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". It was said in one aspect of the submissions that his Honour was taking into account questions of convenience of the court or the court system generally. If his Honour did do that then he may have been running counter to some of the observations made in the Pambula case. There is no need to examine that question, however, because in the view of the court it is quite plain that his Honour's decision was not made by reference to such general considerations but by reference to the precise situation he had before him of the particular scientific investigation which the hearing of the proceedings would involve and what, in his view, was the very considerable inconvenience that the prolonged scientific investigation of those issues which he thought was likely to happen would involve. It was then said that he gave too much weight to the question of convenience. This was put in various ways which seem to stray into an area of factual disputation with the judge's opinion but since there was material before his Honour which would amply justify him in that factual view - such a submission is of no assistance in this leave application in which a claimant is bound to show some error or principle in the exercise of discretion by the judge or some basic misunderstanding of fact or the taking into account of an irrelevant consideration 2 UNREPORTED JUDGMENTS or the leaving out of account of a relevant consideration to the exercise of discretion. The submission I have just referred to does not show any of those things. Then finally it was said that the words "cannot conveniently be made with a jury" should be construed in a particular way so as to exclude the kind of situation which, on the judge's views, would be likely to arise in the trial of the proceedings. There is no basis that the court can see for the restriction of the meaning of the word "conveniently" to the narrow sense asserted by counsel for the second claimant. A further consideration which, goes to the question whether in any event it would matter if there were an error in respect of the word "conveniently" in s89(2) para(b), is that it would appear that the discretion of a trial judge under s89(1) is wider than that of a trial judge exercising discretion under s88(2) so that in regard to questions of convenience, the trial judge was not necessarily confined to the meaning of or to the concept of convenience embodied in s89(2). In short, it does not appear to the court that any ground has been made out for thinking that in any way the discretion exercised by the trial judge miscarried. To return to something already mentioned, in order to make one point as clear as it can be made if it has not already been made clear, the decision of James J is not authority for, does not say and does not establish that there can never be a jury trial which involves prolonged scientific investigation. It will be a matter in the case of such proceedings for a judge, if application is made to him under s89, in every case to consider the circumstances of the particular case before deciding whether or not the issues of fact in the case, or any of them, should be tried without a jury. The application is dismissed with costs.