Foster (a pseudonym) v State of Victoria (Ruling)

[2020] VCC 758

j

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-18-05219

PAUL FOSTER (A PSEUDONYM)	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2020
DATE OF RULING:	5 June 2020
CASE MAY BE CITED AS:	FOSTER (A PSEUDONYM) v STATE OF VICTORIA (Ruling)
MEDIUM NEUTRAL CITATION:	[2020] VCC 758

RULING
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Subject:  CIVIL PROCEDURE

Catchwords:             Mode of trial – jury trial – where Court has suspended all new jury trials until further notice due to COVID-19 pandemic – where the Defendant sought a jury trial – whether proceeding should proceed as a cause

Legislation Cited:     Supreme Court (General Civil Procedure) Rules 2015 (Vic);

Cases Cited:Cossari v Wells [2020] VSCA 133; Wells v Cossari [2020] VCC 512; Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16;

Ruling:  Matter to remain as a jury trial

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Lamb	Slater & Gordon Lawyers
For the Defendant	Mr S Smith QC with Ms M Cameron	Thomson Geer

HER HONOUR:

1       Mr Paul Foster[1],  claims damages in relation to treatment that he alleges he received at 10 years of age, whilst a student at a state primary school, between February 2012 and September 2012. Mr Foster alleges that he was bullied and harassed by students at the school. In addition, Mr Foster alleges that he was sexually assaulted by a fellow student and that this was reported to the school chaplain, but no action was taken. Mr Foster claims that these events have caused him to suffer psychiatric injuries, for which he claims damages.  The defendant denies these allegations.  

[1]A pseudonym

2       This case was originally listed for trial on 29 November 2019, but by consent, was adjourned and re-listed for hearing on 17 June 2020, as a jury trial, with an estimate of 5-7 days.

3       From 16 March 2020, due to health concerns arising from COVID-19, it was announced that, until further notice, no new jury trials would commence in the Supreme Court or County Court of Victoria.  

4       Subject to compliance with the Rules of Court, a party is entitled as of right to seek trial by jury provided the claim is founded in contract or in tort.  This right was enlivened in this case by the defendant, filing the requisite notice within time, and the jury fees have been paid.

5 Where a party has given proper notice that a trial by jury is required, that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury. This power is provided for under rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

6       In written submissions, the defendant  referred to the Court of Appeal decision in Trevor Roller Shutter Service Pty Ltd v Crowe[2] in which it was noted that a party who gives notice in accordance with the Rules has a prima facie entitlement to trial by jury and that party should not be deprived of such an entitlement in the absence of good cause.[3]

[2][2011] VSCA 16

[3]Ibid at [38]; see also Belbin v Lower Murray Urban and Rural Water Corporation (Ruling No 1) [2012] VSC 359, [8]

7       The Court of Appeal most recently considered a matter in which a jury had been dispensed with, in the context of a case affected by the COVID 19 restrictions. In Cossari v Wells[4] in a joint judgment of Justice Beach, Kaye and Osborne, it was noted that “each case must be considered on its merits.”[5]  Relevant issues for the court to consider included the likelihood of the matter being able to be heard as a jury within an appropriate timeframe; and the nature of the issues in the proceeding.[6]

[4][2020] VSCA 133

[5]Ibid at [39]

[6]Ibid at [39]

8       The onus in persuading a court to dispense with a jury trial ordinarily rests with the party making the application, in this case Mr Foster.  In support of his application, I was referred to an affidavit of Mr Foster’s solicitor, Ms Caitlin Lake, sworn on 15 November 2019, at the time the case was previously adjourned.  Ms Lake referred to a delay in the defendant’s discovery of documents and stated that was part of the reason the matter needed to be adjourned at that time.  It was submitted that this prior adjournment, should be a factor to persuade me that the case should proceed now, without further delay.

9        In addition, Mr Foster affirmed an affidavit on 2 June 2020, in which he stated that he was desirous of the case not being “dragged out any longer” as he worries about the case constantly, and that he feels it has impacted and continues to impact upon his studies.

10      With the recent easing of social distancing, there is now optimism that jury trials will resume at some stage this year. However, the focus will initially be on criminal trials. As matters currently stand there is no real likelihood of a civil jury trial commencing this year.  The arrangements for juries will be reviewed in the coming months.  However, at this time, I accept that if I do not order that the jury in this case is dispensed with, an adjournment of six months will be an almost certain consequence.

11      Mr Lamb submitted that in circumstances where the case is now ready to proceed, the dictates of justice demanded that I dispense with the jury and order that it proceed now as judge alone.

12      The defendant opposed the application and sought to maintain its right to a jury trial.   Whilst it acknowledged that this would likely result in an adjournment of at least six months, it was submitted that there was a particular reason in this case, which justified such a delay. Mr Foster makes serious allegations against the student who he alleges sexually assaulted him, including an allegation of rape. In addition, Mr Foster alleges that this was reported to the school chaplain and that this was not actioned, despite mandatory reporting obligations.  The defendant denies these allegations and intends to call both the student and chaplain as witnesses at the trial, to support such denials.

13      The defendant submitted that unlike a jury trial where a verdict simply involves yes or no answers to a question or questions asked to determine the defendant’s liability; a judge alone trial would require a written judgment. As this damages case involves allegations of sexual assault, the trial judge would need to make express findings in respect of Mr Foster’s evidence, as well as that of the student. If the trial judge prefers Mr Foster’s evidence, this may expose the student to serious criminal charges being laid against her.

14      Equally, if the trial judge accepts that Mr Foster complained to the school chaplain and no action was taken, then that chaplain may also be exposed to serious criminal charges for failing to comply with mandatory reporting obligations.  It was submitted that if the case proceeds as a jury, no such express findings will arise from a jury verdict.

15      In response to such submissions, Mr Lamb stated that the sexual assault allegations had been reported to the police in early 2013 and no charges were laid.  It was suggested that the student’s young age was such that there was uncertainty there was legal capacity to commit the crime, and the prospects of criminal charges was very low.  I am not assured by these submissions. I accept that if the trial judge prefers Mr Foster’s evidence, a written judgment may expose both the student and chaplain to serious criminal charges being laid.

16      I am also concerned that any adverse findings in respect of the student and chaplain, by the trial judge in a published judgment (or even unpublished judgment) has the potential to have devastating consequences to their personal and/ or professional reputations. Such concerns may be alleviated by the use of pseudonyms in respect of such witnesses’ names, but this remains a matter of uncertainty and concern, that I note only arises if the case proceeds as a judge alone trial.  

17      I accept the defendant’s submissions that for the student and chaplain against whom Mr Foster makes serious allegations, there is the potential for very serious prejudice to them both, if the case proceeds as a cause and a judge makes adverse findings against them.  I am mindful that neither are a party to the proceeding; neither have a capacity to determine whether this case proceeds to trial or is settled; and neither will be legally represented at the trial.

18      As I have previously ruled in numerous cases affected by the suspension of jury trials due to COVID 19, it is generally desirable for a case such as this to proceed in a timely manner. Following a previous adjournment of his case, I accept that Mr Foster is especially desirous to avoid ongoing distress to him and a distraction from his study.  However, if the jury is dispensed with now to enable the case to proceed on the allocated date, I am satisfied that there is the potential of very serious consequences to two individuals, who are not parties to the litigation. In weighing up the competing considerations in this application, I am satisfied that this is one such case where the nature of the proceedings are such that the dictates of justice demand that this case remain a jury trial, notwithstanding the inevitable delay associated with this.