Bahonko v Moorfields Community and Ors (No 1) (Ruling)
[2013] VCC 862
•21 January 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
WORKCOVER DIVISION
Case No. CI-06-02573
| STANISLAWA BAHONKO | Plaintiff |
| v | |
| MOORFIELDS COMMUNITY | First Defendant |
| BODALLA AGE CARE SERVICES | Second Defendant |
| UNITING CHURCH IN AUSTRALIA | Third Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Fourth Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2012 | |
DATE OF RULING: | 21 January 2013 (Revised) | |
CASE MAY BE CITED AS: | Bahonko v Moorfields Community & Ors (No 1) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 862 | |
RULING
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Subject:ACCIDENT COMPENSATION – application for jury trial – County Court Rules
Catchwords: Application for trial by jury – claims under Accident Compensation Act 1985 –
Order 47.02 of County Court Rules – meaning of claim founded on contract or tort – trial by jury precluded by Order 47
Ruling:Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | - |
| For the Defendants | Ms R Kennedy | Lander & Rogers |
HIS HONOUR:
1 On 29 November 2012, the plaintiff issued an application seeking orders in the form of pre-trial directions in this matter.
2 On 3 December 2012, the plaintiff appeared before his Honour Judge Brookes, who dealt with each of the pre-trial applications made by her, reserving to myself, as the trial judge, the determination of the plaintiff’s application for trial by jury.
3 It is neither necessary nor appropriate that I revisit the findings made by Judge Brookes with respect to the plaintiff’s application of 29 November 2012. I will however deal at this time with the plaintiff’s application for trial by jury.
4 The plaintiff commenced this proceeding by a Writ dated 7 July 2006. In her Writ, the mode of trial sought by the plaintiff was trial by judge alone.
5 On 23 June 2008, the plaintiff’s trial commenced before his Honour Judge Misso. At the commencement of the trial, the plaintiff sought an order from his Honour that the matter proceed by way of trial by jury. His Honour refused that application.
6 By order of the Court of Appeal dated 1 September 2011, this proceeding was remitted to this Court for rehearing.
7 On 26 October 2011, her Honour Judge Davis made an order in the proceeding that the matter was to be set down for trial on 7 April 2012 as a cause.
8 The proceeding currently is listed for trial before me as a cause.
9 The plaintiff’s application that the mode of trial be altered to trial by jury is opposed by the defendants.
10 Order 47.02 of the County Court Rules deals with the entitlement of a party to a trial by jury and provides:
“(1)A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried by jury if –
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the registrar within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
(b)the proper jury fees are paid.
(1.1)Paragraph (1) does not apply to a proceeding under the Accident Compensation Act 1985 other than a common law proceeding as defined in s129N of that Act).
(2)Any proceeding to which paragraph (1) does not apply shall be tried without a jury unless the Court otherwise orders.
(3)Notwithstanding any signification under paragraph (1), the Court may direct trial without jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.”
11 In this proceeding the plaintiff has been granted a retrial of the claim made by her under s93A, s93B, s98A, s98C, s98E, s99 and s134AB of the Accident Compensation Act 1985.
12 None of the plaintiff’s causes of action under the above provisions of the Accident Compensation Act can be appropriately described as involving a claim founded on contract or tort within the meaning of those terms as employed by Order 47.02 of the County Court Rules.
13 Further, it is clear that the plaintiff’s proceeding is one in respect of which Order 47.02(1.1) applies to preclude a trial by way of jury.
14 For these reasons, I am satisfied that the plaintiff is not entitled to a trial by jury in this matter, and that the plaintiff’s application for trial by jury should be dismissed.
15 Even were I to be satisfied (which I am not) that the proceeding was one in respect of which Order 47.02 gave to the plaintiff the right to elect trial by jury, the plaintiff’s application at this time for a trial by jury would have been refused by me for the following reasons:
· Firstly, in order to have activated an entitlement to trial by jury the plaintiff was required to have complied with the provisions of Order 47.02(a), namely to elect trial by jury in her Writ and she has not done so;
· Secondly, whilst had the plaintiff commenced a proceeding in respect of which she was potentially entitled to trial by jury, I have the power under the provisions of Order 47.02 (3) to make an order that the mode of trial be trial by jury, given that:
§Their Honours, Judge Misso and Judge Davis, have made orders on two separate occasions that this matter be heard as a cause;
§The defendants oppose trial by jury;
§The plaintiff’s election for trial by jury is based upon her assertion that the judicial system is corrupt and that her only avenue to the attainment of justice is for her proceeding to be determined by a jury, which position I reject;
I would not have been satisfied that it was appropriate to make an order directing trial by jury.
16 For all these reasons, the plaintiff’s application is refused, and I confirm the Order previously made in this proceeding that the matter be heard as a cause.
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