JOHN V PERRY PTY LTD v SHALHOUB [1989] NSWCA 112

JOHN V PERRY PTY LTD v SHALHOUB

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER JA and Hope AJA 9 October 1989, 1 December 1989

[1989] NSWCA 112

JURY — right to jury — power to order trial without jury — power discretionary — nature of discretion — use of criteria of universal application to all jury trials causes discretion to miscarry — judge orders jury discharged on the basis of complex medical evidence and difficulty of juries understanding issue estoppel arising from earlier compensation proceedings — held: (1) The Court would not disturb the first ground found by his Honour. In re the Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318; (1946) 63 WN (NSW) 176 applied; (2) But the second ground referred to was inapplicable, being a feature of all jury trials. Pambula District Hospital v Herriman (1988) 14 NSWLR 387 applied; Ellis vy Wallsend District Hospital, Court of Appeal, unreported, 19 October 1989 (1989) NSWJB 199, referred to; (3) Accordingly, the discretion miscarried being grounded, in part, on an irrelevant consideration. The Court of Appeal must therefore proceed to exercise its discretion in substitution for that of the primary judge. House v The King (1936) 55 CLR 499, 504; Norbis v Norbis (1986) 161 CLR 513, 518 applied; (4) Exercising that discretion, the evidence before the Court did not support the conclusion that there were special difficulties for a jury in the medical evidence in this case; (5) Accordingly, appeal allowed, order set aside and summons seeking order dispensing with jury dismissed. PRACTICE — jury trial — common law action — power to order trial without jury — power discretionary — nature of discretion — held: Criteria of universal application to all jury trials, such as the suggested difficulty of juries understanding of issue estoppels impermissible following Pambula District Hospital vy Herriman (1988) 14 NSWLR 387 — order dispensing with jury reversed. Supreme Court Act 1970, s85, s86, s87, s88, s89.