Steven Germain v Cordina Chicken Farms Pty Limited [2002] NSWCA 56

New South Wales Court of Appeal

CITATION : Steven Germain v Cordina Chicken Farms Pty Limited [2002] NSWCA 56 FILE NUMBER(S) : CA 40918/00 HEARING DATE(S) : 13/02/02 JUDGMENT DATE : 13 March 2002

PARTIES : Steven Germain (Appellant) Cordina Chicken Farms Pty Limited (Respondent) JUDGMENT OF : Mason P at 1; Stein JA at 9; Einstein J at 10

LOWER COURT JURISDICTION : District Court LOWER COURT DC 176/99 FILE NUMBER(S) : LOWER COURT Downs ADCJ JUDICIAL OFFICER :

COUNSEL : B McManamey (Appellant) H Shore (Respondent) SOLICITORS : George West (Appellant) Goldrick Farrell Mullan (Respondent) CATCHWORDS : Juries - Discharge of jury - Civil trial - Appeal against order discharging jury - Appellant, plaintiff at trial, sought damages for injuries claimed to have been suffered at the factory of the respondent employer, defendant at trial - During trial, counsel for plaintiff made reference to insurance and insurance companies - to medical report obtained by defendant and served, but not put into evidence and to suspicion regarding edited video tape tendered by defendant - During trial, television programme aired concerning unfavourable report on insurance companies - Trial judge granted application by defendant pursuant to s 79A of the District Court Act for trial to continue without jury and determined the trial by verdict for the defendant. - Whether material connecting link between plaintiff counsel's conduct and television programme - Whether exercise of discretion in discharging jury miscarried - Whether trial judge erred in failing to consider whether any prejudice to respondent actually occurred - Whether trial judge erred in failing to consider whether any prejudice could have been remedied by proper direction to jury Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) No. 124 LEGISLATION CITED : District Court Act 1973 (NSW) Suitors' Fund Act 1951 (NSW) Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Atkinson v Atkinson [1969] VR 278 Hanna v Ford Motor Co of Aust Ltd (unreported, 13 April 1998, Full Court of Victoria) Livesey v New South Wales Bar Association (1983) 151 CLR 288 Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 R v George (1987) 9 NSWLR 527 CASES CITED: R v Smith (unreported, 8 October 1982, NSWCCA) [reported on other grounds [1982] 2 NSWLR 608] Strange v Hybinnet (1987) 5 MVR 389 Taylor v Edwards (1967) 85 WN (Pt 1) (NSW) 386 Varga & Matri (unreported, 28 August 1987, NSWCA) Wake v John Fairfax & Sons Ltd (unreported, 27 February 1988 NSWCA) [reported on another point [1973] 1 NSWLR 43) Wellington v Lake George Mines Pty Ltd [1962] SR (NSW) 326 Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318, 63 WN (NSW) 176 Wishart v Mirror Newspapers Ltd [1963] (SR) NSW 745 Wishart v Mirror Newspapers Ltd [1964] NSWR 231 . DECISION : 1. Order allowing the appeal; 2. Order that the orders below be quashed; 3. Order remitting the proceedings to the District Court for rehearing; 4. Order that costs of the initial hearing be costs of the cause on the rehearing; 5. Order that the respondent pay the appellant's costs of the appeal and receive a certificate under the Suitors Fund Act if otherwise entitled.