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. Thus, even if error has been shown in the exercise by Cole J of the discretion to provide a jury or to refuse one (by the references which his Honour made to considerations generally applicable to all cases in the Commercial Division invoking the section and to the nature of jury trials as such) the order, on the return of the matter for redetermination, would Likely be the same. No utility is therefore demonstrated in sending the matter back for a re-exercise of the discretion, expunging the allegedly irrelevant considerations. I would, therefore, propose that the summons be dismissed. The claimant must pay the costs of both opponents. Clarke JA I agree. The summons should be dismissed. For my part I read his Honour's judgment as expressing no more than that the ground relied upon by the applicant/claimant was not one which should lead the Court to depart from the 2 UNREPORTED JUDGMENTS normal mode of trial. If that is a correct reading of his Honour's judgment then, in my opinion, there is no error shown. Accordingly, I see no basis on which this Court could interfere. Meagher JA I also agree. In exercising his discretion Cole J has in my view not committed any error of law and indeed if it were this Court's discretion I would be in favour of exercising it in exactly the same way, although of course I appreciate it is not our discretion. Summons dismissed with costs. Counsel for Appellant: J Anderson Solicitors for Appellant: Carneys Counsel for First Respondent: A Bell Solicitors for First Respondent: LE Taylor Solicitors Counsel for Second Respondent: M Oakes Solicitors for Second Respondent: Malleson Stephen Jacques