[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.

[1-0000] Disqualification for bias

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

[2-1400] Cross-vesting legislation

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

[2-7300] Trial procedure

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

[2-7600] Vexatious proceedings

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

[5-4000] Defamation

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

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 The Appendix to the chapter has been deleted, along with a few outdated references.

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

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

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

The figures in this chapter have been updated and are current as at 1 April 2024. Workers compensation amounts are reviewed on 1 April and 1 October each year: Workers Compensation Act 1987, Pt 3, Div 6–6B.

[7-0000] Damages

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

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

[8-0000] Costs

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

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

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

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

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

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

[10-0300] Contempt generally

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

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

[10-0700] Purging contempt

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

[2-0200] Adjournment

A cross-reference to [2-2690] Other grounds on which proceedings may be stayed has been made at [2-0280] Concurrent civil and criminal proceedings.

[2-2600] Stay of pending proceedings

At [2-2690] Other grounds on which proceedings may be stayed, the cases of National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404 and Western Freight Management Pty Ltd v Hyde [2023] NSWSC 1247 have been added. Australian Competition and Consumer Commission v Meta Platforms, Inc. (formerly Facebook, Inc) (No 2) [2023] FCA 1234 has been added as an example of where a stay was refused despite concurrent criminal proceedings.

[2-4100] Freezing orders

Firmtech Aluminium Pty Ltd v Xie (No 2) [2022] NSWSC 1142 in relation to UCPR r 25.12 and MTH v Croft [2020] NSWSC 986 regarding UCPR r 25.13 have both been added at [2-4260] Ancillary orders. Ancillary to a freezing or search order, the court may make a “passport order” requiring the delivery up of the defendant’s passport and restraining them from departing the jurisdiction: see Madsen v Darmali [2024] NSWSC 76 at [8]–[11].

[2-5900] Security for costs

The cases Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813 and Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 have been added at [2-5900] The general rule. These decisions consider the question of principle regarding the practice of the court in relation to whether an order for security for costs ought to be made in relation to probate proceedings.

[4-0600] Opinion

At [4-0630] Exception: opinions based in specialised knowledge — s 79(1), the High Court decision of Lang v The Queen [2023] HCA 29 has been added where the Court found that no expert evidence was based exclusively on the expert’s training, study, or experience. All fields of specialised knowledge assume “observations and knowledge of everyday affairs and events, and departures from them” it being the “added ingredient of specialised knowledge to the expert's body of general knowledge that equips the expert to give [their] opinion”.

[4-1600] Discretionary and mandatory exclusions

The recent High Court decision of McNamara v The King [2023] HCA 36, which found that the word “party” in s 135(a) extends to and includes a co-accused in a joint criminal trial has been added at [4-1610] General discretion to exclude evidence — s 135.

[5-0200] Appeals except to the Court of Appeal

An article by the Honourable Justice Robert Beech-Jones, “The Constitution and State Tribunals” (2023) 1 Judicial Quarterly Review 41, has been added to Further references.

[5-3000] Equitable jurisdiction of the District Court

The decision of Bushby v Dixon Homes du Pont Pty Ltd (2010) 78 NSWLR 111 regarding promissory estoppel has been added at [5-3020] Specific equitable jurisdiction under s 134 of the Act.

[5-8000] Child care appeals

As a result of the implementation of some recommendations from the Family is Culture Report in the form of Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022, several amendments have been made throughout the chapter.

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

The figures in this chapter have been updated and are current as at 1 October 2023. Workers compensation amounts are reviewed on 1 April and 1 October each year: Workers Compensation Act 1987, Div 6–6B, Pt 3.

[2-1200] Change of venue

At [2-1210] Transfer of proceedings between courts, the cases Thermasorb Pty Ltd v Rockdale Beef Pty Ltd [2005] NSWSC 361 and Li v Wang [2022] NSWSC 653 have been added as examples of where proceedings may be transferred from the District Court to the Supreme Court for service of process on a resident outside Australia in the absence of statutory provision for the District Court for this purpose.

[2-1400] Cross-vesting legislation

The decision of Re Neil (No 5) (2022) 110 NSWLR 197 has been added to [2-1400] Cross-vesting regarding the jurisdiction of the NSW Supreme Court under Commonwealth Cross-vesting legislation.

[2-2600] Stay of pending proceedings

At [2-2600] The Power, [2-2680] Abuse of process and [2-2690] Other grounds on which proceedings may be stayed, the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 has been added. The High Court noted that the decision whether to exercise the power in s 67 Civil Procedure Act is not discretionary in the sense relevant to the applicable standard of appellate review (ie the “correctness standard”): at [23]–[24] and that for proceedings for damages resulting from child abuse, the observations of Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at [78]–[86] must be evaluated in the “radically new context” in which Parliament has chosen to abolish any period of limitation for the commencement of the action: at [43]–[45]. Further, the context underlying the requirement of exceptionality to enliven the power to grant a permanent stay is that the court’s power to refuse to exercise jursidiction operates in light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised which is a basic element of the rule of law: at [3], [18], [21].

[2-3900] Limitations

The case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 has been added at [2-3965] Cross references to related topics. For a person within the relevant class created by s 6A Limitations Act, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders, do not mean that a trial will be unfair and cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay: at [50]–[53].

[2-4600] Persons under legal incapacity

Stoeski v State of NSW [2023] NSWSC 926 has been added at [2-4600] Definition as an example where the plaintiff was granted leave nunc pro tunc under ss 4 and 5 of the Felons (Civil Proceedings) Act.

[2-5400] Parties to proceedings and representation

The decisions Moussa v Camden Council (No 5) [2023] NSWSC 1135 and Nguyen v Rickhuss [2023] NSWCA 24 have been added at [2-5500] Representative proceedings in the Supreme Court in relation to Merck Orders and the threshold of “… a substantial common question of fact or law …” as that phrase is used in s 157(1)(c) of the CPA.

[2-6600] Setting aside and variation of judgment

The case Maclean v Brylewski [2023] NSWCA 173 has been added at [2-6680] The slip rule as an example where a 6-month delay in correcting a minor error on the face of the record did not cause prejudice to the applicant.

In new paragraph [2-6685] Error on the face of the record, the decision Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182, has been added, where it was noted courts are also empowered to correct obvious drafting errors in all legal documents, including primary and delegated legislation.

[5-0800] The mining list

His Honour Judge Neilson of the District Court of NSW has extensively reviewed and updated the Mining List chapter.

[5-3500] Trans-Tasman proceedings

It is noted that the High Court of Australia unanimously dismissed an appeal from the insurer challenging the application of ss 9 and 10 of the Trans-​Tasman Proceedings Act 2010 (Cth): Zurich Insurance Co Ltd v Koper [2023] HCA 25.

[5-7000] Intentional torts

Commentary at [5-7100] False imprisonment has been updated.and the decision of Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020 has been added at [5-7110] What is imprisonment?

Lewis v Australian Capital Territory (2020) 271 CLR 192 has been added at [5-7115] Justification, regarding the onus of proof for false imprisonment.

A discussion on judicial immunity for the tort of false imprisonment, from Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, has been added in new paragraph [5-7118] Judicial immunity. The decision in Burton v Babb [2023] NSWCA 242 has been noted at [5-7130] Proceedings initiated by the defendant.

At [5-7150] Some examples, the appeal of State of NSW v Spedding [2023] NSWCA 180 has been added. Although the appeal was dismissed, it was held the primary judge erred in holding the DPP and various members of the ODPP liable for malicious prosecution: at [259]. The improper or unauthorised purpose of the police officers in arresting and charging the respondent, from which the judge inferred malice on their part, was never disclosed to the ODPP: at [257].

At [5-7190] Damages including legal costs, a discussion of exemplary damages for malicious prosecution in State of NSW v Spedding [2023] NSWCA 180 has been added.

An article, T Tsavdaridis and D Luo, “Immunity of administrative decisions by judicial officers” (2023) 35(2) JOB 14, has been added to Further reading.

[7-0000] Damages

The case of Synergy Scaffolding Services Pty Ltd v Alelaimat [2023] NSWCA 213 has been added to [7-0100] The Workers Compensation Act 1987, s 157Z. This case has detailed discussions of the provisions of s 151Z.

[1-0000] Disqualification for bias

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, in which there was a finding of apprehended bias in a multi-member court, has been added at [1-0020] Apprehended bias, [1-0030] Procedure and [1-0040] Circumstances arising outside the hearing calling for consideration.

Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 has also been added at [1-0040] as an example of a judge having previously shared chambers with a legal practitioner involved in a case not giving rise to a finding of apprehended bias.

At [1-0050] Circumstances arising during the hearing Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 and Odtojan v Condon [2023] NSWCA 129 have been added regarding the limits of judicial interventions and observations.

[2-1800] Consolidation and/or joinder of proceedings

At [2-1800] Consolidation of proceedings ABC v AI [2023] NSWSC 825 has been added as an example where an order was made that two proceedings be heard together pursuant to UCPR r 28.5 in the interests of justice.

[2-2600] Stay of pending proceedings

At [2-2690] Other grounds on which proceedings may be stayed, examples have been added of cases involving historical sexual abuse: MXS2 v Georges River Grammar School [2023] NSWSC 529 (a fair trial would not be possible in the circumstances); BRJ v The Corporate Trusteees of The Diocese of Grafton [2022] NSWSC 1077; cf Patsantzopoulos by his tutor Naumov v Burrows [2023] NSWCA 79 (application for permanent stay not made out).

[2-3900] Limitations

Anderson v State of NSW [2023] NSWCA 160 has been added at [2-3920] Provisions applicable to all three categories and [2-3965] Cross references to related topics for its discussion of ss 50F(3) and 6A Limitation Act 1969.

[2-4100] Freezing orders

References to Frigo v Culhaci [1998] NSWCA 88; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 and Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 have been added at [2-4110] Freezing orders.

At [2-4120] Strength of case Samimi v Seyedabadi [2013] NSWCA 279 has been added as an example regarding what constitutes a “good arguable case”, and Care A2 Plus Pty Ltd v Pichardo [2023] NSWCA 156 and Tomasetti v Brailey [2012] NSWCA 6 have been added for their comments on when a freezing order is sought by an unsuccessful litigant pending appeal.

[2-4600] Persons under legal incapacity

At [2-4700] Compromise three cases have been added to exemplify the test of whether the compromise or settlement is in the best interests of the plaintiff: Nolan v Western Sydney Local Health District [2023] NSWSC 671; Karvelas (an Infant) v Chikirow (1976) 26 FLR 381 and Robinson v Riverina Equestrian Association [2022] NSWSC 1613. At Further reading, an article by the Hon P Brereton, “Acting for the incapable — a delicate balance” has been added.

[2-5400] Parties to proceedings and representation

Findlay v DSHE Holdings Ltd [2021] NSWSC 249; Ellis v Commonwealth [2023] NSWSC 550; Williams v FAI Home Security Pty Ltd (No 4) [2000] FCA 1925; Kelly v Willmott Forests Ltd (in liq) (No 4) [2016] FCA 323 and Court v Spotless Group Holdings Ltd [2020] FCA 1730 have been added at [2-5500] Representative proceedings in the Supreme Court under the new heading “Settlement/discontinuation of proceedings” regarding considerations when assessing if a settlement is fair and reasonable. Augusta Pool 1 UK Ltd v Williamson [2023] NSWCA 93 has also been added for its discussion on the discretionary nature of s 173 Civil Procedure Act 2005.

[2-7600] Vexatious litigants

The title of the chapter has been changed to “Vexatious proceedings” to be more in keeping with the name of the Vexatious Proceedings Act 2008.

Proietti v Proietti [2023] NSWCA 132 has been added at [2-7610] Inherent jurisdiction and powers of courts and tribunals as an example of the fact that the court has power to make orders appropriately adapted to the circumstances of the case.

A paragraph on Teoh directions has also been added at [2-7610] based on Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125.

[5-2000] Monetary jurisdiction in the District Court

Adjustments have been made throughout to include the new jurisdictional limit in the District Court as at 16/12/2022 of $1,250,000 (previously $750,000), effected by the District Court Amendment Act 2022, s 4(1).

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

At [6-1010] General workers and [6-1020] Dust disease workers some monetary amounts have been updated to accord with the Workers Compensation (Indexation) Order 2023.

[7-0000] Damages

Payne (t/as Sussex Inlet Pontoons) v Liccardy [2023] NSWCA 73 has been added at [7-0030] Contributory negligence for Beech-Jones JA’s analysis of the elements of s 50 Civil Liability Act 2002, along with other Court of Appeal judgments which have opined that ss 50(2) and (3) of the Act are not easily reconciled: Jackson v Lithgow City Council [2008] NSWCA 312 and NSW v Ouhammi (2019) 101 NSWLR 160.

At [7-0050] Pecuniary losses Chen v Kmart Australia Ltd [2023] NSWCA 96 has been added as an example of an appeal regarding assessment of loss of future earning capacity of an injured child where a modest buffer sum was awarded. Cf Clancy v Plaintiffs A, B, C and D [2022] NSWCA 119, where the court found the primary judge’s assessment of C’s damages for future economic loss in the sum of $111,000, by way of a buffer, could not be sustained. See also, Penrith City Council v Parks [2004] NSWCA 201, for a discussion of s 13 Civil Liability Act 2002 and where a buffer was awarded.

[8-0000] Costs

Gokani v Visvalingam Pty Ltd [2023] NSWCA 80 has been added at [8-0120] Legal practitioners regarding application of the tests in Sch 2, cl 5 Legal Profession Uniform Law Application Act 2014 and s 99 Civil Procedure Act 2005.

In Further references the final resource has been updated to the Costs Assessment Rules Committee’s “Guideline: costs payable between parties under court orders”, published 25 May 2023.

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

A [10-0150] General He v Sun (2021) 104 NSWLR 518 and Matthews v ASIC [2009] NSWCA 155 have been added to the discussion of an appropriate penalty for contempt of court.

[2-0000] Case management

Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342 has been added at [2-0010] Overview and [2-0020] General principles to demonstrate application of s 60 of the Civil Procedure Act 2005. The case Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 has also been added at [2-0020].

[2-2600] Stay of pending proceedings

At [2-2600] The power the case Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 has been added for its summary of the principles governing permanent stays of proceedings. Stokes v Toyne [2023] NSWCA 59, which affirmed Moubarak, has also been added.

Pinpoint citations have been added for Oceanic Sun Line Special Shopping Co Inc v Fay (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; and Garsec v His Majesty The Sultan of Brunei [2008] NSWCA 211 at [2-2620] The test for forum non conveniens.

At [2-2680] Abuse of process the case CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) 107 NSWLR 202 has been added to highlight that a permanent stay of proceedings on the grounds of abuse of process should only be ordered in exceptional circumstances.

[2-3900] Limitations

The references at [2-3900] Introduction have been updated to reflect the newest edition of The Laws of Australia, as has the table at [2-3970] Table of limitation provisions in NSW.

At [2-3900] the case In the matter of Auzhair Supplies Pty Ltd (in Liq) [2013] NSWSC 1 has been replaced with the Court of Appeal judgment: Gerace v Aushair Supplies Pty Ltd [2014] NSWCA 181.

[2-4100] Freezing orders

The case Bennett v NSW [2022] NSWSC 1406 has been added at [2-4130] Danger that a judgment may go unsatisfied as an example. At [2-4200] Duration of the order the case Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 has been added.

[2-4600] Persons under legal incapacity

The case Perera v Alpha Westmead Private Hospital (t/as Westmead Private Hospital) [2022] NSWSC 571 has been added for its summary of authorities at [2-4600] Definition, and at [2-4700] Compromise for its analysis on incapacity under s 76 of the Civil Procedure Act 2005. The case Mao v AMP Superannuation Ltd [2017] NSWSC 987 has also been added at [2-4700].

[2-5900] Security for costs

Decisions have been added to discussion of the principles for security for costs including Ward v Westpac Banking Corporation Ltd [2023] NSWCA 11; Treloar Constructions Pty Ltd v McMillan [2016] NSWCA 302; Levy v Bablis [2012] NSWCA 128; Republic of Kazakhstan v Istil Group Inc [2005] EWCA Civ 1468; Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd [2022] NSWSC 42; T & H Pty Ltd v Nguyen [2022] NSWCA 180; SSPeetham Pty Ltd as trustee for the CHB CDI Trust v Marcos Accountants Pty Ltd [2020] NSWSC 378; Michael Wilson & Partners Ltd v Emmott (No 2) [2022] NSWCA 48; Euromark Ltd v Smash Enterprises Pty Ltd (No 2) [2021] VSC 393; and Boz One Pty Ltd v McLellan [2015] VSCA 145.

Also added is a “traps for young players” section (see [2-5930] General principles relevant to the exercise of the discretion) on one of the most common security for costs legal issues, namely a small company that does not have recent tax or accounting records and there is a challenge to the admissibility of the records on this basis. Included are the decisions most commonly referred to: Strategic Financial and Project Services Pty Ltd v Bank of China Ltd [2009] FCA 604 and A40 Construction and Maintenance Group Pty Ltd v Smith (No 2) [2022] VSC 72.

[4-1100] Tendency and coincidence

At [4-1140] The tendency rule – s 97 reference to s 55(1) of the Mental Health (Criminal Procedure) Act 1990 (now repealed) has been updated to s 94(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

[5-1000] The Special Statutory Compensation List

Changes have been made to a few sections, most notably at [5-1030] Police Regulation (Superannuation) Act 1906 in which the discussion of provisions of the Act has been updated and the cases Day v SAS Trustee Corp [2021] NSWCA 71; Day v SAS Trustee Corp [2020] NSWDC 381; and Pascoe v SAS Trustee Corp [2022] NSWCA 244 have been added.

The case Death v Workers Compensation (Dust Diseases) Authority (No 1) [2020] NSWDC 103 has been added to [5-1070] Workers’ Compensation (Dust Diseases) Act 1942.

[5-4000] Proceedings for defamation in NSW

A number of updates and recent cases have been provided throughout the chapter, at [5-4005] The legislative framework; [5-4006] Defamation Amendment Act 2020; [5-4010] The pleadings; [5-4020] Applications to amend or to strike out pleadings and other pre-trial issues; [5-4030] Applications to amend or to strike out imputations; [5-4040] Other interlocutory applications; [5-4060] Conduct of the trial (judge sitting alone); [5-4070] Additional matters for conduct of the trial before a jury; [5-4090] Damages; and [5-4095] Aggravated compensatory damages.

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

Repealed s 67 of the Workers Compensation Act 1987 has been deleted from [6-1010] General workers and s 128 of the Motor Accidents Compensation Act 1999 has been renumbered to s  141B at [6-1040] Claims subject to the Motor Accidents Compensation Act 1999.

Amendments have been made at [6-1045] Claims subject to the Motor Accident Injuries Act 2017 to reflect changes brought by the Motor Accident Injuries Amendment Act 2022 commencing 1 April 2023.

[7-0000] Damages

A new section has been added at [7-0125] Illegality as a limiting principle. State Rail Authority of NSW v Wiegold (1991) 25 NSWLR 500 has been added which held that a defendant should not be held responsible for the losses a plaintiff sustains that result from a rational and voluntary decision to engage in criminal activity. The following cases are also referred to: March v Stramare Pty Ltd (1991) 171 CLR 506; Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78; Holt v Manufacturers’ Mutual Insurance Ltd [2001] QSC 230; Bailey v Nominal Defendant [2004] QCA 344; Hunter Area Health Service v Presland (2005) 63 NSWLR 22; Tomasevic v State of Victoria [2020] VSC 415; Grey v Simpson (Court of Appeal, 3 April 1987, unrep); and Trajkovski v Ken’s Painting & Decorating Services Pty Ltd [2002] NSWSC 568.

[8-0000] Costs

The case Constantinidis v Prentice (No 2) [2023] NSWSC 160 has been added at [8-0160] Quantification of costs in relation to gross sum costs orders.

[10-0300] Contempt generally

The cases Mahaffy v Mahaffy (2018) 97 NSWLR 119 and Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 have been added at [10-0480] Breach of orders and undertakings.

[1-0000] Disqualification for bias

A small revision has been made to a reference to Charisteas v Charisteas [2021] HCA 29 at [1-0020], and ALRC report, Without fear or favour: judicial impartiality and the law on bias and a paper on judicial legitimacy by the Honourable Justice Gageler AC have been added to Further references.

[2-0000] Case management

At [2-0020] General principles the case of Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275 has been added.

[2-2600] Stay of pending proceedings

In Further references an article written by A Monichino QC and G Rossi, “Staying court proceedings in the face of ADR clauses” has been added.

[2-5900] Security for costs

Three cases have been added at [2-5965] Ordering security in appeals: Swift v McLeary [2013] NSWCA 173, Cassaniti v Katavic [2022] NSWCA 230 and Yu Xiao v BCEG International (Australia) Pty Ltd [2022] NSWCA 233.

[2-6300] Judgments and orders

A number of cases have been added at [2-6440] Reasons for judgment, including Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430) and Rialto Sports Pty Ltd v Cancer Care Associates Pty Ltd [2022] NSWCA 146.

[2-7600] Vexatious litigants

At [2-7610] Inherent jurisdiction and powers of courts and tribunals the cases of Ghosh v Miller (No 2) [2018] NSWCA 212; Choi v Secretary, Department of Communications and Justice [2022] NSWCA 170; Hassan v Sydney Local Health District (No 5) [2021] NSWCA 197 and Samootin v Shea [2013] NSWCA 312 have been added.

[4-0200] Relevance

At [4-0210] Relevant evidence — s 56, a reference to the Criminal Trial Courts Bench Book at [5-100] has been added. The Further references for the chapter have also been updated.

[4-0300] Hearsay

At [4-0330] Exception: civil proceedings if maker not available — s 63, the case of Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 has been added to demonstrate factors that make a plaintiff “not available” within the meaning of s 63 of the Evidence Act, along with the operation and interpretation of Pt 2, cl 4(1)(f). RC v R [2022] NSWCCA 281 has been added for its observations on the requirements of “all reasonable steps” in the definition of “unavailability of persons” in Pt 2, cl 4(1)(g).

At [4-0390] Exception: business records — s 69, the case of Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328 has been added as an example of records that were found to be “business records”.

[5-5000] Possession List in the Supreme Court

Minor changes have been made at [5-5000] Introduction, [5-5010] Commencement of proceedings and [5-5020] Defended proceedings. The case Stacks Managed Investments Ltd v Rambaldi and Cull as trustees of the Bankrupt Estate of Reinhardt [2020] NSWSC 722 has been added at [5-5040] Stay applications.

A new section has been added at [5-5035] Writs of restitution in which the cases of Perpetual Ltd v Kelso [2008] NSWSC 906; Wiltshire County Council v Frazer [1986] 1 All ER 65; Australia and New Zealand Banking Group Ltd v Rafferty [2018] NSWSC 960; Commonwealth Bank of Australia v Maksacheff [2015] NSWSC 1860; Capital Access Pty Ltd v Charnwood Constructions Pty Ltd [2022] NSWSC 1185; Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 and GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 have been added.

[5-7000] Intentional torts

At [5-7115] Justification (note that this section has been moved up from [5-7170]) the case of Royal Caribbean Cruises Ltd v Rawlings (2022) 107 NSWLR 51 has been added along with Hook v Cunard Steamship Co [1953] 1 WLR 682.

The case of Spedding v New South Wales [2022] NSWSC 1627 has been added at [5-7150] Some examples, [5-7160] Malice and [5-7188] Misfeasance in public office. This case involved a successful claim by the plaintiff who was arrested on discredited historical allegations of sexual abuse.

At [5-7188] Misfeasance in public office the cases of Cornwall v Rowan (2004) 90 SASR 269 and De Reus v Gray (2003) 9 VR 432 have also been added.

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

The workers compensation amounts in this chapter have been reviewed and updated.

At [6-1040] Claims subject to the Motor Accidents Compensation Act 1999, Stein v Ryden [2022] NSWCA 212 has been added for its summary of the relevant authorities on what constitutes a “full and satisfactory explanation” under s 109 of the Act.

Amendments have been made at [6-1045] Claims subject to the Motor Accident Injuries Act 2017 to reflect changes brought by the Motor Accident Injuries Amendment Act 2022 commencing 28 November 2022.

[8-0000] Costs

At [8-0020] The general rule: costs follow the event the cases of Calvo v Ellimark Pty Ltd (No 2) [2006] NSWCA 197 and Kumaran v Employsure Pty Ltd (No 2) [2022] NSWCA 247 have been added as examples of cost orders being moulded to reflect the degree of success on distinct issues.

At [8-0040] Departing from the general rule: apportionment the case of DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258 has been added under the headings “Mixed success on multiple issues” and “Giving effect to apportionment”.

At [8-0120] Legal practitioners the cases of Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180 and Muriniti v Kalil [2022] NSWCA 109 (referring to Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300, Redowood Pty Ltd v Goldstein Technology Pty Ltd [2004] NSWSC 515 and Saadat v Commonwealth of Australia (No 2) [2019] SASC 75) have been added. These cases concern the making of a personal “wasted costs order” against a legal practitioner under s 99 of the CPA.

[9-0700] Enforcement of foreign judgments

The case of Nyunt v First Property Holdings Pte Ltd [2022] NSWCA 249 has been added at [9-0750] Procedure to expand upon the operation of ss 7(2) and (3) of the Foreign Judgments Act. Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 has also been added.

[10-0300] Contempt generally

At [10-0480] Breach of orders and undertakings the case of Bellerive Homes Pty Ltd v FW Projects Pty Ltd (2019) 106 NSWLR 479 has been added.

The following changes have been incorporated into this update:

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

It is noted at [1-0410] Court Suppression and Non-publication Orders Act 2010 that Sch 5, cl 91 of the Broadcasting Services Act 1992 (Cth) has been replaced by s 235 of the Online Safety Act 2021.

[2-1400] Cross-vesting legislation

The cases of Guan v Li [2022] NSWCA 173 and Boensch v Pascoe [2016] NSWCA 191 have been added at [2-1400] Cross-vesting.

[2-4600] Persons under legal incapacity

At [2-4630] Tutors/Guardians ad litem, the decision of CM v Secretary, Dept Communities and Justice [2022] NSWCA 120 has been added. It is noted here that the legislative power to appoint a guardian ad litem for both a child or young person in s 100 of the Children and Young Persons (Care and Protection) Act 1998 is framed in different terms from the power in s 101 to appoint a guardian ad litem for a parent.

[5-1000] The Special Statutory Compensation List

At [5-1030] Police Regulation (Superannuation) Act 1906, the case of SAS Trustee Corporation v Colquhoun [2022] NSWCA 184 has been added. In that case, the Court of Appeal, having regard to the legislative history of s 9A(4) of the Police Regulation (Superannuation) Act 1906 found no narrowing of the range of circumstances that the appellant could consider in determining whether an application should be backdated.

[5-3500] Trans-Tasman proceedings

The case of Zurich Insurance PLC v Koper [2022] NSWCA 128 which considered the constitutional validity of ss 9 and 10 of the Trans-Tasman Proceedings Act 2010 (Cth) has been added at [5-3510] Service in New Zealand of initiating documents issued by Australian courts and tribunals.

[5-7000] Intentional torts

At [5-7188] Misfeasance in public office, the case of Toth v State of NSW [2022] NSWCA 185, which includes a discussion of what is required to succeed in a claim for misfeasance in public office, has been added.

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

For a discussion of the consequence of s 69 (3) and (4) of the Supreme Court Act 1970, the case of Malek Fahd Islamic School Ltd v Minister for Education and Early Childhood Learning [2022] NSWSC 1176 has been added at [5-8505] Jurisdiction.

[7-0000] Damages

This chapter has been extensively revised and updated by his Honour Judge A Scotting of the District Court of NSW.

[1-0000] Disqualification for bias

Polsen v Harrison [2021] NSWCA 23 has been added at [1-0020] Apprehended bias for a useful summary of the principles that are to be applied in an application for recusal for apprehended bias.

[2-0000] Case management

Worthington bht Worthington v Hallissy [2022] NSWSC 753 has been added at [2-0010] Overview. This case reiterated that the intent of the UCPR and the court’s practices is to ensure parties are given a fair opportunity to advance their cases, while ensuring litigation is not conducted by ambush or surprise.

Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 is discussed at [2-0020] General principles. All Practice Notes have been reviewed and updated.

[2-2600] Stay of pending proceedings

The decision of The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 has been added at [2-2690] Other grounds on which proceedings may be stayed.

[2-3900] Limitations

The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ has also been added at [2-3965] Cross references to related topics. In this case, the court noted that the inclusion of s 6A(6) of the Limitations Act 1969 recognises that the significant public interest to which the removal of the limitation period for actions of this kind gives effect remains subject to the court’s power to stay proceedings in the exceptional cases that call for its exercise.

[2-6300] Judgments and orders

Irlam v Byrnes [2022] NSWCA 81 regarding r 36.2 UCPR and the time period between the delivery of judgment and the delivery of reasons has also been added at [2-6410] Written reasons. Cavanagh v Manning Valley Race Club [2022] NSWCA 36, a recent decision regarding inadequacy of reasons for judgment has been added at [2-6440] Reasons for judgment.

[5-4000] Proceedings for defamation in NSW

This chapter has been extensively updated by her Honour Judge Judith Gibson, DCJ and reviewed by Professor David Rolph, FAAL from the University of Sydney Law School.

[5-7000] Intentional torts

Miles v Doyle (No 2) [2021] NSWSC 1312 and Irlam v Byrnes [2022] NSWCA 81 have been added at [5-7190] Damages including legal costs.

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

It is noted at [6-1045] Claims subject to the Motor Accident Injuries Act 2017 that from 29 March 2022, statutory benefits for reasonable funeral expenses following the loss of a foetus of a pregnant woman that results from a motor accident are payable.

[7-1000] Interest

State of NSW v Skinner [2022] NSWCA 9 regarding prejudgment interest under s 151M of the Workers Compensation Act 1987 has been added at [7-1050] Workers Compensation Act 1987.

[8-0000] Costs

Osei v PK Simpson (2022) 106 NSWLR 458 has been added at [8-0170] Regulated costs under the subheading Claims for personal injury damages. In that case an injured plaintiff later sued his legal representatives and it was held that as the claim was for professional negligence and not damages for personal injury, the cap under Sch 1, cl 2 of the Legal Profession Uniform Law Application Act 2014 does not apply.

The following changes have been incorporated in this Update:

[1-0000] Disqualification for bias

At [1-0020] Apprehended bias, the case of Feldman v Nationwide News Pty Ltd [2020] 103 NSWLR 307 has been added. The Court of Appeal noted that the possibility a fair-minded lay observer might reasonably apprehend the judge might not bring an impartial mind to the resolution of the relevant question is not to be assessed with the benefit of hindsight, but at the time of the event or events said to give rise to that possibility in the first place.

McIver v R [2020] NSWCCA 343 has been added at [1-0040] Circumstances arising outside the hearing calling for consideration, where it was stated it was particularly important, in circumstances where it was a judge-alone trial and the verdict was to be based on the complainant’s credibility, that there be no circumstance which might give rise to the possibility of pre-judgment, conscious or unconscious, as a result of a prior association.

[2-1600] Service of process outside NSW

Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104 has been added at [2-1600] Service within the Commonwealth of Australia, with respect to the standard of proof required for a stay application.

[2-5400] Parties to proceedings and representation

Fakhouri v The Secretary for the NSW Ministry of Health [2022] NSWSC 233 has been added at [2-5500] Representative proceedings in the Supreme Court. In that case, the court found that while an application “under” Pt 2 of Ch 7 of the Industrial Relations Act 1996 cannot be commenced or maintained on behalf of group members, proceedings under Pt 10 of the Civil Procedure Act can be commenced and maintained seeking relief in respect of any statutory debt that arises in favour of group members in respect of their award entitlements.

[2-5900] Security for costs

A discussion of Zong v Wang [2021] NSWCA 214 and the question of what constitutes special circumstances in relation to an order for security for costs in an appeal has been added at [2-5965] Ordering security in appeals.

[5-0200] Appeals except to the Court of Appeal, applications, reviews and mandatory orders

The general principles which govern an application for leave to appeal as set out in Namoi Sustainable Energy Pty Ltd v Buhren [2022] NSWSC 175 at [34]–[39] have been added at [5-0240] Appeals from the Local Court.

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

This workers compensation section of this chapter has been substantially reviewed and updated by the Personal Injury Commission of NSW.

[9-0700] Enforcement of foreign judgments

It is noted at [9-0740] Procedure that for the registration of a foreign judgment against a foreign State, or a separate entity of a foreign State, see the Foreign States Immunities Act 1985 and Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31.

[10-0300] Contempt generally

Sentencing principles summarised by the court in Commissioner for Fair Trading v Rixon (No 5) [2022] NSWSC 146 at [22]–[28] have been added at [10-0305] Sentencing principles for contempt.

The following changes have been incorporated in this Update:

[1-0000] Disqualification for bias

The decision of Gleeson v DPP (NSW) [2021] NSWCA 63 has been added at [1-0020] Apprehended bias, as a recent example of where a fair-minded observer would likely be concerned about a close personal relationship between a trial judge and prosecutor who had earlier advised police on the bringing of charges in the case. B Cairns, “Bias and procedural fairness at trial” (2021) 9 Journal of Civil litigation and Practice 182 has been added to Further references.

[1-0900] Interpreters

Commentary regarding the interpretation of words used in a foreign language in a sworn affidavit and the competence of the deponent to provide such interpretation has been added at [1-0900] Introduction. The cases of Maria Coppola v NSW Trustee and Guardian as Administrator of the Estate of the Late Giuseppina Buda (No 2) [2019] NSWSC 948 and Sun v Chapman [2021] NSWSC 955 have been added as examples.

[2-0700] Amendment

Commentary at [2-0710] General principles has been amended to include a discussion of he High Court decision of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Additional cases have been added at [2-0730] Grounds for refusal of amendment as examples of other matters which may result in the refusal of an amendment.

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

Local Court Practice Note Civ 1 — Case management of civil proceedings in the Local Court has been added at [2-1200] Change of venue between Local Courts. At [2-1210] Transfer of proceedings between courts, the case of Mahommed v Unicomb [2017] NSWCA 65 has been added, which discusses s 144(2) of the Civil Procedure Act 2005 being mandatory in its terms. Transfer between Supreme Court and Industrial Court has been removed. Part 9, Div 3 and r  4.1 of the Uniform Civil Procedure Rules were repealed as of 8 December 2016. Transfer between Small Claims Division and General Division of Local Court has been added, noting that Pt 2, Div 2 of the Local Court Rules 2009 provide for the transfer of proceedings from the Small Claims Division to the General Division where the jurisdictional limit of the Small Claims Division is exceeded (r 2.2) or the matters in dispute are so complex or difficult, or are of such importance, that the proceedings ought more properly to be heard in the court’s General Division: r 2.3(1).

[2-1800] Consolidation and/or joinder of proceedings

Skinner v Shine Pty Ltd [2019] NSWSC 1709 has been added at [2-1800] Consolidation of proceedings, as an example of when consolidation or joint hearings is not appropriate.

[2-4600] Persons under legal incapacity

[2-4630] Tutors/Guardians ad litem has been amended as a consequence of the decision in Choi v NSW Ombudsman (2021) 104 NSWLR 505, and the subsequent amendment of the Civil and Administrative Tribunal Act 2013, commencing 8 December 2021, so that a valid appointment of a guardian ad litem may now be ordered without naming a particular person to be appointed: see s 45(4C).

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

The cases of Lichaa v Boutros [2021] NSWCA 322 and Williams v Harrison [2021] NSWSC 1488 have been added at [2-6700] Denial of procedural fairness.

[7-0000] Damages

The case of Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40 has been added under a new heading Loss of amenity of the use of a chattel at [7-0020] Actual loss. In this case, the High Court unanimously agreed that the conclusion of the majority of the NSWCA should be upheld on the basis the respondents suffered heads of damage of physical inconvenience and loss of amenity of use of their negligently damaged motor vehicles, and that it was not unreasonable for them to take steps to mitigate both aspects of their loss by the hire, at a reasonable rate, of an equivalent car for a reasonable period of repair.

[7-1000] Interest

The decision of Tjiong v Tjiong (No 2) [2018] NSWSC 1981 has been added at [7-1070] Interest after judgment.

Practice Note SC Gen 16 — Pre-judgment interest rates and Practice Note DC (Civil) 15 — Pre-judgment interest rates have also been added.

[8-0000] Costs

The decision in Spencer v Coshott [2021] NSWCA 235, where the NSWCA held that the abrogation of the Chorley exception by the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, did not deny the recovery of costs by a solicitor litigant who is represented by an incorporated legal practice of which he or she is the principal and sole director and shareholder, because of the separate legal personality of an incorporated legal practice, has been added at [8-0090] Self-represented litigants (including lawyers).

[10-0300] Contempt generally

The decisions of Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 and Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106 have been added at a new paragraph [10-0305] Sentencing principles for contempt.

The following changes have been incorporated in this Update:

[1-0000] Disqualification for bias

Charisteas v Charisteas [2021] HCA 29 has been added at [1-0020] Apprehended bias as an example of inappropriate contact or communication with a court which a fair-minded lay observer might reasonably consider to compromise judicial impartiality.

[1-0900] Interpreters

It is noted at [1-0930] Implementation that Practice Note SC Gen 21 — Interpreters in Civil Proceedings commenced operation on 4 March 2020 and applies to all civil proceedings commenced after its commencement and to any existing proceedings which the court directs should be subject to the Practice Note, in whole or in part.

[2-0200] Adjournment

A new paragraph [2-0267] Adjournment of motions on a procedural question has been added. The case of Zong v Lin [2021] NSWCA 209 has been included as an example where an application for adjournment on an appeal for interlocutory relief was denied because it was inconsistent with the statutory framework in ss 56–60 of the Civil Procedure Act 2005 to adjourn motions without sufficient reason.

[2-4600] Persons under legal incapacity

Choi v NSW Ombudsman (2021) 104 NSWLR 505 has been added at [2-4630] Tutors/Guardians ad litem, which discusses the valid appointment of a guardian ad litem under s 45(4) and (6) of the Civil and Administrative Tribunal Act 2013.

[4-1500] Privilege

A new paragraph has been added at [4-1588] Privilege in respect of self-incrimination. This discusses the construction of s 128A of the Evidence Act 1995 and the recent decision of Deputy Commissioner of Taxation v Shi [2021] HCA 22, where the majority of the High Court found that where there is an unchallenged finding that the information in the privilege affidavit may tend to prove the respondent had committed an offence under an Australian law, the question for the court under s 128A(6) is whether it is satisfied the interests of justice require that the privilege affidavit be disclosed. In the circumstances of this case, a failure to object on the grounds of foreign law meant the question raised by s 128A(6)(b) did not arise. The party making the claim for self-incrimination privilege must set out the basis for the objection.

[5-0200] Appeals except to the Court of Appeal

The case of Huang v Nazaran [2021] NSWCA 243 has been added at [5-0240] Appeals from the Local Court. In that case, it was found that s 70(1)(b) of the Local Court Act 2007 confers a right of appeal to the District Court which is to be made in accordance with Pt 3 of the Crimes (Appeal and Review) Act 2001 “in the same way as such an … appeal may be made in relation to a conviction arising from a court attendance notice” dealt with under Pt 2 of Ch 4 of the Criminal Procedure Act 1986. The appeal is to be dealt with by way of rehearing.

[5-7000] Intentional torts

At [5-7130] Proceedings initiated by the defendant — Who is the prosecutor? the case of Stanizzo v Fregnan [2021] NSWCA 195 has been added. In that case the court noted that neither providing a statement in corroboration of events nor providing a witness statement (of itself) amounts to playing an active role in the conduct of proceedings. Significantly more than that is required. The case of Rock v Henderson [2021] NSWCA 155 has been added, where it was noted that ADVO proceedings can be the subject of a claim for malicious prosecution.

Rock v Henderson has also been added at [5-7190] Damages including legal costs, where the plaintiff claimed by way of damages for malicious prosecution, his legal costs for defending ADVO proceedings, lost earnings attributable to the time he was required to attend court, to instruct his lawyers and to review documents, damages for “hurt feelings, distress and mounting anger” and exemplary damages.

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

The figures in this chapter have been updated and are current to 1 October 2021.

[10-0300] Contempt generally

The case of He v Sun [2021] NSWCA 95 has been added at [10-0300] Civil and criminal contempt, as an example of “contumacious disregard of orders” as well as discussing the underlying rationale of sentencing for both civil and criminal contempt. The case Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229 has also been added with respect to the power to suspend a sentence for contempt.

At [10-0320] Test for contempt, the case of R v The Herald & Weekly Times (Ruling No 2) [2020] VSC 800 has been added in relation to the substantial risk of serious interference to prejudice proceedings. Dowling v Prothonotary of the Supreme Court of NSW has also been added at [10-0410] Scandalising contempt.

New commentary has been added at [10-0420] Misconduct in relation to pending proceedings, including the case of Ulman v Live Group Pty Ltd [2018] NSWCA 338, where the court noted the distinction to be drawn between a contempt arising from conduct that interferes with the administration of justice in a particular case and interference with the administration of justice generally. City of Canada Bay v Frangieh [2020] NSWLEC 81 has been added to [10-0470] Construction of orders.

New commentary regarding breach of suppression orders has been added at [10-0480] Breach of orders and undertakings, which includes the cases of Hinch v Attorney-General (Vic) (1987) 164 CLR 15 and R v The Herald & Weekly Times (Ruling No 2).

The following changes have been incorporated in this Update:

[2-7100] Time

Pell v Hodges [2007] NSWCA 234 has been added at [2-7110] Extension and abridgement which held that while the discretion conferred by UCPR r 1.12 is not in terms fettered, a plaintiff seeking an extension of time must establish a proper or adequate reason for this being granted. Two new paragraphs have been added at [2-7125] Time for filing appearance and [2-7130] Time for service of initiating process.

[4-1900] Inferences

At [4-1910] The rule in Jones v Dunkel, the case of Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 has been added. It was noted in this case that while the rule in Jones v Dunkel permits an inference that evidence not called by a party would not have assisted the party, the failure to call evidence cannot fill gaps in the evidence, as distinct from enabling an available inference to be drawn more comfortably.

[5-4000] Defamation

The commentary at [5-4006] Defamation Amendment Act 2020 has been updated as a result of the commencement of the Act on 1 July 2021. The Uniform Civil Procedure (Amendment No 95) Rule 2020 also commenced on that date to take into account the commencement of the Stage 1 reforms.

[5-8000] Child care appeals from the Children’s Court

[5-8030] The guiding principles and [5-8060] Permanency planning have both been updated to highlight the Aboriginal and Torres Strait Islander Child Placement Principles (ATSICPP) and the requirement under s 78A of the Children and Young Persons (Care and Protection) Act 1998 (Care Act) to ensure that any permanency plan for an Aboriginal or Torres Strait Islander child addresses how the plan has complied with the ATSICPP in s 13 of the Care Act. The case of Hackett (a pseudonym) v Secretary, Department of Communities and Justice [2020] NSWCA 83 has also been added at [5-8060] in relation to the identification of an Aboriginal child for the purposes of the Adoption Act 2000. The commentary at [5-8093] Guardianship orders has been revised and updated. At [5-8100] Costs orders, the case of Re: A Costs Appellant Carer (a pseudonym) v The Secretary, Department of Communities and Justice [2021] NSWDC 197 has been included. Professor Megan Davis’ Independent Review of Aboriginal Children in OOHC, “Family is culture”, Review Report, 2019 has been added to Further Reading.

[7-0000] Damages

An article by Professor Joachim Dietrich, “Intentional conduct and the operation of the Civil Liability Acts: unanswered questions” (2020) 39(2) University of Queensland Law Journal 197 has been added to Further Reading.

[10-0300] Contempt generally

N Adams and B Baker, “Sentencing for contempt of court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020, Canberra, has been added at Further Reading.

The following changes have been incorporated in this Update:

[2-0500] Alternative dispute resolution

BJP1 v Salesian Society (Vic) [2021] NSWSC 241 has been added at [2-0550] Enforceability of mediated agreements, where the mediated agreement was held to be immediately binding and conclusive as the plaintiff’s solicitors were properly and adequately instructed and authorised to enter into a full and final settlement of the proceedings which they confirmed to the mediator and the defendant; and the plaintiff’s solicitors’ correspondence indicated they had entered into a “full and final settlement”.

[2-1000] Search orders

This chapter has been revised and updated. Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355 has been added at [2-1010] Search orders, which discusses the applicant’s required duty of candour in order that the court can be fully appraised of all relevant matters in the exercise of its discretion during an ex parte hearing. At [2-1020] Requirements, the case of Global Medical Solutions Australia v Axiom Molecular [2012] NSWSC 1262 has been added, as an example of how the court weighs the considerations in determining that the requirements of r 25.20 have been made good. New paragraphs [2-1095] Setting aside a search order, which includes text explaining that search orders, that have already been executed, may be set aside ab initio if there has been bad faith or material non-disclosure and [2-1110] Costs in relation to search order proceedings have been added.

[2-2600] Stay of pending proceedings

Wigmans v AMP Ltd [2021] HCA 7 has been added at [2-2680] Abuse of process. This case discusses the power to order a stay provided by s 67 of the Civil Procedure Act (CPA), and the fact it overlaps with the inherent power to stay a proceeding to prevent abuse of its processes.

[2-3900] Limitations

This chapter has been reviewed and minor updates have been made, including the addition of the limitation period for child abuse at [2-3970] Table of limitation provisions in NSW.

[2-5400] Parties to proceedings and representation

Wigmans v AMP Ltd [2021] HCA 7 has been added at [2-5500] Representative proceedings in the Supreme Court under a new heading Parallel representative proceedings in relation to the same controversy. The Supreme Court’s power to grant a stay under s  67 of the CPA of competing representative proceedings is not confined by a rule or presumption that the proceeding filed first in time is to be preferred. There is no “one size fits all” approach.

[2-5900] Security for costs

At [2-5965] Ordering security in appeals, the case of Murray John Carter v Ian Mehmet t/as ATF Ian G Mehmet Testamentary Trust [2021] NSWCA 32 has been added. Security for costs in the sum of $40,000 were ordered in this case as the appellants had resolved to pursue an appeal which was more likely to fail than not. Nyoni v Shire of Kellerberrinin (No 9) [2016] FCA 472 has also been added at [2-5990] Dismissal of proceedings for failure to provide security, where it was noted that an order for security for costs should not be used as an alternative way of striking out an appeal. Nor should it be used to push an appellant towards discontinuing an appeal.

[2-6900] Summary disposal and strike out applications

The case of Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 has been added at [2-6920] Summary disposal. This case considered the power of NCAT to dismiss proceedings it considers to be vexatious under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

[5-0800] The Mining List

This chapter has been substantially revised and updated to reflect legislative changes. The case of Mount Thorley Operations Pty Ltd v Farrugia [2020] NSWDC 798 has been added at [5-0840] Redemption applications, as an example of the effect of a redemption on a latent injury.

[5-7000] Intentional torts

Young v RSPCA NSW [2020] NSWCA 360 has been added at [5-7120] Malicious prosecution, where it was found a s 32 order under the Mental Health (Forensic Provisions) Act 1990 (now repealed) did not constitute a finding that the charges were proven for the purposes of an action for malicious prosecution. A plaintiff must show the prosecution ended in favour of the plaintiff. If it did, it does not matter how that came about. It is sufficient if the plaintiff can demonstrate the absence of any judicial determination of his or her guilt.

[10-0300] Contempt generally

Minor amendments have been made to this chapter as a result of the repeal of the Mental Health (Forensic Provisions) Act 1990.

The following changes have been incorporated into this update:

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

A minor amendment has been made as a result of the repeal of s 35 of the Public Health Act 1991 at [1-0430] Other statutory provisions empowering non-publication orders.

[1-0600] Legal aid and pro bono procedures

This chapter has been revised and updated to include the NSW Bar Association — Duty Barrister Scheme and the Public Interest Advocacy Centre at [1-0600] Pro bono schemes in NSW. The cases Norman v Wall [2020] NSWSC 129 and Norman v Wall (No 6) [2020] NSWSC 211 have been added at [1-0610] Court-based scheme, as examples where the court has ordered the referral of a litigant to the registrar for referral to the panel for legal assistance. Hetherington-Gregory v All Vehicle Services [2012] NSWCA 257 has been added as an example where the court was not persuaded that it was in the interests of justice to refer the applicant to the Pro Bono Panel.

[1-0800] Unrepresented litigants and lay advisors

This chapter has been revised and the case of Nobarani v Mariconte [2018] HCA 36 has been added at [1-0810] The role of the court. Two additional references have been added to the “Further references” section.

[2-0200] Adjournment

This chapter has been updated to reflect changes to the various Practice Notes at [2-0330] Procedure.

[2-0500] Alternative dispute resolution

This has been amended to delete repealed Sch 6 Pt 6 cl 19 of the Civil Procedure Act 2005 in “Legislation”. A recent article by TF Bathurst, “The future of alternative dispute resolution” (2020) (Autumn) Bar News 50, has been added to “Further reading”.

[2-2200] Discovery

A minor amendment has been made at [2-2310] Discovery of documents from non-parties to delete reference to repealed Federal Court Rules, Order 15A, r 8.

[2-3400] Joinder of causes of action and parties

This chapter has been updated at [2-3430] Joint or several liability, [2-3450] Generally, [2-3460] Removal of parties and [2-3540] Parties that ought to be joined or are “necessary for the determination of all matters in dispute” following the recent decision in Burton v Babb [2020] NSWCA 331. The court found in that case a defendant is to be regarded as a “proper party” if a party relies upon its conduct to establish the cause of action.

[2-3700] Joinder of insurers

This chapter has been significantly revised and updated as a result of the Civil Liability (Third Party Claims Against Insurers) Act 2017, which followed recommendations of the NSW Law Reform Commission contained in Third party claims on insurance money, Report No 143, 2016.

[2-4900] Pleadings and particulars

The cases of J & E Vella Pty Ltd v Hobson [2020] NSWCA 188 and Clayton v Bant [2020] HCA 44 have been added at [2-5100] The Anshun principle.

[3-0000] Civil juries

The case of Burton v Babb [2020] NSWCA 331 has been added at [3-0000] Introduction regarding whether the interests of justice require a civil jury.

[4-1100] Tendency and coincidence

New commentary has been added as a result of the Evidence Amendment (Tendency and Coincidence) Act 2020. In particular, at [4-1110] Application — s 94,commentary on new subs (4) and (5) has been added. Following the enactment of new s 97A, new text has been added at [4-1145] Admissibility of tendency evidence in proceedings involving child sexual offences — s 97A. The Evidence Amendment (Tendency and Coincidence) Act 2020 also amended the Criminal Procedure Act 1986, inserting a new s 161A. New commentary on this section appears at [4-1148] Tendency and coincidence directions in criminal trials. The Further references list has also been updated.

[4-1500] Privilege

The case of Gibbins v Bayside Council [2020] NSWSC 1975 has been added at [4-1515] Observations on the operation of s 118, where the court held that a document created for two purposes, neither of which is dominant, is not privileged from production.

[5-1000] The Special Statutory Compensation List

This chapter has been substantially revised and updated to reflect legislative changes. The case of See v COP [2017] NSWDC 6 has been added at [5-1030] Police Regulation (Superannuation) Act 1906. Regarding provision for past and future payment, the case of SAS Trustee Corporation v Patterson [2010] NSWCA 167 has also been added. Additional commentary has been provided at [5-1050] Sporting Injuries Insurance Act 1978 regarding the Sporting Injuries Fund Scheme.

[5-3500] Trans-Tasman proceedings

This chapter has been revised and updated. At [5-3560] Subpoenas, the cases of Rauland Australia Pty Ltd v Law [2020] FCA 516 and In the matter of Australasian Hail Network Pty Ltd (No 2) [2020] NSWSC 517, which discuss the matters to be taken into account when granting leave to issue a subpoena under the Trans-Tasman Proceedings Act 2010, have been added.

[5-7000] Intentional torts

A summary of the recent decision of Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 has been added at [5-7188] Misfeasance in public office. The Minister for Agriculture was found to have committed the tort of misfeasance in public office for ordering a “capricious and unreasonable” ban on the live export of cattle to Indonesia which made unnecessary limitations on the common law right of persons to carry on their lawful business.

[8-0000] Costs

The Costs chapter has been extensively reviewed and rewritten by the Honourable Justice Paul Brereton, AM RFD, judge of the NSW Court of Appeal.

[9-0000] Stay of execution

Minor amendments have been made as a result of the repeal of s 67 of the Guardianship Act 1987, s 40 of the Homefund Commissioner Act 1993 and r 49.22 of UCPR.

The Index, Table of Cases and the Table of Statutes have all been updated and are current to Update 43.

The following changes have been incorporated into this update:

[1-0000] Disqualification for bias

The case of Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, which held that an intermediate appellate court dealing with allegations of apprehended bias should address the issue of bias first, as the necessary result, if bias is established, is a retrial, has been added at [1-0020] Apprehended bias.

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

The cases of DRJ v Commissioner of Victims Rights [2020] NSWCA 136 and Misrachi v The Public Guardian [2019] NSWCA 67 have been added at [1-0410] Court Suppression and Non-publication Orders Act 2010. These cases discuss the interaction between ss 6 and 8 of the Act, with the Court of Appeal rejecting a submission that the principle of open justice under s 6 does not need to be considered if one of the grounds in s 8 is established.

Changes made by the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, which substituted “indecent assault” and “act of indecency” with “sexual touching and sexual act respectively within the meaning of Div 10 of Pt 3 of the Crimes Act 1900” are reflected under the heading Suppression or non-publication order must be “necessary”. Further, examples of some species of litigation which are inimical to the notion that anything that occurs in a court should be publicly available have been also added to this paragraph.

It is also noted that the Property, Stock and Business Agents Act 2002 has been renamed as the Property and Stock Agents Act 2002 (from 23 March 2020; LW 16.12. 2019) at [1-0430] and in the Legislation section.

[2-1600] Service of process outside New South Wales

The case of Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 has been added at [2-1630] Service outside Australia pursuant to UCPR Pts 11 and 11A. This case considered an application for leave to serve process. An article by the Honourable Justice Andrew Bell on “Private international law in practice across the divisions: some recent developments and caselaw” (2020) 14 TJR 1 has been added to Further reading.

[2-2600] Stay of pending proceedings

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 and The Council of Trinity Grammar School v Anderson [2019] NSWCA 292 have been added to [2-2690] Other grounds on which proceedings may be stayed. A permanent stay will be granted where it is demonstrated on the balance of probabilities that a fair trial would not be possible in the circumstances. Further, a permanent stay may be granted where there is significant delay between the events giving rise to the cause of action and the commencement of proceedings to the extent that the delay has resulted in relevant evidence becoming unavailable or impoverished: Moubarak by his tutor Coorey v Holt.

[2-5400] Parties to proceedings and representation

This chapter has been reviewed and updated, including the addition of Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia [2020] NSWCA 66 and BMW Australia Ltd v Brewster [2019] HCA 45 at [2-5500] Power of the court. A majority of the High Court in BMW Australia Ltd v Brewster held that s 183 (and the identical s 33ZF of the Federal Court of Australia Act 1976), properly construed, does not empower a court to make a common fund order. In Haselhurst v Toyota Motor Corporation Australia Ltd t/as Toyota Australia, a five-judge bench of the Court of Appeal held that an order for “class closure” which in effect destroyed a person’s cause of action within the limitation period, without a hearing and with no guarantee that the person would necessarily know of the outcome or consequence of their failure to register, was not an order that was “necessary to ensure that justice is done in the proceedings” or “appropriate … to ensure that justice is done in the proceedings.

[2-6200] Issues arising under foreign law

A new paragraph has been added at [2-6230] Evidence obtained on commission for proceedings in another court or tribunal relating to the Evidence on Commission Act 1995. This section discusses that the Supreme Court may exercise the court’s powers under the Evidence on Commission Act to render assistance to obtain evidence available in the State in aid of civil proceedings in another court, but that s 33(6), in general terms prohibits an order being made requiring a person to provide discovery of documents: British American Tobacco Australia Services Ltd v Eubanks for the United States of America; Application by the Attorney General of NSW [2020] NSWSC 1007.

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

The discretionary power of the court to set aside an undefended judgment is contained in r 36.16(2)(b). The case of Pham v Gall [2020] NSWCA 116, discussing the unfettered, though judicial, discretion of rule 36.16(2)(b) has been added at [2-6650] Absence of a party/undefended judgments.

[3-0000] Civil juries

The case of Flowers v State of NSW [2020] NSWSC 526, involving a discussion of s 85(2)(b) has been added under “Current position” in the Introduction at [3-0000].

[5-4000] Defamation

The chapter on defamation has been updated. At [5-4006] Defamation Amendment Act 2020, information regarding the statutory review of the Australian uniform defamation legislation, resulting in the Defamation Amendment Act 2020 (NSW), which was assented to on 11 August 2020, has been added. The Act has not been proclaimed. That process is unlikely to occur until the cognate legislation has passed though the legislatures of all States and territories. A memorandum as to the principal changes made by the Act appears at Appendix 1.

The cases of Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750 (regarding costs consequences) and Nine Network Australia Pty Ltd v Wagner [2020] QCA 221 (regarding aggravated damages) have been added at [5-4010] The pleadings. In Offer of amends, the cases of Mohareb v Booth [2020] NSWCA 49, Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 and Goldberg v Voigt [2020] NSWDC 174 have been added. In Mohareb v Booth, the NSWCA confirmed the correctness of observations in Zoef v Nationwide News Pty Ltd that the mere service of a statement of claim (despite containing no words to indicate it was intended as a Concerns Notice) and the failure to serve an offer to make amends in response to service of proceedings within the 28-day statutory period would prevent reliance upon the defence at trial.

[5-7000] Intentional torts

A further example has been added to [5-7110] What is imprisonment? In Lewis v ACT [2020] HCA 26, where the High Court found that despite the unlawful detention of the appellant, since the same imprisonment would have occurred lawfully even if the Board had not made an invalid decision, there was no loss for which to compensate the appellant. The case of Owlstara v State of NSW [2020] NSWCA 217, concerning s 99 of LEPRA, has been added at [5-7115] Justification.

A new section on the tort of Misfeasance in public office has been added at [5-7188]. The principles emerging from Northern Territory v Mengel (1995) 185 CLR 307; Sanders v Snell (1998) 196 CLR 329; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1; Odhavji Estate v Woodhouse [2003] 3 SCR 263; Sanders v Snell (2003) 130 FCR 149; Commonwealth of Australia v Fernando (2012) 200 FCR 1; Emanuele v Hedley (1998) 179 FCR 290; Nyoni v Shire of Kellerberrin (No 6) (2017) 248 FCR 311: Hamilton v State of NSW [2020] NSWSC 700 and the more recent case Ea v Diaconu [2020] NSWCA 127 are discussed. See also Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732.

At [5-7190] Damages including legal costs, the case of Lewis v ACT [2020] HCA 26 has been added. This case considered a claim for false imprisonment, and the High Court held that an independent species of “vindicatory damages”, or substantial damages merely for the infringement of a right, and not for other purposes including to rectify the wrongful act or compensate for loss, is unsupported by authority or principle.

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

It is noted that this chapter may be impacted by the Personal Injury Commission Act 2020 (No 18), assented to 11 August 2020. (Schedules 5 and 6 of the Act are not yet in force.) The Personal Injury Commission (PIC) will be established on the establishment date, expected to be 1 March 2021 (s 6(1)). Section 12 provides that the PIC will have a Workers Compensation Division and a Motor Accidents Division. The impact of this legislation on the chapter is currently being reviewed, and it will be updated accordingly.

[9-0700] Enforcement of foreign judgments

The case of Bao v Qu; Tian (No 2) [2020] NSWSC 588 has been added to [9-0700] Introduction. An article by the Honourable Justice Andrew Bell on “Private international law in practice across the divisions: some recent developments and caselaw” (2020) 14 TJR 1 has been added to References.

The Table of cases has been revised and is current to Update 42.

The following changes have been incorporated into this update:

[2-0500] Alternative dispute resolution

This chapter has been substantially revised and updated.

New paragraphs have been added at [2-0588] Jurisdiction and rules of evidence, [2-0595] Arbitrations under the Commercial Arbitration Act 2010 and at [2-0598] Role of the court under the Commercial Arbitration Act, which include the cases of Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13 and Ku-ring-gai Council v Ichor Constructions Pty Ltd (2019) 99 NSWLR 260.

The article, U Tahur, “Does mandatory ADR impact on access to justice and litigation costs?” (2019) 30 ADJR 31, has been added to Further reading.

[2-1200] Change of venue and transfer between NSW courts

The case of JK Williams Staff Pty Ltd v Sydney Water Corp [2020] NSWSC 220, regarding the appropriateness of proceedings being heard in the Land and Environment Court, has been added at [2-1210] under the subheading Transfer between Supreme Court and Land and Environment Court.

[2-2600] Stay of pending proceedings

Two new cases have been added at [2-2690] Other grounds on which proceedings may be stayed:

[2-6300] Judgments and orders

A minor amendment has been made at [2-6490] Entry of judgments and orders following the Uniform Civil Procedure (Amendment No 93) Rule 2020, No 140 of 2020 (LW 9 April 2020), which inserts “judicial officer or” before “registrar” in rule 36.11(2A)(a).

[5-0200] Appeals except to the Court of Appeal

Regarding an appeal from an associate judge of the Supreme Court to a judge of that court, the court may receive further evidence (s 75A(7)), but only on special grounds if the appeal is from a judgment following a trial or hearing on the merits. For the meaning of “special grounds”, the case of Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (2019) 99 NSWLR 447 at [68]–[70] has been added.

[5-7000] Intentional Torts

This chapter has been revised as follows:

[5-7120] Malicious prosecution

It is noted that in relation to proceedings for damages on the basis of malicious prosecution, an appeal to the Court of Appeal was dismissed in Wood v State of NSW [2019] NSWCA 313.

[5-7115] Justification

In proceedings for false imprisonment, it is necessary to consider first whether the plaintiff was detained and second, if so, whether there was a justification for the detention. The High Court unanimously agreed in NSW v Robinson [2019] HCA 46, that an arrest under s 99 of LEPRA can only be for the purpose, as soon as reasonably practicable, of taking the arrested person before a magistrate and that the arrest in this case was unlawful.

[5-7185] Collateral abuse of process

Following the decision in Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245, a new section outlining the tort of collateral abuse of process has been added.

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

The case of Li v Attorney General for NSW (2019) 99 NSWLR 630 has been added at [5-8505] Jurisdiction, where in dismissing an appeal pursuant to s 69 of the Supreme Court Act, it was doubted the aphorism that justice must be “seen to be done” was ever intended to be a test of the validity of judicial, let alone administrative, decision-making and does not constitute a separate ground of review or a freestanding test for validity of that decision-making.

[9-0700] Enforcement of foreign judgments

D Butler, “Enforcement of foreign judgments: does an issue estoppel arise from a foreign court’s determination of its own jurisdiction?” (2019) 93 ALJ 558 has been added to “Further references”.

The following changes have been incorporated into this update:

[1-0240] Broadcast of judgments

JJ Spigelman, “The principle of open justice: a comparative perspective” (2006) 29(2) UNSW Law Journal 147 has been added to “Further references.”

[1-0400] Proceedings in public suppression orders

This chapter has been revised to include a section on “Take-down orders” at [1-0410] Court Suppression and Non-publication Orders Act 2010. It includes a reference to Dowling v Prothonotary of the Supreme Court of NSW (2018) 99 NSWLR 229, where take-down orders may be made as a means of preventing the continuation of scandalising contempt. Further, the fact the order may have limited utility or be ineffective is not a reason to refuse to make the order: AB (A pseudonym) v R (No 3) [2019] NSWCCA 46.

[1-0930] Interpreters — implementation

A new paragraph regarding implementation has been added following the amendment of the Uniform Civil Procedure Rules on 8 November 2019, which inserted Pt 31, Div 3 (r 31.55 – 31.64). This provides for rules concerning interpreters based on the Judicial Council on Cultural Diversity Model Rules set out in the Recommended National Standards for Working with Interpreters in Courts and Tribunals.

[2-0010] Case management overview

A reference to Choy v Tiaro Coal Ltd (2018) 98 NSWLR 493 at [36]–[37] has been added, where non-compliance with the requirements as to service in r 2.7 of the Corporations Rules was held to be an irregularity within the meaning of s 63 of the Civil Procedure Act entitling the recipient to apply under s 63(3) for orders setting aside service, but did not of itself invalidate the proceedings or the service. There was no error in the primary judge’s finding that it was appropriate to delay service for the applicant to secure a litigation funding agreement.

The sample order at [2-0040] has been removed.

[2-2680] Abuse of process

A reference to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 has been added, where at [33], the court stated that abuse of process principles may be invoked to prevent attempts to litigate a claim that should have been litigated in earlier proceedings as well as attempts to re-litigate a claim that has been determined.

[4-1515] Privilege — observations on the operation of s 118

This paragraph has been amended in relation to the “dominant purpose” test, where the Full Court in Douglas v Morgan [2019] SASCFC 76 set out a useful summary of the determination of the criteria for the existence of legal professional privilege at [44]–[53].

[5-4000] Defamation

This chapter has been revised to include the following commentary:

[8-0000] Costs

The following commentary has been revised:

[10-0300] Civil and criminal contempt

Commentary at [10-0300] has been revised following Kostov v YPOL Pty Ltd [2018] NSWCA 306, noting the common-law requirement that a criminal trial not proceed unless the accused is fit to plead is a safeguard applicable to civil proceedings for criminal contempt.

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.

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

Substantial additions have been made to the Evidence chapter:

The Particular proceedings chapter includes the following changes:

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.

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

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

The Evidence chapter incorporates the following changes:

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

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.

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:

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:

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

The Particular proceedings chapter includes amendments to:

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:

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

The Particular proceedings chapter includes amendments to:

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.

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

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.

“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:

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

The Particular proceedings chapter includes the following:

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

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.

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

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

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

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:

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:

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:

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 Contempt chapter has been revised to incorporate the following changes:

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

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

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

“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:

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

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

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

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

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:

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

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:

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

“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.

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:

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:

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

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:

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

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

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

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

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

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

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 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:

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 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:

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

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:

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

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 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 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 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 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.

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 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 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 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 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 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 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 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.