BORAL RESOURCES (NSW) PTY LIMITED v ATTARD [1990] NSWCA 27

BORAL RESOURCES (NSW) PTY LIMITED v ATTARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 24 August, 30 August 1990

[1990] NSWCA 27

DISTRICT COURT ACT S79A — Whether an order discharging jury after trial has commenced entitles trial judge to make further order dispensing with jury so as to authorise him to continue the hearing of part heard action sitting alone. held appeal allowed and new trial of the action ordered with jury.Supreme Court Act s89(1)G and J Shopfittings Pty Limited v Lombard Insurance Co (Aust) Limited (1989) 16 NSWLR 363 Borg Warner Australia Limited vy Simmons (unreported 15 December 1989) NSWCA Langford v Turnbull (unreported 29 May 1990) NSWCA

Priestley JA I agree with Handley JA. Meagher JA I agree with Handley JA.

Handley JA This is an appeal by the defendant from the judgment of his Honour Judge Graham DCJ in an industrial accident case heard in the District Court. The respondent was employed by the appellant to drive a tractor/sweeper and on 12 May 1980 he was working with his tractor/sweeper on a street under construction in a new sub-division at Chipping Norton west of Sydney. He swerved to avoid a glass bottle on the road causing a front wheel of the tractor to fall into a hole, the steering wheel spun and one of the spokes caught the respondent's left hand between the thumb and index finger and jerked his arm back causing injury.

The proceedings in the District Court were commenced by Statement of Claim filed on 13 June 1985. The defendant demanded trial by jury and the action came on for hearing before his Honour and a jury of four on Tuesday 17 November 1987. On Thursday 19 November his Honour discharged the jury for reasons which he then gave and ordered that the parties have leave to approach the Registrar as a matter of urgency to seek a fresh hearing date. The defendant was ordered to pay the costs thrown away by the discharge of the jury. S79A was inserted into the District Court Act by Act No 169 of 1987 which commenced on 18 November that year. The section provides: "In any action, the court may order, despite s77, s78 and s79 that all or any questions of fact be tried without a jury".