McDONALD v COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA [1991] NSWCA 195

McDONALD vy COMMONWEALTH DEVELOPMENT BANK OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 26 August 1991 [1991] NSWCA 195

PRACTICE and PROCEDURE — Commercial Division — trial by jury — allegation of fraud — trial judge (Cole J) refuses application for jury under s85 Supreme Court Act 1970 allegedly refers to considerations generally applicable to all jury trials — whether discretion to refuse jury miscarried — held: (by the Court) Leave to appeal should be refused (per Kirby P) because, whether or not the discretion had miscarried, the claimant conceded his own fraud and thus removed the principal basis for securing a jury so that reference back would not be useful; Pambula District Hospital y Herriman (1988) 14 NSWLR 387, 401 (CA); Mortgage Acceptance Nominees Limited v Alexander and Ors, Court of Appeal, unreported, 9 August 1981 referred to; (per Clarke and Meagher JJA) Because no error had been shown in the exercise of the discretion. FRAUD — jury trial — entitlement to in Commercial Division — held: Leave to appeal against refusal of jury declined. Supreme Court Act 1970, s85.

Kirby P The summons for leave to appeal should, in my opinion, be dismissed.

For my own part I would dismiss it, not upon the basis that the claimant has failed to show that the discretion upon the grounds stated for its exercise miscarried. Cf Pambula District Hospital v Herriman (1988) 14 NSWLR 387, 401 (CA); Mortgage Acceptance Nominees Limited v Alexander and Ors, Court of Appeal, unreported, 9 August 1991. I express no final view on that question. However, the issue for trial in this particular case would not appear to be one involving the question whether there was fraud on the part of the claimant. That issue is not now to be in dispute. Such fraud is virtually admitted on the pleadings. The issue for trial is therefore whether, in the particular case, the bank by its employees was also involved in that fraud. The removal of the controversy about the claimant's fraud removed the principal basis upor which the claimant might have been able to persuade the court at first instance to exercise a discretion to provide a jury under s85 of the Supreme Court Act 1910.