MJ SHERRIN PTY LTD v LYNES AND ANOR; LYNES v MJ SHERRIN PTY LTD AND ORS; CUNNEEN AND CO PTY LTD v LYNES AND ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE; HANDLEY and SHELLER JJA 19-20 November 1992, 20 November 1992 [1992] NSWCA 141 DAMAGES — JURY VERDICT — UNANIMOUS AND MAJORITY VERDICT — AMBIGUITY. Clarke JA These appeals arise out of a judgment which was ordered on 24 August 1992. The order for judgment was made following a trial which had taken place in July 1992 during the special sittings of the Court. In the trial Anthony Roy Lynes, the plaintiff, sued M J Sherrin Pty Ltd, the first defendant, Cunneen and Co Pty Ltd, second defendant, and J and B Crane Truck Repairs Pty Ltd trading as Nancarrow Crane Services. A claim was made for compensation in respect of injuries received by the plaintiff in the course of his employment on 11 September 1984. In the circumstances, and in particular in the light of the course in which the hearing of the appeals has taken, it is unnecessary to refer to the facts which were said by the plaintiff to give rise to his claim. As Ihave already indicated, he sued three defendants and there were claims for contribution at least between the first and second defendants. In respect of the third defendant, the plaintiff discontinued at an early point. His Honour concluded that there was evidence to support the claims against the first and second defendants and left those claims for consideration by the jury. The summing up concluded and the jury retired to consider its verdict at 12.54 pm on 24 July 1992. At 2.20 pm the jury forwarded to his Honour some questions in writing, and in due course his Honour answered those questions and gave further directions. At the end of that procedure a speaker for the jury indicated that adequate re-directions had been given. The jury then retired again, this time at 2.46 pm. Approximately two and a quarter hours later, that is at 5 pm, the jury returned to court. The precise reason why the jury returned is not clearly indicated on the transcript, although it is possible to infer that the foreman of the jury wished to inform his Honour that the members of the jury had been unable to reach a unanimous verdict. His Honour then indicated that he proposed to tell the jury about the provisions for a majority verdict and the six hour limit. This his Honour proceeded to do, and at 5.04 pm the jury retired again to consider its verdict. At 5.50 pm the jury once more returned and the speaker, who informed his Honour of the jury's conclusions, indicated that the jury had agreed on a verdict. His Honour then asked whether the verdict was a unanimous one or a verdict of three persons. The speaker replied that for the overall verdict it is unanimous but for some of the questions it was a majority verdict. There is a degree of ambiguity about that statement but, unfortunately, at no stage was the jury invited to indicate which answers were unanimous and which were not. In the context of the questions which the jury was required to answer, it is a little difficult to comprehend what is meant by the overall verdict. It may 2 UNREPORTED JUDGMENTS be that one can make a reasonably informed guess about the matter but the Court certainly could not reach a conclusion as a matter of certainty. All that the court knows is that the answers to a number of the questions represent the answers of only a majority of jurors. Following the reception of those answers his Honour discharged the jury and invited counsel to make submissions as to the judgment which should be entered. Those submissions were made at a later hearing and in due course his Honour ordered the entry of the judgment which is now under appeal. Each party, that is the plaintiff and each of the two defendants, launched separate appeals from that judgment taking a number of grounds, few of which were common to any of the parties. However, at the commencement of the hearing of the appeal Mr Maconachie QC, who appeared for the second defendant, ie Cunneen and Co Pty Ltd, indicated that he wished to seek the leave of the court to add two grounds of appeal, to only one of which it is necessary to refer. That was a ground that the judgment which had been entered was contrary to law, although in the amended notice of appeal it is stated as "No verdict was taken according to law". The other parties had not had time to consider their position concerning these additional grounds of appeal and no ruling was made in respect of them and argument proceeded in the first instance from the first defendant, M J Sherrin Pty Ltd. Later in the day Mr Maconachie repeated his application and counsel for the other parties indicated that they did not oppose the grant of leave for the additional two grounds. Accordingly, this Court granted leave for the notice of appeal to be amended by adding those grounds. Subsequently, during the submissions which were made by the first defendant, MJ Sherrin Pty Ltd, its counsel Mr Neil QC, indicated that his client also wished to take the ground that no verdict was taken according to law. In due course leave was given to that party to amend its amended notice of appeal to include, inter alia, that ground. Argument on the additional ground, to which I have made specific reference, did not commence until late yesterday afternoon and it was only this morning that the court was referred to the passage in the judgment of this Court in Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 at 761 which provides authoritative support for the submission that the court was not entitled to take majority answers of the jury to questions which had been submitted to it. In Morosi it was pointed out that under s66(1) of the Jury Act 1912, which was then operative, the court's powers to take a three-fourths majority decision were limited to decisions in the nature of verdicts and that they did not comprehend answers to questions put to the jury by the judge. When the court was referred to these decisions, and the latter reference to it in Morgan v John Fairfax and Sons Ltd (1990) 20 NSWLR 511, and mindful of the fact that the second defendant took the same point, the court invited counsel for the plaintiff to put any submissions that he wished in answer to the point. Counsel did not seek to do this but informed the court that the plaintiff accepted that the submission made by the second defendant was a good one and that the judgment which had been entered was not authorised by law. Counsel indicated to the court that his client accepted that his Honour had taken a course which was not authorised by law in accepting the majority answers to some of the questions which were posed. WRUSHERRIN PTY LTD v LYNES AND ANOR; LYNES v MJ SHERRIN PTY LTD AND ORS} CUNNEEN AND CO PTY LTD v LYNES AND ANOR (Sheller JA) I wish to make it clear that, although it would appear that there were unanimous answers to some questions, it was not suggested to this Court that it was open on the material before it to determine which questions had been the subject of unanimous answers, and accordingly justified the entry of at least some type of judgment. On the contrary, each party took the position that the course which had been taken was unauthorised and the order that judgment be entered had been made contrary to law. Because it is impossible to be certain which questions were the subject of unanimous answers, I think that the approach of counsel in this court was a proper one and accordingly that we are obliged to uphold the submission supported as it is by all three parties. The consequence is that judgment should never have been entered and it is necessary for this Court to uphold the appeal and to set aside that judgment. The further consequence is that there should be an order for a new trial of the proceedings insofar as it must be concluded that there has never been a concluded trial according to law. I must confess to having some degree of sympathy for the plaintiff who had waited nearly eight years to have his case heard and who then has to suffer the setting aside of judgment in his favour because an error occurred during the course of the trial, the responsibility for which really lay at the feet of the legal advisers. I have said on a number of occasions during the hearing of the appeal that I have been most concerned at what took place in this trial, not so much in regard to the submission I have been discussing but on another aspect of the case concerning contributory negligence. On further reflection, and because of the course the appeal has taken today, I do not propose to say any more about that matter other than to reiterate that I feel a great deal of sympathy for the plaintiff who has not been particularly well served. ORDER In the circumstances, in my opinion, the following orders should be made: (1) The appeal is upheld; (2) The judgment below set aside and in lieu thereof order that there be a new trial of the action generally; (3) There will be no order for the costs of the appeal to the intent that each party will bear the responsibility for his and its own costs. (4) The costs of the first trial should abide the conclusion of the second trial, subject to any contrary order which may be made by the trial judge in his or her discretion. In the circumstances of this case there is much to be said in favour of a very early hearing of the re-trial. Handley JA I agree. Sheller JA I agree with the orders proposed by the presiding judge. Clarke JA: The orders will be as I have already indicated. Counsel for MJ Sherrin Pty Ltd: MJ Neil QC and J McIntyre Solicitors for MJ Sherrin Pty Ltd: Hunt and Hunt Counsel for Cunneen and Co Pty Ltd: JE Maconachie QC and D Kennedy Solicitors for Cunneen and Co Pty Ltd: PW Turk and Associates 4 UNREPORTED JUDGMENTS Counsel for Lynes: JE Rowe Solicitors for Lynes: Robert A Harper and Co