SMITH and ANOR v TELECOM LTD [1994] NSWCA 288

SMITH v TELECOM LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY AP, SHELLER and COLE JJA 1 September 1994

[1994] NSWCA 288

Priestley AP This is an application for leave to appeal from the decision made on Monday of this week by Mr Justice James in which he ordered that all issues of fact in a common law trial, for which a jury had been requisitioned, be tried without a jury.

The circumstances are sufficiently set out in his Honour's reasons and there does not seem to be any useful purpose in reciting them again.

It is said on behalf of the claimants that his Honour erred in the exercise of the undoubted discretion that he had under s89(1) of the Supreme Court Act to order that all issues of fact in the proceedings be tried without a jury.

The first ground that is advanced as showing an error in the exercise of discretion by his Honour is that his Honour's decision was arrived at by reference to a concept which has the result that no common law proceedings which involve prolonged scientific investigation may ever be heard by a jury.

I do not think that that is a submission which has any substance; it flies in the face of what his Honour actually said in his reasons; he made it crystal clear that he was deciding on the particular materials before him in the particular case that in the circumstances of that case he thought he should exercise his discretion to order that the issues of fact be tried without a jury.

The second ground which was put in different ways by counsel for the two claimants revolved around his Honour's reference to convenience as a factor in the exercise of his discretion. It was said that in some way his Honour had misunderstood what was meant by s89(2)'s use of the words "any prolonged scientific investigation which cannot conveniently be made with a jury".