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. Nature of the common law proceedings The respondent alleges that on 31 July 1984, in the course of his employment by the appellant, he was helping to clear a buildup of sawdust from the blades of a multi-edger machine. In the course of this operation he opened the side inspection door of the machine. As he reached into it, his hand came into contact with the blades of the machine whilst the latter were still revolving. The respondent alleges that his middle finger was amputated, although it was later replaced by microsurgery. He alleges that he suffered severe injuries to his index, ring and little fingers. The exact extent of the disabilities is disputed. The respondent claims that he has lost eighty percent of the normal function of his hand. 2 UNREPORTED JUDGMENTS The respondent's statement of claim was filed on 27 April 1985. The appellant's statement of defence was filed on 15 October 1985. It denies liability and, in respect of the clad based on common law negligence, alleges contributory negligence on the part of the respondent. On 15 October 1985 the appellant, pursuant to s86 of the Supreme Court Act 1970 (the Act) filed a requisition for trial with a jury. It paid the fee prescribed by the regulations. The Proceedings were then set down in the jury list for trial. On 24 August 1987 an order was made expediting the hearing of the case. However, when the matter came before Maxwell J, in the jury list, on 4 February 1988 the respondent sought an adjournment. This was based upon the respondent's inability to prove a claim made for economic loss. The respondent blamed poor preparation of the case for the need for the adjournment. The application for adjournment was opposed by the appellant. In the result, Maxwell J granted the adjournment. However, he ordered the respondent to pay the appellant's costs thrown away as a result. On 27 June 1988, the matter was relisted for hearing in the jury list. This date was changed on the application of the respondent because it was unsuitable to his counsel. Ultimately, the case was listed for hearing before Cole J and a jury of four on 11 July 1988. When the case was listed before his Honour, Cole J, of his own motion, ordered that all issues of fact be tried without a jury. He released the jurors in waiting. This was done before any application was made on behalf of the respondent. It was suggested in argument that the respondent might have' intended to make such an application. But, in the event, such an application was unnecessary because his Honour took his own initiative. It was the order which effected the foregoing result that propelled the appellant to this Court. It asserts a "right" to the jury trial which it had duly requisitioned under the Act. It contends that jury trial was appropriate to the case, in which, it suggests, the credit of the respondent will be in issue. It asserts that no proper ground existed, or had been shown, to deprive it of the right to jury trial. It challenges his Honour's acting on his own motion, although no application had been made by any party to discharge the jury. It argues that his Honour's exercise of "discretion", if such it be, had miscarried because of his reference to his earlier decision in Smoje v Trend Laboratories Pty Limited, unreported, SC, 27 May 1988. It urged this Court, reviewing his Honour's order, to restore its entitlement to have the issues of fact tried by a jury and to send the matter back to the Common Law Division for such trial. Reasons of the trial judge It is clear from a review of his Honour's reasons in this case that he followed closely his judgment in Smoje. The judgment is stated to be given on the "application to empanel a jury". It opens with an acknowledgment of the initiative which his Honour had taken to raise the question why, in such a "normal industrial accident claim', the case "should not be heard otherwise than with a jury" (emphasis added). The judgment records the submissions of counsel for the appellant in relation to the considerations earlier adumbrated in Smoje. It proceeds to his Honour's expression of opinion, by reference to the criteria there stated, that for reasons of time, cost, uniformity of judgments, appellate review, discussion of verdict ranges and the facility of settlement, trial without a jury in a case such as the present, would be more appropriate. Discussion of the principles of Smoje was confined to the generality of "a normal industrial accident claim" such as the UWROEPENDENT FORESTRY SERVICES PTY LTD v ROGERS (Kirby P and Samuels JAB present case was perceived to be. No reference was made to any suggested particular features of the present case, except that it was acknowledged that the case would not be a long one, whether tried before a jury or not. In answer to the suggestion that, because the respondent's credit was in issue, it would be preferable to have a jury trial, his Honour indicated that he was unconvinced: "Judges day in and day out determine the question of credit and determine whether particular witnesses, be they plaintiffs, defendants or simply witnesses are to be believed. It is clear that judges through their prior experience as counsel for many years, and then sitting as judges, do achieve some acuity in the capacity to judge the veracity of witnesses. The fact that there is an attack on credit or there are important issues of fact or belief to be determined is not a sufficient reason for the matter to be determined by a jury". Having reviewed these and other considerations his Honour concluded that, the present case "being in reality a usual industrial accident claim", he would direct that all issues of fact be tried without a jury. He rejected the submission that an order under s89(1) of the Act could not be made on the Court's own discretion without an application being made by either party. He rejected the challenge to Smoje. Miscarriage of discretion For the reasons stated in our respective decisions in Herriman, we are of the opinion that Cole J's discretion miscarried in this case. It is not necessary for us to repeat what was said in that case. The reasons for judgment are being published concurrently with these reasons. Suffice it to say that, by referring to the considerations in Smoje and incorporating the criteria there stated in the reasoning that led to the present judgment, Cole J took into account matters which were irrelevant and acted upon wrong principles. Parliament has provided for two forms of trial of common law proceedings such as the present. It is therefore not permissible to approach a discretion to dispense with a jury, which has been lawfully requisitioned, by referring to universal features of jury trial, as distinct from any particular implications of such features for the case in hand. Counsel for the respondent sought to support the decision in Smoje. However, for the reasons severally advanced in Herriman we would reject his submissions. Re-exercise of the discretion If the appellate court, which reverses for error, has before it all of the matters which are relevant to the reconsideration of the discretion by it, it should proceed to exercise the discretion anew, according to correct principles and based upon relevant considerations. However, in the course which the proceedings took before Cole J, no material was placed before his Honour, specific to the present case which would form a basis upon which this Court could exercise the discretion under s89 of the Act. His Honour had before him nothing more than the pleadings and particulars. No affidavit was sworn showing any feature of the present case which would activate the discretion for which Parliament has provided in s89 of the Act. No application was made, on the appeal, to place any such material before this Court. In these circumstances, we do not feel entitled, on the material before us, to exercise the discretion under the section. This is unsurprising in the circumstances. No evidence to found an application was placed before his Honour because neither of the parties had made an application when his Honour seized the initiative. The respondent submitted that s89(1) of the Act had effectively removed any "right" to a trial by jury. He argued that the section "reposed in the judiciary the obligation to decide which, if any, cases were still of a nature that required 4 UNREPORTED JUDGMENTS hearing by a jury". For the reasons which are given in Herriman we reject that submission. It ignores entirely the persistence in the Act of s86. That section may be overridden by the exercise of the discretion provided for in s89, but it may not be written out of the Act entirely. Nor is it the "obligation" of the judiciary to decide the mode of trial on the basis of the general inefficiencies of jury trial. This is so precisely because, inefficient or not, such mode of trial has been preserved by Parliament. We do not say that, in a particular case, it would not be appropriate for a judge to take the initiative which Cole J took and, of his own motion, to order that all or any issues of fact be tried without a jury. S89(1) does not, in terms, require an application by a party whilst other sections of the Act do. (See, eg, s61(3)(a), s71(1), s71(2), s74(a) although at least one rule, namely 1262 permits the Court, of its own motion, to appoint a date for a hearing for directions and orders) However, because a jury, duly requisitioned, cannot be dispensed with by reference to universal considerations of jury trial, the state of the list, the convenience of the court or the rights of other parties awaiting hearing, but only by reference to the features of the particular case, it will be rare that a judge will have before him or her the necessary material to take such an initiative without an application on the part of either party. At least this will be so where, as here, the trial has not commenced and there is no evidence concerning the relevant features of the case which might warrant that course. Orders Accordingly, the proper order in this case is that the matter be returned to the Common Law Division to be relisted in the jury list. In that relisting, consideration will doubtless be given to the order for the expedition of the hearing which was earlier made. That order becomes more relevant in view of the time lost by the present proceedings. Nothing we have said will prevent an application being made, upon proper material, for the exercise of the discretion under s89 of the Act. As the respondent sought to support the course which had been taken, but which has not been sustained, it would not be appropriate to order the appellant to pay the costs. On the other hand, the respondent did not initiate the events which led to the order which resulted in these proceedings and the delay of his trial. In these circumstances, the costs should be regarded as an incident of the trial and should therefore attend its outcome. The orders which we propose are:- 1. Appeal allowed. 2. Order of Cole J dated 11 July 1988 that all issues of fact in the proceedings be tried without a jury, set aside. 3. proceedings returned to the Common Law Division for trial. 4. Costs of the proceedings before Cole J on 11 July 1988 and before this Court on the summons for leave to appeal and on the appeal, to be costs in the cause. Mahoney JA For the reasons which I have given in The Pambula District Hospitalv Herriman, I am of opinion that, in this case, the appeal should be dismissed with costs. 1. Appeal allowed. 2. Order of Cole J dated 11 July 1988 that all issues of fact in the proceedings be tried without a jury, set aside. 3. Proceedings returned to the Common Law Division for trial. URJ INDEPENDENT FORESTRY SERVICES PTY LTD v ROGERS (Mahoney JA) 5 4. Costs of the proceedings before Cole J on 11 July 1988 and before this Court on the Summons for leave to appeal and on the appeal, to be costs in the cause. 5 COUNSEL: Appellant: G B HALL QC / W AUSTRON Respondent: T CHRISTIE 10 SOLICITORS: Appellant: HUNT & HUNT Respondent: -