ANKA JOHNSON v INGHAMS ENTERPRISES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CLARKE JJA 5 June 1989 [1989] NSWCA 4 Mahoney JA This proceeding comes before the Court on an application by the defendant to secure that the proceeding be tried by a jury. In order to understand its submissions and to deal with them, it is necessary to refer, I trust briefly, to the background against which the present application is made. The proceeding has had a long history. It was commenced on 16 December 1983 by a statement of claim filed in the District Court. The proceeding apparently took a leisurely course; at least it took some time. There was involved, inter alia, an application by the defendant to secure a hearing by a jury if the proceeding was to be heard in the District Court. In the event, and having regard to the way the matter has been conducted before this Court, it is not necessary to refer in detail to what was there done or to consider whether it was correct. However, in October 1986 the proceedings were ordered to be brought into this Court. The order was, the Court has been informed, made under the District Court Act s145. It was made upon summons taken out in accordance with Pt74 12. The summons was heard by Master Hogan. The orders that were sought were: that the proceedings between parties filed in the District Court at Sydney, bearing matter No 22825 of 1983 be transferred to this Court; that the pleadings therein stand as pleadings of this Court; that the costs of the summons be costs in the cause; and that the matter have such priority as it would have had had it been commenced in this Court by a statement of claim filed on 16 December 1983. The Master's orders were: "I make orders 2-5 as in the summons filed on 10 October. And there will be an order for requisition for trial with jury in accordance with the requisition filed in court today." O.2, 0.3, O.4 and O.5 were the orders in relation to the transfer, the pleadings, the costs and the priority to which I have referred. The Court is informed that there was, as the Master's order indicates, a requisition for a jury made by the defendant, which was filed before him on the day on which the proceedings were heard or the orders made before him. The plaintiff was dissatisfied with those orders and an appeal was taken to a judge of the Court. The matter was heard by Smart J on 12 May 1989. On 15 May 1989 his Honour gave a judgment in which he allowed the appeal from the order of the Master ordering a trial with a jury. He set aside that order and he ordered the hearing of the proceeding be expedited. The order made by the Master envisaged that the pleadings in the District Court would be the pleadings in the present court, and it may be that means that the statement of claim there filed became the statement of claim in the present proceeding for the purposes of Pt34 r3. However that be, a notice requisitioning a jury was prepared by the defendant, and shortly before 15 May 1989 was 2 UNREPORTED JUDGMENTS attempted to be filed in the Registry of the court. But, the Court has been informed, the filing of that requisition was refused, presumably on the ground that the defendant was not entitled to file it, having regard to the order which had been made by Smart J that, in effect, the proceeding proceed without a jury. A notice setting the matter down for trial was, as the Court has been informed, filed on 15 May 1989. Therefore an application was made by the defendant for leave to appeal against his Honour's judgment. The purpose of the defendant has been, of course, to secure that the trial, as and when it proceeds, be with a jury. When the matter came before this Court on the application for leave, it was agreed by counsel, in accordance with the ordinary practice of this Court in matters of this kind, that if leave be granted, the leave application be treated in substance as the hearing of the appeal. The Court has dealt with it upon that basis. The application is in form an application for leave to appeal from the orders made by Smart J. Those orders were made the course of the exercise of a discretion dealing with procedure in an interlocutory matter, and ordinarily leave to appeal would not be granted in respect of such orders. The authorities in relation to the matter have not been canvassed. The law is clear. However, in the present case, it was submitted that the hearing before Smart J went off upon a wrong basis, and this his Honour dealt with the matter by reference either to errors of fact or errors of law. His Honour appears to have dealt with the matter upon the basis that the proceeding was to be dealt with under Pt74 Div 1 and his Honour therefore, it would appear, acted upon the basis that as set forth in Pt74 r1(1)(a) the Supreme Court is to proceed: "as if the proceedings had been originally commenced in the Court and as if the same steps had been taken in the Court as have been taken in any other court or courts in which the proceedings were for the time being pending and as if any order made by any other court or courts in which the proceedings were for the time being pending had been made by the Court." His Honour therefore on that basis, understandably, took the view that the order which had been made by the District Court judge, his Honour Judge Bell, that the proceeding in that court proceed without a jury (or it may be more accurately put, that the defendant had not properly requisitioned a jury) should determine, or at least influence, what should be done by his Honour and in this Court. However, it is now, I think, common ground that the approach to the present proceeding, after transfer into the Supreme Court, should be upon a different basis. Pt74 Div 2 is, as I think is generally agreed now, the provision to be applied. That provision has the effect that where a court makes an order under s145 of the District Court Act 1973, or otherwise as there referred to, and makes an order for removal or transfer of the proceedings into this Court, the proceedings shall be before the Court for directions under Pt 26. (See Pt74 r3(a).) If that be so, then the proceedings before the Master under Pt26 were proceedings for directions. The Master evidently treated them as such and on that basis, no doubt, made the orders that he did in respect of the pleadings and otherwise. But in the course of a directions hearing, it was necessary, or at least appropriate, for him to consider the mode of trial to be adopted. S86 of the Act provides that in proceedings on a common law claim, of which this is one, and with exceptions not here relevant, issues of fact shall, if any party requisitions for a jury and pays the fee prescribed by the regulations made under s130, be tried with a jury. (See s86(1).) S86(2) provides that the Rules may URJ ANKA JOHNSON v INGHAMS ENTERPRISES PTY LTD (Mahoney JA) 3 prescribe the time within which a requisition must be filed for the purposes of s86(1). Pt34 makes provision in 13 for the requisitioning of a jury for the purposes of s86. Putting the matter in general terms and therefore slightly inaccurately, the effect of s86 is that subject to, for example, s89 and to the provisions of Pt34, the defendant was, this being a common law claim in the Supreme Court, entitled to have the issues of fact tried by a jury. I do not mean to put that as an entitlement in conclusive terms. But the rights which s86 gave to the defendant in this case were appropriate and necessary to be taken into account by the learned judge. For reasons which need not now be canvassed, and which relate I think to the fact that his Honour and those before him seem to have assumed that Pt74 Div 1 was the appropriate provision, his Honour did not take into account those matters. In these circumstances it is, in my opinion, appropriate that the Court set aside the exercise of the discretion by the learned judge and take to itself the exercise of the appropriate discretion. I may say at this point, that in the exercise of his discretion, the learned judge took the view that he was entitled to set aside the orders that had been made by the Master because no reasons have been given by the Master for his orders, and his Honour was of the view that that involved an error of law. It is not necessary, for the purposes of this case, to consider whether the Master had to give reasons and whether, if there was an error of law, that would have warranted his Honour setting aside the orders made by the Master. I note the matter merely to indicate that at present I would express no opinion upon the matter. The question then arises as to what order should be made in the present case. In the sense to which I have referred, s86 granted a prima facie entitlement to the defendant in this case to have the issues of fact tried by a jury. Pt34 r3 makes provision for the lodging of or the making of a requisition for trial by a jury for the purposes of s86, and it provides that such requisitions "shall be filed" within the times specified in relation to the three categories of cases there provided. The first of them, and the only one here relevant, is "If the proceedings are commenced by statement of claim." In the literal sense the proceedings were not here commenced by a statement of claim filed into this Court and in accordance with the Rules of this Court. They were, as I have said, commenced in the District Court. The order that the pleadings stand as pleadings of this Court had the effect that the statement of claim filed in the District Court became, for some purposes, a statement of claim in this Court. It may be arguable that therefore literally Pt74 r3(1)(a) does not apply. But the purport of that rule I think is relevant, at least it is to be taken into account, mutatis mutandis, in the exercise of the court's discretion in this case. That provision requires that in such a case as this a requisition for trial by a jury is to be filed "not later than fourteen days after the date upon which the notice to set down for trial is filed." In the present case, as I have indicated, the requisition was filed before the Master and at the time he made his order, and he apparently took the view that the effect of his order would be that the matter, that is, the issues of fact, were to be tried before a jury. The defendant has contended that it would have been entitled to file a requisition for a jury within Pt74 at any time before the date, being fourteen days after the date on which a notice to set down for trial was filed, and for this purpose was entitled to file such a requisition, even before the notice to set down for trial had been filed. The contrary view would be that the notice could be filed 4 UNREPORTED JUDGMENTS only after the notice to set down for trial had been filed, and within the period of fourteen days thereafter. However, on either view, the notice which was here attempted to be filed in the court was one which, other things apart, the defendant would have been entitled to file. In the circumstances, I am prepared to accept that the defendant has done what is required by the Act and the Rules of the Supreme Court in order to give effect to the right given to it by s86, to have the issues in this proceeding tried by a jury. But it has been submitted that the orders to be made in this case, that is, the orders which should have been made by the learned judge and are now to be made by this Court, are discretionary and that the Court should look at the facts of the matter to determine whether this is an appropriate case for trial by a jury. The Court has before it the view expressed by the learned judge that this is "a typical industrial accident case possessing no special features." Insofar as this Court is exercising a general discretion that is to be taken into account. But the position here is not exactly the same as, ie, it is not congruent with, the position in the District Court. As I have said s86 gives, in the sense to which I referred, an entitlement to the defendant to have a jury in a case such as this. Provision is made by s89 of the Supreme court Act for an application to be made in a case such as this, "that issues of fact be tried without a jury." The Court does not have any such application before it. Whether it would be possible now to make such an application, having regard to what was done before the Master and before Smart J, is not a matter on which I need express any opinion. But in the circumstances of this case, exercising the discretion which the learned judge could and should have exercised, it is in, my opinion, appropriate that the present matter be tried by a jury. I am inclined to think the proper course consequent on this conclusion is merely to reinstate the order which was made by the Master, but if this be not so then it would be appropriate, in my opinion, for this Court to order that the proceedings be tried by a jury. I would therefore propose that the order made by the learned judge be set aside and that the appropriate order be that the proceeding be tried by a jury in accordance with the provisions of s86 and the Rules. Priestley JA I agree generally with what has been said by Mahoney JA, althoughthe actual relief to be given here, I think, I would state a little differently. It may only be a matter of semantics in the end. The order that I would suggest be made is that the order made by Smart J be set aside and that the Court declare that, as the record presently stands, the claimant is entitled to a trial of the issues in the proceedings by a jury. Upon that basis it remains open to the opponent, as I think it would under the alternate form of orders proposed, to make application if so advised under s89 to dispense with the jury. Clarke JA In general terms I agree with the orders proposed, and I think perhaps some thought should be given by the parties to the formulation of those orders in order to ensure that the right is reserved to the plaintiff to seek an order to dispense with the jury, but other than saying that I should indicate my general agreement with the reasons of Mahoney JA. MAHONEY JA: The order that the Court has in mind to make is this: 1. Leave to appeal from the judgment of Smart J given on 15 May 1989. 2. As on the hearing of the appeal, the appeal is allowed. URJ ANKA JOHNSON v INGHAMS ENTERPRISES PTY LTD (Clarke JA) 5 3. The order of Smart J be set aside. 4. The trial of the proceeding to be by a jury. 5. Leave reserved to the plaintiff to apply to a judge of the Common Law Division for an order that the trial of the issues be without a jury, such 5 application to be made within twenty eight (28) days from this date. The order of the Court is that the plaintiff pay the costs of the proceedings in respect of this matter and, if entitled, to have a certificate under the Suitors Fund Act.