WHALAN v BLUE MOUNTAINS CITY COUNCIL GALLAGHER v SLIM DUSTY ENTERPRISES PTY LTD O'SULLIVAN v R BOOTH PTY LTD [1988] NSWCA 175

WHALAN v BLUE MOUNTAINS CITY COUNCIL GALLAGHER v SLIM DUSTY ENTERPRISES PTY LTD O'SULLIVAN v R BOOTH PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MAHONEY JJA 15 July 1988, 5 August 1988 [1988] NSWCA 175

KEY WORDS: JURY — DISCRETION OF JUDGE TO DISPENSE WITH IN COUNTRY CIRCUIT OF SUPREME COURT — JURY — Common law proceedings — entitlement to jury trial — power of judge to order trial without a jury — test for — reference of question by a trial judge to the Court of Appeal — proof of inconvenience, delay, cost and other problems of a jury trial in a provincial circuit whether such problems may be taken into account in exercising the discretion under s89(1) Supreme Court Act, 1970 — held (Kirby P and Samuels JA; Mahoney JA contra)(1) Continuance of jury trial, including in country circuits is provided for by s86 of the Supreme Court Act 1970; (2) No distinction is made between such mode of trial in Sydney and country centres which would warrant discrimination between them in the exercise of the discretion provided under s89(1); (3) Therefore, without more, considerations of universal application to jury trials in country circuits may not be taken into account in the exercise of the discretion under s89 of the Act; (4) Questions answered accordingly. The Pambula District Hospital vy Herriman, unreported, CA 5 August 1988, applied The Supreme Court Act, 1970, s86, s89.

Kirby P and Samuels JA These proceedings have been referred to the Court of Appeal by Yeldham J for reasons given in a judgment handed down on 8 July 1988. They are three of six applications which came before Yeldham J that day which concern the forthcoming Bathurst sitting of the Supreme Court. That sitting is listed to commence on 10 October, 1988. In a number of matters in the list, including those now before us, the defendant in the proceedings has requisitioned a trial by jury. The plaintiffs (who include the present claimants) made an application which came before Yeldham J that all issues of fact be tried without a jury.