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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clifton Bricks Pty Ltd v Gerlach

Details

AGLC: Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90
Case: [2000] NSWCA 90
Decision Date: 28 April 2000

CaseChat Overview and Summary

Clifton Bricks Pty Ltd appealed to the Court of Appeal of New South Wales against an interlocutory order made by a District Court judge. The plaintiff in the original proceedings had applied to dispense with a jury, and this application was granted by the judge. Clifton Bricks argued that this order was not authorised by the relevant legislation.

The central legal issue before the Court of Appeal was whether the District Court judge had the power to dispense with a jury in the circumstances of the case. Specifically, the court had to determine if the judge's order was made pursuant to statutory authority, and if not, whether the trial conducted without a jury constituted a miscarriage of justice.

The Court of Appeal found that the order dispensing with the jury was not authorised by section 79A of the *District Court Act*. Consequently, the trial proceeded without a jury when it should have been a jury trial. This error was considered significant enough to constitute a miscarriage of justice.

The appeal was therefore allowed with costs, and the previous orders were set aside.

Orders

Orders of the court

Appeal allowed with costs - orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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