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 [as] repealed or altered by this Act...". It was on the Reports of 1851 and 1853 that the Common Law Procedure Acts of 1852 and 1854 were based. The Common Law Procedure Act of 1854 (see s1) began the slow process of change to the jury system in England which led to its becoming in this century an unusual rather than standard method of deciding issues of fact in common law claims. Because the civil jury system in England was bound up with a system of common law courts which was not reproduced in identical form in New South Wales it was not possible simply to adopt the jury system without modification. The method of adaptation eventually settled on was similar to that used in 6 G IV CSO. Particular provision was made by statute for various aspects of jury trial (as for example for juries of four), with the statute further providing, in regard to matters it did not deal with, that the trial should "be subject to the same rules and manner of proceeding as would in England be observed in an action at law in the Courts of Westminster or on a trial at Nisi Prius": 11 Vic No 20, s22, which came into force on 17 September 1847. The development in New South Wales can be traced through the series of Jury Acts passed in the colony from 1829 onwards, 2 UNREPORTED JUDGMENTS the principal ones being the Acts 10 GIV No 8, (s1); 2 Wm IV No 3, (s1); 4 Vic No 28, (s17); 8 Vic No 4, (s3); 11 Vic No 20, s22; the Jury Act 1901, s32; the Jury Act 1912; s31; the Jury Act 1977 Sch 8, CL7. The date 17 September 1847 when Act 11 Vic No 20 came into force, has been carried into all following Acts. This method of defining the procedure for civil jury trials began when the Supreme Court was the only court in New South Wales in which such trials could be held. Then, when the first District Courts Act was passed in 1858, s51 and s56, read with the other relevant legislation, brought about the same general position as in the Supreme Court. The Jury Act 1977 now regulates civil trial by jury both in the Supreme Court and the District Court: see s4, and reproduces the position brought about by the earlier Jury Acts. It follows that the powers of both Supreme and District Court judges in regard to juries are those given by statute and, in respects not dealt with by statute, are governed by the rules and manner of proceeding in the superior common law courts in England in 1847. It further follows that a judge in either court has no power to discharge a jury in the course of a trial and then continue to hear the proceedings as if the judge had been the tribunal of fact throughout, unless that power is given by statute. (There are procedures by which the result may now be achieved, but only by consent of the parties.) In the case now under appeal, the trial judge thought he had the power, by statute. The respondent in the appeal, Mr Patton, had brought proceedings against the appellant, his former employer, for damages for deafness allegedly caused by the employer's negligence. The proceedings had been set down for hearing by judge and jury in the District Court at Singleton on Monday 18 April 1988. On that day counsel for Mr Patton applied to the judge to dispense with the jury. This application was based on s79A of the District Court Act, which says: "In any action, the Court may order, despite s77, s78 and s79, that all or any questions of fact be tried without a jury." The judge dismissed the application. In doing so, he said he was influenced by the possibility that the trial might finish by the end of the week. This was important from the judge's point of view, because other duties prevented him from continuing to preside at the hearing in the following week. He made his difficulty clear at the end of his reasons for refusing the application, saying: "It must be borne in mind, as I indicated to counsel at the beginning, if the case is not finished by Friday it will be necessary to abort the trial or take some other steps. If a jury is still sitting then I would have to take the course either of aborting the trial completely or discharging that jury, a course that will remain open to me whatever course I take at the present time. I see no reason why we should not start the case with a jury but if it becomes apparent that the case cannot finish I will consider then what I can do. It is impossible to predict at the present time what stage we will reach by then. It may be that so little has been done in the case by then that it would not matter if it is aborted or not or it may be that the case will have progressed sufficiently so that there would be considerable difficulties about aborting it altogether, so that the course of discharging the jury and hearing the rest of it myself may be the only practical course open. That is not something which I need to decide at the moment and of course in any of these events there will be a necessity to deal with such consequential matters as may arise. That must remain as a discretionary exercise to be carried out when it happens so unless there is some other matter I will have the jury brought in and you can open to them, Mr Crumpton. URJ BUCHANAN BOREHOLE COLLIERIES PTY LTD v PATTON (Priestley JA) 3 CRUMPTON: There is another motion for an application for an extension of time, your Honour." The application for extension of time, which, this court was told, took most of a day, was granted. Then the jury trial at length began, and evidence was taken from a number of witnesses over several days. By the morning of Friday 22 April, it was clear the trial could not finish that week. Judge Denton discharged the jury and then heard argument on what should happen next in the proceedings. Counsel for the plaintiff submitted that Judge Denton should continue with the hearing, using the evidence that had so far been put before the jury, hearing the evidence yet to come and deciding the case, in effect, as if he had been a judge sitting alone throughout the trial. Counsel for the defendant submitted that the trial judge had no power to take this course. Judge Denton, in reliance upon s79A of the District Court Act, decided that he had power to adopt the course which counsel for the plaintiff had submitted he should follow; the proceedings then continued as if he had been sitting as sole judge of fact and law since the evidence had begun. In December 1988 he gave judgment for the plaintiff in the sum of $36,469. The defendant appealed, on a number of grounds, of which only two were relied on when the appeal came on for hearing. These were that the trial judge was wrong in deciding that s79A empowered him to take the course he did, and, in the event that that submission failed, that the amount of damages was excessive. S79A was inserted in the District Court Act by Act No 164 of 1987 which commenced on 18 November 1987. By Act No 163 of 1987, s89 of the Supreme Court Act 1970 was repealed and a new s89 substituted, in terms very similar to those of s79A. This section also commenced on 18 November 1987. S89 was the subject of decision by this Court in G and J Shopfittings and Refrigeration Pty Ltd (In liq) v Lombard Insurance Co (Aust) Ltd (1989) 16 NSWLR 363. Basic to the decision in that case was the proposition adopted by the court that when a trial judge discharged a duly empanelled jury in the course of trying proceedings on a common law claim in the Supreme Court, the statutory power to order that issues of fact be tried without a jury (referred to in the decision as dispensing with the jury) could not be used as an incident to the trial ended by the discharge. The power under s89(1) could of course, after the discharge of the jury, be invoked by an application under the section, but if then exercised, a further trial would have to begin before the judge sitting alone, and, unless the parties consented to the evidence before the jury in the aborted trial being used in the further trial without the need for recalling the witnesses, would have to start over again as a completely new trial. The decision in G and J Shopfittings was followed by this court in Borg Warner Australia Ltd v Simmons (unreported 15 December 1989) in relation to s89(1). In Langford v Turnbull (unreported, 29 May 1990) and Boral Resources (NSW) Pty Ltd v Attard (unreported, 30 August 1990) this court held that the reasoning in G and J Shopfittings applied to the construction of s79A to produce the same limitation upon its operation as upon s89(1). None of these decisions had been given when Judge Denton decided to follow the course of which complaint is now made. However, the point was taken before him that s79A did not authorise what he was proposing to do, and, subsequently did do. 4 UNREPORTED JUDGMENTS In the appeal, counsel for the respondent did not submit that the facts of the case were not subject to the section as interpreted in the latter two of the four decisions mentioned, but did submit that the decisions were wrong and should not be followed; a waiver point was also relied on. In view of the recent nature and number of the decisions, and because no other reason for departing from them was put forward than the wish to re-argue matters already fully considered by the court, the court decided not to hear argument about their correctness, but simply to follow them. This left only the waiver point in the present appeal. This was to the effect that because the appellant, after its submission that the judge had no power to continue the hearing without a jury was rejected, continued to take part in the proceedings, it waived its right to appeal against the judgment eventually pronounced. Verwayen v The Commonwealth (1990) 170 CLR 394 was relied on. However, I do not think anything said in that case, or in the law generally of waiver, election or estoppel, supports the submission now being considered, where the point was taken, and nothing done afterwards to indicate, or lead the opposing party to believe, that it would not be pursued on appeal in the ordinary way. In the circumstances, continuing to take part in the proceedings was, at the best, as consistent with continued reliance on the point, as with waiving it or electing not to rely on it. In my opinion this argument of the respondent fails. Because the case seems to me to be governed by recent decisions of this court, I think that consistently with them the appeal should be upheld, the judgment set aside and a new trial ordered, the respondent to bear the costs of the aborted trial and of the appeal, but to have a Suitors Fund Certificate. This decision does not affect the ruling by Judge Denton concerning the extension of time. This decision was for the judge alone to make, before the jury trial began. The appellant never took any step to challenge it, and it will bind the appellant at the new trial. Clarke JA I agree with Priestley JA. Hope AJA I agree with Priestley JA. 1. Appeal upheld. 2. Judgment set aside and new trial ordered. . Respondent to bear costs of aborted trial and appeal, but to have a Suitors Fund Certificate. COUNSEL for the Appellant: ML WILLIAMS / DP O'DOWD Counsel for the Respondent: JA CRUMPTON QC / P SEERY SOLICITORS for the Appellant: SPARKE HELMORE and WITHYCOMB, NEWCASTLE Solicitors for the Respondent: MAURICE MAY and CO