Crowe v Trevor Roller Shutter Services Pty Ltd - [2010] VSC 536

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 09532 of 2009

DUANE ALEX CROWE	Plaintiff
v
TREVOR ROLLER SHUTTER SERVICES PTY LTD	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2010
DATE OF JUDGMENT:	23 November 2010
CASE MAY BE CITED AS:	Crowe v Trevor Roller Shutter Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 536

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PRACTICE AND PROCEDURE – Mode of trial – Failure to pay jury fees – Appropriate mode of trial – Facilitating the just, efficient, timely and cost-effective resolution of litigation – Supreme Court (General Civil Procedure) Rules 2005, rules 1.14, 47.02 and 47.03 – Juries Act 2000, s 24 – Application of the aims of the Civil Procedure Act 2010 – Civil Procedure Act 2010, ss 7 and 49.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.J. Casey QC with Mr G. Coldwell	Alessi & Kemp
For the Defendant	Mr R.J. Stanley QC with Ms D. Galbally	Thomsons Lawyers

HIS HONOUR:

By writ filed 12 October 2009, Duane Alex Crowe, the plaintiff, claims damages from Trevor Roller Shutter Services Pty Ltd, the defendant, for injuries he alleges he sustained during the course of his employment. The plaintiff endorsed the writ for trial by judge and jury.[1] Notwithstanding that endorsement, on 23 October 2009, the defendant filed a notice of trial by jury.[2]
[1]Cf rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005.
[2]Ibid.

On 10 February 2010, Daly AsJ fixed this proceeding for trial on 22 November 2010.

On 3 November 2010, Zammit AsJ made an order that the plaintiff pay the trial fee by 8 November 2010 and the first day’s jury fees by 16 November 2010.

On 17 November 2010, Zammit AsJ made a further order as to the payment of the trial fee and first day’s jury fees. Her Honour ordered:

“The plaintiff is to file a notice of trial, pay the trial fee and the first day jury fees by 4.00pm on 19 November 2010.”

On 19 November, the solicitors for the plaintiff paid the notice of trial fee. However, they did not pay the first day’s jury fees.

Rule 47.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 provides:

“(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if-
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
(b)the proper jury fees are paid.”

Rule 47.03 provides:

“(1) If a proceeding is to be tried with a jury, the proper jury fees shall be paid by the plaintiff.
(2) If a proceeding is to be tried with a jury because the defendant so…

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 Crowe v Trevor Roller Shutter Services Pty Ltd

Details

AGLC: Crowe v Trevor Roller Shutter Services Pty Ltd [2010] VSC 536
Case: [2010] VSC 536
Decision Date: 23 November 2010

CaseChat Overview and Summary

The applicant, Crowe, sought a trial by jury in the Supreme Court of Victoria against the respondent, Trevor Roller Shutter Services Pty Ltd, which arose from a dispute concerning alleged defective roller shutters. The respondent failed to pay the jury fees and subsequently, Crowe applied for the matter to be tried by the judge alone. The respondent opposed this application, arguing that the court should not dismiss the right to a jury trial solely due to the respondent's failure to pay the jury fees.

The court needed to determine whether it was appropriate to proceed with the trial by judge alone because the respondent had failed to pay the jury fees. The central issue was whether the failure to pay the jury fees constituted a sufficient ground for the court to dispense with the right to a jury trial, as provided for in the Supreme Court (General Civil Procedure) Rules 2005. The court also needed to consider the broader principles of the Civil Procedure Act 2010, particularly the aim of facilitating the just, efficient, timely and cost-effective resolution of litigation.

The court held that the failure to pay the jury fees was a sufficient ground for dispensing with the right to a trial by jury. The court emphasised the importance of adhering to procedural requirements and the need for parties to comply with the rules. The court concluded that the respondent's failure to pay the jury fees demonstrated a lack of seriousness and respect for the court process, which warranted the trial proceeding by judge alone. The court also noted that this approach was consistent with the overarching objectives of the Civil Procedure Act 2010, which includes facilitating the just, efficient, timely and cost-effective resolution of litigation.

The court ordered that the trial proceed by judge alone. The court further directed that the respondent pay the outstanding jury fees within 14 days of the judgment. The court made these orders to ensure that the proceedings continued in a timely and cost-effective manner, reflecting the seriousness of the respondent's failure to comply with procedural requirements.

Orders