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". No reference was made to s79A on 19 November when his Honour ordered that the jury be discharged. Apparently at that time neither counsel nor the judge were aware of the existence of the section. However when the matter was again before his Honour on 12 December that year his attention was called to the existence of the new section. Following further argument his Honour made an order under the section directing that all issues of fact in the action be tried without a jury. He directed that the action proceed before him as part heard, and fixed the further hearing for 22 February 1988. He also vacated the order for costs made on 19 November and reserved those and certain other costs for further consideration. Pursuant to these orders the trial resumed before his Honour on the basis that it was part heard on 22 February. His Honour delivered judgment on 26 February. He found that the defendant had been guilt of a breach of the duty that it owed 2 UNREPORTED JUDGMENTS the plaintiff to take reasonable for his safety at work, and having assessed damages he entered judgment for the plaintiff for $105,890.44. The defendant appealed to this Court and sought to support its appeal on a number of grounds. In view of the conclusion which the Court has reached it is only necessary to refer to one of them. S79A of the District Court Act is in very similar terms to s89(1) of the Supreme Court Act which was added to that Act by Act No 163 of 1987 passed at about the same time. This Court considered the effect of s89(1) of the Supreme Court Act in G and J Shopfittings Pty Limited v Lombard Insurance Co(Aust) Limited [1989] 16 NSWLR 363 and held that after a trial by jury has commenced, an order discharging the jury does not entitle the trial judge to make a further order dispensing with the jury so as to authorise him to continue the hearing of the part heard action sitting alone. This decision cannot be distinguished from the present case on the basis of any difference between s79A of the District Court Act and s89(1) of the Supreme Court Act. Indeed the respondent made no submission to that effect to this Court. Consistently with the decision in G and J Shopfittings v Lombard Insurance Co(above) in my opinion this Court must hold that s79A of the District Court Act did not empower the trial judge to make the orders he made on 11 December 1987 dispensing with the jury and ordering that the action continue before him as part heard. The High Court granted special leave to appeal from the decision in G and J Shopfittings v Lombard Insurance (above) but the case was then settled and the appeal did not proceed. This Court has since followed that decision in Borg Warner Australia Limited v Simmons (unreported 15 December 1989) in relation to s89(1) of the Supreme Court Act and in Langford v Turnbull (unreported 29 May 1990) in relation to s79A of the District Court Act. The respondent did not seek leave to re-argue the correctness of G and J Shopfittings v Lombard Insurance, and since it was a recent and unanimous decision of this Court which has been followed at least twice such leave would probably not have been given. The trial judge having discharged the jury was not entitled to decide the issues of fact in the action for himself. The order that the trial continue before him sitting alone was made without power and his Honour had no jurisdiction or power to continue the trial before himself as part heard. This Court therefore has no alternative but to allow the appeal and order a new trial of the action with a jury. The respondent must pay the costs of the appeal but is to have a certificate under the Suitor's Fund Act. The costs incurred to date in the District Court are to abide the result of the new trial. Counsel for the Appellant: M ROLFE QC and W AUSTRON Counsel for the Respondent: JM FOORD QC and JE ROWE Solicitors for the Appellant: HUNT and HUNT Solicitors for the Respondent: ROBERT A HAPPER and CO