Francis v Bunnett
[2006] VSC 278
•31 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5388 of 2006
| LOUISE FRANCIS | Plaintiff |
| v | |
| CHRISTOPHER LINDSAY BUNNETT | Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2006 | |
DATE OF JUDGMENT: | 31 July 2006 | |
CASE MAY BE CITED AS: | Francis v Bunnett | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 278 | |
PRACTICE AND PROCEDURE – Application under rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 for direction for trial without a jury – Plaintiff signified under r 47.02(1) desire to have proceeding tried with a jury – Claim for damages for lost opportunity – Defence of immunity from suit - Application made before provision of particulars of statement of claim and defence – Issues not crystallised – Whether issues raised by pleadings too complex for trial by a jury
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J G Levine | Frank A Sanna |
| For the Defendant | Mr D J Christie | Lander & Rogers |
HER HONOUR:
This is an appeal from an order of the Master on 5 June 2006, dismissing the defendant’s application under Order 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”) for a direction that the proceeding be tried without a jury.
The appeal is a re-hearing de novo under r 77.05(7) of the Rules.
The proceeding
The plaintiff claims that the defendant breached his retainer (“the retainer”) to act as her solicitor in a County Court proceeding in which she claimed damages for personal injury (“the County Court proceeding”). The County Court proceeding was settled and judgment entered for the plaintiff, on 23 March 2004, in the sum of $108,000, together with indemnity costs.
The plaintiff has signified her desire for trial by jury in the writ filed on 27 Mach 2006, commencing this proceeding.
Rule 47.02
Rule 47.02 is in the following form:
47.02 Mode of trial
(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.
(2)Any other proceeding shall be tried without a jury, unless the Court otherwise orders.
(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.
(4) Trial with a jury shall be with a jury of six.
The material before the Court
The defendant relies upon an affidavit sworn in support of his application on 23 May 2006 by his solicitor, Harry Curtis (“the Curtis affidavit”). The plaintiff relies upon her own affidavit in opposition sworn on 2 June 2006 (“the Francis affidavit”).
The Curtis affidavit points out that the plaintiff has not consented to the defendant’s solicitors’ suggestion that the trial be heard by a judge alone. It goes on to set out Mr Curtis’s view that the action should not be tried by a jury. Mr Curtis bases that view upon his opinion that any jury would need to consider difficult issues as to :
(a)the nature of the retainer and of the defendant’s obligations to his client;
(b)the assessment of the value of the plaintiff’s alleged lost opportunity to take the settled claim to trial; and
(c)the defendant’s claimed immunity from suit.
The Francis affidavit, on the other hand, records the plaintiff’s “negative experiences” when dealing with the legal profession and her discomfort with the notion of the matter being tried by judge alone. The plaintiff alleges that she has had unsatisfactory dealings with a number of the solicitors she has retained and also with the members of counsel involved in the County Court proceeding. She expresses the wish to obtain the judgment of her peers.
The statement of claim and the defence
By her statement of claim annexed to the writ, the plaintiff alleges that the defendant breached the retainer by :
(a)continuing to act after the retainer had been terminated, orally, in the course of a conversation between them on 24 March 2000;
(b)consenting to settle the County Court proceeding on 28 March 2000, without instructions;
(c)alternatively, failing to provide her with any or any proper advice as to the likely amount of damages she might recover, to enable her to make an informed decision about settlement;
(d)failing to prepare her case for trial properly, or at all;
(e)failing to obtain the necessary medical reports and expert evidence so as to be able to properly advise her about the likely amount of damages recoverable;
(f)failing to amend the statement of claim in the County Court proceeding to include claims for false imprisonment and malicious prosecution and exemplary damages; and
(g)failing to prepare and serve up to date particulars of loss and damage.
By his defence, filed on 11 May 2006, the defendant admits the retainer and his duty of care, but denies the plaintiff’s allegations of breach. The defendant denies the alleged conversation on 24 March 2000, terminating the retainer, and alleges that the plaintiff orally instructed him to settle the County Court proceeding on 28 March 2000.
As far as the specific allegations of breach of duty and the retainer are concerned, apart from admitting that he did not amend the statement of claim to include additional tortious causes of action or a claim for exemplary damages, the defendant does not provide any particulars of the positive allegations implicit in his general denials.
Orders have been made, by consent, setting a timetable for requests for particulars and for the discovery process. Although the plaintiff has served a request for particulars of the defence, those particulars have not yet been supplied. The defendant had until 30 June 2006 to serve a request for particulars of the statement of claim. Both parties had until 31 July 2006 to make discovery and another month to produce documents for inspection. The matter is to be referred to a mediator for mediation not later than 14 October 2006.
The Court’s discretion under r 47.02(3)
The Court has a discretion, at any stage of the proceeding[1] to direct a trial by judge alone, notwithstanding the right of either party to indicate a desire for trial by judge and jury. Neither party has an unqualified right to a jury[2], but, if a party has specifically chosen that mode of trial, it should not be taken away without good reason[3]. The Court’s discretion is unfettered and must not be read down by reference to limitations set by the former rules of procedure which have been replaced by the Rules[4]. Rule 47.02(3) is remedial and it provides the Court with procedural flexibility; it should be given as wide a scope as its expression allows[5].
[1]Modern Road Construction Pty Ltd v Melbourne Harbour Trust Commissioners (No 2) [1932] VLR 511 at 513 per Lowe, J.
[2]Spiteri v Visyboard Pty Ltd [2005] VSCA 132 at [50] per Ormiston, JA.
[3]Spiteri v Visyboard Pty Ltd [2005] VSCA 132 at [53] per Ormiston, JA.
[4]Pezzimenti v Seamer [1995] 2 VR 32 at 37 per Brooking J.
[5]Ibid at 38.
The general direction to the Court, in r 1.14(a) of the Rules, to “endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined” applies to the exercise of the power to direct trial by judge alone under r 47.02(3) [6].
[6]Altmann v Dunning [1995] 2 VR 1 at 17 per Hedigan, J.
Submissions
Relying upon the analysis of r 47.02 (3) by Hedigan, J in Altmann v Dunning[7], the defendant submits that the power to direct trial without a jury can be exercised at any time to:
(a)speed up a trial;
(b)save costs;
(c)avoid the risk of inconsistent answers to questions in a jury trial; or
(d)in complex cases, reduce the risk that the questions in issue might not be effectively and completely answered.
[7][1995] 2 VR 1 at 17.
Counsel for the defendant argues that the matter is one unsuitable for a jury which would have to grapple with difficult issues, revealed by the pleadings as they stood at the date of the application. He repeats some of the matters identified in the Curtis affidavit in the following list of such issues :
(a)the nature of the defendant’s retainer;
(b)the circumstances in which the retainer might be terminated;
(c)whether the retainer was terminated and the consequences of subsequent instructions by the plaintiff to the defendant;
(d)whether there exists an implied duty to give “proper advice” and what proper advice would have been in the circumstances, generally and in relation to the likely damages to be obtained in the County Court;
(e)what is entailed in “properly preparing” a case for trial in the County Court;
(f)what medical reports and expert statements and opinions were required;
(g)what damages were likely to be recoverable in the County Court proceeding and what would have been considered proper advice on the issue;
(h)whether the tortious claim of false imprisonment ought to have been added to the plaintiff’s claim, its nature and its prospects of success as well as what additional damages might have been available if it had succeeded ; and
(i)whether exemplary and aggravated damages should have been claimed, the nature of such claims and their likelihood of success.
Counsel for the defendant counters the plaintiff’s submission that the application is premature, because the issues have not yet crystallised, by arguing that there are sufficient particulars identified by the pleadings as they stand. The defendant emphasises what he asserts are the difficult issues relating to the allegations of lost opportunity and the alleged defence of immunity from suit.
Counsel for the defendant meets the plaintiff’s response that she would feel more comfortable in having the trial before a jury of her peers by contending that the Court should not be persuaded by any submission to the effect that a properly instructed jury would be just, where a judge sitting alone would not[8].
[8]Citing : Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 485 per Gaudron, McHugh and Hayne, JJ; Altmann v Dunning[1995] 2 VR 1 at 5 per Hedigan, J; Spiteri v Visyboard [2005] VSCA 132 at [52] per Ormiston, Charles and Chernov, JA.
The defendant rejects the notion that expert evidence would assist a jury on relevant difficult issues. He refers to Yates v Boland[9], in which the Full Court of the Federal Court expressed the view that it was undesirable for expert evidence to be lead as to whether a legal practitioner had met the requisite standard of care, in the case of a failure to advise of the existence of a cause of action and to propound it[10]. In so far as the authorities establish that evidence of “some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage”[11] should be received, counsel for the defendant argues that the Court should take judicial notice of the fact that this case does not involve any such issue. He submits that the Court, constituted by a judge, would be better placed than any jury to determine, without the assistance of expert evidence, whether a solicitor has been negligent.
[9](1998) 157 ALR 30.
[10]Ibid at 55 per Drummond, Sundberg and Finkelstein, JJ.
[11]See: Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] 1 Ch 384 at 402 per Oliver, J.
The plaintiff does not dispute the defendant’s submissions as to the applicable principles in relation to the exercise of discretion under r 47.02. Counsel for the plaintiff concedes that the issues in this case may, ultimately, be shown to be unsuitable for determination by a jury. However, counsel for the plaintiff urges the Court not to exercise its discretion at this very early stage of the proceeding, when those issues have not been properly identified and refined.
Counsel for the plaintiff contends that, in any event, a judge would be able to direct a jury in relation to the issues presently apparently raised by the pleadings, and any jury would be quite capable of understanding them. He argues that, as the pleadings stand, the factual disputes as to whether the conversations of 24 and 28 March 2000 occurred, and as to the content of any such conversations, are of narrow compass and clearly within a jury’s competence. He notes, in this regard, the complexity of the directions relating to law and fact with which juries commonly grapple in criminal cases and in cases of alleged negligence by professional misconduct[12].
[12]Counsel for the plaintiff cites the confidence in a jury’s ability to deal with complex accounting and commercial issues expressed by Byrne, J in Roux v Australian Broadcasting Commission[1992] 2 VR 577 at 584.
Counsel for the plaintiff relies upon the view expressed by Brooking, JA in State of Victoria v Psaila; State of Victoria v Lamb[13] to contend that the additional length of jury trial is not sufficient reason alone for denying effect to the plaintiff’s signification under r 47.01. He notes the discretionary nature of the Court’s decision and the fact that the Rules permit the defendant to renew his application at any time up to and during the trial, whilst the plaintiff is not expressly provided with a further opportunity to opt for a jury.
[13][1999] VSCA 193 at [24].
Conclusions
The material does not persuade me to exercise my discretion to deny the plaintiff her chosen mode of trial.
Although the application is based upon the pleadings as they presently stand, the ambit of the issues in dispute between the parties might well be clarified by further particularisation and future interlocutory steps. If it were, the Court would be better able to determine which, if any, of the widely stated questions identified by the defendant’s submissions, set out in [16] above, are likely to be put to a jury. Even as the pleadings presently stand, I am not satisfied that the suggested questions are indeed those which would be put.
When the actual issues between the parties are refined, the Court will be in a position to consider their complexity and the admissibility of any expert evidence in accordance with the authorities. Then, too, the Court will be able to make a realistic assessment of the likelihood of the proceeding being prolonged by reason of necessary jury directions and submissions. At this point, I am not persuaded that the Court’s discretion should be exercised to ensure the effective, expeditious and economical disposition of the plaintiff’s claim.
Counsel for the defendant places particular emphasis on the issues relating to the plaintiff’s claim for compensation for loss of opportunity and the defence of immunity from suit. These, he argues, even now, can be seen to be so difficult and complex as to be unsuitable for consideration by a jury.
However, I am not persuaded that a properly directed jury could not cope with issues relating to the likelihood of a successful outcome to a personal injury claim of the type with which juries commonly deal. Any claim to immunity from suit must relate to “decisions and work” alleged to be so intimately connected with conduct in court as to attract that immunity[14]. It is not possible, in my opinion, to properly assess the scope of the issues to be addressed in relation to the claimed immunity, without sufficient particulars of the alleged negligent acts or omissions or of the implied positive allegations in the defence.
[14]See: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 at [151] per Gleeson, CJ, Gummow, Hayne and Heydon, JJ.
The defendant is able to renew his application at any later stage. It is, nevertheless, put on his behalf that he will sustain prejudice by the refusal of this application because his trial preparation would be different if the proceeding were to be heard by a judge alone. Counsel argues, for example, that witness statements would not be necessary in a jury trial (although he concedes that they might not be required in this Division of the Court, in any event). He submits that there may be some different approach taken by the defendant with regard to expert evidence. He also contends that submissions will be required from the parties in relation to the appropriate directions to a jury. It would seem likely, however, that the necessary decisions relating to such matters would be taken after the issues between the parties have been limited in the course of the interlocutory process; before that stage, it is difficult for the Court to determine the extent of any prejudice resulting from such matters. Accordingly, I am not satisfied that the defendant will suffer such prejudice as to warrant the exercise of the discretion under r 47.02(3) in his favour.
I am mindful of the Court’s obligations under r 1.14(1)(a) to ensure the expeditious and economical determination of questions in proceedings before it, but am not satisfied that this objective will be thwarted by the refusal of the defendant’s application at this early stage.
The appeal will be dismissed.
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