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. The proceedings were eventually transferred from Moree to be heard by the District Court in Narrabri. However, the sittings of that Court in Narrabri in 1987 was cancelled, ostensibly because there was not enough work in the list to warrant a sittings. It was suggested that, had the matter remained in the Narrabri list of the District Court, it would have been heard in 1988. In June 1987 the respondent filed a summons in the Supreme Court seeking an order transferring the proceedings from the District Court to the Supreme Court, to be heard in the Narrabri sittings of the Supreme Court commencing in August 1987. The proceedings were duly transferred. However, they were not heard in Narrabri in August 1987 for early that month the respondent filed a Notice of Motion seeking an order that the hearing take place in Sydney and that it be expedited. Such orders were made. 2 UNREPORTED JUDGMENTS On the 4 July 1988 the respondent, by motion, sought an order that the jury be dispensed with. It was this motion which came before Loveday J on 8 July 1988. As has been stated, his Honour acceded to the application. Upon a summons for leave to appeal the Court granted leave, expedited the hearing and now disposes of the appeal. Reasons of the trial Judge Loveday J expressed four reasons for the order which he made. They were:- (1) If the respondent's injuries, which arose on a private road out of the use of his employer's tractor had occurred on a public road "it would necessarily be heard without a jury"; (2) The respondent's case involved examination of financial records and complex medical issues which would need to be explained to the jury; (3) The majority of witnesses for the trial in Sydney would come from the North-Western region of New south Wales and additional expense would be involved if the hearing were before a jury; and (4) There would be less flexibility in relation to the use of Court time if it were heard before a jury, as for example if the matter had to be adjourned and could not be completed in the one hearing. The appellants challenged each of these considerations as being irrelevant to the discretion provided under s89 of the Act, as taking into account extraneous matters or as indicating reliance upon incorrect principles. As to (1), the appellants contested that, had the respondent's injury occurred on a public road, the trial would "necessarily" be heard without a jury. First, they point out that the claim is framed as one between an employer and employee. As such by s87(4), s87(1) to which Loveday J was presumably referring, would not apply. In any case, the appellants point out that even under s87(1), proceedings in a running down case do not "necessarily" take place without a jury, as a reference to the terms of s87(1) will indicate. As to (2), the parties referred to an affidavit in the proceedings below but which has not been placed before this Court. The Court was told that, in the affidavit, the claim was made about complex medical and financial records. The appellants, however, contended that the substantial issue in the case would be the credit of the respondent. The appellants claimed that this was a matter upon which Loveday J had made no observation although his Honour was strongly pressed to do so. As to (3), the appellants pointed out that it was the respondent himself who changed the venue from North-Western New South Wales. Upon this basis, it was suggested, he should not now be allowed to alter the tribunal for the trial, relying upon his own conduct in doing so and the inconvenience it had occasioned. The same answer was given to the problems of flexibility referred to in (4). Additionally, the appellants pointed out that the references by his Honour to the suggested inflexibility of jury trial, as such, and the added expense incurred from its very nature were matters of universal application and, thus, not properly taken into account in the exercise of a discretion under s89. That discretion required the Judge to start from the point that a party who had requisitioned a jury under s86 of the Act was entitled to have that mode of trial by the terms of the Act unless, for particular reasons, it was appropriate to order a trial without a jury. URBTATE OF THE LATE ANTHONY FAIRBURN WILLIAMS v MARSHALL (Mahoney JAB Miscarriage of discretion and consequence It does appear that one at least of the matters referred to by Loveday J was in error, namely his reference to the fact that the trial would have necessarily be heard without a jury if only the respondent's injuries had occurred on a public 5 street. As the claim is based upon an allegation of negligence on the part of the respondent's employer, this appears to be a consideration of dubious relevance. However that may be, it is possible that his Honour's reference to this matter in the opening of his judgment was nothing more than an allusion to the inconsistencies between the competing policies reflected in s85, s86, s87, s88, 10 and s89 of the Act. We have ourselves called attention to such apparent inconsistencies. No great store should be placed upon that remark. On the other hand, the references in (3) and (4) above, to additional expense and diminished flexibility, appear clearly to be addressed to the features of jury trials generally. No particular consequence of that mode of trial for the present 15 case is explored under these heads. The Court was told that his Honour had been taken to Smart J's decision in Smith v AIS Pty Limited, unreported, SC, 16 May 1988, where Smart J had had regard to universal considerations such as these. For the reasons which we have severally explained in Herriman such considerations are not relevant, without some feature particular to the case in hand. 20 Upon this basis it is clear that Loveday J's discretion miscarried. Even if some of the matters considered by his Honour were special to the present case, others were not. To that extent the discretion was exercised upon extraneous or irrelevant considerations. Both parties asked this Court to proceed to exercise its discretion in 25 substitution for his Honour's. We can only do so if the material before us is adequate for that purpose. It is not surprising, having regard to the then common understanding of the proper approach to s89 of the Act, that the material placed before Loveday J was limited. No attempt was made to place additional factual materials before this Court. No sufficient basis has therefore been made out for 30 the exercise of a discretion to order trial without a jury and thereby to deprive the appellants of the jury which they have requisitioned in accordance with the Act. Accordingly, the proper order is that, upon the material presented, the application must be dismissed. Necessarily, that order will not prevent the respondent, having considered this judgment and the judgment in Herriman, from renewing an 35 application upon appropriate grounds, if such are available. Orders The following orders should be made:- (1) Appeal allowed. (2) Orders of Loveday J dated 8 July 1988, set aside. 40 (3) In lieu thereof, order that the application before his Honour be dismissed. (4) The respondent is to pay the costs of the proceedings before Loveday J and the costs of the appeal (including of the summons for leave to 45 appeal). In respect of the costs of the appeal, the respondent is to have a certificate under the Suitors' Fund Act, 1951. 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. 4 UNREPORTED JUDGMENTS (2) Orders of Loveday J dated 8 July 1988, set aside. (3) In lieu thereof, order that the application before his Honour be dismissed. (4) The respondent is to pay the costs of the proceedings before Loveday J 5 and the costs of the appeal (including of the summons for Leave to Appeal). In respect of the costs of the appeal, the respondent is to have a certificate under the Suitors' Fund Act, 1951. COUNSEL: 10 Appellant: D R RUSSELL / CM TRAILL Respondent: B MORRIS SOLICITORS: Appellant: DUNHILL MORGAN Respondent: WEBB & BOLAND (By their city Agents WHITEHEAD GREEN & COOPER)