BUCHANAN BOREHOLE COLLIERIES PTY LTD v PATTON [1991] NSWCA 36

BUCHANAN BOREHOLE COLLIERIES PTY LTD v PATTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA CLARKE JA HOPE AJA 21 May 1991, 18 June 1991 [1991] NSWCA 36

DISTRICT COURT CIVIL TRIAL BY JURY — judge cannot discharge such a jury after evidence has been taken and continue as if the proceedings had been before a judge alone from the beginning, without the consent of the parties — construction of s79A of District Court Act — G and J Shopfittings and Refrigeration Pty Ltd v Lombard Insurance Co (Aust) Ltd (1989) 16 NSWLR 363 and subsequent cases followed — no waiver by appellant having continued to participate in the trial after the discharge of the jury.

Priestley JA The question in the present appeal is whether a District Court judge, presiding over a civil trial by jury before which evidence in the proceedings has been given, has the power to discharge the jury and, without the consent of the parties, go on with the hearing of the proceedings as if they had been before the judge alone, from the beginning of the trial.

In England, a judge presiding in an action at law in the courts of Westminster or on a trial at nisi prius had no such power. Blackstone's account of jury trial in his Commentaries shows that this was the position in the 18th century: see especially, vol III (1768) at 349 and following. That it was still the position at the beginning of the 1850's is shown by the discussion of trial by jury in the 1851 and 1853 Reports of Her Majesty's Commissioners inquiring into the Process, Practice and System of Pleading in the Superior Courts of Common Law: see especially the Second Report (1853) at 310. The position had not been affected by the enactment of 6 G IV CSO, the first of the modern Jury Acts. This Act made detailed provision for many practical matters concerning juries, but ended with a section saying that the Act did not "extend to alter... any power or authority which any court or judge now hath, or any practice or form in regard to trials by jury, except... [as] repealed or altered by this Act...".