UPDATE 24 FEBRUARY 2017 NSW CIVIL PROCEDURE. JP Hamilton, G Lindsay and C Webster

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1 UPDATE 24 FEBRUARY 2017 NSW CIVIL PROCEDURE JP Hamilton, G Lindsay and C Webster Material Code Thomson Reuters (Professional) Australia Limited 2017 Looseleaf Support Service You can now access the current list of page numbers at: If you have any questions or comments, or to order missing pages, please contact Customer Care LTA ANZ on Fax: Care.ANZ@thomsonreuters.com

2 COMMENTARY CIVIL PROCEDURE ACT 2005 Part 6 Case management and interlocutory matters Section 60 Commentary The obligation applies to the conduct of the proceedings, not to the assessment of costs einduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284. For guidance on the interrelationship between s 60 and the discretion conferred by r 42.4 (maximum costs order) see Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263. See [CPA 60.20]. UNIFORM CIVIL PROCEDURE RULES 2005 Part 5 Preliminary discovery and inspection Rule 5.2 Operation The inquiry is an objective one and is not determined by the applicant's belief that the inquiries which were made were reasonable: Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26. An applicant must provide the substance of the enquiries they have made: Age Co Ltd v Liu (2013) 82 NSWLR 26; [2013] NSWCA 26. See [r ]. Rule 5.3 Scope of the rule The key principles relevant to an application for preliminary discovery were set out in Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69 (at [46] [52]). The rule is construed beneficially and a determination NSW Civil Procedure 2

3 does not involve an assessment of the merits of the proposed claim: Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26. See [r ]. Rule 5.6 Operation Security for costs in the normal circumstances of an indigent or foreign plaintiff are dealt with under r Where security is sought, affidavit evidence setting out the likely cost of compliance should be served. Where such an order is made, there may be a set-off against an otherwise successful plaintiff's costs: Andrews Advertising Pty Ltd v Andrews [2011] NSWSC 244 at [58]. See [r ]. Rule 5.8 Operation Costs of production may be ordered in the preliminary discovery proceedings, or abide the result of any subsequent substantive proceedings: Andrews Advertising Pty Ltd v Andrews [2011] NSWSC 244 at [57]. See [r ]. Part 14 Pleadings Rule 14.2 Operation Simply pleaded liquidated claims for a common money count can fall under this rule: Tagget v McLean Austquip Pty Ltd [2014] NSWSC See [r ]. Part 20 Division 4 Compromise Rule Operation There must be substantial compliance with the form and terms of the rules: Leach v Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391. See [r ]. An offer of compromise made after 7 June 2013 must not include an amount for costs, except in accordance with subr (3)(a), nor be expressed to be inclusive of NSW Civil Procedure 3

4 costs and otherwise must comply with subr (2). Offers may now include an offer of costs as agreed or assessed subr (3)(b). cf. with the operation of s 151Z of the Workers Compensation Act 1987 (NSW): Dailhou v Kelly (No 3) [2014] NSWSC See [r ]. Rule Operation Leave to withdraw an offer of compromise requires the party seeking leave to show a sufficient change in circumstances since the offer was made to make it just that the applicant be permitted to withdraw the offer: Scanruby Pty Ltd v Caltex Petroleum Pty Ltd [2001] NSWSC 411 (leave to withdraw offer nunc pro tunc prior to entry of judgment). See [r ]. Part 21 Discovery, inspection and notice to produce documents Rule 21.3 Waiver of privilege The New South Wales Court of Appeal recently reviewed the authorities in this area in the context of a claim of mistaken disclosure in Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; on appeal Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, [2013] HCA 46 (on the facts the issue of waiver should never have been raised at [35]). See [r ]. LEGISLATION Uniform Civil Procedure Rules 2005 (NSW) To amend the Rules to give effect to harmonised rules approved by the Council of Chief Justices with respect to service of an originating process and other documents outside of Australia. Inserted: Div 1A (ss 11.8AA, 11.8AB, 11.8AC) Substituted: rr 11.1, 11.2, A NSW Civil Procedure 4

5 Uniform Civil Procedure (Amendment No 83) Rule 2016 (NSW) (Reg No 755 of 2016) with effect from 9 December To amend the Rules to update the expert witness code of conduct set out in Schedule 7 to the Rules so that it conforms with harmonised rules approved by the Council of Chief Justices. Substituted: Sch 6, 7 Uniform Civil Procedure (Amendment No 82) Rule 2016 (NSW) (Reg No 754 of 2016) with effect from 9 December To amend the Rules consequent on the abolition of the Industrial Court in relation to the originating process, referral and award of costs in certain proceedings. Amended: rr 6.3, 6.4, Inserted: Part 20 Div 3A (rr 20.24A, 20.24B, 20.24C, 20.24D) Uniform Civil Procedure (Amendment No 80) Rule 2016 (NSW) (Reg No 715 of 2016) with effect from 8 December Supreme Court Rules 1970 (NSW) To amend the Rules to correct a typographical error. Amended: r 12 Statute Law (Miscellaneous Provisions) Act (No 2) 2016 (NSW) (Act No 55 of 2016) with effect from 6 January To amend the Rules to make provision, consequent on the abolition of the Industrial Court, for the practice and procedure to be followed in the Supreme Court in relation to applications concerning contraventions of dispute orders and the recovery of civil penalties under the Industrial Relations Act NSW Civil Procedure 5

6 Amended: Sch J Supreme Court (Amendment No 430) Rule 2016 (NSW) (Reg No 714 of 2016) with effect from 8 December Supreme Court Act 1970 (NSW) To amend the Act in relation to appeal in proceedings before a court. Amended: ss 48, 101 Repealed: s 37C Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (Act No 48 of 2016) with effect from 8 December To make consequential amendments to the Act. Amended: s 46A Regulatory and Other Legislation (Amendments and Repeals) Act 2016 (NSW) (Act No 60 of 2016) with effect from 14 November To amend the Act in relation to the remuneration of the acting judges. Amended: ss 37, 48 Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW) (Act No 54 of 2016) with effect from 25 October Evidence (Audio and Audio Visual Links) Regulation 2015 (NSW) To amend the Regulation to ensure that accused detainees held in custody at detention centres are not required to appear physically before a court in bail proceedings occurring on 23 December Amended: cl 4 NSW Civil Procedure 6

7 Evidence (Audio and Audio Visual Links) Amendment (Bail Matters) Regulation 2016 (NSW) (Reg No 769 of 2016) with effect from 16 December Evidence on Commission Act 1995 (NSW) To amend the Act in relation to definitions. Amended: ss 4, 18, 37 Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (Act No 48 of 2016) with effect from 8 December Civil Procedure Act 2005 (NSW) To amend the Act to omit certain provisions in relation to transfer of proceedings and some definitions. Amended: ss 8, 140, Schs 1, 2 Repealed: Part 9 Div 3 (ss 150, 151, 152, 153, 154) Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (Act No 48 of 2016) with effect from 8 December To amend the Act in relation to enforcement by owners corporations against rent and to make other minor amendments. Amended: s 124 Inserted: Part 8 Div 3 Subdiv 2 (ss 122A 122E) Strata Schemes Management Act 2015 (NSW) (Act No 50 of 2015) with effect from 30 November Civil Procedure Regulation 2012 (NSW) To amend the Regulation in relation to fees payable in relation to court proceedings. NSW Civil Procedure 7

8 Amended: Cl 4 Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (Act No 48 of 2016) with effect from 8 December Vexatious Proceedings Act 2008 (NSW) To amend the Act in relation to the definition of authorized court and the making of vexatious proceedings order. Amended: ss 3, 8, 12 Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (Act No 48 of 2016) with effect from 8 December Local Court Act 2007 (NSW) To amend the Act in relation to the remuneration of the acting judges. Amended: s 34A Strata Schemes Management Act 2015 (NSW) (Act No 50 of 2015) with effect from 30 November District Court Act 1973 (NSW) To amend the Act in relation to definitions, savings and transitional provisions and to make consequential amendments. Amended: Heading to Div 8A of Pt 3 8A, ss 142G, 142H, Heading to Subdiv 2 of Div 8A 2, 142J, 142K, 142L, 142N, 142P, Sch 3 Repealed: s 142I Regulatory and Other Legislation (Amendments and Repeals) Act 2016 (NSW) (Act No 60 of 2016) with effect from 14 November NSW Civil Procedure 8

9 To amend the Act in relation to the remuneration of the acting judges. Amended: s 18 Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW) (Act No 54 of 2016) with effect from 25 October Motor Accidents Compensation Regulation 2015 (NSW) To amend the Regulation to make further provision with respect to the maximum legal costs recoverable in connection with claims under the motor accidents compulsory third-party insurance scheme. Amended: cll 5, 6, 8 Inserted: cl 8A Motor Accidents Compensation Amendment (Claims) Regulation 2016 (NSW) (Reg No 644 of 2016) with effect from 1 November NSW Civil Procedure 9

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