Bushell v Polygon Retailing Ltd T/as BP Service Station Clybucca [1999] NSWSC 1158

New South Wales Supreme Court CITATION : Bushell v Polygon Retailing Ltd T/as BP Service Station Clybucca [1999] NSWSC 1158 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20593/96 HEARING DATE(S) : 22 October 1999 JUDGMENT DATE : 30 November 1999

PARTIES : Glenda Jean Bushell - Plaintiff Polygon Retailing Ltd T/as BP Service Station Clybucca - Defendant JUDGMENT OF : Simpson J at 1

COUNSEL : Mr B Toomey QC - Plaintiff Mr M Cranitch SC - Defendant SOLICITORS : Stacks - The Law Firm - Plaintiff Hickson Lakeman & Holcombe - Defendant CATCHWORDS : ACTS CITED : Supreme Court Act 1970 CASES CITED : Pambula Hospital v Herriman (1988) 14 NSWLR 387 DECISION : Notice of motion dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

Tuesday 30 November 1999

20593/96 Glenda Jean BUSHELL v POLYGON RETAILING LTD t/as BP SERVICE STATION CLYBUCCA Judgment

HER HONOUR : 1 By statement of claim filed on 13 June 1996 the plaintiff claims damages from the defendant for personal injury she alleges was caused while she was employed by the defendant and as a result of the defendant's negligence. The defendant has admitted that it was in breach of its duty of care to her. The issues that are expected to arise include the nature of the injury sustained by the plaintiff, the causation of subsequent injury, and the extent (if any) for which the plaintiff is herself responsible for the injury and its sequelae. On 13 September 1999 the plaintiff, as is her right, filed a requisition for trial by jury. There is some question as to whether this requisition was filed within the time prescribed. On 24 September the trial was fixed for a hearing to commence on 7 February 2000, with two weeks of court time allocated. 2 The defendant, on 1 October 1999, filed a notice of motion seeking, inter alia, an order pursuant to s 89 of the Supreme Court Act 1970, that all issues of fact be tried without a jury. A further order sought by the defendant was that the plaintiff's requisition for jury trial be set aside. The basis for seeking this order was the defendant's contention that the requisition was filed out of time. 3 After discussion, Mr Cranitch SC, who appeared on the application for the defendant, accepted that the substance of the application was whether the defendant was able to establish its case for trial without a jury, and that, if there were some technical defect in the filing of the plaintiff's requisition, the powers conferred by the rules would be appropriately be exercised to cure that defect. It was therefore possible to proceed to deal with the single issue of substance. 4 The relevant law is well established and uncomplicated. By s 86 of the Supreme Court Act, any party to proceedings of the kind the plaintiff brings is entitled to requisition trial by jury. By s 89, in such proceedings the court may order, despite s 86, that all or any issues of fact be tried without a jury. The onus lies on the party seeking to displace the requisitioning party's right to trial by jury to show that that party should be deprived of his/her/its choice of mode of trial: Pambula District Hospital v Herriman (1988) 14 NSWLR 387.