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. Kirby P This appeal involves an examination of the exercise by Enderby J of a discretion to dispense with a jury trial in proceedings between the parties in the Common Law Division of the Court. That order being interlocutory, the appellant sought, and obtained, the leave of the Court to appeal from it. It contends that the reasons given for dispensing with the jury offend the provisions of s89(1) of the Supreme Court Act 1970 as explained in the holding of the Court in Pambula District Hospital v Herriman (1988) 14 NSWLR 387. (See also now Ellis v Wallsend District Hospital, Court of Appeal, unreported, 19 October 1989; (1989) NSWJB 199). When the Court granted leave to appeal, the parties consented to treat the application for leave as the appeal. In my opinion the appeal should be allowed. A personal injury claim for damages The respondent's action is for damages for personal injuries arising out of an industrial accident. It was listed to be heard in the supreme Court on 4 September 1989. Five days were set aside for the hearing of the action. A jury had been summoned to try the issues of fact in accordance with s86(1) of the Supreme Court Act. That was therefore the mode of trial by which the issues of fact would have been decided at the hearing but for a late application by the respondent for an order dispensing with trial by jury. 2 UNREPORTED JUDGMENTS That application came before Enderby J. On 18 August 1989, his Honour concluded that: "[T]his is a case where a jury should be dispensed with. I think the case does satisfy the tests as they have existed since the Pambula case and I make the orders sought in the Notice of Motion." The appellant immediately sought leave to appeal. Because the reasons given by Enderby J were not available when the summons first came before the court, it endeavoured to deal with the case upon the basis of the notes of the legal representatives of the parties concerning what his Honour had said. This is the correct procedure where the official transcript is not available and the case is urgent. Builders Licensing Board v Mahoney (1986) 5 NSWLR 96,98. However, in the event, the matter could not be dealt with before the days listed for trial. His Honour's reasons then became available in transcript form. They have been submitted to scrutiny by the competing arguments of the parties. Meanwhile the hearing of the action has been postponed pending determination of the summonses by this Court. Suggested complexity of medical issues Enderby J offered two reasons for the order which he made. The first concerned the suggested complexity of the medical issues involved in the case. The second concerned the difficulties which his Honour felt would arise from the necessity to direct the jury upon issue estoppels consequent upon the determination of earlier proceedings in the then Workers' Compensation Commission. The precise reasons given on the first ground were: "The evidence put before me indicates that there will be complicated medical issues for decision and the plaintiff, it seems, is intending to call some six doctors. The defendant is intended (sic) to call some five doctors." This reason was not elaborated. The "complicated medical issues" were not clearly identified by any evidence. Whilst it is true (if they persisted with their announced course) the parties would call more medical evidence than is typical or even common in the average jury trial, a glance at the nature of the respondent's injuries and disabilities does not suggest any special complexity in them. This is not, for example, a case involving an unusual medical procedure of novelty and peculiarity. It is not a case involving the conflict of highly intricate scientific opinions. As disclosed by the particulars which were before Enderby J, the claim is nothing more than a claim of disability in the back such as frequently come before juries. Such claims are readily resolved by juries and have been, in large numbers, for many decades. This point was made by Clarke J in Peck v Email Ltd (1987) 8 NSWLR 430. Although his Honour's remarks were offered in he context of s89(1) of the Act as it stood before amendment, they apply just as well today. As Clarke J pointed out, juries are asked, almost on a daily basis in this State, to decide relatively complex medical questions. Clarke J observed that they appeared to perform their functions "without undue difficulty". In Peck there were "particular factors" which took that case "out of the ordinary" and separated it "from most cases", even those concerning the relatively more complex evidence of asbestos related injuries (such as Peck involved). The mere fact that a certain number of medical witnesses may be called will not, without more, constitute a basis for holding that the primary mode of trial provided by Parliament for actions such as the present should be displaced. Cases do occur (and come on appeal to this Court) which involve as many as eleven medical witnesses, and even more but where no challenge is made to the understanding by the jury of the factual issues left to them to determine. URJ JOHN V PERRY PTY LTD v SHALHOUB (Kirby P) 3 Without further insight into the suggested complexities of the medical issues which his Honour foresaw in this case, I am at a loss to understand the first basis upon which the order was made. However, I must remind myself that the decision under challenge involves the exercise of a discretion by the trial judge. It is a discretion provided by s89(1) of the Act. It is not sufficient that I would have been inclined to reach a different conclusion, to authorise me to substitute my exercise of the discretion for that of the office-holder upon whom Parliament has conferred it. Particular care must be exercised in the review by an appellate court of an interlocutory decision categorized as one relating to practice or procedure. See In re the Will of Gilbert (Deceased) (1946) 46 SR (NSW) 318, 322; 63 WN (NSW) 176,168. It is clear from his Honour's reasons that he had the decision of this Court in Pambula before him. It is also clear that the first reason he gave for dispensing with the jury, was founded not on suggested defects or disadvantages of a jury trial generally but upon the special problems said to arise from the multiplicity and complexity of medical issues in this trial, in particular. For this reason, not without misgivings about the basis upon which Enderby J reached his conclusion on this first point, I would not interfere in the exercise of his Honour's discretion. Had that exercise been confined to the first ground which he identified, the appeal would have to be dismissed. Difficulty of directions on estoppels However, one of the reasons why Enderby J confined his remarks about the "complicated medical issues" to such a short assertion of their existence (as distinct from an elaboration and demonstration of their nature) is because his Honour then proceeded to state, at some greater length, what seems to have been the real ground upon which he made the order dispensing with the jury. This, it will be recalled, was the alleged difficulty of directing the jury on the estoppels which would arise from the earlier decision in the Workers' Compensation Commission, when McGrath J had made certain findings in proceedings there between the parties. Enderby J said: "The Pt33 Particulars set out an ongoing claim for economic loss and a claim for past economic loss. There is an allegation that the plaintiff has been partially or totally incapacitated for certain periods. The matter is complicated by the fact that there have already been proceedings in the Workers' Compensation Commission where the plaintiff came before his Honour Judge McGrath and his Honour made certain findings. My attention has been drawn to some of them and, at first reading, it seems that his Honour took some care to express certain views he had formed, either with a view to creating an estoppel and perhaps with a view to limiting the extent of the estoppel. There are, obviously, matters in that judgment which will give rise to argument at the hearing as to the extent of the estoppel. Situations like that can produce extremely difficult problems for juries. They can become very technical and they can become very artificial; they may become very negative and in my experience juries can have great difficulty giving effect to them." The reference to the judgment of McGrath J takes me to the affidavit of Mr Macken, which was before his Honour, and by consent, placed before this Court. From that judgment it appeared that two issue estoppels may arise. The first is that the injury to the respondent's low back was in the nature of a back strain rather than an injury to a disc. The second is that the respondent suffered no incapacity for work after 1 November 1978. 4 UNREPORTED JUDGMENTS The foregoing estoppels are those which the appellant indicates it will argue for in the action. I see no particular difficulty in fact in directing a jury summoned to try this action upon either of them. However, it is the way in which the second ground was advanced by Enderby J for dispensing with the jury that in my opinion shows that his Honour's discretion miscarried. I say this because, though expressed with passing reference to the judgment of McGrath J in the instant case, the essential reason provided was the alleged technical and artificial character of instructions to juries where issue estoppels arise from earlier compensation proceedings. It was this that, his Honour felt, could lead to extremely difficult problems "for juries". It was this that would lead to very technical, artificial and "negative" problems which "juries" (in their generality) had, in his Honour's experience, "great difficulty giving effect to". This line of reasoning offends, as it seems to me, the point made by Samuels JA and by me in Pambula. This was that, although s89(1) of the Act envisages discharge of the jury in particular cases, it does so against the background of a network of legislative provisions which ensure that, at least in cases such as the present, trial by jury is a right in a party who summons the jury. Samuels JA (at 411-412) put it this way: "[A]ny party to a proceeding at common law which is neither a reputational nor a running down case (nor a matter to which s89(3) refers) may requisition a jury; and if the requisition is made and the prescribed fee is paid, then the matter shall be tried with a jury subject only to the discretion to dispense with that mode of trial for which s89(1) now provides. It seems to me therefore accurate to say that s86 does establish a conditional right to a jury, that is to say, it provides for the right to a jury which is defeasible only upon exercise of the judicial discretion supplied in s89(1).... It follows, to my mind, that the legislature, by expressing the 1987 amendment to s89 in the way in which it did, and by leaving the group of sections in their present pattern, has plainly confirmed the individual litigant's right (in the class of case which s86 contemplates) to have a trial with a jury; and has affirmed that this right may be divested only if there are grounds for the proper exercise of the discretion to order that a jury should be dispensed with. This approach to the matter is quite different from that adopted in England." It is not at all uncommon for parties in actions such as the present in the Supreme Court (and in the District Court too where juries are summoned) to have an action for trial in which earlier proceedings have been concluded in the Workers' Compensation Commission or (now) the Compensation Court. This is because of the greater speed with which, typically, that tribunal hears disputed claims and the generally simpler issues raised there, than in the typical damages action. Therefore, not infrequently, estoppels arise which have relevance to later proceedings at common law. The estoppels will sometimes advantage the employer in the later proceedings (as is alleged to be the case here). More frequently, they will tend to favour the worker. Although the affidavit of Mr Macken asserts that there will be "lengthy and technical arguments" as to the precise legal effect of the judgment of McGrath J and in particular as to the nature and extent of any estoppel created by that judgment, such arguments must be determined not by the jury but by the trial judge. They involve a decision by the trial judge and an instruction to the jury accordingly. URJ JOHN V PERRY PTY LTD v SHALHOUB (Kirby P) 5 Another paragraph of Mr Macken's affidavit claims that McGrath J's judgment will give rise to an estoppel which will influence and determine the nature and admissibility of evidence, and in particular medical evidence. However, rulings on the admissibility of evidence are likewise for the trial judge, not the jury. Accordingly, upon both of the suggested defects of the jury, stated in the affidavit of Mr Macken, the issue will be determined at the trial by the judge, not the jury. It is true that the jury will then be required, in accordance with the judge's directions and rulings, to apply them to the evidence proved. But the determination of the scope and effect of estoppels and the admissibility of evidence are matters not for the jury but the judge. This simple fact removes the "extremely difficult problem" from the jury. It may, of course, provide problems for the judge. But they are not problems related to the capacity of the jury in a case such as the present to perform its historical and statutory function. If the judge errs in the directions he gives to the jury on estoppels or on evidence, such error may be corrected on appeal. The basic error of the approach which Enderby J took to the exercise of his discretion was, with respect, this. He took into account a suggested disability of juries generally to cope with what he perceived as technical, artificial and "negative" results deriving from rulings by the judge on issue estoppels derived from an earlier judicial determination. But that is to ascribe a general disability to the jury which is incompatible with the assumption upon which s89 of the Supreme Court Act is based. This, as the Court made plain in Pambula, is not only that the jury is a valid, viable and alternative mode of trial of facts in a case such as the present. It is that, where the requisition has been lodged by a party and the fee paid, jury trial is the mode of trial which that party has the defeasible right to insist upon. The defeat of that right must be only for circumstances particular to the case in which the discharge of the jury is sought under under s89. Had Parliament considered the special problems arising from estoppels in workers' compensation proceedings were, of their nature, such as to disentitle a party, otherwise entitled, to jury trial, it would have said so. After all, s89(3) provides that, notwithstanding s85, s86, s87 and s88, proceedings on a common law claim in which issues of fact on a defence arising under s63(5), s64(1)(c) of the Workers' Compensation Act 1926 or s150(1)(e) of the Workers Compensation Act 1987 should be tried without a jury. Had Parliament considered that estoppels arising from proceedings under the workers' compensation legislation were, of their nature, such as to warrant trial without a jury, it may be inferred that Parliament would have said so in plain terms. It did not. If Enderby J were right in the general difficulty which he foresaw for juries coping with cases involving issue estoppel in this case, it would mean, in effect, that the same objection could be raised in any other case where earlier proceedings in the Compensation Court might arguably give rise to an estoppel. As industrial accident cases remain a significant proportion of the cases in which juries are still summoned in this State, and as, in many of them, proceedings have earlier been taken in the compensation tribunal, this would have an effect of considerable significance for the conduct of jury trials in the Supreme Court. As in Pambula, that is a result which can only be authorised by specific provisions enacted by Parliament. It is not authorised by the language of s89(1) of the Supreme Court Act. I would not anticipate that such legislation would be enacted, for it would provide a very significant discouragement to the lawful prosecution of rights in the Compensation Court. If to the pursuit of such rights there always attached the effective loss of the right to jury trial in a subsequent common law 6 UNREPORTED JUDGMENTS claim (because of issue estoppels arising from the determination of the compensation proceedings) this would involve a penalty to the bringing of such proceedings which I do not consider to be authorised by the language and purpose of s89 of the Supreme Court Act. Conclusion and order The result is that I consider that Enderby J's discretion miscarried because his Honour took into account, in the second consideration mentioned by him, a matter which was irrelevant to the exercise of his discretion under s89(1) of the Supreme Court Act. It therefore falls to this Court, if it has the relevant materials, to exercise the discretion in the manner in which it ought to have been exercised at first instance. See House v The King (1936) 55 CLR 499 at 504; Norvis v Norvis (1986) 161 CLR 513 at 518. But as there was another consideration which would otherwise have sustained his Honour's order, should the Court, notwithstanding the miscarriage of the discretion on the second given reason, nonetheless confirm the order made? I think not. Whilst I should not have disturbed the exercise of discretion had it been based solely upon the first ground mentioned by Enderby J, that restraint would have been founded upon the principles stated in In re the Will of Gilbert and other like cases. But where, as here, the discretion must be exercised anew, those principles of restraint do not apply. I must look for myself at the material which was before his Honour. Upon that material I would not consider that the special difficulties faced by a jury in this case are such as to warrant dispensing with that mode of trial. The statement of particulars filed by the respondent pursuant to Pt33 R8A SCR alleges "injury to groin; injury to lumbosacral area of the back; injury to cervical spine; and anxiety and hysteria". No medical reports were put before Enderby J. The only evidence before his Honour was the affidavit of Mr Macken to which Ihave earlier referred. That affidavit does not depose to their being "complicated medical issues for decision". It seems that his Honour inferred this fact from the statement that the respondent was intending to call at least six medical practitioners to give evidence and the appellant, five. The injuries suffered by the respondent appear to be purely orthopaedic so far as the particulars are concerned, together with a psychiatric condition which is alleged to have developed. I see no evidence to support the contention that this case is particularly complicated. I would not, for my own part, draw such an inference from the number of witnesses likely to give evidence. That number is just as well explained by the lapse of time since the respondent was injured on 11 November 1976. Because the issues of fact cannot be determined on medical reports is a universal feature of jury trials. In accordance with Pambula it does not, without more, provide a basis for dispensing with the jury in this particular case. Conclusions and orders The result is that, at least on the present material before the Court, exercising again the discretion which miscarried before Enderby J, I would decline to order that the jury be dispensed with in this case. The orders which I would therefore favour are: 1. Leave to appeal granted; 2. Appeal allowed; 3. Set aside the order of Enderby J dispensing with the jury; 4. In lieu thereof, order that the plaintiff's summons for that purpose be dismissed with costs; URJ JOHN V PERRY PTY LTD v SHALHOUB (Hope AJA) 7 5. The respondent to pay the costs of the appeal (including of the summons for leave to appeal) but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951. Meagher JA I agree with Kirby P. Hope AJA I have had the advantage of reading the reasons of Kirby P in this matter. I agree with the orders he proposes and generally with his reasons. I would add that there may well be cases in which the nature of medical evidence or of questions of issue estoppel arising from proceedings in the Compensation Court would justify a judge in dispensing with a jury in a particular case. However I agree with the conclusion that in this case the circumstances did not justify that course. Leave to appeal granted; Appeal allowed; Set aside the order of Enderby J dispensing with the jury; In lieu thereof order that the plaintiff's summons for that purpose be dismissed with costs; The respondent to pay the costs of the appeal (including of the summons for leave to appeal) but to have, in respect thereof, a certificate under the Suitors' Fund Act 1951.