Deka v Johns - [2009] VSC 296

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

MAJOR TORTS LIST

No. 121 of 2008

VERONICA DEKA	Plaintiff
v
MANEE JOHNS	Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2009
DATE OF RULING:	17 July 2009
CASE MAY BE CITED AS:	Deka v Johns
MEDIUM NEUTRAL CITATION:	[2009] VSC 296

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PRACTICE AND PROCEDURE – Supreme Court (General Civil Procedure) Rules 2005 r 47.02 – Application by defendant for trial by jury - Right to trial by jury – Late filing of defendant’s Jury Notice and Notice of Appearance – Mediation held prior to jury notice being given – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Anderson	Ryan Legal
For the Defendant	Ms R. Boyce	Solicitor to the Transport Accident Commission

HIS HONOUR:

This is an application made orally by the defendant, Manee Johns, at a Major Torts Directions Hearing to either confirm her right to a trial by jury, having given notice purportedly in accordance with r 47.02(1), or alternatively to seek to have the Court exercise its discretion pursuant to r 47.02(2) to order that the trial of this proceeding be heard by a jury.

The relevant facts of the case can be summarised as follows:

(a) The plaintiff sustained injury in a motor vehicle accident on 2 May 2006.

(b) On 11 August 2008, the plaintiff issued a writ in the major torts list seeking trial by judge alone at Melbourne.

(c) On 18 September 2008, the defendant filed a defence notwithstanding that she had not filed an appearance to the proceeding.

(d) On 12 September 2008, Kaye J made orders in the major torts list as to the future conduct of the proceeding.

(e) The interlocutory steps were completed and, of note, a mediation was held on 28 April 2009.

(f) The defendant, having appreciated that she had filed neither an appearance nor a notice requiring trial by jury, on 5 May 2009 took both those steps.

The defendant now contends: firstly, that she has complied with the rules and that the jury notice given on 5 May is valid compliant with r 47.02(1), the appearance having been entered in accordance with r 8.07. Secondly, that alternatively, if she does not persuade me as to the validity of that contention that there is an overriding discretion reposed in the Court, to order trial by jury pursuant to r 47.02(2).

The plaintiff opposes the application, and says that it is far too late for the defendant to seek a jury trial given that this matter has been to a mediation, and will be placed in the list of cases to be fixed by the Associate Justice this afternoon for trial. Secondly, that reliance on r 8.07 produces a bizarre outcome inconsistent with the tenor of r 47.02(1).

It was accepted by the plaintiff that, notwithstanding the absence of any affidavit material, the failure by the defendant to file the jury notice and the appearance was an…

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 Deka v Johns

Details

AGLC: Deka v Johns [2009] VSC 296
Case: [2009] VSC 296
Decision Date: 17 July 2009

CaseChat Overview and Summary

The matter of Deka v Johns came before the court, where the defendant sought a trial by jury under the Supreme Court (General Civil Procedure) Rules 2005, Rule 47.02. The defendant was late in filing the required Jury Notice and Notice of Appearance. Prior to this, a mediation was held between the parties, which did not result in a settlement. The plaintiff argued that the late filing and the prior mediation should preclude the defendant from exercising their right to a jury trial.

The court was tasked with determining whether the defendant's delay in filing the Jury Notice and the fact that a mediation had already occurred were sufficient grounds to deny the defendant's application for a jury trial. The court considered the principles of procedural fairness and the purpose of Rule 47.02, which allows a defendant to request a jury trial. The court also had to examine the impact of the mediation on the timing of the defendant's application.

In its reasoning, the court emphasised the importance of strict compliance with procedural rules, particularly those related to the right to a jury trial. The court found that the defendant's failure to file the Jury Notice within the prescribed timeframe, and the fact that a mediation had already been conducted, were significant factors. The court concluded that these circumstances warranted the denial of the defendant's application for a jury trial, as allowing the application would undermine the integrity of the procedural process.

Accordingly, the court refused the defendant's application for a jury trial. The court's decision was grounded in the need to maintain the timeliness and fairness of procedural steps, ensuring that the rules governing jury trials are observed. The denial of the application was a direct consequence of the defendant's failure to adhere to the procedural requirements within the stipulated timeframe.

Orders