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. As is plain from the judgments delivered today in The Pambula District Hospital v Herriman, a question has arisen in the Supreme Court concerning the operation and effect of s89(1) of the Supreme Court Act 1970 (the Act). After noticing the differences of view expressed by judges of the Division, his own decision in Jozic v Borg Warner Australia Limited, unreported, SC, 9 March 1988 and Cole J's judgment in Smoje v Trend Laboratories PtY Limited, unreported, SC, 27 May 1988, Yeldham J concluded that the preferable course was to refer the matters to the Court of Appeal. He did so by referring the question whether, in considering an application under s89 of the Act, a Judge might take into account, as relevant matters, the state of the list and the fact that the purpose of the order was to expedite the proceedings. He recited the fact that most, if not all, of the cases before him appeared to involve that question. In the circumstances recited by his Honour, the reference to this Court was clearly a sensible course. The Court should deal with the reference notwithstanding the fact that, in the particular cases in which each reference is made, the Court does not have the 2 UNREPORTED JUDGMENTS benefit of a judgment by his Honour. It has the benefit of his opinion in Jozic and numerous other judgments as mentioned in Herriman. Question to be decided The precise question which Yeldham J stated for the decision of this Court, pursuant to Pt12 Rule 2(1)(b) of the Supreme Court Rules, was:- Whether in relation to the exercise of discretion under s89(1) [of the Supreme Court Act]:- (a) The Court can take into account the state of the list; (b) The Court can take into account the prospects of being heard due to the state of the list; (c) The Court can take into account general factors affecting a country circuit; (d) The Court can take into account any of the factors referred to in paragraph 6 of the affidavit of Francis Reginald Hourigan sworn 22 June, 1988; (e) The Court can take into account delay, settlement prospects and increase in cost; (f) The Court can exercise the said discretion upon any of matters (a) to (e) above without their being any other factors; (g) The Court should only exercise the said discretion upon a personal or particular prejudice injustice or circumstance to which the general litigant is not exposed or by which the general litigant is not similarly affected? Evidence in the proceedings Question (d) refers to an affidavit by the solicitor for the claimants. The affidavit is filed in each of the proceedings in which the question has been stated. No separate matters have been proved in any of the proceedings either before Yeldham J or before this Court. There was no contest about the matters contained in Mr. Hourigan's affidavit. The effect of the affidavit is as follows. Mr. Hourigan has been practising as a solicitor in Bathurst since 1977. He has had the carriage of numerous Supreme Court actions listed for hearing in the sittings of the Supreme Court in that city. During this time he states that, except in four actions "arising out of a murder and an attempted murder", it was his practice to set matters down for hearing without a jury. However, he further states that since approximately 1984, it has increasingly become the practice of defendants' solicitors to file a requisition for a jury at the time of the filing of the defence. In dealing with jury cases in the Bathurst sittings, Mr. Hourigan deposed to a number of particular problems which have been encountered. These include:- (a) The difficulty of getting oral evidence from treating medical practitioners within Bathurst where, for example, only two orthopaedic specialists practise. In non-jury cases, adjustments could be made to accommodate the evidence of such witnesses, either by interposing them or by tendering their reports in ways not possible where the trial was had before a jury. (b) Similar difficulties had arisen in respect of medical practitioners brought to the Bathurst sittings from Orange. (c) Identical difficulties had arisen in respect of medical specialists who had to be flown to Bathurst from Sydney to give oral evidence where, by inference, their reports could have been tendered at a trial by a Judge, sitting alone. (d) Similar problems of oral testimony had arisen with respect to a consulting engineer who gave expert evidence, by inference on issues of liability in negligence cases. An additional problem of securing motel accommodation during the Bathurst sittings of the Supreme Court was referred to. WAJALAN v BLUE MOUNTAINS CITY COUNCIL GALLAGHER v SLIM DUSTY ENTERPRISES PTY LTD O'SULLIVAN v R BOOTH PTY LTD (Kirby P and Samuels JA) (e) The cost of bringing medical experts from Sydney was often so prohibitive as effectively to prevent their evidence being received in jury trial whereas their reports might be tendered if the trial were had before a Judge sitting alone. (f) The delay in the resolution of jury cases was, on average, more than two years' greater than that involved in non-jury cases. In some cases, because of the prior claim of criminal cases, few, if any, civil jury cases could be taken. (g) The existence of jury cases in the list had made it difficult to have special fixtures in cases of real hardship because of the need to proceed with the jury case to conclusion and without interruption. (h) The summoning of juries had added to the unpredictability of outcomes and had hampered rather than assisted settlement negotiations thereby significantly lowering the disposal rate of litigation. (i) Although juries had been summoned and sometimes empanelled, few such cases actually proceeded to trial. In the past ten years only three or four jury trials had proceeded to verdict. By inference much delay and inconvenience was therefore being caused by the summoning of jurors, without a nett significant increase in the number of trials actually conducted to completion before a jury. Gj) A final complication had been noted. This was the inclusion in jury panels summoned of persons who had at some time been associated with Mr. Hourigan's firm. Some of these were former clients. It was upon this basis that Mr. Hourigan applied to the Court, on behalf of each of the claimants, for an order that the trial of the proceeding should be had without a jury. Proper considerations The answer to the question stated by Yeldham J is to be found in the reasons severally stated by us in The Pambula District Hospital v Herriman. It is unnecessary, in providing that answer, to repeat what was said there. Parliament has provided for jury trial of civil damages proceedings in the Common Law Division. It has permitted, in cases such as the present, any party to requisition a jury. S89(1) confers a discretion on a judge, notwithstanding the requisitioner's entitlement to jury trial, to order that all or any issues of fact be tried without a jury. But reasons must be shown for such an order. They cannot be reasons which involve characteristics which are features of jury trial as such, or even jury trial in a country circuit. This is because that form of trial is specifically reserved by Parliament, including for country circuits. Accordingly, reference to general considerations which are universal features of jury trial (whether in Sydney or in country circuits) are not considerations which may be taken into account, as such, in the exercise of the discretion under s89. If in any particular way those features have relevance for the particular case in which the application is made, they may be relevant to the exercise of the Judge's discretion. But not otherwise, for the reasons stated in Herriman. All of the matters set out in Mr. Hourigan's affidavit are considerations relevant to the general problems of assignment of cases to the jury list in Bathurst. But that assignment is reserved by s86 of the Act. No distinction is made by the Act between Sydney or country sittings of the Supreme Court. Accordingly, reference to such matters would cause the judicial discretion to miscarry, unless, in some way, the considerations were shown to affect the particular circumstance of an individual case. Thus, if a litigant or a vital witness were dying or otherwise unavailable in Bathurst, the discretion provided by s89 would be enlivened. If, in a particular specialty, a vital witness was not available to give evidence orally, or could only give evidence in circumstances 4 UNREPORTED JUDGMENTS incompatible with the exigencies of a jury trial, the discretion would arise to be exercised. None of these considerations is proved in the affidavit of Mr. Hourigan, expressed as it is in general terms. It is an affidavit which draws attention to some of the serious consequences of the entitlement- conferred by s86 of the Act. That section remains in the Act. Whilst it is there, it is not lawful for judges, by the exercise of a discretion provided for the individual case, effectively to repeal it. We say this with the full understanding of the reasons that have led Judges of the Supreme Court to decisions such as Jozic, Smoje etcetera. They have naturally sought so to perform their duties as to achieve the best aggregate disposal of cases, bringing justice as quickly as possible to as many parties as possible. However, for the reasons given in Herriman and elaborated here, such approaches to the discretion conferred by s89 of the Act are not compatible with its terms, properly understood. Answers to questions The answers now provided are necessarily based upon the material which was before Yeldham J and which has been referred to this Court. Obviously, it will be open to any party, upon studying the reasons in Herriman, to renew an application based upon evidence particular to the facts of the case. For the foregoing reasons, the answers which we propose to the questions asked are:- (a)) Not as such, except as such matters are (b)) shown to have consequences (c)) particular to the proceedings (d)) in which the application is (e)) made. (f) No. (g) Yes. The proceedings should be returned to Yeldham J with the above answers. The costs of the proceedings in the Court of Appeal should, in each case, be costs in the cause. Mahoney JA In these matters for the reasons given in The Pambula District Hospital v Herriman, I do not think that the questions can or should be answered according to their terms. The proceeding should be returned to the Common Law Division to be dealt with in accordance with those reasons. Costs of the proceeding in this Court should be costs in the proceeding. (1) That the question asked by Yeldham J be answered as follows:- (a) Not as such, except as such matters are shown to have consequences particular to the proceedings in which the application is made. (b) No. (c) Yes. (2) The proceedings returned to the Common Law Division. (3) Costs of the proceedings in the Court of Appeal to be costs in each cause. COUNSEL: Plaintiff: P SEMMLER WAJALAN v BLUE MOUNTAINS CITY COUNCIL GALLAGHER v SLIM DUSTS ENTERPRISES PTY LTD O'SULLIVAN v R BOOTH PTY LTD (Mahoney JA) Defendant: T K TOBIN QC / J DWYER SOLICITORS: Plaintiff: McINTOSH, McPHILLAMY & CO (by their City Agents 5 WESTGARTH BALDICK) Defendant: JOHN S MacLENNAN