Costa v Sortino - [2000] NTSC 28

Costa v Sortino & anor [2000] NTSC 28
PARTIES:CARLO COSTA BNF MASSIMO COSTA
v
GIANFRANCO SORTINO
AND
TERRITORY INSURANCE OFFICE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:77 of 1998; (9808742)
DELIVERED:   8 May 2000
HEARING DATES:   4 and 5 May 2000
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Plaintiff:P. Barr
Defendant:G. Schneider
Third Party:  I. Nosworthy
Solicitors:
Plaintiff:Hunt & Hunt
Respondent:  Waters James McCormack
Third Party:  Ward Keller
Judgment category classification:    B
Judgment ID Number:  ril0014
Number of pages:  8

ril0014
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Costa v Sortino & anor [2000] NTSC 28
77 of 1998; No. 9808742

BETWEEN:
CARLO COSTA BNF MASSIMO COSTA
Plaintiff

AND:
GIANFRANCO SORTINO
Defendant

AND:
TERRITORY INSURANCE OFFICE
Third Party

CORAM: RILEY J
REASONS FOR DECISION
(Delivered 8 May 2000)

In this matter the third party, the Territory Insurance Office, has applied for an order that the issue of liability in the proceedings be tried by the Court with a jury. The hearing of the case on liability is listed to commence before me on 26 June 2000.

The proceedings arise out of a motor vehicle accident in which the plaintiff was seriously injured. It seems his injuries may prevent him from giving evidence in support of his own case. In its application the third party points out that the claim of the plaintiff, if successful, is likely to result in a substantial claim for damages.
It is the case of the plaintiff that, at the time of the accident, he was a front seat passenger in the motor vehicle which was being driven by the defendant, Sortino. The plaintiff alleges that the defendant was negligent in driving the vehicle.
The third party alleges that it was the plaintiff who was driving the vehicle and not the defendant. Although both the plaintiff and the defendant now say that the defendant was the driver the third party says that this was not always the case. On the day of the accident both the plaintiff and the defendant claimed that the plaintiff had been driving at the relevant time. At a later time they each changed their stories. One matter that will be in issue in the trial will be whether the plaintiff and the defendant were telling the truth on one or other of those occasions and, if so, which occasion. It will be the case of the third party that both the plaintiff and the defendant have been guilty of telling lies. However it be characterised there would seem to be little dispute that different stories were told at different times.
Order 47.02 of the Supreme Court Rules provides that all proceedings shall be tried without a jury unless the Court orders otherwise in accordance with s 7 of the Juries Act (NT). That section makes provision for the use of juries in civil cases. It is in the following terms:
“(1)The trial of a civil issue or a question of fact in a civil issue shall be by the Court without a jury unless the Court orders otherwise in accordance with this section.
(2)A party to a civil issue may make application to the Court for an order that the issue or a question of fact in the issue be tried by the Court with a jury.
(3)Whether or not such an application has been made, the Court may, if it appears just, order that a civil issue or a question of fact in a civil issue be tried by the Court with a jury.
(4)Where the Court so orders, the jury shall consist of 4 jurors chosen and returned in accordance with this Act.”
The operation of that section has been addressed by the Court of Appeal in Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 1. In that case the Court dealt with a defamation action where the plaintiff sought trial by jury. Each of the Judges on appeal delivered separate judgments. However there was a degree of uniformity in their reasoning on this issue.
O’Leary CJ said (at p10):
“What, in my opinion, is necessary in each case, that an order for trial by jury be made, is that the party seeking it must show some special reason from which it appears just that there should be a departure from the normal mode of trial by Judge alone. By “just” in that context I think is meant “right and fitting” in the interests of both the parties and of the due resolution of the issues joined between them.”
Nader J (at p15) adopted the test proposed by Fullagar J in McDermott v Collien (1953) 87 CLR 154 at 157 where Fullagar J said:
“Trial without a jury is the normal mode of trial of actions in this Court, and some special reason must be shown for a departure in any particular case from that normal mode.”
Asche J (as he then was) observed that, on such an application, generalised argument as to the desirability of trial by jury in civil actions will not be sufficient. He noted that “specific arguments must be raised if an applicant is to have any chance of success.” He then proceeded (at 21) to adopt the test proposed by Fullagar J in McDermott v Collien (supra).
The Juries Act contemplates trials in civil cases being conducted by the Court both with and without a jury. That being so I accept that either method of proceeding is able to produce a satisfactory and fair trial according to law. However the normal mode of trial in such matters is by the Court without a jury and some “special reason” must be identified to justify a departure from that mode. The onus rests upon an applicant seeking departure from the normal mode to satisfy the Court that such an order should be made.
In support of its application the third party has identified nine matters which it suggests provide the special reasons why it is appropriate that a trial by jury ought to be ordered in this matter. In summary those nine matters are as follows:
(1)The plaintiff will be unable to give evidence.
(2)The plaintiff and the defendant say that the defendant was driving and that is disputed by the third party.
(3)The plaintiff and defendant changed their stories from claiming that the plaintiff was driving to claiming that the defendant was driving.
(4)A number of witnesses will be called to give evidence from Italy.
(5)It is not clear whether the defendant will give evidence and this will not be known until immediately prior to the commencement of the hearing.
(6)If successful the award of damages to the plaintiff will be substantial.
(7)The evidence in this matter is likely to involve an analysis of strong issues of fact, and allegations of lies which will have to be put, and inferences to be drawn from the behaviour of the parties and witnesses at the scene, at the Royal Darwin Hospital, and in their subsequent conduct.
(8)The third party is a public instrumentality.
(9)The defendant alleges that he is entitled to be indemnified by the third party pursuant to s 6(1) of the Motor Accidents Compensation Act and if successful in that regard indemnification will come from a fund comprised of compensation contributions paid as a pre-requisite to the registration of motor vehicles.
The third party has pointed out that there are matters where the courts have identified juries as being a “good tribunal” to decide cases: Snell v Sanders (1994) 122 ALR 520 at 525. That is not to say that a trial involving a jury is to be preferred over the normal mode of trial in all such cases. A decision must be made based upon all of the facts and circumstances of the particular matter.
This is not a case where it can be said that the nature of the allegations made require some assessment of “community standards”. Rather it is a case where it is likely that decisions will have to be made regarding competing versions of events. In any event the Juries Act provides for a jury consisting of just four persons. I share the concern expressed by Wilcox J in Snell v Sanders (1994) 122 ALR 520 at 527 that, with a jury of that limited size, it becomes more difficult to be confident that its verdict will reflect community standards and be a decision with which most people would agree if they knew the facts.
The submission that a special circumstance arises in this case by virtue of the third party being a public instrumentality was not developed by reference to authority or principle. The third party administers the compensation scheme established under the Motor Accidents (Compensation) Act and also the statutory fund established in respect thereof. There is nothing unusual in this situation. There is no suggestion that there has been any wrongdoing on the part of the third party and no reason has been put forward for adopting a different approach to applications such as this simply because one party is a public instrumentality.
At the commencement of the hearing of this application Mr Schneider, who appears on behalf of the defendant, indicated that his client may not continue to be represented by solicitors at the hearing of the liability issues. No application was made by Mr Schneider to withdraw from the proceedings at this stage and his firm remains on the Court record. Mr Nosworthy, on behalf of the third party, submitted that the prospect that the defendant may be a litigant in person is a factor in favour of the matter proceeding before a jury. He referred to the observations of Mildren J in Hart v Wrenn and Australian Broadcasting Corporation (1995) 3 NTJ 1281 at 1305 where his Honour took into account the fact that he had an unrepresented litigant before him as a factor in favour of choosing a trial by jury. It is not clear whether his Honour so decided because of matters relating to the particular person then appearing before him. In the present matter I do not regard the fact that one party may appear without legal representation as assisting the applicant. The nature of the relationship between an unrepresented litigant and the trial judge will have to be made very clear to that person whether or not there be a jury present.
The strongest argument in favour of a trial by jury in this matter is that this is likely to be a case of “hard swearing on either side” and where the honour and integrity of witnesses will be at stake. There will be, it is submitted, direct conflict of evidence on matters of fact. It has been held that juries “are essentially a good tribunal” to decide such cases: Ford v Blurton (1922) 38 TLR 801 at 803. However I do not regard that circumstance as being sufficient to warrant the present matter being tried by a jury. There is, of course, no suggestion that matters of that kind cannot be satisfactorily decided by the Court without a jury. There was no submission that a jury would hold any advantage over a court sitting without a jury in the particular circumstances of this matter.
Having considered the matters raised by the third party as being “special” in this case I am unable to identify any which, in the interests of justice, requires a departure from the normal mode of trial. It seems to me that the matters raised are of a nature that is commonly found in proceedings of this kind. Taken individually or in combination they do not create any reason for preferring a trial by jury. In this jurisdiction, over many years, the Court sitting without a jury has satisfactorily dealt with such matters.
In my opinion there is nothing in the circumstances identified which would suggest that the interests of justice make it desirable for the matter to be heard by a jury. I have not been satisfied by the third party that, having regard to the whole of the circumstances, the ends of justice will be better served by trial with a jury than trial by judge alone. The application is dismissed.

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