When Is a Civil Case ‘Closed’? A Recent NSW Court of Appeal Warning

James Michos

1 day ago

3 min read

Civil trials are controlled by procedural rules, but procedure is not a technical afterthought. A party can lose a claim if its evidence is not properly presented, while a court must still give each party a fair opportunity to put its case. The NSW Court of Appeal’s decision in Tabbaa v State of New South Wales [2026] NSWCA 230, delivered on 29 October 2026, illustrates both points.

What happened in Tabbaa?

Mr Tabbaa brought District Court proceedings arising from his arrest, including claims for malicious prosecution and trespass to land. He was self-represented at trial. After opening his case, he declined an invitation to enter the witness box. The State then sought judgment under rule 29.10 of the Uniform Civil Procedure Rules 2005 (NSW), arguing that his evidence had concluded and could not support judgment in his favour.

The primary judge treated Mr Tabbaa’s case as closed and entered judgment against him on the relevant claims for want of evidence. Mr Tabbaa maintained that he had not closed his case and wanted to rely on documents.

What did the Court of Appeal decide?

The Court of Appeal held that whether a party has closed its case is a question of fact. In the circumstances, Mr Tabbaa had not closed his case and had not made a forensic choice that prevented him from tendering further evidence. Refusing him the opportunity to tender documents before the State went into evidence denied him procedural fairness.

The Court granted leave in part, allowed the appeal concerning the malicious prosecution claim and remitted that claim to the District Court for determination. It refused leave in relation to the other aspects of the proposed appeal. Importantly, the remitted claim has not been decided on its merits.

Why this matters in civil disputes

Rule 29.10 permits an opposing party to seek judgment for want of evidence after the beginning party has concluded its evidence in chief. Tabbaa confirms that the precondition matters: a court should not proceed on the basis that evidence has concluded when that is genuinely disputed without determining the issue fairly.

The decision does not mean litigants can ignore trial directions or present evidence whenever they choose. Courts must also further the overriding purpose in section 56 of the Civil Procedure Act 2005 (NSW): the just, quick and cheap resolution of the real issues. Clear trial preparation remains essential.

Practical steps before a hearing

Parties should:

identify every fact that must be proved and the witness or document that will prove it;
prepare and serve evidence within the court’s timetable;
understand when evidence is formally tendered and when the case will be closed;
state any procedural position clearly on the record; and
obtain advice promptly if an opponent seeks summary judgment or judgment for want of evidence.

Appeals are not a second trial

Tabbaa also highlights proportionality. Some District Court appeals require leave, including appeals from interlocutory or summary judgment orders. The Court rejected unsupported assertions that the appeal would affect Mr Tabbaa’s wealth by at least $100,000. Parties considering an appeal should identify the appeal right, time limit, legal error, evidence and practical value before incurring further costs.

Early advice can help preserve a claim

Procedural mistakes can determine a dispute before the underlying facts are decided. Early legal advice can help parties prepare admissible evidence, comply with directions and respond to dispositive applications.

Sources: Tabbaa v State of New South Wales [2026] NSWCA 230; NSW Court of Appeal case information; Uniform Civil Procedure Rules 2005 (NSW), r 29.10; Civil Procedure Act 2005 (NSW), s 56; District Court Act 1973 (NSW), s 127.