POPADIC v GRACE BROS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS J 18 September 1989 [1989] NSWCA 167 Samuels J In this action in the District Court the statement of claim was filed on 16 February 1984. A requisition for a jury under s78 of the District Court Act was made on 11 May 1984 by the defendant, who is the appellant, and the opponent to this motion. A notice of motion was filed by the plaintiff, the respondent and claimant, to dispense with the jury under s79A, and this was heard two or three days before the action came on for trial by Judge Mahoney, who declined to make the order. The trial then commenced in the District Court and on the morning of the second day of the trial the opponent admitted liability. At that point a further application was made by the claimant to dispense with the jury. The opponent, having sought instructions, indicated that it did not consent to the jury being dispensed with and the application proceeded to a successful conclusion, Judge Ford, who was the trial judge, discharging the jury during the course of that day and shortly before the case for the claimant was closed. So far as it may be relevant the reasons which his Honour gave were these. First, he pointed out that he was not dealing with the same case as that which came before Judge Mahoney, because before Judge Mahoney liability was in issue whereas before him, at least when the application to dispense with the jury was made, liability had been admitted, which significantly changed the character of the proceedings. Secondly, the assessment of damages, his Honour said, involved an esoteric issue, as he described it, namely, the award of damages under what is known as the rule in Griffiths v Kerkemeyer. Thirdly, there was some problem involved in the assessment of the consequences of the injury which the claimant had suffered which his Honour thought would tax the capacity of the jury beyond its ability to withstand. So his Honour dispensed with the jury. He awarded the plaintiff a sum of damages which the opponent disputed in a notice of appeal which, apart from challenging the exercise of Judge Ford's discretion under s79A to dispense with the jury, also asserted that the award of damages was excessive. Indeed there were four grounds of appeal which challenged the assessment of damages, and one which asserted error in finding a causal connection between breach and the injuries which the claimant sustained. Then a supplementary notice of appeal was filed, and that abandoned any complaint about the assessment of damages and confined itself to a complaint about the discharge of the jury. It is that notice of appeal which the claimant, by notice of motion, contends is incompetent. The grounds of that contention are three. First, it is submitted that the order which is complained of was not a ruling, order, direction or decision "in an action" pursuant to s128(2A) of the District Court Act. That is an argument which was dealt with some time ago in Fraser Credits Pty Ltd v Osterberg Olsen (1978) 1 NSWLR 121. However, it is said that that decision, which has been the subject 2 UNREPORTED JUDGMENTS of some criticism, is shortly to be reviewed in this Court. The review, which was adverted to in May 1988 and which as far as I know has not yet occurred, seems to be an unconscionable time coming. Nonetheless were this the only point I would have declined to deal with it and I would have stood over the motion to the hearing of the appeal to enable the matter to be fully considered. However, there are two other grounds. Secondly, it is said that the order is an interlocutory one which requires leave, and thirdly, and more precisely, that it does not satisfy the requirements of s130(1)(a) of the Act. Section 128(2A) provides that an appeal shall lie subject to ss129 and 130. Assuming that the Fraser Credits point does not apply one then turns to s130, subs(1) of which provides "an appeal under s128(2A) lies (a) where the........ appeal involves directly or indirectly any claim, demand or question to or respecting any property or any civil right amounting to or of the value of, " certain specified figures, and "(b) in any case by leave of the Supreme Court." There is no evidence before me capable of establishing the value of the lost right of jury trial. Counsel for the opponent, recognizing this, has rested his case primarily on the extensive meaning which he seeks to give to the word "indirectly" in s130(1)(a). The argument is the kind of argument which was advanced in Cole v The Commonwealth of Australia (1961) 106 CLR 653 particularly at 655/6. But in the present case there is no discrepancy between the damages actually assessed and a fair award which might represent the value of the lost right to jury trial. No complaint is made about the assessment. Hence there is nothing to satisfy the requirement of s130(1)(a). T have been referred to Council of the City of Sydney v Ex-Servicemen's Car Laundry Pty Ltd (Court of Appeal, 16 May 1988, unreported), in which a majority of the Court expressed the view that a judge or the Court should be confident that there is no arguable point open before dismissing an appeal as incompetent. In my view the case is clear; and I bear in mind also that even if the judge's order could be successfully challenged it is difficult to see how an appellate court could justify exercising its discretion to order a new trial in the absence of any complaint of miscarriage or injustice. There being no application for leave I dismiss the appeal as incompetent under Pt51 r17(a). The opponent is to pay the costs of the motion. The appellant is to pay the costs of the appeal.