ESTATE OF THE LATE ANTHONY FAIRBURN WILLIAMS v MARSHALL [1988] NSWCA 176

ESTATE OF THE LATE ANTHONY FAIRBURN WILLIAMS v MARSHALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MAHONEY JJA 15 July 1988, 5 August 1988

[1988] NSWCA 176

JURY — trial by — action for damages for personal injury — proceedings in Common Law Division — application by plaintiff for trial by Judge alone — application granted by reference (inter alia) to delays and inflexibility of jury trial — held (Kirby P and Samuels JA; Mahoney JA dissenting). Discretion miscarried — no material adequate to exercise discretion in favour of application for trial by Judge alone — application dismissed. Supreme Court Act 1970, s86, s89.

Kirby P and Samuels JA By leave, the appellant appeals from a decision of Loveday J given on 8 July 1988 ordering that the jury requisitioned by the appellant be dispensed with in the trial of issues of fact upon the common law claim brought by the respondent against the appellant.

The appeal was heard concurrently with a number of other proceedings which raised analogous, but not identical, questions. Most of what needs to be said, to determine the outcome of this appeal is contained in the reasons for the judgments which we have provided in the Pambula District Hospital v Herriman, published this day. However, as there are some special circumstances in the present case, it is necessary to refer to the reasons given by Loveday J and then, if error be shown, to consider whether this Court is in a position to exercise the discretion which the respondent invoked under s89(1) of the Supreme Court Act, 1970 (the Act).

The nature of the claim.

The respondent was injured in November 1981. Nearly four and a half years later he instituted proceedings in the District Court at Moree, claiming damages for the negligence of the appellants. A defence was filed on 5 November 1986. On the same day, the appellants requisitioned a jury.