INDEPENDENT FORESTRY SERVICES PTY LTD v ROGERS [1988] NSWCA 72

INDEPENDENT FORESTRY SERVICES PTY LTD v ROGERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MAHONEY JJA 15 July 1988, 5 August 1988 [1988] NSWCA 72

KEY WORDS: JURY — PRACTICE — JUDGE DISPENSING WITH CIVIL JURY ON HIS OWN INITIATIVE JURY — right to jury — common law proceedings — power to order trial without a jury — test for — power of judge of his own initiative to order trial without a jury — whether discretion miscarried by reference to wrong principles and irrelevant considerations — held (Kirby P and Samuels JA; Mahoney JA dissenting). (1) Discretion miscarried and order set aside. Pambula District Hospital vy Herriman (unreported, CA, 5 August 1988) applied; (2) No material upon which the Court of Appeal could substitute its exercise of discretion for that of the trial judge; (3) Although in a proper case a trial judge could take his own initiative to dispense with a jury under s89 of the Supreme Court Act 1970, in the absence of evidence relevant to the particular case, this was not such a case. PRACTICE — setting down for trial — common law proceedings — power to order trial without a jury — power of judge to do so on his own initiative — Pambula District Hospital vy Herriman (above) apply. Supreme Court Act 1970, s86, s89.

Kirby P and Samuels JA This is one of a series of matters which were heard by the Court consecutively because they raise substantially the same point. In issue is a challenge by the appellant to an order by Cole J on 11 July 1988, that all issues of fact in the proceedings between the parties be tried without a jury. The matter first came before the Court on 11 July 1988, shortly after Cole J had made his order. The appellant immediately applied for leave to appeal and a stay to prevent the conduct of the appeal without a jury until this Court had had the opportunity to review his Honour's order in The Pambula District Hospital v Herriman (unreported, CA, 5 August 1988). The Court had given leave to allow argument in that appeal of substantially the same issues as the appellant wished to raise in this. Accordingly, in these proceedings the Court gave leave to appeal, ordered a stay and returned the appeal for argument on the same day as Herriman. At the hearing, a sensible arrangement was adopted by Counsel for sharing argument upon issues which were in Common and addressing separate argument to those issues which Were said to be unique to each case, including this.