Civil Trials Bench Book Update 57 published

[1-0000] Disqualification for bias

Maules Creek Coal Pty Ltd v Environment Protection Authority (2023) 112 NSWLR 507 has been added at [1-0020] Apprehended bias regarding the judge’s decision not to disclose (citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337) and at [1-0050] Circumstances arising during the hearing regarding a brief private meeting in chambers between an interested person and the trial judge not being sufficient to establish that the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge was to decide.

[1-0800] Unrepresented litigants and lay advisers

At [1-0865] Splintered advocacy Patel v The Queen (2012) 247 CLR 531 and Khatib v DPP (NSW) [2023] NSWCA 324 have been added as to the undesirability of splintered advocacy.

[2-0500] Alternative dispute resolution

Addition of Local Court Practice Note Civ 1 at [2-0500] Introduction.

[2-1200] Change of venue and transfer between New South Wales courts

At [2-1200] Change of venue the sections of Local Court Practice Note Civ 1 have been updated according to the June 2024 Practice Note amendments.

A reference to CPA s 56 has been added at [2-1210] Transfer of proceedings between courts, along with Brown v IJM Group Pty Ltd t/a Cove Agency [2024] NSWSC 578 as an example of proceedings being transferred to a higher court where there is a “sufficient reason” under CPA s 140(4).

[2-5400] Parties to proceedings and representation

At [2-5500] Representative proceedings in the Supreme Court Practice Note SC Gen 17 has been updated (commencing 1 August 2024, replacing the previous Practice Note commencing 31 July 2017).

Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1, BMW Australia Ltd v Brewster (2019) 269 CLR 574 and Wigmans v AMP Ltd (2020) 102 NSWLR 199 have been added for their recognition of the importance of the opt-out nature of the representative proceedings regime.

Pallas v Lendlease Corp Ltd [2024] NSWCA 83 has been added for its construction of CPA s 175(5) (informed by CPA s 175(6)) and its approval of Wigmans v AMP (2020) 102 NSWLR 199.

[2-6900] Summary disposal and strike out applications

Lin v State of NSW [2024] NSWSC 653 has been added at [2-6940] Striking out pleadings as an example of a pleading that was “unintelligible, ambiguous, vague or too general”.

[4-0600] Opinion

At [4-0630] Exception: opinions based on specialised knowledge — s 79(1) Alora Davies Developments 104 Pty Ltd (in liq) [2024] NSWSC 335 has been added as an example of the distinction between an “expert” and “expert witness” in UCPR r 31.18 and the need to comply with the expert witness code of conduct in UCPR Sch 7.

[5-4000] Defamation

At [5-4007] Publications made on the internet has been updated to include new legislation in the ACT and Victoria incorporating Pt B of the stage 2 review of the Model Defamation Provisions. At [5-4010] The pleadings Peros v Nationwide News Pty Ltd [2024] QSC 80 has been added as an example of the different rules around Australia regarding the requirement to issue a concerns notice before commencing defamation proceedings.

[5-7000] Intentional torts

At [5-7130] Proceedings initiated by the defendant Sahade v Bischoff [2015] NSWCA 418 and Kohkanzada v Amiri [2024] NSWSC 492 have been added for their commentary on when a defendant is not considered a prosecutor.

[5-8000] Child care appeals

DN v Secretary, Department of Communities and Justice (2023) 113 NSWLR 257 has been added at [5-8000] The nature of care appeals for its comments on the jurisdiction conferred on the Children’s Court being limited to children who are present, or ordinarily living, in NSW when the relevant order is made.

[10-0300] Contempt generally

At [10-0300] Civil and criminal contempt a few cases have been added on the distinction between civil and criminal contempt, particularly in relation to the bringing of an appeal against acquittal on a charge of civil contempt: Novelly v Tamqia Pty Ltd [2024] NSWCA 167, Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 and Street v Hearne (2007) 70 NSWLR 231. More detail on the distinction has also been added from Hearne v Street (2008) 235 CLR 125.