Combined Excavations & Supplies v Bowis - [2000] NSWCA 298

CITATION: Combined Excavations & Supplies v Bowis [2000] NSWCA 298

FILE NUMBER(S): CA 40310/00

HEARING DATE(S): 16 October 2000

JUDGMENT DATE:
30 October 2000

PARTIES :

Combined Excavations & Supplies Pty Ltd
(Appellant)
v
Paul James Bowis
(Respondent)

JUDGMENT OF: Spigelman CJ at 1; Heydon JA at 27; Davies AJA at 73

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 868/99

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: A: Mr J Hatzistergos
R: Mr D Ronzani

SOLICITORS: A: Vandervords
R: P D Banister

CATCHWORDS: District Court - discretion to dispense with trial by jury - what factors are relevant to the exercise of the discretion - whether considerations of a universal character relevant to jury trial may be relied on - whether the factor relied on must be significant and specific - whether primary Judge erred in dispensing with jury.

LEGISLATION CITED: District Court Act 1973, ss 77-79A
Evidence Act 1995, s 144
Supreme Court Act 1970, s 85-87, 89

CASES CITED:
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Smoje v Trend Laboratories Pty Ltd (Cole J, 27/5/88, unrep)
Forbes Services Memorial Club Limited v Hodge (C/A, 8/5/95, unrep)
Nankervis v Ulan Coal Mines Ltd [1999] NSWSC 899
Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90
Langford v Turnbull (Kirby P, 29/5/90, unrep)

DECISION: Appeal allowed and order below set aside. See para 95.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40310/00
DC 868/99

SPIGELMAN CJ
HEYDON JA
DAVIES AJA

Monday 30 October 2000

COMBINED EXCAVATIONS & SUPPLIES PTY LIMITED v
PAUL JAMES BOWIS
JUDGMENT

1    SPIGELMAN CJ: The statutory provisions and submissions are outlined in the judgment of Heydon JA which I have read in draft. This appeal proceeded on the basis that the decision in Pambula District Hospital v Herman (1988) 14 NSWLR 387 was applicable. The issue before this Court was whether Delaney DCJ correctly applied the principles in that case.
2    On one of the formulations by Kirby P at 407C: the Appellant’s contention was that his Honour took into account “considerations of a universal character relevant to jury trials as such” and the Respondent contended that his Honour took into account the “impact which such considerations may have in the particular case”.
3    This raises a question of characterisation on which reasonable minds can and will differ. As Heydon JA notes, Kirby P said in Forbes Services Memorial Club Limited v Hodge (Supreme Court of NSW, Court of Appeal, 8 March 1995, unreported):

“This case has demonstrated that in the application of the principles in Pambula , universal considerations and particular attributes of the particular case will sometimes merge into each other.”

4    Delaney DCJ stated his reasons as follows:

“In this case, to not accede to the application made by the Applicant, would be compared to the other litigants in this jurisdiction, disadvantage the plaintiff in the following ways:

1. The case would have to transferred to Sydney with the attendant uncertainties…

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.

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Details

Case: [2000] NSWCA 298
Decision Date: 30 October 2000

CaseChat Overview and Summary

Combined Excavations & Supplies Pty Ltd (the appellant) appealed to the Supreme Court of New South Wales against an order of the District Court of New South Wales that dispensed with a trial by jury in proceedings brought by Mr. Bowis (the respondent). The core of the dispute concerned the exercise of the District Court's discretion under section 125 of the *Civil Procedure Act 2005* (NSW) to dispense with a jury trial.

The appeal required the Court to determine several key legal issues. These included what factors are relevant to the exercise of the discretion to dispense with a jury trial, whether considerations of a universal character that favour jury trials may be relied upon by a party seeking to retain a jury, and whether the factor relied upon to dispense with a jury must be significant and specific to the case. The Court also had to consider whether the primary judge erred in dispensing with the jury in this particular instance.

The Court reasoned that while the general preference for jury trials in civil matters is a relevant consideration, it is not determinative. The discretion to dispense with a jury is broad, but it must be exercised judicially. The Court held that the primary judge had erred by focusing on considerations that were of a universal character, such as the complexity of the evidence, without identifying specific reasons why those considerations would make a jury trial inappropriate in this case. The Court emphasised that the reasons for dispensing with a jury must be significant and specific to the particular proceedings, demonstrating that a jury trial would be unsatisfactory or unjust.

The appeal was allowed, and the order of the District Court dispensing with a jury trial was set aside.

Orders

Orders of the court

Appeal allowed and order below set aside. See para 95.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Combined Excavations & Supplies v Bowis [2000] NSWCA 298
FILE NUMBER(S):	CA 40310/00
HEARING DATE(S):	16 October 2000
JUDGMENT DATE:	30 October 2000
PARTIES :	Combined Excavations & Supplies Pty Ltd (Appellant) v Paul James Bowis (Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Heydon JA at 27; Davies AJA at 73

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	868/99
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	A: Mr J Hatzistergos R: Mr D Ronzani
SOLICITORS:	A: Vandervords R: P D Banister
CATCHWORDS:	District Court - discretion to dispense with trial by jury - what factors are relevant to the exercise of the discretion - whether considerations of a universal character relevant to jury trial may be relied on - whether the factor relied on must be significant and specific - whether primary Judge erred in dispensing with jury.
LEGISLATION CITED:	District Court Act 1973, ss 77-79A Evidence Act 1995, s 144 Supreme Court Act 1970, s 85-87, 89
CASES CITED:	Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Smoje v Trend Laboratories Pty Ltd (Cole J, 27/5/88, unrep) Forbes Services Memorial Club Limited v Hodge (C/A, 8/5/95, unrep) Nankervis v Ulan Coal Mines Ltd [1999] NSWSC 899 Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 Langford v Turnbull (Kirby P, 29/5/90, unrep)
DECISION:	Appeal allowed and order below set aside. See para 95.