Clifton Bricks Pty Ltd v Gerlach

[2000] NSWCA 90

CITATION:	Clifton Bricks v Gerlach [2000] NSWCA 90
FILE NUMBER(S):	CA 40435/98
HEARING DATE(S):	10 December 1999
JUDGMENT DATE:	28 April 2000
PARTIES :	CLIFTON BRICKS PTY LTD v ARMIN HERBERT GERLACH
JUDGMENT OF:	Priestley JA at 1; Handley JA at 2; Giles JA at 14

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	6583/97
LOWER COURT JUDICIAL OFFICER :	Christie DCJ

COUNSEL:	A R Ashburner (Appellant) J F Burn (Respondent)
SOLICITORS:	Hunt & Hunt (Appellant) Gary Robb & Assoc Braddon ACT (Respondent)
CATCHWORDS:	APPEAL - appeal from final decision - appellant entitled to challenge interlocutory order - plaintiff applies to dispense with jury - order made - order not authorised - trial by Judge alone therefore miscarried - District Court Act s79A
LEGISLATION CITED:	District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	Crowley v Glissan (1905) 2 CLR 402 Bunning v Cross (1978) 141 CLR 54, 82 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Langford v Turnbull (NSW CA 29/5/90 unrep) Stead v State Government Insurance Commission (1986) 161 CLR 141, 147
DECISION:	Appeal allowed with costs - orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40435/98
DC 6583/97

PRIESTLEY JA
HANDLEY JA
GILES JA

28 April 2000

CLIFTON BRICKS PTY LTD v GERLACH

APPEAL - appeal from final decision - appellant entitled to challenge interlocutory order - plaintiff applies to dispense with jury - order made - order not authorised - trial by Judge alone therefore miscarried - District Court Act s 79A The appellant was the unsuccessful defendant in an industrial accident case commenced in the Supreme Court and later remitted to the District Court. At the appropriate time the appellant requisitioned for trial by jury.
On the second last working day before the trial, the plaintiff obtained an order to dispense with the jury. In the exercise of his discretion under s 79A of the District Court Act, the Judge considered the number of witnesses who would have to be called from different parts of the country, and said that the plaintiff would be put to a significant financial burden in calling an expert witness in addition to providing accommodation for the lay witnesses while they waited to be called before the jury. The appellant challenged the order dispensing with the jury and the trial Judge’s decision on liability and damages.
HELD, by Handley JA (Priestley and Giles JJA agreeing) allowing the appeal: (1) The appellant could challenge the interlocutory order to dispense with the jury on an appeal against the final judgment. Crowley v Glissan (1905) 2 CLR 402, Bunning v Cross (1978) 141 CLR 54 referred to. (2) Section 79A of the District Court Act was indistinguishable from s 89(a) of the Supreme Court Act 1970 (NSW). The latter does not authorise the Court to consider criteria of efficiency, brevity and cost which apply to all jury trials or the consequences of the conduct of the particular trial with a jury for other cases standing in the Court’s list. The cost of witnesses was not a relevant consideration in the exercise of the Judge’s discretion. Therefore, the order to dispense with the jury should not have been made and the appellant was prima facie entitled to a retrial. Langford v Turnbull (NSW CA 29 May 1990 unrep), Pambula District Hospital v Herriman (1988) 14 NSWLR 387 applied. (3) The Court could not hold that a properly conducted jury trial could not have possibly produced a different result, and there were no discretionary grounds to deny the appellant relief. Stead v State Government Insurance Commission (1986) 161 CLR 141 applied. Langford v Turnbull (NSW CA, 29 May 1990, unrep) followed.

ORDERS

(1) Appeal allowed with costs;

(2) Judgment of the District Court of 21 May 1998 set aside;

(3) Order of Judge Christie of 15 May 1998 dispensing with the jury set aside and in lieu order that the motion of 13 May 1998 be dismissed with costs;

(4) Order that the plaintiff pay the defendant’s costs of the first trial, such costs order not to be enforced before the retrial of the action without the leave of the District Court;

(5) The plaintiff is to be at liberty, if so advised, to read the testimony of Patrick Stanley and Michael Todd given at the first trial from the notes of their testimony instead of such witnesses being again examined;

(6) The respondent is to have a certificate under the Suitors Fund Act.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40435/98
DC 6583/97

PRIESTLEY JA
HANDLEY JA
GILES JA

28 April 2000

CLIFTON BRICKS PTY LTD v GERLACH

JUDGMENT

1    PRIESTLEY JA: I agree with Handley JA.

2    HANDLEY JA: This is an appeal from a final judgment of the District Court (Morrison ADCJ) in favour of the respondent for $390,000 damages in an industrial accident case. The grounds in the appellant’s notice of appeal not only challenged the trial Judge’s decision on both liability and damages, they also challenged an interlocutory order of Christie DCJ. On Friday 15 May 1998, shortly before the start of the trial which had been fixed for Tuesday 19 May, Christie DCJ on the application of the respondent, and over the opposition of the appellant, dispensed with the jury. 3    The appellant submitted that on an appeal against the final judgment in the action it was entitled as of right to challenge the interlocutory order dispensing with the jury. This is clearly correct and the competency of the appeal on those grounds was not challenged. See Crowley v Glissan (1905) 2 CLR 402, Bunning v Cross (1978) 141 CLR 54, 82. 4 The Court heard full argument on the grounds of appeal directed to the order of Christie DCJ dispensing with the jury, and reserved its judgment. It did not hear argument on the other grounds of appeal. 5 The action was commenced in the Supreme Court on 13 July 1989 and was remitted many years later to the District Court pursuant to s 143 of the District Court Act. At the appropriate stage, while the action was pending in the Supreme Court, the appellant requisitioned for trial by jury. Both counsel accepted that this requisition remained effective after the transfer of the proceedings to the District Court so as to require the action to be tried with a jury unless it was dispensed with. See generally DCR Pt 5 r 13. Section 79A of the District Court Act, which confers the power to dispense with the jury provides:

“In any action, the court may order, despite sections 77, 78 and 79 that all or any questions of fact be tried without a jury”.

6 The section is indistinguishable for relevant purposes from s 89(1) of the Supreme Court Act. The nature of the power conferred by s 89 of the Supreme Court Act and the considerations relevant to its exercise were considered by this Court in Pambula District Hospital v Herriman (1988) 14 NSWLR 387. This Court there held that in the exercise of the discretion under s 89 the Court could not take into consideration criteria such as efficiency, brevity and costs which apply to all jury trials or the consequences of the conduct of the particular trial with a jury for other cases standing in the Court’s list. This Court held in Langford v Turnbull (29 May 1990 unreported) that the powers in the two statutes were indistinguishable and that the decision in Pambula Public Hospital v Herriman applied to s79A. 7 In his reasons Christie DCJ said that the Court had “a very wide discretion” but one which was only to be exercised “in exceptional circumstances as distinct from circumstances which may arise in many cases”. He said that he was justified in exercising his discretion on the basis of the number of witnesses who would have to be called from different parts of the country. The plaintiff proposed to call a Dr White who practised in Melbourne and Canberra, and lay witnesses from Queanbeyan, Nowra and Queensland. The Judge said that calling the doctor would cost a significant amount of money, but even the lay witnesses would cost the plaintiff a lot of money for their accommodation while they waited to be called before the jury. 8 The need to call Dr White to give oral evidence before the jury, instead of giving evidence in report form to a Judge subject to possible cross-examination, was not a factor which was special to this case. The plaintiff’s decision to qualify and call a doctor who practised in Melbourne and Canberra in a trial pending with a jury in Sydney could hardly entitle him to an order dispensing with that jury. The added costs and delays in this case occasioned by the need to call Dr White and the lay witnesses from the country and interstate were simply the particular consequences in this case of the general consequences of trial with a jury in every case. 9 Counsel who appeared for the appellant before Christie DCJ, who was not the counsel who appeared before this Court on the appeal, did not strenuously object to the lateness of the application, or seek to have the respondent put on terms to consent to an adjournment of the trial and an order for the costs thrown away, to enable the appellant to challenge the order by an interlocutory appeal to this Court. This is unfortunate because such an application may have brought home to Christie DCJ the risk that his order would cause the trial to miscarry. However that order was made on the afternoon of Friday 15 May and there was then nothing that the appellant could realistically have done to challenge that order before the trial. 10 The order dispensing with the jury should not have been made, and the action against the appellant has therefore not been tried according to law. As a result the appellant is prima facie entitled as of right to a retrial. This was the approach adopted by this Court in Langford v Turnbull (29 May 1990 unrep). We cannot hold that a properly conducted jury trial could not possibly have produced a different result (Stead v State Government Insurance Commission (1986) 161 CLR 141, 147), and the conduct of the appellant does not furnish discretionary grounds for denying it the relief to which it is otherwise entitled. 11 The plaintiff, by his legal advisers, made the application to dispense with the jury some nine years or so after it had been requisitioned by the defendant. The application was heard on the second last working day before the trial. In taking this course the plaintiff and his legal advisers adopted a high risk strategy and took the chance that it would cause the trial to miscarry. That has been the result and I can see no reason why the plaintiff should not be ordered to pay the costs of the first trial which in the event have been thrown away. 12 This Court has power under SCR Pt 51 r 23(5)(c) when ordering a new trial to order that the testimony of any witness examined at the former trial may be read from the notes of his testimony instead of the witness being again examined. The lay evidence in the plaintiff’s case, apart from that of the plaintiff himself, was given by his brother who lived in Bungendore and by Patrick Stanley and Michael Todd, both of whom lived in Queensland. The latter were former employees of the defendant who had no interest in the outcome of the proceedings, and whose evidence was not challenged as to credit by experienced senior counsel who appeared for the defendant at the trial. In my opinion an order should be made under the Rule permitting the plaintiff, if so advised, to read the testimony of Patrick Stanley and Michael Todd at the first trial, on any new trial. 13 The following orders should be made:

(1) Appeal allowed with costs;

(2) Judgment of the District Court of 21 May 1998 set aside;

(3) Order of Judge Christie of 15 May 1998 dispensing with the jury set aside and in lieu order that the motion of 13 May 1998 be dismissed with costs;

(4) Order that the plaintiff pay the defendant’s costs of the first trial, such costs order not to be enforced before the retrial of the action without the leave of the District Court;

(5) The plaintiff is to be at liberty, if so advised, to read the testimony of Patrick Stanley and Michael Todd given at the first trial from the notes of their testimony instead of such witnesses being again examined;

(6) The respondent is to have a certificate under the Suitors Fund Act.

14    GILES JA: I agree with Handley JA.
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