Allbutt v State of Victoria
[2010] VSC 213
•20 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6241 of 2007
| LEANNE ALLBUTT | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2010 | |
DATE OF RULING: | 20 May 2010 | |
CASE MAY BE CITED AS: | Allbutt v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 213 | |
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PRACTICE AND PROCEDURE – Trial by jury or by judge sitting without a jury – Personal injuries – Multiple adjournments of the trial – Inability of the matter to proceed as a jury – Court resources – Delay – Prejudice – Supreme Court (General Civil Procedure) Rules 2005, rule 47.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.B. Richards SC with Ms A.E.L. MacTiernan | Clark Toop & Taylor |
| For the Defendant | Mr R.P. Gorton QC with Ms M. Taaffe | Minter Ellison |
HIS HONOUR:
This proceeding was issued on 17 May 2007. It is a claim for damages in respect of injuries allegedly sustained during the course of the plaintiff’s employment with the defendant. The plaintiff pleads her claim in the following terms:
“The plaintiff sustained injury in the course of her employment with the defendant on and from 20 October 1999 when she was required to repeatedly place undue strain upon her spine whilst performing a wide variety of tasks.”
I do not need to set out the tasks for the purposes of this ruling.
The matter was initially fixed for trial on 5 November 2008 on an estimate of eight to ten days.
On 6 November 2008, the proceeding was refixed for 24 November 2008 on an estimate of ten to fifteen days.
On 24 November 2008, the matter was refixed for trial on 9 February 2009 on an estimate of ten to fifteen days and the matter was marked subject to part-heard cases only.
On 5 February 2009, the trial date of 9 February was vacated and the matter was set down for a directions hearing on 14 August 2009.
On 7 August 2009, the proceeding was fixed for trial on 20 April 2010 on an estimate of eight to ten days.
On 10 March 2010, the hearing date of 20 April 2010 was vacated and the proceeding was listed for hearing on 20 May 2010 (today) with priority on an estimate of fifteen days.
Whilst the file does not disclose the reason for most of the multiple postponements and adjournments, the material on the file shows that the latest adjournment was at the request of the defendant, due to the unavailability of an important witness for the defendant, Mr Symons.
In argument this afternoon, I was told that the reasons for the other adjournments were (insofar as two of them at least were concerned) that the matter was not reached when fixed in November 2008 (both on 5 and 24 November). I was also told there were issues of treatment which may have resulted in the matter being adjourned on at least one other occasion.
The matter is currently listed as a jury trial, the plaintiff having endorsed her writ for trial by judge and jury of six.
I am the only judge available to hear the trial today. Unfortunately, I am not able to sit in this proceeding on Wednesday 2 June, or Thursday 3 June or Friday 4 June. Counting today as day one, these days would be days ten, eleven and twelve. If a jury was empanelled, this would mean that the jury would hear nine days of the case until Tuesday 1 June and then not be able to sit and hear the remaining six days until Monday 7 June (a gap of six days).
In my view, such a delay in a civil jury is unacceptable. It would entail the risk of the jury forgetting important parts of the evidence as they went about their daily lives and businesses over the six day interlude. In my view, it is neither desirable nor in the interests of justice that this course should occur.
Accordingly, the options are whether I dispense with the jury and hear the matter as a cause or whether I adjourn the case to be refixed and heard at a time when a judge is available to hear a fifteen day case.
The principles in relation to dispensing with a civil jury are well known and were set out by J. Forrest J in Gunns Limited v Marr(No. 5)[1] and the cases referred to therein. It is not necessary to repeat them here.
[1][2009] VSC 284.
20 October 1999 (the commencement of the period in respect of which this claim is brought) is now more than 10½ years ago. It is undesirable that there be any further delay in this proceeding. In Myer Melbourne Limited v Hammond,[2] the Full Court (Crockett, Kaye and Gray JJ) described a period of ten years since the alleged incident giving rise to the plaintiff’s cause of action as a delay of itself sufficiently demonstrable to establish significant prejudice in relation to a proposed hearing in that case.
[2][1984] VR 40.
I have made inquiries with the Associate Justice responsible for Listings. I am told that if I adjourn this case, there is no reasonable prospect of the case being refixed and heard in the near future. Further, the history of this matter suggests that even if the case was refixed, that might not be the end of the matter so far as adjournments and postponements are concerned.
The plaintiff is understandably anxious to have her case heard as soon as possible. In the circumstances I have described, the plaintiff wishes the trial to proceed as a cause. The defendant opposes this course.
For the reasons I have given, I do not propose to adjourn the trial. In my view, such a course would not be in the interests of justice. Giving full weight to the defendant’s preference for a trial by jury, in my view, when one weighs the circumstances and factors of this matter, the interests and administration of justice are best served by a trial today, rather than an adjournment to some unspecified date or dates in the future.
Accordingly, I propose to dispense with the jury and hear the matter as a cause.
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