not admissible as it was not based on any specialised knowledge of a 12-year-old child’s behaviour in the circumstances of the accident; and BHP Billiton Ltd v Dunning [2015] NSWCA 55 which admitted the evidence of a non-expert witness who was familiar with the operations of the steelworks.

  • “Tendency and coincidence” includes White v Johnston (2015) NSWLR 779 at [4-1140] which discusses the need for caution in using tendency evidence in civil proceedings.

  • A new section “Other matters — the drawing of inferences” has been included at [4-1900]ff to discuss the rules in Browne v Dunn (1893) 6 R 67 and Jones v Dunkel (1959) 101 CLR 298.

The Particular proceedings chapter has been revised to incorporate amendments to “Intentional torts” at [5-7060] to include State of NSW v McMaster [2015] NSWCA 228 where the availability of self-defence at common law was affirmed.

The Damages chapter has been revised to include:

  • The Nominal Defendant v Aychahawchar [2015] NSWCA 58 at [7-0020] which deals with the onus of proof of mitigation.

  • Sampco Pty Ltd v Wurth [2015] NSWCA 117 and Falco v Aiyaz [2015] NSWCA 202 at [7-0020] deal with causation for pre- and post- injury conditions.

  • Verryt v Schoupp [2015] NSWCA 128 at [7-0030] which deals with contributory negligence.

  • Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 at [7-0040] which held the Competition and Consumer Act did not exclude recovery of non-economic loss under the Civil Liability Act 2002 even though causes of action were available to the plaintiff under both Acts.

  • Cupac v Cannone [2015] NSWCA 114 at [7-0050] which rejected the contention that the award for past income loss should be increased to take account of inflation from the date of the plaintiff’s injury.

  • White v Benjamin [2015] NSWCA 75 at [7-0050] and [7-0060] which rejected the proposition that a wife’s future income loss should be discounted because her husband’s employment might persuade her to abandon her own career ambitions; and the six hour/six month threshold must be separately assessed in respect of both the claim for the plaintiff’s personal loss of capacity and to the claim of lost capacity to care for others.

  • Coles Supermarkets Australia Pty Ltd v Fardous [2015] NSWCA 82 at [7-0050] which held that the requirements of s 13 of the Civil Liability Act 2002 were in accordance with the principles that a plaintiff bears the onus of proof of the extent of injury and of consequential loss of income-earning capacity and the two-stage process of assessment that requires a plaintiff to establish his or her theoretical earning capacity but for injury and the extent to which that earning capacity would, but for injury, have been productive of income.

  • McKenzie v Wood [2015] NSWCA 142 at [7-0060] which held that a plaintiff was entitled to recover the cost of a hip replacement, despite there being a pre-accident progressive condition, due to the accident necessitating urgent intervention.

  • Perisher Blue Pty Ltd v Nair-Smith (2015) 320 ALR 235 at [7-0060] where the Court of Appeal accepted that the plaintiff was entitled to recover damages for the cost of commercially provided services at the established market rate rather than at the lower rate she paid for domestic assistance at the time of trial.

  • Tilden v Gregg [2015] NSWCA 164 at [7-0110] which applied the principle that a civil court, when considering whether it was appropriate to award aggravated or exemplary damages, would ordinarily proceed on the basis that the criminal conviction and sentence of the assailant had adequately dealt with the elements of punishment and deterrence.

The Contempt chapter has been revised to incorporate the following changes:

  • “Contempt in the face of the court” includes Court of Appeal, Registrar of the v Maniam (No 1) (1991) 25 NSWLR 459 at [10-0130] regarding reference to the Supreme Court; and In the matter of Steven Smith (No 2) [2015] NSWSC 1141 regarding refusal to give evidence at [10-0160].

  • “Contempt generally” at [10-0300] includes ASIC v Sigalla (No 4) [2011] NSWSC 62 and Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 where the High Court held that while contempt of court may be criminal in nature, proceedings for punishment of contempt were brought in the civil jurisdiction of the court and were “civil proceedings”; Tate v Duncan-Strelec [2014] NSWSC 1125 at [10-0430] on reprisals; Rafailidis v Camden Council [2015] NSWCA 185 and Brown Brothers v Pittwater Council [2015] NSWCA 215 at [10-0470] on consideration as to the construction of court orders.

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 29.

Update 28, June 2015

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Persons under legal incapacity” includes Iskanda v Mahbur [2011] NSWSC 1056 and Sperling v Sperling [2015] NSWSC 286 at [2-4650] on appointing tutors.

  • “Setting aside and variation of judgments and orders” includes Grant Samuel Corporate Finance Pty Limited v Fletcher (2015) 89 ALJR 401 at [2-6650]. This held that r 36.16(2)(b) and other provisions of the UCPR do not apply where the court is exercising Federal jurisdiction and the Constitution or the relevant Commonwealth law “otherwise provides”.

The Particular proceedings chapter has been revised to include the following changes:

  • “Appeals except to the Court of Appeal, reviews and mandatory orders” refers to the new r 50.16A at [5-0220] which provides there is an obligation on a defendant who objects to the competency of an appeal to apply for an order dismissing the appeal as incompetent.

  • “Child care appeals from the Children’s Court” includes the recent reforms to the Children and Young Persons (Care and Protection) Act 1998 to include parent responsibility contracts at [5-8053] and parent capacity orders at [5-8056]; the permanency planning principles at [5-8060]; changes to the court’s power to make contact orders at [5-8080]; changes to guardianship orders at [5-8093] and supervision and prohibition orders at [5-8096]; as well as recent judgments, Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 and JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [5-8020] providing failure to raise a specific point of differentiation between the Children and Young Persons (Care and Protection) Act 1998 and the United Nation’s Convention on the Rights of the Child 1989 did not constitute error.

“Interest” in the Damages chapter includes Gadens Lawyers Sydney Pty Ltd v Symond [2015] NSWCA 50 at [7-1000] considering issues relating to interest up to judgment.

The Costs chapter has been revised to include the Legal Profession Uniform Law Application Act 2014 at [8-0000]. Section 4 provides that the Legal Profession Uniform Law, which will harmonise regulation of the legal profession in States and Territories of Australia, will apply to NSW. Changes to legal practice and conduct rules, particularly in areas such as the personal liability of legal practitioners as to costs, will result. New judgments have also been included:

  • Milne v Ell [2014] NSWCA 407 and Bernstein v Poon 2015 ONSC 155 at [8-0010] regarding depriving a successful party of costs

  • BlueScope Steel Ltd v Cartwright (No 2) [2015] NSWCA 96 at [8-0070] where the court must apportion the costs of multiple parties on the basis that costs “follow the event”

  • Simmons v Rockdale City Council (No 2) [2014] NSWSC 1275 at [8-0080] comparing Bullock and Sanderson orders

  • Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19, Mitry Lawyers v Barnden [2014] FCA 918 and De Costi Seafoods (Franchises) Pty Ltd v Wachtenheim (No 5) [2015] NSWDC 8 at [8-0110] on the Supreme Court’s inherent power to make costs orders against practitioners

  • Warton v Yeo [2015] NSWCA 115 at [8-0120] on executors’ costs,

  • Colquhoun v District Court of NSW [2014] NSWCA 460 at [8-0170] where a gross sum costs order may be appropriate in proceedings brought under the Children and Young Persons (Care and Protection) Act 1998.

The Contempt chapter has been revised to incorporate the following changes:

  • “Contempt generally” includes Tate v Duncan-Strelec [2014] NSWSC 1125 regarding the time at which an internet publication takes place at [10-0320], criticism of the court constituting contempt at [10-0410] and publication of affidavits served but not deployed in proceedings at time of publication on the internet at [10-0490]; NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456 and Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10 at [10-0420] regarding using statutory powers to gain an advantage; Rumble v Liverpool Plains Shire Council [2015] NSWCA 125 at [10-0460] on validity of orders; Hoxton Park Resident’s Action Group Inc v Liverpool City Council [2014] NSWSC 704 at [10-0480] with regards to enforcement by contempt proceedings not being available.

  • “Purging contempt” includes Liverpool Plains Shire Council v Rumble (No 3) (2014) 205 LGERA 170 and Camden Council v Rafailidis (No 5) [2014] NSWLEC 85 at [10-0710] in relation to continuing breaches of court orders, it is open to a court to suspend a fine for a certain period, or to impose a fine for a continuing breach after a specified date; and Young v Jackman (1986) 7 NSWLR 97 at [10-0720], where the rule that a contemnor cannot be heard or take proceedings in the same cause until he has purged his contempt, extends to a case where a party is considered to be prima facie in contempt.

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 28.

 

Update 27, May 2015

The chapter, Preliminary, has been revised to include the following changes:

  • “Disqualification for bias” includes at [1-0050] the guidelines given in Ken Tugrul v Tarrants Financial Consultants Pty Ltd (In liq) (No 2) [2013] NSWSC 1971 about the use of email to communicate with a judge’s chambers, and includes Stanizzo v Bardane [2014] NSWSC 689 stating the need for judges to develop a clear policy with their staff about disclosure of emails from litigants

  • “Media access to court records, exhibits and judgment remarks” includes new writings on the recording and broadcast of judgments at [1-0240], which contain the amendments created by the Courts Legislation Amendment (Broadcasting Judgment) Act 2014 that provides for a presumption in favour of the recording and broadcast of certain judgments of the District Court or Supreme Court given in open court

  • “Unrepresented litigants and lay advisers” includes Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [1-0820] as an example of unrepresented litigants being granted an adjournment where procedural requirements are misunderstood.

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Case management” includes Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [2-0020] as an illustration of the general principles of case management

  • “Adjournment” includes Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [2-0210] as an illustration of the general principles of adjournment

  • “Service of process outside New South Wales” includes Bagg v Angus Carnegie Gordon as liquidator of Salfa Pty Limited (in liq) [2014] NSWCA 420 at [2-1630] as an example of submission to the jurisdiction under UCPR Pt 11A

  • “Discovery” includes Practice Note SC Eq 11 at [2-2210] which guides the discovery process in the Equity Division. Bauen Constructions Pty Ltd v New South Wales Land and Housing Corporation [2014] NSWSC 684 and Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 summarise the principles governing the application of the practice note

  • “Separate determination of questions” includes at [2-6110] Jackson Lalic Lawyers Pty Limited v Attwells [2014] NSWCA 335, Young v Hones [2014] NSWCA 337 and Nikolaidis v Satouris [2014] NSWCA 448 as to the use of separate determinations relating to issues of immunity from suit

  • “Setting aside and variation of judgments and orders” includes Goater v Commonwealth Bank of Australia [2014] NSWCA 382 at [2-6640] and [2-6650] which provides the powers under UCPR r 36.16 are not extinguished even if a judgment or order has taken effect.

The Particular proceedings chapter has been revised to incorporate Practice Note No SC CL 4 — Defamation List (commenced 5 September 2014) and District Court Practice Note No 6 — Defamation List (commenced 9 February 2015) in “Proceedings for defamation in NSW” at [5-4010]. “Proceedings for defamation in NSW” has been revised to incorporate the following case law:

  • Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 and Phillips v Robab Pty Ltd [2014] NSWSC 1520 at [5-4010] which expressed conflicting views on the defence of contextual truth, notably the correct way to apply it at trial

  • Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [5-4010] where an offer to make amends and an apology was considered to be an insufficient defence and substantial damages were awarded

  • Summary judgment applications at [5-4010] discussed Cumberland v Clark (1996) 39 NSWLR 514 and Della Bosca v Arena [1999] NSWSC 1057 where a defence of absolute privilege is raised, or in relation to statements made concerning court proceedings, or in parliament. Barach v University of NSW [2011] NSWSC 431 and Bristow v Adams [2012] NSWCA 166 rejected summary judgment applications brought on the basis that the claim is trivial. However, in Bleyer v Google Inc [2014] NSWSC 897 proceedings were permanently stayed where the publication was limited, the defences strong and enforcement in the United States unlikely. Likewise, McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133; Dank v Cronulla Sutherland District Rugby League Football Club Ltd (No 3) [2013] NSWSC 1850; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288; Trkilja v Dobrijevic (No 2) [2014] VSC 594 held pleadings which are clearly hopeless may be dismissed summarily

  • North Coast Children’s Home Inc (t/as Child and Adolescent Specialist Programs and Accommodation (Caspa)) v Martin (No 2) [2014] NSWDC 142; Polias v Ryall [2014] NSWSC 1692; Wilson v Ferguson [2015] WASC 15; Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 examined defamation through internet or other electronic publications at [5-4110].

New writings on “Damages” have been included in the Damages chapter by Her Honour M Sidis at [7-0000]ff.

 

Update 26, November 2014

The chapter, Preliminary, has been revised to include a reference in “Disqualification for bias” to M Groves, “Emailing judges and their staff” (2013) 37 Aust Bar Rev 69 at [1-0050].

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Amendment” to include Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [2-0730] to illustrate that the principles in CPA ss 56, 57 provide grounds for refusal to amend

  • “Cross-vesting legislation” to include Eberstaller v Poulos (2014) 313 ALR 165 at [2-1400] as an example of the application of s 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)

  • “Discovery” to include a reference to Practice Note 11 at [2-2200] regarding discovery in the Equity Division

  • “Joinder of insurers and attachment of insurance moneys” to include Opes Prime Stockbroking Ltd (In Liq) (Scheme Administrators Appointed) v Stevens [2014] NSWSC 659 at [2-3730] as an example of the discretion of the court to grant leave to join insurer

  • “Persons under legal incapacity” to include Wang v State of New South Wales [2014] NSWSC 909 at [2-4610] and [2-4630] to illustrate it is in the interests of justice for a tutor to carry on proceedings with the appointment of a solicitor

  • “Parties to proceedings and representation” to include Ahmed v Choudbury [2012] NSWSC 1452 and Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179 at [2-5500] as examples of occasions when the Supreme Court has the jurisdiction to make representative orders.

The Evidence chapter has been revised to incorporate the following changes:

  • “Hearsay” to include a new paragraph on hearsay statements to explain delay at [4-0455] which discusses the judgment Brierley v Ellis (2014) 67 MVR 282

  • “Opinion” to include the High Court judgment, Honeysett v The Queen (2014) 88 ALJR 786, at [4-0620] and [4-0630], where an expert’s subjective opinion, not based on specialised knowledge, is not admissible as an expert opinion; Beckett v State of New South Wales [2014] NSWSC 1112 at [4-0630] which followed the principles of Honeysett v The Queen, above; Howard Smith and Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 at [4-0630] where evidence of lay witnesses was qualified as admissible evidence on the basis that it was specialised knowledge obtained through extensive experience

  • “Admissions” to include R v Cooney [2013] NSWCCA 312 at [4-0900] where the discretion to exclude admissions under Evidence Act 1995, s 90 was overturned due to a failure to consider the balancing test in s 138

  • “Tendency and coincidence” to include Saoud v R [2014] NSWCCA 136 at [4-1120] and [4-1150] with respect to admissibility of tendency and coincidence evidence

  • “Privilege” to include Sexton v Homer (2013) 65 MVR 460 at [4-1520] where a report concerning possible litigation furnished by an accident investigator to an insurance company attracted privilege; a further paragraph on Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 at [4-1562] stating there is a duty on solicitors to support the objectives of the proper administration of justice by avoiding unnecessary and costly interlocutory applications; a new paragraph [4-1590] was included on the exclusion of settlement negotiations from admission into evidence and discussed Galafassi v Kelly [2014] NSWCA 190 which analysed Evidence Act 1995, s 131 and its exception in s 131(2)(g)

  • “Discretionary and mandatory exclusions” to include Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 at [4-1640] which found there was no error of law in the trial judge examining the burden of proof required by Evidence Act 1995, s 140(2)(c) and the Briginshaw standard of proof.

“Interest” in the Damages chapter has been updated to include Maestrale v Aspite (No 2) [2014] NSWCA 302 at [7-0200] as an example of the discretion to award pre-judgment and post-judgment interest.

The Costs chapter has been extensively revised and reissued at [8-0000]ff, and “Calderbank letters and offers of compromise” has been moved from the Procedure generally chapter to the Costs chapter, [8-0500]ff.

 

Update 25, June 2014

The chapter, Preliminary, has been revised to include a further reference in “Closed court, suppression and non-publication orders” to B Fitzgerald and C Foong, “Suppression orders after Fairfax v Ibrahim: Implications for internet communications” (2013) 37 Aust Bar Rev 175.

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Parties to proceedings and representation” to include Giles v Commonwealth of Australia [2014] NSWSC 83 at [2-5500] to illustrate difficulties of representative proceedings

  • “Issues arising under foreign law” to include Marshall v Fleming [2014] NSWCA 64 as an example of a referral of question of foreign law at [2-6210]

  • “Setting aside and variation of judgments and orders” to include JP Morgan Chase Bank, National Association v Fletcher (2014) 306 ALR 224 at [2-6680] which defined a “party” under UCPR r 36.17

  • “Summary disposal and strike out applications” to include Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [2-6920] which examined the relevant principles of vexatious proceedings.

The Juries chapter has been revised at [3-0045] to include Smith v Western Australia (2014) 305 ALR 338 where the High Court considered what material should be taken into account in excluding a real suspicion that a juror had been improperly influenced.

The Particular proceedings chapter has been revised to incorporate the following case law:

  • “Proceedings for defamation in NSW” to include Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [5-4010] in regards to identification of the plaintiff; Holt v TCN Channel Nine Pty Ltd (2012) 82 NSWLR 293, affirmed in Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90, regarding contextual truth mitigating damages at [5-4090] and a discussion at [5-4100] whether it is “unreasonable” not to make an offer of costs where a small amount of damages is awarded; and a discussion on “settlement offers” at [5-4100] including Davis v Nationwide News Pty Ltd [2008] NSWSC 946

  • “Child care appeals from the Children’s Court” to include “V V” v District Court of New South Wales [2013] NSWCA 469 at [5-8060] discussing the interpretation given to “circumstances of the child” under s 83(1)(a) and the need to provide reasons under s 79(3) of the Children and Young Persons (Care and Protection) Act 1998.

The Contempt chapter has been revised to incorporate the following changes:

  • “Contempt in the face of the court” to include R v Abdallah; In the matter of John Leger [2014] NSWSC 320 at [10-0090] as an example of a matter where an amicus curiae was appointed in contempt proceedings; and Kus v Ronowska [2013] NSWCA 387 at [10-0150] regarding commencement of a term of imprisonment for contempt.

  • “Contempt generally” to include Papas v Grave [2013] NSWCA 308 at [10-0460] as an example of orders of a superior court of record remaining valid until set aside; and Baker v Paul [2013] NSWCA 426 at [10-0500] as an illustration of interference with the administration of justice by assisting in breach of orders by a third party.

 

Update 24, March 2014

Update 24 contains amendments to a number of chapters, including the Procedure generally chapter. This has been revised to include RinRim Pty Limited v Deutsche Australia Ltd [2013] NSWSC 1762 at [2-2300], which discusses preliminary discovery to assess whether to commence proceedings.

The Evidence chapter includes reference to the High Court’s decision in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 303 ALR 199, at [4-1500] and [4-1562] in relation to there being no waiver of privilege when there is inadvertent disclosure of documents in the discovery process. The Procedure generally chapter also refers to Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd in “Case management” at [2-0020] and “Discovery” at [2-2260].

The Particular proceedings chapter contains a new section, “Trans-Tasman proceedings”, at [5-3500] ff which discusses the Trans-Tasman Proceedings Act 2010 (Cth). The Act is also referred to in the Procedure generally chapter, in “Service of process outside New South Wales”, “Stay of pending proceedings”, “Interim preservation orders including interlocutory injunctions” and “Limitations”, at [2-1630], [2-2600], [2-2800] and [2-3900]. The Act makes provision for matters such as service of Australian initiating documents in New Zealand, the granting of interim relief by Australian courts in support of civil proceedings in New Zealand courts, the issue and service of New Zealand and Australian subpoenas, remote appearances in Australian and New Zealand courts and tribunals and the recognition and enforcement of New Zealand judgments in Australia.

The Personal injuries chapter mentions the link to the annotated Civil Liability Act 2002 on the NSW Court of Appeal website at [6-0000].

The Costs chapter and “Setting aside and variation of judgments and orders” in Procedure generally at [2-6680] has been revised to include Georgouras v Bombardier Investments (No 2) Pty Ltd [2013] NSWSC 1549 at [8-0150] on the application of the slip rule to costs orders.

The Enforcement of judgments chapter has been revised to incorporate the following changes:

  • “Stay of execution” to include Secretary of the Treasury v Public Service Association & Professional Officers’ Association Amalgamation Union of New South Wales [2014] NSWCA 14 at [9-0000] in relation to the power of courts to stay execution

  • “Enforcement of foreign judgments” to include the Trans-Tasman Proceedings Act 2010 (Cth) at [9-0700] in relation to enforcing certain New Zealand judgments; and Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3 at [9-0740].

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 24.

 

Update 23, December 2013

Update 23 contains amendments to a number of chapters, including the Preliminary chapter, which has been revised to incorporate the following changes:

  • “Disqualification for bias” to include Gaudie v Local Court of New South Wales [2013] NSWSC 1425 at [1-0040], as an example of judicial bias due to the trial judge expressing views in extra-judicial publications

  • “Closed court, suppression and non-publication orders” to include the prohibitions arising from the Court Security Act 2005, s 9A on the transmission of sounds or images from the court room at [1-0440].

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Cross-vesting legislation” to include Hopkins v Governor-General of Australia [2013] NSWCA 365 at [2-1400], which discusses jurisdiction to hear proceedings

  • “Service of process outside New South Wales” to include Hiralal v Hiralal [2013] NSWSC 984 at [2-1630], as an example of service outside Australia pursuant to UCPR Pt 11

  • “Summary disposal and strike out applications” to include Stokes (by a tutor) v McCourt [2013] NSWSC 1014 at [2-6920], as an example of abuse of process.

The Evidence chapter has been revised to incorporate the following changes:

  • “Relevance” to include Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 301 ALR 326 at [4-0200], in the discussion of relevant documents where authenticity is an issue

  • “Opinion” to include Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383 and Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114 at [4-0630], in the discussion of differentiation between opinion and assumed facts; and new writings on the time limit on service of an expert’s certificate at [4-0650]

  • “Admissions” discusses the new s 89A of the Evidence Act 1995 occasioned by the Evidence Amendment (Evidence of Silence) Act 2013 at [4-0850]

  • “Privilege” to include Cooper v Hobbs [2013] NSWCA 70 at [4-1535], as an example of the inconsistency test under s 122(2) of the Evidence Act 1995; and Feridun Akcan v Cross [2013] NSWSC 403 as an example of loss of client legal privilege at [4-1575]

  • “Discretionary and mandatory exclusions” to include Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 at [4-1620], which discusses the general discretion to limit use of evidence; and Dupas v R (2012) 218 A Crim R 507 and R v XY [2013] NSWCCA 121 discussing “probative value” of evidence at [4-1630].

The Particular proceedings chapter has been revised to incorporate the following changes:

  • “Intentional torts” to include X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 at [5-7080], in the discussion of consent in medical cases

  • new writings on “Child care appeals from the Children’s Court” by his Honour P Johnstone, President of the Children’s Court of NSW at [5-8000] ff.

 

Update 22, September 2013

Update 22 contains amendments to a number of chapters, including the Procedure generally chapter, which has been revised to incorporate the following changes:

  • “Service of process outside New South Wales” to include In the matter of Mustang Marine Australia Services Pty Ltd (In Liq) [2013] NSWSC 360 at [2-1630], as an example of service outside Australia pursuant to UCPR Pt 11

  • UCPR (Amendment No 61) 2013 which amends r 42.21 to include a non-exhaustive list of matters to which the court may have regard in determining whether to order security for costs, and to order security for costs where there are grounds to believe the plaintiff has divested assets to avoid the consequences of proceedings or changed their place of residence without reasonable notification. These changes have resulted in “Security for costs” being re-written at [2-5900] ff

  • “Issues arising under foreign law” to include Marshall v Fleming [2013] NSWSC 566 at [2-6210], as an example of the Supreme Court appointing a referee to answer questions of foreign law

  • “Judgments and orders” to include Mills v Futhem Pty Ltd (2011) 81 NSWLR 538 at [2-6490], in the discussion of effective entry of judgments and orders under UCPR r 36.11

  • “Setting aside and variation of judgments and orders” to include Mills v Futhem Pty Ltd (2011) 81 NSWLR 538 at [2-6740] confirming CPA s 73.

New writings on “Intentional torts” have been included in the Particular proceedings chapter by the Honourable Anthony Whealy QC at [5-7000] ff.

“Costs assessment appeals” in the Particular proceedings chapter have included the amendments of the UCPR (Amendment No 60) 2013 to include the email addresses of parties/solicitors to be stated on originating processes and other documents at [5-0550].

“Interest” in the Damages chapter has been updated to include Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227 at [7-0700], in the discussion of interest after judgment.

 

Update 21, June 2013

Update 21 contains amendments to a number of chapters, including the Preliminary chapter, which has been revised to include Rouvinetis v Knoll [2013] NSWCA 24 at [1-0020].

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Alternative dispute resolution” includes the Courts and Other Legislation Further Amendment Act 2013 No 1 repealing CPA Pt 2A at [2-0500],

  • “Discovery” includes The Age Company Ltd v Liu [2013] NSWCA 26 at [2-2280] and [2-2290],

  • “Calderbank letters and offers of compromise” includes the amendments made by the Uniform Civil Procedure Rules (Amendment No 59) 2013; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [2-4410]; Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [2-4410]; Red Engine Group Pty Ltd v Hotel Agencies Pty Ltd [2007] VCC 398 at [2-4410]; SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 at [2-4410]; Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [2-4410]; Old v McInnes [2011] NSWCA 410 at [2-4410] and [2-4420]; Vieira v O’Shea (No 2) [2012] NSWCA 121 at [2-4420]; Jones v Sutton (No 2) [2005] NSWCA 203 at [2-4420],

  • “Setting aside and variation of judgments and orders” includes Chand v Zurich Australian Insurance Ltd [2013] NSWSC 102 at [2-6600].

The Particular proceedings chapter has been updated to include Levy v Bablis [2013] NSWCA 28 at [5-0200].

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 21.

 

Update 20, March 2013

Update 20 contains amendments to a number of chapters, including the Preliminary chapter, which has been revised to include D1 v P1 [2012] NSWCA 314 at [1-0410] and D1 v P1 (No 2) [2012] NSWCA 440 at [1-0410].

The Procedure generally chapter has been revised to incorporate the following changes:

  • “Discovery” includes Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430 at [2-2260].

  • “Limitations” includes In the Matter of Auzhair Supplies Pty Ltd (in Liq) [2013] NSWSC 1 at [2-3900].

  • “Calderbank letters and offers of compromise” includes Hancock v Arnold (No 2) [2009] NSWCA 19 at [2-4420]; Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [2-4420]; Azar v Kathirgamalingan [2012] NSWCA 429 at [2-4420]; Dean v Stockland Property Management Pty Ltd (No 2) [2010] NSWCA 141 at [2-4420]; Barakat v Bazdarova [2012] NSWCA 140 at [2-4420]; Prosperity Advisers Pty Ltd v Secure Enterprises Pty Ltd [2012] NSWCA 192 at [2-4420]; Doyle v Hall Chadwick [2012] NSWCA 175 at [2-4420]; Rosebanner Pty Ltd v EnergyAustralia (No 2) [2011] NSWCA 150 at [2-4420]; Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [2-4420]; Jovanovski v Billbergia Pty Ltd (No 2) [2010] NSWSC 617 at [2-4420]; Dargan v United Super Pty Ltd (No 2) [2011] NSWSC 1527 at [2-4420]; and George v Webb [2012] NSWSC 86 at [2-4420].

  • “Security for costs” includes Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 at [2-5930], [2-5965]; Ballard v Brookfield Australia Investments Ltd [2012] NSWCA 434 at [2-5930], [2-5965]; and Wollongong City Council v Legal Business Centre Pty Ltd (No 2) [2012] NSWCA 366 at [2-5965].

New writings on “Privilege” have been included in the Evidence chapter by the Honourable Anthony Whealy QC at [4-1500] ff.

The Particular proceedings chapter has been updated to include “Concurrent evidence” by the Honourable Justice McClellan at [5-6000] ff. The Special Statutory Compensation List section has been updated to include Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited (2009) 75 NSWLR 503 at [5-1030]. The “Defamation” section has been updated to include Lloyd-Jones v Allen [2012] NSWCA 230 at [5-4010]; Bennette v Cohen [2009] NSWCA 60 at [5-4010]; Marshall v Megna [2013] NSWCA 30 at [5-4100]; Papaconstuntinos v Holmes a Court [2012] HCA 53 at [5-4010]; Harbour Radio Pty Ltd v Trad (2011) 245 CLR 257 at [5-4010]; Hyndes v Nationwide News Pty Ltd [2012] NSWCA 349 at [5-4100]; Ten Group Pty Ltd (No 2) v Cornes (2012) 114 SASR 106 at [5-4100]; and Cripps v Vakras [2012] VSC 400 at [5-4110].

The Costs chapter has been revised to include: State of NSW v Quirk [2012] NSWCA 216 at [8-0010]; Harkness v Harkness (No 2) [2012] NSWSC 35 at [8-0010], [8-0030]; Re Kerry (No 2) [2012] NSWCA 194 at [8-0030]; Rinehart v Welker (No 3) [2012] NSWCA 228 at [8-0030]; Bathurst Regional Council as Trustee for the Bathurst City Council Crown Reserves Reserve Trust v Thompson (No 2) [2012] NSWCA 420 at [8-0030]; Raulfs v Fishy Bite Pty Ltd [2012] NSWCA 135 at [8-0050]; Kable v State of NSW (No 2) [2012] NSWCA 361 at [8-0150]; Macourt v Clark (No 2) [2012] NSWCA 411 at [8-0060], [8-0090]; Barakat v Bazdarova [2012] NSWCA 140 at [8-0090]; Doyle v Hall Chadwick [2012] NSWCA 175 at [8-0090]; Azar v Kathirgamalingan [2012] NSWCA 429 at [8-0090]; Zang v Middleton [2011] NSWSC 881 at [8-0130]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 at [8-0130]; and New South Wales v Williamson [2012] HCA 57 at [8-0130].

 

Update 19, December 2012

Update 19 contains amendments to a number of chapters, including the Procedure generally chapter, which has been revised to incorporate the following changes:

  • “Case management” at [2-0020] to include Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

  • “Dismissal for lack of progress” at [2-2400] to include Reimers v Health Care Complaints Commission [2012] NSWCA 317 and [2-2410] to include State of New South Wales v Plaintiff A[2012] NSWCA 248

  • “Calderbank letters and offers of compromise” at [2-4400] to include reference to Beazley JA’s speech “Calderbank offers 2” to the Civil Litigation Committee Seminar, NSW Young Lawyers, 26 September 2012

  • “Judgments and orders” at [2-6440] to include Spencer v Bamber [2012] NSWCA 274.

The Evidence chapter has been revised to reflect changes to the following:

  • “Relevance” at [4-0200] to include BBH v The Queen [2012] HCA 9

  • “Hearsay” at [4-0300] to include Baker v The Queen (2012) 289 ALR 614 and [4-0310] to include R v Baladjam (No 43) [2008] NSWSC 1461

  • “Opinion” at [4-0630] to include Gilham v R [2012] NSWCCA 131, Allianz Australia Ltd v Sim [2012] NSWCA 68 and Wood v R [2012] NSWCCA 21

  • “Admissions” at [4-0840] to include R v Baladjam (No 47) [2008] NSWSC 1466, R v Baladjam (No 48) [2008] NSWSC 1467 and JB v R [2012] NSWCCA 12, and [4-0870] to include R v Baladjam (No 38) (2008) 270 ALR 187 and [4-0900] to include JB v R [2012] NSWCCA 12

  • “Tendency and coincidence” at [4-1150] to include DSJ v R [2012] NSWCCA 9, Bangaru v R [2012] NSWCCA 204 and R v Gale [2012] NSWCCA 174.

 

Update 18, September 2012

Update 18 contains amendments to a number of chapters, including the Preliminary chapter, which has been revised to incorporate the following changes:

  • “Closed court, suppression and non-publication orders” at [1-0410] to include State of New South Wales v Plaintiff A [2012] NSWCA 248 and Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125.

The Procedure generally chapter has been revised to reflect changes to the following:

  • “Alternative dispute resolution” at [2-0500] to include Civil Procedure Regulation 2012 cl 16

  • “Joinder of insurers and attachment of insurance moneys” at [2-3730] to include Energize Fitness Pty Ltd v Vero Insurance Ltd [2012] NSWCA 213

  • “Persons under legal incapacity” at [2-4600] to include Application of Malcolm Huntley Potier [2012] NSWCA 222

  • “Setting aside and variation of judgments and orders” at [2-6740] to include Yule v Smith [2012] NSWCA 191

  • “Summary disposal and strike out applications” at [2-6920] to include Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182.

The Particular proceedings chapter has been revised to reflect changes to “Proceedings for defamation in NSW” to include Karam v Fairfax New Zealand Limited [2012] NZHC 887 at [5-4005]; Carey v Australian Broadcasting Corp [2012] NSWCA 176 and Bristow v Adams [2012] NSWCA 166 at [5-4010]; Palavi v Queensland Newspapers Pty Ltd [2012] NSWCA 182 and Crosby v Kelly [2012] FCAFC 96 at [5-4040].

New writing on “Possession List in the Supreme Court” by the Honourable Justice D Davies have been inserted into Particular proceedings from [5-5000] ff.

 

Update 17, June 2012

Update 17 contains amendments to a number of chapters, including the Preliminary chapter, which has been revised to incorporate the following changes:

  • “Disqualification for bias” at [1-0030] and [1-0040] to include CUR24 v DPP [2012] NSWCA 65

  • “Legal aid and pro bono procedures” at [1-0610] to include Rouvinetis v Knoll [2012] NSWCA 125.

The Procedure generally chapter has been revised to reflect changes to the following:

  • “Discovery” at [2-2290] to include Roads and Traffic Authority of NSW v Care Park Pty Ltd [2012] NSWCA 35

  • “Limitations” at [2-3920] to include State of NSW v Gillett [2012] NSWCA 83

  • “Calderbank letters and offers of compromise” at [2-4410] to include Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 and Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124 and at [2-4420] to include Miwa, above, and Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360

  • “Persons under legal incapacity” at [2-4630] and [2-4640] to include Bobolas v Waverley Council [2012] NSWCA 126

  • “Pleadings and particulars” at [2-5090] to include Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34

  • “Parties to proceedings and representation” at [2-5550] to include RL v NSW Trustee and Guardian (No 2) [2012] NSWCA 78

  • “Security for costs” at [2-5930] to include Levy v Bablis [2011] NSWCA 411 and Odyssey Financial Management Pty Ltd v QBE Insurance (Australia) Ltd [2012] NSWCA 113

  • “Setting aside and variation of judgments and orders” at [2-6650] to include Northey v Bega Valley Shire Council [2012] NSWCA 28.

The Costs chapter has been revised to include: Hamod v State of NSW [2011] NSWCA 275 ([8-0010]); Almond Investors Ltd v Kualitree Nursery Pty Ltd (No 2) [2011] NSWCA 318 ([8-0030]); Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 ([8-0030]); Separovich v Ferrao (No 2) [2011] NSWCA 346 ([8-0070]); Vieira v O’Shea (No 2) [2012] NSWCA 121 ([8-0090]); Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 ([8-0090]); Amaca Pty Ltd v Hicks (No 2) [2011] NSWCA 360 ([8-0090]); and State of NSW v Hamod [2011] NSWCA 376 ([8-0150].

New writings on “Proceedings for defamation in NSW” by Her Honour Judge Judith Gibson have been inserted into Particular proceedings from [5-4000]ff. The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 17.

 

REISSUE and Update 16, March 2012

The Civil Trial Bench Book is reissued to provide a wider, sturdier binder to allow for future developments and new writings. We have taken the opportunity to review the material in the Bench Book. Certain material has been restructured and a number of case citations and links have been updated.

For your convenience, Update 16 is already filed within the reissued pages. Update 16 contains amendments to a number of chapters, including:

  • the Preliminary chapter, which has been revised to incorporate changes to “Disqualification for bias” to include a discussion of the High Court decision in Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685 and the Court of Appeal decision in Barakat v Goritsas (No 2) [2012] NSWCA 36 at [1-0020] and [1-0040]; “Closed court, suppression and non-publication orders” to include Reinhart v Welker [2011] NSWCA 425 at [1-0410]; and “Legal aid and pro bono procedures” to include Potier v Arnott [2012] NSWCA 5 at [1-0610]

  • the Procedure generally chapter has been revised to reflect changes to the commencement of Pt 2A of the Civil Procedure Act 2005. The postponement of Pt 2A is noted at [2-0500] in “Alternative dispute resolution”; Rinbac Pty Ltd v Owners Corporation Strata Plan 64972 (2010) NSWLR 601 is included in “Change of venue and transfer between New South Wales courts” at [2-1210]; and Potier v Arnott [2012] NSWCA 5 is referenced in “Persons under legal incapacity” at [2-4600]

  • the Particular proceedings chapter, which has been revised to include the “Equitable jurisdiction of the District Court” from [5-3000]ff includes a reference to Bushby v Dixon Holmes du Pont Pty Ltd (2010) 78 NSWLR 111 (SC) at [5-3030]

  • the Personal injuries chapter, a new chapter that has been inserted in Update 16, includes an extract dealing with the legal framework for the compensation of personal injury in NSW from [6-1000]ff

  • The Costs chapter has been revised to include Old v McInnes [2011] NSWCA 410 at [8-0090] about whether a compromise offer should have been treated as a Calderbank offer.

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 16.

 

Update 15, December 2011

Update 15 contains amendments to the Evidence chapters including the following:

  • Dasreef v Hawchar (2011) 277 ALR 611 concerning the examination of propositions stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (Opinion chapter, “Exception: opinions based on specialised knowledge — s 79” at [4-0630])

  • Lithgow City Council v Jackson [2011] HCA 36 concerning the issue of relevance (Relevance chapter, “Relevant evidence — s 55” at [4-0200]; Opinion chapter, “The opinion rule — s 76” at [4-0600]); “Exception: lay opinions — s 78” at [4-0620])

  • Tran v Nominal Defendant [2011] NSWCA 220 concerning an exception to the hearsay rule (Hearsay chapter, “Exception: business records — s 69” at [4-0390])

  • Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 concerning the differentiation between opinion and factual bases (Opinion chapter, “Exception: opinions based on specialised knowledge — s 79” at [4-0630]).

The Index, Table of Cases and Table of Statutes have also been updated to include amendments up to and including Update 15.

 

Update 14, September 2011

Update 14 contains amendments to a number of chapters, including the Preliminary chapter, which has been revised to incorporate the following changes:

  • “Disqualification for bias” ([1-0020]) has been amended to include Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 and Whalebone v Auto Panel Beaters & Radiators Pty Ltd (in liq) [2011] NSWCA 176

  • “Closed court, suppression and non-publication orders” ([1-0400]ff) has been rewritten to reflect the operation of the Court Suppression and Non-publication Orders Act 2010 from 1 July 2011.

The Procedure generally chapter has been revised to reflect changes to the following:

  • “Case management” ([2-0010]) amended to include State of NSW v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200

  • “Persons under legal incapacity” ([2-4600]) amended to include a reference to Potier v Director-General, Department of Justice & Attorney General [2011] NSWCA 105

  • “Pleadings and particulars” ([2-5090]) amended to include Davis v Veigel; Davis v Broughton; Bell v Veigel; Bell v Broughton [2011] NSWCA 170

  • “Security for costs” ([2-5965]) and “Judgments and orders”([2-6460]) amended to include Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211

  • “Setting aside and variation of judgments and orders” ([2-6620]) amended to include Nominal Defendant v Livaja [2011] NSWCA 121.

The Costs chapter has been revised to include some of the following recent cases:

  • Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 ([8-0030], [8-0060])

  • Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 ([8-0030], [8-0060], [8-0080], [8-0090])

  • Stephens v Giovenco; Dick v Giovenco (No 2) [2011] NSWCA 144 ([8-0050])

  • Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 842 ([8-0050], [8-0130])

  • Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 ([8-0060], [8-0150])

  • Cross v Certain Lloyds Underwriters; Thelander v Certain Lloyds Underwriters [2011] NSWCA 136 ([8-0130])

  • State of NSW v Williamson [2011] NSWCA 183 ([8-0130])

The Stay of execution chapter has amended to include Woolworths Ltd v Strong (No 2) [2011] NSWCA 72 ([8-1020]).

 

Update 13, June 2011

Update 13 contains amendments to the following chapters Preliminary, Procedure generally, Juries, Evidence, Particular proceedings, Costs and Contempt.

The Preliminary chapter has been revised to reflect changes to the following paragraphs:

  • “Disqualification for bias” ([1-0020] and [1-0040]) as a result of the High Court decision in British American Tobacco Australia Services Ltd v Laurie (concerning the prohibition of a judge from hearing proceedings on the basis of a reasonable apprehension of bias)

  • “Unrepresented litigants and lay advisers” ([1-0820]) as a result of the Court of Appeal decision in Jeray v Blue Mountains City Council (No 2) (concerning the consideration of the duty of a primary judge to unrepresented litigants to ensure litigants’ proper understanding of proceedings and adequate opportunity to vindicate rights in court).

The Procedure generally chapter has been revised to reflect changes to the following paragraphs:

  • “Case management” ([2-0000]), includes consequential amendments by the Courts and Crimes Legislation Further Amendment Act 2010 and notes the commencement of the Case Management of Civil Proceedings in the Local Court Practice Note

  • “Adjournment” ([2-0200]), notes the commencement of the Case Management of Civil Proceedings in the Local Court Practice Note

  • “Alternative dispute resolution” ([2-0200]), includes writings on a new Pt 2A of the Civil Procedure Act 2005 dealing with pre-litigation protocols and requirements (at [2-0505]), reflecting amendments made by the Courts and Crimes Legislation Further Amendment Act 2010 and the Civil Procedure Amendment (Excluded Proceedings) Regulation 2011

  • “Amendment” ([2-0780]), includes Mitry v Business Australia Capital Finance Pty Ltd (in liq) (where a liquidator sought to correct a mistake in the name of a party)

  • “Service of process outside New South Wales” ([2-1600]), includes writings (at [2-1630]) on a new Pt 11A concerning the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, inserted by the Uniform Civil Procedure Rules (Amendment No 27) 2009

  • “Set off and cross-claims” ([2-2050]), includes Bowcliff v QBE Insurance (concerning cross-claims generally)

  • “Interim preservation orders including interlocutory injunctions” ([2-2800]), includes a revised [2-2840] on the Fair Trading Act 1987 and the Australian Consumer Law (NSW) as a result of amendments by the Fair Trading Amendment (Australian Consumer Law) Act 2010

  • “Joinder of causes of action and parties” ([2-3400]), includes reference to CGU Insurance v Bazem (concerning the extent of the power to grant leave to join parties)

  • “Persons under legal incapacity” ([2-4600]), includes consequential changes by the Courts and Crimes Legislation Further Amendment Act 2010

  • “Parties to proceedings and representation” ([2-5400]), includes writings on a new Pt 10 of the Civil Procedure Act 2005 concerning representative proceedings in the Supreme Court (at [2-5500]), reflecting amendments made by the Courts and Crimes Legislation Further Amendment Act 2010, the Uniform Civil Procedure Rules (Amendment No 41) 2011 and the Supreme Court Form No 115 (Opt out notice)

  • “Security for costs” ([2-5900]), includes references to Batterham v Makeig (No 2) and Corby v Channel Seven Sydney Pty Ltd with regard to foreign plaintiffs (at [2-5930]) and ordering security in appeals (new [2-5965]).

The Juries chapter has been revised to reflect a minor amendment made by the Uniform Civil Procedure Rules (Amendment No 42) 2011 in “Civil juries”.

The Evidence chapter has been revised to reflect minor changes.

The Particular proceedings chapter has been revised to include new commentary by Judge Levy on the jurisdictional limits of the District Court (at [5-2000]ff).

The Costs chapter has been revised to reflect consequential or minor amendments made by the Courts and Crimes Legislation Further Amendment Act 2010, Uniform Civil Procedure Rules (Amendment No 39) 2010 and the Uniform Civil Procedure Rules (Amendment No 43) 2011.

The following cases have also been included in this chapter: McCusker v Rutter ([8-0010] (power of the court to order costs) and [8-0130] (regulated party/party costs)), May v Christodoulou ([8-0100] (powers to make orders for cost against non-parties) and [8-0110] (circumstances where costs orders against non-parties are made)), Hawkesbury District Health Service Ltd v Chaker (No 2) ([8-0060] (the presumption as it applies where there are multiple issues)), Arnott v Choy (No 2) ([8-0090] (indemnity costs) and [8-0130]), and Noon v Bondi Beach Astra Retirement Village Pty Ltd (No 2) ([8-0090]).

The Contempt chapter has been revised to reflect the decision of the Court of Appeal in Pang v Bydand Holdings Pty Ltd ([9-0300]) (which includes a discussion on the distinction between civil and criminal contempt).

 

Update 12, November 2010

Update 12 contains amendments to the following chapters Preliminary, Procedure generally, Juries, Evidence, Costs. An updated Index, Table of Cases and a Table of Statutes has been provided.

The Procedure generally chapter has been revised to reflect the amendments made by the Uniform Civil Procedure Rules (Am No 34) 2010.

The Juries chapter has been revised to reflect the amendments made by the Jury Amendment Act 2010.

The Costs chapter has been revised to reflect the amendments made by the Uniform Civil Procedure Rules (Am No 36) 2010.

 

Update 11, August 2010

Update 11 contains amendments to the following chapters Preliminary, Procedure generally, Particular proceedings, Costs, Other source materials.

The Procedure generally chapter has been revised to reflect the amendments made by the Fair Trading Amendment (Unfair Contract Terms) Act 2010 and the Courts Legislation Amendment Act 2010.

 

Update 10, April 2010

Update 10 contains amendments to the following chapters Preliminary, Procedure generally, Evidence, Particular proceedings, Costs.

The Preliminary chapter has been revised to reflect the amendments made by the Adoption Amendment Act 2008 and the Local Court Rules 2009.

The Procedure generally chapter has been revised to reflect the amendments made by the NSW Trustee and Guardian Act 2009, the Succession Amendment (Family Provision) Act 2008 and the Uniform Civil Procedure Rules (Amendment No 30) 2009.

The Particular proceedings chapter has been revised to reflect the amendments made by the Courts and Crimes Legislation Amendment Act 2008.

 

Update 9, November 2009

Update 9 contains amendments to the chapters on Evidence, Particular proceedings, Costs and consequential amendments to Procedure generally. An updated Table of Cases and a Table of Statutes has been provided.

The Evidence chapter contains amendments to the sections on Hearsay, Opinion, Tendency and coincidence, Credibility, and Mandatory and Discretionary Exclusions.

Note: The size of the task involved in reviewing the Evidence section of the Civil Trials Bench Book fully in light of the Evidence Amendment Act 2007, which commenced to operate in relation to trials (civil and criminal) commenced on or after 1 January 2009, is a vast one.

The Commission will progressively issue amended chapters reflecting the current law. This process will take some time.

For present use the Commission now issues an amended version of the Evidence section drawing the attention of judicial officers to the amendments made to the Evidence Act 1995 by the amending Act.

The commentary which is largely based on the previous state of the law has not been fully amended and should be used with caution.

The Particular proceedings chapter contains two new sections on the Mining List and the Special Statutory Compensation List at [5-0800] and ff.

 

Update 8, June 2009

Update 8 contains amendments to the chapters on Evidence, Particular proceedings, Damages and Other source materials and other consequential amendments.

The Evidence chapter contains amendments to the sections on Hearsay, Opinion, Tendency and coincidence, Credibility, Character, and Discretions to exclude evidence.

Note: This update does not include the amendments necessary to take into account the provisions of the Evidence Amendment Act 2007, which commenced on 1 January 2009. These will occur in a subsequent update.

The Particular proceedings chapter contains a new section on Costs assessment appeals.

The Damages chapter contains a new section on Interest.

The Other source materials chapter has a new section on the Equitable jurisdiction of the District Court.

 

Update 7, December 2008

Update 7 contains amendments to the chapters Preliminary, Procedure generally, Evidence, Particular proceedings and Costs.

The Evidence chapter contains three new sections on Credibility, Character and Discretions to exclude evidence.

The Preliminary and Particular proceedings chapters have been revised to reflect amendments made by the Uniform Civil Procedure Rules (Amendment No 23) 2008 and the Vexatious Proceedings Act 2008.

 

Update 6, September 2008

Update 6 contains amendments to the chapters Procedure generally, Juries, Evidence, Costs, Contempt and Other source materials.

The Evidence chapter contains three new sections on Admissions, Evidence of judgments and convictions and Tendency and coincidence.

 

Update 5, July 2008

Update 5 contains amendments to the chapters Preliminary, Procedure generally, Evidence and Costs.

The Procedure generally chapter has also been revised to reflect amendments made by the Supreme Court Rules (Amendment No 413) 2008.

The Index, Table of Cases and Table of Statutes have been revised and are current to Update 5.

 

Update 4, March 2008

Update 4 contains amendments to the chapters Preliminary, Procedure generally, Enforcement of judgments, Contempt, and Other source materials and includes a new chapter Evidence.

The Procedure generally chapter has also been revised to reflect amendments made by the Courts Legislation Amendment Act 2007, Uniform Civil Procedure Rules (Amendment No 16) 2007, Uniform Civil Procedure Rules (Amendment No 18) 2007 and Supreme Court Rules (Amendment No 412) 2007.

 

Update 3, December 2007

Update 3 contains amendments to the chapters Preliminary, Procedure generally, Costs and Enforcement of judgments, and includes new chapters Particular proceedings and Other source materials.

The Procedure generally chapter has also been revised to reflect amendments made by the Uniform Civil Procedure Rules (Amendment No 17) 2007 and Mental Health Act 2007.

 

Update 2, October 2007

Update 2 contains amendments to the chapters Procedure generally and Juries, and includes a new chapter Enforcement of judgments.

The Procedure generally chapter has also been revised to reflect amendments made by the Uniform Civil Procedure Rules (Amendment No 14) 2007 and the Uniform Civil Procedure Rules (Amendment No 15) 2007.