Dinnison v Commonwealth of Australia

FEDERAL COURT OF AUSTRALIA

Dinnison v Commonwealth of Australia [2000] FCA 1841

PRACTICE & PROCEDURE – Jury in civil proceedings – whether departure from usual mode of trial warranted.

Federal Court of Australia Act 1976, ss 39, 40

McDermot v Collien (1953) 87 CLR 154 applied
Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 1 followed

BARRIE CHARLES DINNISON v COMMONWEALTH OF AUSTRALIA
NG 572 of 1991

JUDGE:        WHITLAM J
DATE:          14 DECEMBER 2000
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 572 OF 1991

BETWEEN:	BARRIE CHARLES DINNISON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	14 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applicant’s motion for a jury trial is refused.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 572 OF 1991

BETWEEN:	BARRIE CHARLES DINNISON APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGE:	WHITLAM J
DATE:	14 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a motion for jury trial.  The applicant seeks an order that this proceeding be “heard with a jury”.  In the proceeding the applicant claims against the respondent (“the Commonwealth”) damages in respect of personal injuries.

2. Sections 39 and 40 of the Federal Court of Australia Act 1976 provide as follows:

   “39.In every suit in the Court, unless the Court or a Judge otherwise orders, the trial shall be by a Judge without a jury.

   40.The Court or a Judge may, in any suit in which the ends of justice appear to render it expedient to do so, direct the trial with a jury of the suit or of an issue of fact, and may for that purpose make all such orders, issue all such writs and cause all such proceedings to be had and taken as the Court or Judge thinks necessary, and upon the finding of the jury the Court may give such decision and pronounce such judgment as the case requires.”

3. These provisions are in substantially the same form as ss 12 and 13 of the High Court Procedure Act 1903, which were considered by Fullagar J in McDermott v Collien (1953) 87 CLR 154. His Honour described the “general policy” laid down by such provisions this way (at 157):

   “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.”

4. The same view has been taken of similar provisions governing proceedings in the Supreme Court of the Northern Territory – Nationwide News Pty Ltd v Bradshaw (1986) 41 NTR 1; 84 FLR 49, and in the Supreme Court of the Australian Capital Territory – Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356.

5. Similar provisions were also considered in the Supreme…