Civil Trials Bench Book December 2024 update

Update 58, December 2024

[1-0000] Disqualification for bias

At [1-0050] Circumstances arising during the hearing Heywood v Local Court of NSW [2024] NSWSC 1047 has been added. In this case, the cumulative effect of exchanges between the magistrate and the applicant’s counsel during the trial supported a conclusion that a fair-minded lay observer may reasonably apprehend that given the magistrate’s apparent animus, contempt and disdain for the applicant’s counsel he might be unable to put aside a mindset unfavourable to the applicant to a degree compatible with the dispassionate resolution of the case. Crackin’ Snack Pty Ltd v Gameking Australia Pty Ltd [2024] NSWCA 182 has been added for its comments on considering a judge’s remark in its full context.

[1-0400] Closed court, suppression and non-publication orders

At [1-0410] Court Suppression and Non-publication Orders Act 2010 WJT v Trustees of the Marist Brothers & Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWSC 983 has been added for its application of Court Suppression and Non-Publication Orders Act 2010, s 8(1)(c).

[1-0600] Legal aid and pro bono procedures

At [1-0610] Court-based scheme Longin v Tomordi; Longin v Department of Communities and Justice [2024] NSWSC 1248 has been added, in which the judge made an order for the plaintiff to be referred to a barrister or solicitor on the panel for legal assistance under UCPR, r 7.36 in the interests of the administration of justice.

[2-1400] Cross-vesting legislation

At [2-1400] Cross-vesting HBSY Pty Ltd v Lewis [2024] HCA 35 has been added for its application of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5) and Papoutsakis v Dunn [2024] NSWCA 246 has been added for its consideration of the equivalent s 7(4) of the NSW Act.

[2-2600] Stay of pending proceedings

At [2-2690] Other grounds on which proceedings may be stayed a number of cases have been added as examples of grounds on which proceedings may be stayed. Pending determination of proceedings in another forum: Michael Wilson & Partners Ltd v Emmott [2024] NSWSC 1258; concurrent criminal proceedings: Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46 and Telstra Ltd v Sulaiman [2024] NSWSC 971; pending an application for special leave to appeal: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 and Piety Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196.

[2-4600] Persons under legal incapacity

At [2-4630] Tutors/Guardians ad litem Walton by his tutor Mann v Hartmann [2020] NSWSC 1628 and Pudarich v Pudarich [2024] NSWSC 1123 have been added regarding removal of a tutor.

At Further reading two articles from the Judicial Officers’ Bulletin have been added.

[2-5400] Parties to proceedings and representation

At [2-5500] Representative proceedings in the Supreme Court relevant sections of Supreme Court Practice Note, SC Gen 17 (reissued practice note commenced 1/8/2024) concerning representative proceedings have been added.

[2-5900] Security for costs

At [2-5930] General principles relevant to the exercise of the discretion Vintage Marine Art Pty Ltd v Henderson & Cremer (No 2) [2019] NSWCA 252; Suchand Pty Ltd v Colbran and Stone as Receivers and Managers of Suchand Pty Ltd [2024] NSWCA 250; Jazabas Pty Ltd v Haddad [2007] NSWCA 291 and Prynew Pty Ltd v Nemeth [2010] NSWCA 94 have been added regarding the risk of stultification of proceedings. Interslice Pty Ltd v CCA Investments — Bass Hill Pty Ltd [2024] NSWCA 247, which considered the proportionality principle in Civil Procedure Act, s 60 has also been added.

At [2-5960] Corporations numerous cases have been added regarding undertakings including Vintage Marine Art Pty Ltd v Henderson & Cremer (No 2); Suchand Pty Ltd v Colbran and Stone as Receivers and Managers of Suchand Pty Ltd; Aquatic Air Pty Ltd v Siewart [2016] NSWCA 130; Prynew Pty Ltd v Nemeth and Elip Pty Ltd v Arch Finance Pty Ltd [2020] NSWSC 752.

[2-6600] Setting aside and variation of judgments and orders

At [2-6680] The slip rule Care A2 Plus Pty Ltd v Pichardo (No 2) [2024] NSWCA 210 has been added as an example of application of the slip rule for matters overlooked in a case.

[4-0600] Opinion

At [4-0620] Exception: lay opinions — s 78 Wild v Meduri [2024] NSWCA 230 has been added for its comments on the accepted practice in NSW that, if a witness cannot remember the actual words used, affidavit evidence is given in direct speech prefaced with a phrase such as “words to the following effect”.

At [4-0630] Exception: opinions based on specialised knowledge — s 79(1) Wild v Meduri has been added regarding the weight given to expert evidence compared to lay evidence in assessing the deceased’s testamentary capacity. Also added are Banks v Goodfellow (1870) LR 5 QB 549; Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197; Revie v Druitt [2005] NSWSC 902; Kerr v Estate of Badran [2004] NSWSC 735 and Lim v Lim [2022] NSWSC 454.

[5-4000] Defamation

At [5-4000] Introduction Jones v Sutton (No 2) [2005] NSWCA 203 and Greiss v Seven Network (Operations) Ltd (Costs) [2024] FCA 377 have been added.

At [5-4006] Defamation Amendment Act 2020 substantial changes have been made to detail the progress of the Stage 1 and 2 reforms throughout Australia (including the commencement of Defamation Amendment Act 2023 (NSW) on 1/7/2024), and three cases have been added: Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192; Aguasa v Hunter [2024] WASC 380 and Gayed v Virgin Mary & St Markorious Coptic Orthodox Church [2024] NSWSC 1232.

Amendments have also been made at [5-4007] Publications made on the internet; [5-4010] The pleadings; [5-4030] Applications to amend or to strike out imputations; [5-4040] Other interlocutory applications; [5-4110] Current trends and [5-4220] Further references.

[6-1000] The legal framework for the compensation of personal injury in NSW

Amendment of amounts at [6-1010] General workers and [6-1020] Dust disease workers to reflect Workers Compensation (Indexation) Order (No 4) 2024, adjustment date 1/10/2024.

[8-0000] Costs

At [8-0030] Departing from the general rule: depriving a successful party of costs Novelly v Tamqia Pty Ltd (No 2) [2024] NSWCA 209 has been added on whether the offeree’s failure to accept a Calderbank offer warrants departure from the ordinary rule as to costs. Novelly; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 and Donnelly v Edelsten (1994) 49 FCR 384 have been added as to factors relevant to whether the rejection of a Calderbank offer is unreasonable.

At [8-0070] Where there is no final judgment: discontinuance and compromise Wallace v McMillan Investment Holdings Pty Ltd [2024] NSWCA 106 has been added for its discussion on departure from the ordinary order as to costs when there has been a partial settlement between the parties.

At [8-0150] Interlocutory costs orders Bevillesta Pty Ltd v D Tannous No 2 Pty Ltd [2010] NSWCA 277 and Penrose v Fernandez [2024] NSWSC 1207 have been added regarding the court’s discretion to order the immediate payment of interlocutory costs.

[10-0300] Contempt generally

At [10-0300] Civil and criminal contempt Sader v Elgammal (2024) 113 NSWLR 394 has been added to exemplify the application of the principle that proceedings for punishment of contempt brought in the civil jurisdiction of the court are “civil proceedings”.