Birti v SPI Electricity Pty Ltd (No 2)
[2012] VSC 482
•18 OCTOBER 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2010/01497
| LENA BIRTI | Plaintiff |
| v | |
| SPI ELECTRICITY PTY LTD (ACN 064 651 118) & ORS | Defendants |
JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 SEPTEMBER 2012 | |
DATE OF RULING: | 18 OCTOBER 2012 | |
CASE MAY BE CITED AS: | BIRTI v SPI ELECTRICITY PTY LTD & ORS (NO 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 482 | |
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Practice and Procedure – Place of trial – Plaintiff elected for trial in Melbourne – Cause of action arose in North East Victoria – Trial ordered at Wodonga at same time as a group proceeding – Group proceeding settled – Discretionary considerations – Order 47 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
Practice and Procedure – Trial by jury – Claim in tort for damages for psychiatric injury - Complex proceeding arising out of a major bushfire – Plaintiff elected for trial by jury by writ - Whether plaintiff elected against mode of trial signified when proceeding managed with a group proceeding – Group proceeding settled - Discretionary considerations – Order 47 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Melick SC with Mr C Thomson | Moyle Legal |
| For the First Defendant | Mr D Farrands | Herbert Smith Freehills |
| For the Second Defendant | Mr C Terrill (solicitor) | McCabe Terrill Lawyers |
| For the Third and Fourth Defendants | Ms N Wearne (solicitor) | Norton Rose |
HIS HONOUR:
Mrs Lena Birti opted out of the group proceeding[1] that followed the Beechworth fire on Black Saturday. She had already issued a proceeding and elected to continue with that proceeding. By her writ, Mrs Birti opted for trial by jury in Melbourne. The plaintiffs in the group proceeding had elected for Wodonga as the place for trial, to be before a judge sitting alone.
[1]Mercieca v SPI Electricity Pty Ltd & Ors S CI 2010/1978.
In early 2011, I was allocated the proceedings arising out of the Beechworth fire and from that time Mrs Birti’s proceeding has been managed with the group proceeding. In June 2011, I gave directions for the opt out procedure in the group proceeding and for trial preparation. In the event that Mrs Birti opted out of the group proceeding, both proceedings were fixed for trial in Wodonga on 20 February 2012. There was never any dissent from the proposition that the two proceedings be heard and determined at the same time, at least on the common questions.
In due course, Mrs Birti, but not Mr Birti, opted out of the group proceeding and orders were made that Mr Birti ceased to be a plaintiff in this proceeding. There was, of course, substantial commonality of interest between Mrs Birti and the group proceeding plaintiffs and trial of the common questions at the same time was the sensible approach.
In November 2011, Mrs Birti applied for an order that the issues in her proceeding be split and that there be trial by jury of issues of causation and quantum. Forrest J ordered that, subject to further order, the question of assessment of damages in relation to psychiatric injury be tried by a jury and that the trial of the proceeding otherwise be by judge alone.[2]
[2]Birti v SPI Electricity Pty Ltd & Ors [2011] VSC 566.
However, the group proceeding settled before trial. The premise on which Mrs Birti’s proceeding was being managed no longer applies, and in the changed circumstances now prevailing, I will vacate the orders made on 11 November, 2011 concerning the mode of trial of any assessment of damages and I will consider afresh the directions that I have made in so far as they affect the place of trial.
It now appears that Mrs Birti will substantially run the case that would have been run by the group proceeding plaintiffs. Mrs Birti now seeks trial before a jury in Wodonga. The defendants each oppose moving the place of trial to Wodonga and SPI and Eagle contend that the mode of trial should be before a judge sitting alone.
Background
Mrs Birti claims damages for a psychiatric injury – post traumatic stress disorder and major depressive disorder – that she suffered when threatened by the approach of fire alleged to have been caused by one or more of the defendants. In a report dated February 2011, a psychiatrist described her condition as serious and worsening with the prolongation of her litigation. Professor Alexander McFarlane commented:
Hence, Mrs Birti feels that she is in a state of ongoing struggle to survive and is pessimistic about her future. The legal proceedings are acting as a further trigger to her impending doom and are keeping the issues and circumstances alive and in her mind. The ongoing sense of threat and lack of predictability of her future has been aggravating the traumatic memories associated with the fire … Particularly because Mrs Birti’s functioning has been compromised by her post traumatic stress disorder and major depressive disorder these circumstances (viability of the family business) have been significantly influenced by her ongoing impairment … In my opinion it would be of a significant assistance to Mrs Birti if her matter could be heard and settled in an expeditious manner. The resolution of her legal case would remove one significant dimension of stress from her life and personal relationships.
This report pre-dates Mrs Birti’s decision to opt out of the group proceeding, the subsequent settlement of the group proceeding just as the trial was about to commence, and her further decision not to opt back in after settlement and before the class closed. In the context of that medical advice, these decisions are not explained. However, I accept that there are many good reasons for an expeditious resolution of this proceeding. I do not consider that Professor McFarlane’s February 2011 report unsupported by an affidavit from Mrs Birti concerning her present circumstances, allows for much weight to be given to Mrs Birti’s present circumstances on this application.
The proceeding is complex. Each of four defendants denies that it owes a common law or statutory duty of care to Mrs Birti. They each deny that they caused ignition of the fire and there are different theories, substantially based in complex expert evidence, about how the fire started. The combined witness lists for the parties total 81 witnesses, of whom about 30 will give expert evidence across disciplines that include medicine, electrical engineering, materials engineering, arboriculture, dendochronology, fire behaviour, photogrammetry, and agricultural science. The present estimate of the length of the trial is 12-14 weeks (sitting 4 days per week).
Place of trial
Rule 47.01 of the Supreme Court (General Civil Procedure) Rules 2005 provides:
Unless the Court otherwise orders, the place of trial of a proceeding shall be determined in accordance with Rule 5.08.
Rule 5.08 states:
A writ shall be indorsed with a statement of the place and mode of trial desired.
Mrs Birti elected by her writ for trial in Melbourne. Unless I am persuaded to order otherwise, the trial is to be held in Melbourne. The directions for trial in Wodonga was affected by the group proceeding, particularly by the management of Mrs Birti’s proceeding with the group proceeding and SPI Electricity makes a particular submission arising out of that circumstance that I will come to. Subject to that submission, I consider that the changed circumstances that follow on settlement of the group proceeding return the parties to the position that pertains as if this proceeding had not been affected by management with the group proceeding. The considerations arising from the trial of the group proceeding no longer warrant overriding the initial signification for trial in Melbourne. The matter will be considered afresh.
It is well established that the court will not order a change of trial venue unless there be a manifest preponderance of convenience or unless a great injustice will be done if the trial is held at the place named by the plaintiff.[3] Neither party sought to invoke my discretion by reference to the risk of great injustice. The parties respectively contended that the preponderance of convenience favoured either Wodonga or Melbourne.
[3]Wilson v Syme (1880) 6 VLR(L) 200; Mehmke v Schmidt (1889) 15 VLR 364; Leversha v Wramgham (1889) 15 VLRL 363; Hobler v Francis (1911) St R Qd 17; Cording v Trembarth [1921] VLR163; Ryan v Harrison [1957] VR 210; Lehtonen v Australian Iron and Steel Pty Ltd [1963] NSWR 323.
It is relevant that the cause of action arose in north east Victoria and that many witnesses, possibly a majority, reside in north east Victoria. That was the central plank of Mrs Birti’s submission.
Mrs Birti also contended that a trial in Wodonga negates the need for her to relocate to Melbourne during the duration of the trial. A number of contentions of fact were proffered from the Bar table in support of this submission. These were matters that could have been addressed in evidence but were not. Generally, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, a party must bring the relevant circumstances that will influence the court’s discretion to its attention in a manner that permits the court to appropriately assess and weigh up the competing considerations.[4] Mrs Birti contends that ‘her illness would be least exacerbated during the trial by being able to reside with her family in Myrtleford’. Without evidence, it is difficult to properly evaluate this consideration.
[4]Cf Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [103].
There are a number of competing considerations put by the defendants:
(a)The solicitors for each of the parties in the proceeding are located in Melbourne.
(b)Counsel for each of the parties in the proceeding are based in Melbourne with the exception of the plaintiff’s senior counsel who is based in Hobart.
(c)None of the legal representatives for any of the parties is based in Wodonga and if the trial was to take place in Wodonga the parties would bear significant additional costs in setting up offices in Wodonga or the surrounding town centres. In addition, additional costs associated with travel and accommodation for legal representatives will be substantial.
(d)Mrs Birti submitted that Wodonga would be convenient for the experts but I do not accept that this is so and prefer the submission of the defendants that there would be significant inconvenience to the experts if they were required to travel to Wodonga rather than being based in Melbourne.
(e)SPI contended that there would be significant inconvenience to the majority of its lay witnesses who are not based in north east Victoria
(f)The defendants accepted that there would be inconvenience to Mrs Birti if required to travel to Melbourne. The defendants contended that Mrs Birti’s evidence would be short and that her inconvenience would not be substantial. That submission overlooks the fact that, as the plaintiff, Mrs Birti is entitled to be present for the whole of the proceeding although there is no evidence before me as to whether she will choose to do so.
The authorities that require that the parties seeking a change in venue must show a manifest preponderance of convenience in his or her favour developed in earlier times when travel was more difficult and time consuming than it is now. Thus, despite the language used, it was not an onerous standard to meet. As Kaye J noted in Butcher v Australian Tartaric Products Pty Ltd,[5] r 47.01 is a rule of practice that should be given a practical application. The relevant principles governing the exercise of a procedural discretion are now set out in the Civil Procedure Act 2010.[6] If I applied the traditional test, I am not satisfied, after taking into account the above considerations, that there is a substantial preponderance of convenience in favour of conducting the trial at Wodonga. However, having regard to the Civil Procedure Act 2010, the question is whether holding the trial at Wodonga rather than Melbourne will facilitate the just, efficient, timely and cost effective resolution of the proceeding. In exercising that discretion I have regard to the matters set out in s 9 of the Act. On considering the objects set out in s 9(1)(c), (d), (f), and (g), as they apply to the considerations put before me by the parties, I am not persuaded that the overarching purpose under the Civil Procedure Act is better achieved by a trial in Wodonga.
[5][2010] VSC 286 (18 June 2010).
[6]See s 9 of the Act.
I see no reason to disturb the venue selection signified by the writ. Further, I am satisfied that conducting the trial in Melbourne will facilitate the just, efficient, timely and cost effective resolution of the proceeding.
Mode of trial
Rule 47.02 provides that a proceeding commenced by writ and founded on tort shall be tried with a jury if the plaintiff in the writ signifies that she desires to have the proceeding so tried. By her writ, Mrs Birti signified for trial by jury. The court retains a broad discretion, as sub-rule (3) provides that the court may direct a trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury. The approach to be taken by the court in exercising that discretion has recently been considered by the court not only in proceedings arising out of Black Saturday bushfires, but in the earlier application in this proceeding that was heard by Forrest J.
In November 2011, Mrs Birti sought a direction that part of her claim (the issues of causation and assessment of damages) be determined by a jury. Forrest J revisited his earlier statement of the principles relevant to an application under r 47.02 and I am much assisted by the list of considerations that his Honour distilled, to which I will return.[7] It is critical to bear in mind that at the time of this ruling Mrs Birti’s proceeding was to be heard and determined with the group proceeding. The group proceeding would have determined both the claims of the plaintiffs in that proceeding on all issues and the common issues between group members and the defendants.
[7]Birti v SPI Electricity Pty Ltd & Ors [2011] VSC 566.
The effect of Forrest J’s ruling was that subject to any order that I, as the trial judge, might make, the trial of the question of the assessment of Mrs Birti’s damages in relation to psychiatric injury be tried by a jury. Thus, if the plaintiffs succeeded against the defendants on the common questions, Mrs Birti’s damages could have been so assessed. However, as the group proceeding was settled without a trial, the questions of liability and causation remain in issue. As I have stated, I will vacate those orders and consider the matter afresh in view of the changed circumstances.
SPI contended that by this earlier application before Forrest J, Mrs Birti had resiled from the signification as to the mode of trial evident from the writ and that her attempt to return to her original preference should be rejected.
SPI contended that the plaintiff lost her prima facie right to a jury trial on all issues because she elected by her application to have a jury trial limited to causation and assessment and obtained an order for an assessment by a jury. In support of this contention I was referred to Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd.[8] This decision does not assist SPI. The Full Court’s reference to any right or entitlement that either party had for trial by jury becoming exhausted is not applicable here because Mrs Birti exercised her right for trial by jury in accordance with the rules. It was not a right that had become exhausted. I was also referred to Connor v Commonwealth of Australia[9] but that too is a case where the concept of choice or election that is discussed refers to the conduct of the party at the time of issuing a writ or filing a defence.
[8][1969] VR 401, 409.
[9]Supreme Court of Victoria, unreported, Hedigan J (25 June 1998), 7.
In the circumstances that face Mrs Birti, particularly having her proceeding case managed with the group proceeding, I do not find that there is any relevant conduct on her part that could constitute an election or a choice not to have a trial by jury.
SPI Electricity further contends that Mrs Birti cannot discharge the onus of persuading me to exercise a discretion to restore her preferred mode of trial because it is now impossible to conclude that the plaintiff would not obtain a fair trial by judge alone, contending that this court has already ruled against that proposition on Mrs Birti’s earlier application.
In my view, there are particular issues that arise on the question of sitting with a jury in group proceedings. I need not pause to examine those particular considerations, which were most recently analysed by Forrest J in Matthews v SPI Electricity Pty Ltd; SPI Electricity Pty Ltd v United Services Corporation Ltd (Ruling No 8).[10] Those questions substantially influenced Mrs Birti’s application before Forrest J and the settlement of the group proceeding distinguished Mrs Birti’s present circumstances.
[10][2012] VSC 318 (27 July 2012).
I am satisfied that Mrs Birti has met the procedural requirements to exercise her entitlement to trial by jury and the onus lies with SPI to persuade me to exercise the court’s overriding discretion to determine the mode of trial regardless of the wishes of the plaintiff. The discretion is broad and unfettered, to be exercised as warranted by the dictates of justice.[11] In Matthews[12]and in the earlier cases cited, Forrest J has meticulously compiled a list of relevant considerations when exercising the discretion that address the question of entitlement to a jury in group proceedings arising out of other Black Saturday bushfires. I will gratefully adopt that list of considerations as it is pertinent on this application to bear a number of those maters in mind.
[11]In Messade v Baires Contracting Pty Ltd (Rulings Nos 2, 3 and 4) [2011] VSC 75 (10 March 2011), [35] Forrest J outlined the factors to be considered on an application to dispense with the jury.
[12][2012] VSC 318 (27 July 2012), [56].
SPI contended that there was a special reason justifying trial by judge alone for issues, other than assessment, in this proceeding. Counsel referred to:
(a) the complexity of the factual issues;
(b) the complexity of the legal issues;
(c) duration of trial and likely inconvenience to jurors.
Accepting the force of the earlier ruling, SPI recognised the possibility that the issues in the trial might be separately determined, to permit a jury assessment of damages. It is by no means clear that this approach would have been adopted had the group proceeding not settled. It would have been necessary, as Forrest J’s earlier ruling makes clear, for me, as the trial judge, to be satisfied with the conclusion of the joint trial on the common questions, that an assessment hearing before a jury remained an appropriate course.
There is much force in the submissions put by SPI touching on the complexity of the issues in the proceeding. No party contended that the proceeding will not be complex but its complexity requires careful evaluation. In this context, the relevant component parts of the proceeding to be contemplated are the lay evidence about what happened, the expert evidence about why it happened, the legal questions that need to be determined by a judge and the factual questions that would be left to a jury. It is a general rule in this state that civil juries are regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact. Reference to cases from other jurisdictions where civil juries are a rarely used mode of trial are unhelpful. Of course, in criminal proceedings juries are often confronted with issues of factual and legal complexity, which demonstrates that juries should not be underestimated, but as there are different considerations underpinning the right to trial by jury in criminal proceedings that analogy is not particularly helpful.
I do not think the disputed factual issues are of any greater complexity than those commonly faced by juries in this State. The extent of disagreement amongst experts is yet to be determined. However, assuming that there is limited agreement, I am not persuaded that issues of breach, causation and assessment of damage that will arise from the lay and expert evidence are too complex to be left to a jury. This is not to suggest that the jury’s task will not be onerous and complex, only that it is not a task that is, in my view, beyond a jury. In Matthews[13] Forrest J was considering a submission that the court cannot entertain a claim by a plaintiff for trial by jury in a group proceeding. Forrest J concluded:[14]
The fact that in one claim this may become a complex task does not of itself mean that all group proceedings must be determined by a judge. Rather, those considerations are relevant to the determination of whether the case should or should not be tried by a jury in accordance with the principles set down by decisions of this Court over a number of decades.
[13]Matthews v SPI Electricity Pty Ltd v United Services Corporation Ltd [2012] VSC 318, [32]-[43].
[14]Ibid, [37].
However, there is a further consideration. There are questions of law that will need to be determined by the judge, if sitting with a jury. The plainest example is whether the plaintiff is owed duties of care in the terms that she alleges. SPI pointed to a particular aspect of that inquiry, namely the issues in the proceeding that relate to the economic regulation of electricity networks. Counsel pointed out that there will be evidence at trial concerning the regulation of the network and that the issue would be complex.
Counsel for SPI went further contending that recognition by appellate courts that the factors relevant in determining the existence of a duty can also be relevant to questions of breach and causation of loss supports, broadly, a preference for trial by judge alone in complex negligence proceedings.
This is not the place to essay the trends that may have emerged in the High Court’s decisions concerning the law of negligence over the past 30 years. In my view, it matters not that there may be factors which not only go to determining the existence of a duty but also to the question of its breach. It will necessarily be the case that the jury must hear that evidence in order to appreciate the directions to be given to them about the nature of the duty that is owed to the plaintiff and the standard of care that is required by such duty. I am not satisfied that, albeit difficult, the task is too complex and burdensome so as to materially influence the dictates of justice between the parties. I would not deny the plaintiff her chosen mode of trial on this basis alone, but it is a factor that will receive ongoing evaluation as I will shortly explain.
Moreover, it will be necessary to take the evidence before the trial judge can rule whether the defendant owed a duty to the plaintiff and determine how the jury should be directed as to the standard of care required and the nature of the instructions that may be needed by the jury concerning breach and causation.
There are two further relevant considerations, which favour permitting Mrs Birti choice of trial by jury. The court may at any stage of a proceeding direct for trial without a jury if it is satisfied that it should do so. In the circumstances of this trial, the court will continue to be mindful of the suitability of the mode of trial directed and its obligation to give effect to the overarching purpose of the Civil Procedure Act 2010.
The other matter is that the proceeding will continue to be judicially managed and the court will be particularly attentive, when considering whether trial by jury remains the appropriate mode of trial, to how the parties are discharging their obligations under the Civil Procedure Act. To that end, it will be necessary for directions to be given to assist in the efficient management of one matter. I have in mind that the parties will need to make submissions prior to empanelment of the jury concerning matters on which rulings on evidence will be needed. Particular effort to avoid inconvenient time wasting for the jury will be required.
That brings me to the third of the considerations raised by SPI, the duration of the trial and the likely inconvenience to jurors. SPI put its submission in this respect on the basis of an estimate of approximately 8 weeks. In my view the proper estimate for the trial is considerably longer, as I have stated. I am not satisfied that, of itself, these considerations are determinative. Jury trials of much greater duration have been successfully conducted, particularly in the criminal jurisdiction. The prospect of significant delay during consideration of legal argument may be resolved by analogy with criminal procedure. The parties have been required to exchange particulars of the evidence that they each propose to call and during the period until the trial commences appropriate case management can identify and resolve many issues that might otherwise delay the trial and inconvenience a jury. Such matters may include objections to lay evidence, protocols for concurrent expert evidence, identification of the questions for the jury, and filing of written submissions on legal issues prior to trial to be relied on prior in submissions as to how the jury is to be charged.
Accordingly, I am presently of the view that issues of unnecessary delay and inconvenience that may affect an empanelled jury are manageable, provided the court receives, from the parties and their legal representatives, the degree of cooperation to which it and they are entitled. Should that not occur, an occasion for exercising the discretion to revisit the mode of trial and/or impose sanctions under the Civil Procedure Act may arise.
For these reasons I am not disposed to deny Mrs Birti’s continuously expressed desire for trial by jury. The proceeding is fixed for trial before a judge and a jury of 6, to commence in Melbourne on 25 February 2012. Although I have previously referred to sitting 4 days a week if the matter was listed in Wodonga, the parties should expect that the trial will run 5 days a week. Close judicial management of the proceeding will continue. I will reserve the costs of the case management conference. I further direct that the solicitors for the parties confer for the purpose of using their best endeavours to identify each and every issue that may conveniently be dealt with prior to empanelment of a jury. An agenda of such issues is to be filed with my associate by 31 October 2012 following which the parties will be notified of the date of the next case management conference.
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