Construction Industry Long Service Leave Board v Odco Pty Ltd
[1988] FCA 420
•28 JULY 1988
Re: CONSTRUCTION INDUSTRY LONG SERVICE LEAVE BOARD and EDWIN HOWDEN
And: ODCO PTY. LTD.; BRIAN PAUL GROVES and PAUL JOSEPH BOSA
No. VG202 of 1988
High Court and Federal Judiciary
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)
CATCHWORDS
High Court and Federal Judiciary - Federal Court of Australia - Trade Practices Act 1974 - Power to transfer matters arising under Division 1 or 1A of Part V to State or Territory Court - "interests of justice" - Practical difficulties of providing for trial by jury.
Federal Court of Australia Act 1976 - ss. 39, 40
Trade Practices Act 1974 - ss. 86, 86A
Insurance Commissioner v. Australian Associated Motor Insurers Ltd. (No. 2) (1982) 49 ALR 714
McDermott v. Collien (1953) 87 CLR 154
HEARING
MELBOURNE
#DATE 28:7:1988
Counsel for the Applicants: Mr. P. Bornstein
Solicitors for the Applicants: Freehill Hollingdale & Page
Counsel for the Respondents: Mr. E.D. Lloyd Q.C. and Mr. L. Kaufman
Solicitors for the Respondents: Roth Warren & Co.
JUDGE1
By an application filed on 8 June 1988 the applicants commenced this proceeding. Before the date endorsed on the application, pursuant to Rules 8 and 9 of Order 4, for the hearing of the applicants' claims for interlocutory injunctions and for a directions hearing, the applicants filed and served notice of a motion for those injunctions. The motion was heard and subsequently, on 24 June 1988, dismissed by me. On that day direction was given that the directions hearing not proceed on the date specified in the application for that hearing, 28 June 1988. On 24 June 1988 the parties indicated directions which were sought. On some points they were in agreement. They were in agreement that the applicants should have leave to amend the title of the proceeding by substituting for the word "Paul" therein the word "Peter", and that the applicants should have leave to amend the statement of claim as they might be advised within 7 days, and that further short periods be fixed for further pleadings and for discovery.
In answer to enquiry by me on that day Mr. Bornstein of counsel for the applicants indicated that the applicants sought trial of all issues at the same time. One of the causes of action pleaded in the statement of claim which was filed with the application was libel "throughout Australia", against the three respondents. The statement of claim is disclosed in my reasons for dismissing the motion. Those reasons are to be read as part of these reasons. I assume, but will confirm before pronouncing the orders I propose to make, that amendments of the statement of claim are not intended to delete the causes of action for libel. Mr. Lloyd Q.C., who appeared with Mr. L. Kaufman for the respondents, pointed out that Order 31 allows a party until a date 21 days before the date appointed for trial for filing and serving notice of a motion for an order, pursuant to ss. 39 and 40 of the Federal Court of Australia Act 1976, that that trial be by judge and jury. But, upon my suggesting that I might require immediately an indication whether the respondents would seek an order for jury trial, Mr. Lloyd said that they would.
Mr. Lloyd was put thus to the question whether the respondents desired trial by jury of the issues of fact which the pleadings might raise, and which the evidence adduced on the hearing of the applicants' motion gave good ground for predicting, because I apprehended that the exercise of the discretionary power reposed in this Court to direct the trial of such issues with a jury might be embarrassed, or at the least might be thought by the parties and the public to be embarrassed, in this State by reason of the circumstance that provision for the convenient accommodation of a jury during trial could not easily be made in either of the buildings in which this Court sits in Melbourne, and because I apprehended that the law provided a course which would enable the mode of trial to be determined by the Supreme Court of Victoria without embarrassment of either kind.
On 24 June 1988 ss. 86 and 86A of the Trade Practices Act 1974 afforded this Court power to transfer, of its own motion, each of the matters for determination in this proceeding to the Supreme Court of Victoria. The exercise of that power to transfer to that Court the matters for determination in this proceeding was the course which I thought would enable the mode of trial of the issues of fact arising in those matters to be determined without embarrassment, because that Court tries issues by jury as a matter of course in the exercise of its wide civil jurisdiction. Mr. Bornstein suggested that the Supreme Court might lack power to give adequate relief extending beyond the territory of the State. But s.86A(3)(b) provides that the judgment of that Court in the matter transferred to it is enforceable throughout Australia and the external Territories as if it were a judgment of this Court.
In Insurance Commissioner v. Australian Associated Motor Insurers Ltd. (No. 2) (1982) 49 ALR 714 trial by jury was sought of a proceeding which arose out of television and radio advertisements by a comprehensive insurer of motor vehicles. The advertisements compared the advertising insurer's policies of insurance and terms of renewal with those of the applicant, another comprehensive insurer. The applicant alleged contravention of s.52(1) of the Trade Practices Act 1974 and defamation by the words and images transmitted. Northrop J. applied to ss. 39 and 40 of the Federal Court of Australia Act 1976 the reasoning of Fullagar J. in McDermott v. Collien (1953) 87 CLR 154 upon ss. 12 and 13 of the High Court Procedure Act 1903-1950 to hold that "some special reason must be shown for a departure in any particular case from" the normal mode of trial by judge alone in this Court. That conclusion I respectfully accept and follow. His Honour further concluded that in that case the existence of the "attached claim based on defamation" did not afford a special reason justifying an order for trial by jury, notwithstanding the strong tradition in Victoria in favour of jury trial of actions for defamation.
No application by any party for an order for trial by jury is before me. I do not reach any conclusion as to whether such an application would be granted. It is in my opinion sufficient for present purposes that it should appear not unlikely that such an application would be granted. As to that question, I think good ground might be found for distinguishing the circumstances of this case from those of Insurance Commissioner v. Australian Associated Motor Insurers Ltd. (No. 2). The latter case fell comfortably within the heading of Part V of the Trade Practices Act 1974 : "Consumer Protection". The conduct upon which the proceeding was based was, if misleading, likely to mislead consumers, of a service provided in trade and commerce to a large proportion of the public, about advantages and disadvantages of the service provided by a particular trading corporation, the applicant. Northrop J. was able justly to observe (49 A.L.R. at 717) : "The facts giving rise to the suit are facts which under the Federal Court of Australia Act normally are to be determined by a judge without a jury." In the case before me, on the other hand, the connection between the facts giving rise to the proceeding and the subject of consumer protection is tenuous. It is a case of a trading corporation and its directors asserting that a governmental agency and one of the agency's officers have been guilty of impropriety in dealing with the corporation in the course of exercising the agency's governmental functions. The applicants allege that the assertions are false and therefore misleading or tending to mislead. It is enough for present purposes to say that a controversy of that kind is very much more likely to be found to give rise to the existence of special reason for trial by jury than the controversy with which Northrop J. had to deal, and that it could not be thought unlikely that an application for trial by jury in this proceeding would be granted.
Section 86A(1)(b) of the Trade Practices Act 1974 forbids the transfer of any of the matters for determination in this proceeding unless the Supreme Court of Victoria has power to grant the remedies sought before this Court in the matter and unless it appears to this Court that it is in the interests of justice that the matter be determined by the Supreme Court. The first condition concerning remedies is in my opinion satisfied. I think the other condition is also satisfied. It is in the interests of justice that the determination whether trial by jury is to be ordered be not embarrassed by practical problems concerning the provision of suitable accommodation for a jury. And, more important, it is in the interests of justice that there be no ground for suspecting, in the event that a jury trial were to be refused, that the refusal of trial by jury might have been influenced, even subconsciously, by the existence of those practical problems. I propose, therefore, unless all parties declare themselves content to have the issues tried by a judge alone, to transfer to the Supreme Court of Victoria the matter for determination in this proceeding which arose under Division 1 of Part V of the Trade Practices Act 1974 and also the other matters for determination in this proceeding.
I believe that very few applications have been made for trial by jury of proceedings in the Victoria District Registry. I should make it clear that I have formed no opinion on the question whether an order of the kind I am proposing to make in this proceeding in response to the intimation that a party desires trial by jury would be an appropriate response if such applications were not very infrequent.
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