Denney v Cassar
[2012] VSC 246
•7 JUNE 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 03845
| JOHN DENNEY | Plaintiff |
| v | |
| CHRISTIAN CASSAR | Defendant |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 JUNE 2012 | |
DATE OF RULING: | 7 JUNE 2012 | |
CASE MAY BE CITED AS: | DENNEY v CASSAR | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 246 | |
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Practice and Procedure – mode of trial – jury - whether defendant signified for trial by jury in compliance with r 47.02(1) – late payment of first day’s jury fees after proceeding fixed for trial but prior to trial date – court’s discretion to order trial without a jury – onus – relevant considerations – application for trial by judge alone refused – Juries Act 2000 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 47.02, 47.03.
Jury – prima facie entitlement - whether defendant signified for trial by jury in compliance with r 47.02(1) – late payment of first day’s jury fees after proceeding fixed for trial but prior to trial date – court’s discretion to order trial without a jury – onus – relevant considerations – application for trial by judge alone refused – Juries Act 2000 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 47.02, 47.03.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Riordan SC with Mr S.D. Martin | Burt & Davies |
| For the Defendant | Ms F.M. McLeod SC with Ms A.M. Magee | Solicitor to T.A.C. |
HIS HONOUR:
The plaintiff applied, orally, at the commencement of the trial for an order that a judge sitting alone hear this trial. The application was made on notice, by letter, to the defendant.
The relevant circumstances are these:
(a)The plaintiff sustained an injury in a motor vehicle accident on 17 January 2010;
(b)The plaintiff obtained a serious injury certificate and he commenced this proceeding by writ filed 21 July 2011, specifying that the trial be by judge sitting alone;
(c)On 18 November 2011, the defendant filed an appearance and a notice pursuant to r 47.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 that the defendant requires trial before a jury of six;
(d)The parties’ solicitors provided agreed information for the first directions hearing in the proceeding that indicated that the mode of trial was before a judge and jury and that its estimate of duration was ‘approximately five sitting days’;
(e)On 7 December 2011, Zammit AsJ fixed the proceeding for trial on 6 June 2012, on an estimate of five sitting days. A notice of hearing was, on 14 December 2011, dispatched to the parties’ legal representatives;
(f)On 16 December 2011, the Prothonotary informed the plaintiff’ solicitors that consequent upon that order the plaintiff was required by 6 May 2012 to file a notice of trial and pay a setting down fee of $1,328.30 for trial by judge and jury of six;
(g)Zammit AsJ’s order also referred the proceeding to mediation. At the conclusion of the mediation, the plaintiff’s solicitors informed the defendant’s solicitors that the defendant had not paid the jury fees;
(h)The defendant’s solicitor has sworn that the defendant paid the first day’s jury fees the following day because non-payment was drawn to her attention. She states, and I accept, that non-payment of the jury fees prior to 4 May 2012 was due to an administrative oversight;
(i)When the proceeding was not resolved at mediation, civil list callover forms were sent to the parties’ solicitors, and on 8 May 2012, each of the solicitors informed the court that the proceeding was ready for trial and the estimated duration of the hearing was five days;
(j)On 4 June 2012, the plaintiff’s solicitors wrote to the Prothonotary, referring to the dilatory payment of jury fees and the absence of an application to extend time in which to pay the fees. The plaintiff suggested that the proceeding be listed for trial before a judge sitting alone;[1]
(k)The listing associate justice had already allocated a trial judge (in the juries list). On 5 June 2012, my associate inquired of the parties whether there were any matters which would delay a jury empanelment at 10.30 am on 7 June 2012, and sought particulars of appearances, a list of witnesses to be called and confirmation of the five day estimate;
(l)Apart from confirming that this application would be made for trial by judge alone, no further information was provided in response to this request by either party;
(m)In early May 2012, there was relevant correspondence between the parties’ solicitors. The plaintiff’s solicitors foreshadowed their intention to make this application pursuant to r 47.03(3). The defendant’s solicitors, by their response, noted that the Prothonotary’s letter to the plaintiff’s solicitors of 16 December 2011 had not been copied to them and that the notice of trial had been filed and the setting down fee (less the first day’s jury fees) paid by the plaintiff on 4 May 2012. The defendant’s solicitors observed that the defendant’s intention to proceed with trial by jury had been acknowledged by the plaintiff’s solicitors since at least 22 November 2011 and disputed that the plaintiff was prejudiced by the delay in payment of jury fees on the same day as the plaintiff filed its notice of trial and paid the setting down fee. Thereafter the correspondence between the solicitors rehearsed the arguments presented to me. None of these matters was drawn to the attention of the listing associate justice prior to the allocation of the proceeding to a judge for the trial. The court’s records showed that a receipt for the first day’s jury fees had been filed by the defendant on 4 May 2011.
[1]This request reflects the procedure before the amendment of r 47.03(3) in 2011.
The mode of a trial is determined by reference to r 47.02. A proceeding commenced by writ and founded on tort shall be tried with a jury if the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the defendant desires to have the proceeding so tried and the prescribed fees for the purposes of s 24 of the Juries Act 2000 are paid.
Sub-rule 47.02(3) provides:
(3)Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
Rule 47.02(1) was amended in 2011 following Trevor Roller Shutter Service Pty Ltd v Crowe.[2] The Court of Appeal dealt in that proceeding with the apparent inconsistency between the requirements of r 47.03(2) and s 24 of the Juries Act 2000 at the recipient of the funds to pay jury fees. That inconsistency was the object of the subsequent amendment of the Rules.
[2][2011] VSCA 16.
The Rules, like the Act, now explicitly provide for payment to the Prothonotary and there is no longer reference to payment of jury fees to the plaintiff’s solicitor. The identity of the recipient of the payment is not an issue on this application. Rather, the plaintiff contends that the defendant’s default in compliance with r 47.03(2) entitles him to an order that the trial be, as he has always desired, by judge sitting alone. Rule 47.03(2) provides:
(2)If a proceeding is to be tried with a jury because the defendant so signified by notice in writing, the prescribed fees shall be paid by the defendant to the Prothonotary within 14 days after the date is fixed for the trial of the proceeding.
The 14-day period limited by this rule commences at the time ‘the date is fixed for the trial of the proceeding’. That time was possibly a little obscure in the present circumstances where an order was made on the papers on the basis of a consent minute that the trial be fixed for hearing ‘not before 4 June 2012’ and the notice of hearing was dispatched from the court on 16 December 2011. Presumably the order, which was not authenticated until 30 December 2011, followed later. The effect of the order is that the trial date was fixed on 7 December 2011 and the relevant period ended on 21 December 2011.
The court has discretion to vary the mode of trial that is, depending on the circumstances, exercisable under either r 47.02(3) or r 47.03(3). Under the former rule, the court may in its discretion change the mode of trial notwithstanding any signification by the parties. Under the latter, the court may in its discretion vary the mode of trial in the case of a failure to pay, or a late payment of, the prescribed jury fees. As is made clear in Altmann v Dunning,[3] civil litigants have a right to choose between trial by judge alone and trial by jury but that right is limited by the constraints evident in the Rules within which the choice must be made. Outside those constraints, the automatic right is lost and subordinated to the general discretion of the court. Rule 47.02(3) plainly envisages interference with a litigant’s choice where such interference is warranted by the dictates of justice.
[3][1995] 2 VR 1, 6.
The driving considerations that influence the exercise of discretion under r 47.02(3) were not in dispute before me.[4] Recently, in Birti v SPI Electricity Pty Ltd & Ors[5] J Forrest J reviewed, in the light of Trevor Roller Shutter Service and the amended form of order 47, his earlier consideration[6] of the factors guiding the discretion under r 47.02(3). I would, with respect, gratefully adopt Forrest J’s analysis of the list of relevant considerations were I called upon to exercise a discretion under r 47.02(3).
[4]Altmann v Dunning [1995] 2 VR 1; Pezzimenti v Seamer [1995] 2 VR 32; Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; and the cases noted in fn 6 below.
[5][2011] VSC 566 (11 November 2011), 3 [15].
[6]Deka v Johns [2009] VSC 296; Gunns Ltd v Marr (No 5) [2009] VSC 284; Messade v Baires Contracting Pty Ltd (rulings 2, 3 and 4) [2011] VSC 75.
The plaintiff conceded that the defendant had signified for trial with a jury as required by r 47.02(1) and he did not seek to persuade me to exercise the discretion under r 47.02(3). This concession is correctly made. It is clear that the defendant did appropriately signify for trial with a jury at the time he filed his appearance. Further, the prescribed fees for the purposes of s 24 of the Juries Act 2000 have been paid. In this context, it is the fact of payment, not timely payment, that is relevant. I shall explain why that is so.
In Trevor Roller Shutter Service, the Court of Appeal observed:
16Section 24 does not provide expressly for the time in which the jury fees for the first day of a trial are to be paid. But, for the reasons which follow, we consider it to be implicit in s 24, and in particular in ss 24(4) and (5), that, subject to any applicable rule, the jury fees for the first day of a trial may be paid at any time before the trial begins or, if an order is made under s 24(4) extending time for payment, by the end of the first day of the trial. We also think it to be implicit in the section that the fees must be paid to the Prothonotary.
The limitation expressed by the Court of Appeal ‘subject to any applicable rule’, which must now be taken as a reference to r 47.03, applies to the time for payment not the purpose of the payment referred to in r 47.02(1)(b). There is a distinction between the time for, and purpose of, payment of jury fees. That distinction is presently relevant. The purpose of the payment of fees is plainly to put the court in funds to pay jurors before jury service is performed. Purpose is relevant to signification of the mode of trial, the subject of r 47.02. Rule 47.03 is concerned with a more mundane concern, namely collection of the fees due. Notwithstanding the use of the mandatory ‘shall’, it is not in doubt that the court may, subject to s 24(4) of the Act, extend the time fixed by r 47.03(2) for payment of jury fees, acting pursuant to r 3.02(1) where circumstances appropriate for the exercise of that discretion are established. The court may extend that time after the period limited by the rule has expired whether or not an application for extension of time is made before the time expires. The discretion provided for under r 47.03(3), to be exercised in case of a default in payment of the jury fees within the time limited, confirms my view that on its proper construction the requirement that jury fees are paid as part of the signification of, or prima facie right to, trial by jury is directed towards the fact, rather than the timing, of the payment of jury fees.
So understood, the discretion under r 47.03(3) ordinarily arises where there is, or has been, procedural default in relation to the payment of jury fees, in more limited circumstances than the discretion under r 47.02(3). In that more limited context not all of the considerations identified as relevant when exercising the discretion under r 47.02(3) will apply.
Rule 47.03(3) was amended in 2011. Formerly, r 47.03(3) provided that if a defendant who had signified for jury trial did not pay the jury fees within time, the plaintiff could set the proceeding down for trial without a jury, unless the court otherwise orders. The rule now provides:
(3)In case of a default under paragraph (1) or (2), the Court may order that the proceeding be tried without a jury.
The amendment appears to switch the onus of persuading the court to retain the mode of trial originally signified. Although the question of who bears the onus to persuade me to exercise this discretion was debated, the application will not be resolved by reference to that consideration. The plaintiff bears that onus because the defendant has satisfied r 47.02(1) and unless the plaintiff can persuade the court to order that the proceeding be tried without a jury then mode of trial remains as signified, despite the late payment of the jury fees. The plaintiff pointed to the mandatory language of r 47.03(2) and the absence of an application by the defendant to extend time, contending that because the jury fees were not paid in accordance with r 47.03, the ‘prima facie entitlement’ following on the proper procedural signification was lost.
The plaintiff submitted that having defaulted, by paying the jury fees outside the time limited without a permitting order, cast upon the defendant an onus to persuade the court to order that the proceeding be tried with a jury. I do not accept this submission. The rule does not provide that failure to pay jury fees within the time limited disentitles the party who has signified for trial by jury from that mode of trial unless the court otherwise orders. Rather, when there has been default, the court has a discretion to order that the proceeding be tried without a jury, despite the ‘prima facie entitlement’ effected by signification under r 47.02(1). Correctly construed, the ‘prima facie entitlement’ is not automatically lost on non-payment of the first day’s jury fees within the time limited. The discretion under r 47.03(3) more closely resembled the discretion under r 3.02 than the discretion under r 47.02(3).
The defendant orally submitted that, if it be necessary, I ought to, in the present circumstances, extend the time, now for then, under r 47.03(2) to 4 May 2012. The defendant carries the onus of persuading me to extend time, which, if granted, provides a complete answer to the plaintiff’s application. I am disposed to grant that application for these reasons. First, I accept that a satisfactory explanation for non-compliance with the rule has been provided by the defendant‘s solicitor. Second, the time limit under s 24(4) of the Act had not expired. Third, I am not satisfied that the plaintiff will suffer any relevant prejudice if this discretion is exercised in the defendant’s favour. The issue of prejudice is the key consideration whether the discretion being exercised is that under r 3.02(1) or that under r 47.03(3). On that consideration I would also decline to direct trial without a jury under r 47.03(3), for the following reasons.
The circumstances in this proceeding are different from those in Altmann v Dunning or Deka v Johns. It is clear that the parties have always clearly understood that the defendant signified for trial by jury. They have each prepared for trial on that basis. Although it was asserted that the parties mediated the proceeding in the context of non-payment of the jury fees, I am not satisfied that the plaintiff was labouring under the misapprehension that affected the parties in Deka v Johns,[7] namely not appreciating that the trial might be before a jury when proceeding through interlocutory stages. While it is true that the plaintiff has always sought trial by judge alone, he has understood that the defendant has appropriately certified for a jury trial, as is his entitlement. I am satisfied that the plaintiff’s loss of a tactical opportunity to press for its preferred mode of trial is, in the circumstances, not relevant prejudice.
[7][2009] VSC 296, 3 [10].
For these reasons I am not disposed to accept the first prejudice consideration raised by the plaintiff – that the matter has proceeded without the payment of fees since the setting down until after the mediation – as a basis to exercise a discretion in his favour. The second consideration suggested is that the defendant has not sought to be excused from its failure to comply with a mandatory provision. I have already dealt with this consideration.
Next, the plaintiff has informed the court during the application that 18 to 20 witnesses will be called during the trial, which, if heard before a judge alone, is estimated to take five to seven days but if heard before a jury is likely to take 12 to 15 days. It might be thought that these estimates particularly in relation to the disparity between modes of trial were not particularly reliable. A variance of 5–15 days for an assessment is in itself suggestive of unreliability. In any event, the most optimistic estimate, in efficiency terms, is 30 percent greater than the estimate consistently given by the parties to the court. Experience shows that jury trials do take more time than causes but for the reasons explained in Trevor Roller Shutter Service[8] that consideration, while relevant to the exercise of discretion, is not determinative.
[8][2011] VSCA 16, 14 [38]-[44].
The plaintiff submitted that the circumstances of Trevor Roller Shutter Service were distinguishable from the present case and that I might disregard the observations made by the Court of Appeal because the defendant had, by failing to pay the jury fees within the time limited, been deprived of its prima facie entitlement to trial by jury. For the reasons that I have discussed, I do not accept that this is so. Accepting that the basis on which I form my own estimate of the likely length of the trial is relevantly uninformed, I think it probable that, as a cause, the trial would take approximately seven days and, as a jury, would take approximately 11 days. The plaintiff accepted, correctly, that the greater efficiency of trial before a judge alone is not sufficient, of itself, to override the prima facie entitlement of a party to select trial by jury, if the signifying party remained so entitled.
Being satisfied that the defendant has not, in the circumstances, forfeited its prima facie entitlement to trial by jury, the observations of the Court of Appeal in Trevor Roller Shutter Service [9] are apposite and I take those matters into account in not exercising my discretion in favour of the plaintiff for trial before a judge without a jury. I do not accept that there is any relevant prejudice to the plaintiff from this consideration.
[9]Ibid.
For these reasons, notwithstanding the default in the payment of the jury fees from 14 days after the proceeding was fixed for trial until 4 May 2012, I ruled that the proceeding be tried with a jury. The plaintiff’s application is dismissed and I will hear counsel on the question of costs.
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