Stankowski v Commonwealth of Australia [2003] NSWSC 923

New South Wales Supreme Court

CITATION : Stankowski v Commonwealth of Australia [2003] NSWSC 923 HEARING DATE(S) : 8/10/03 JUDGMENT DATE : 10 October 2003

JUDGMENT OF : O'Keefe J DECISION : 1. For more abundant caution, the order made by Bell J on 25 September 2003 is discharged; 2. The issues of fact in the matter be tried without a jury; 3. The trial continue before me sitting alone; 4. The evidence already given in the presence of the jury be evidence in the proceedings before me; 5. I give leave to the defendant to recall for further cross-examination any witness already called whose cross-examination the defendant reasonably claims would have been different had that witness been cross-examined other than before the jury; 6. I reserve the question of costs including, but not limited to, the costs incurred as a consequence of the recall of any witness who has given evidence to date.

CATCHWORDS : Practice and procedure - Discharge of jury - Jurisdiction to order hearing without jury - Judge continuing to hear matter without jury - Evidence in proceedings before jury - Order after discharge of jury for evidence in proceedings before jury to be evidence in continuing trial - Test - interests of justice - Discretion - Grounds for exercise of discretion to continue trial without jury Courts Legislation Amendment (Civil Juries) Act 2001 LEGISLATION CITED : District Court Act 1973: ss 77, 78, 79, 79A Supreme Court Act 1970: ss 85, 86, 87, 88, 89 Csalar v Circosta (2002) 55 NSWLR 212 Girlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 CASES CITED : Jakamarra v Krakouer (1998) 195 CLR 516 Pace v Read (2000) 179 ALR 437 Pambula District Hospital v Herriman (1988) 14 NSWLR 287 Patton v Buchanan Borehole Collieries Pty Ltd (1992-1993) 178 CLR 14 PARTIES : Steven Stankowski Commonwealth of Australia FILE NUMBER(S) : SC 21240/95 COUNSEL : Plaintiff - Mr A Melick SC with Dr K Sant Defendant - Mr R Burbidge QC with Mr G Johnson SOLICITORS : Plaintiff - James Taylor & Co, Solicitors Defendant - Australian Government Solicitor