Francis v Bunnett - [2006] VSC 278

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…

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 Francis v Bunnett

Details

AGLC: Francis v Bunnett [2006] VSC 278
Case: [2006] VSC 278
Decision Date: 31 July 2006

CaseChat Overview and Summary

Louise Francis brought an action against Christopher Lindsay Bunnett, alleging that he had breached his retainer to act as her solicitor in a 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 defendant, Bunnett, applied for a direction that the proceeding be tried without a jury. The plaintiff had signified her desire for trial by jury in the writ filed on 27 March 2006. The application was made before the provision of particulars of the statement of claim and defence, and the issues had not crystallised. The Court had to decide whether the issues raised by the pleadings were too complex for trial by a jury.

The Court held that it had a discretion, at any stage of the proceeding, 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 had an unqualified right to a jury, but if a party had specifically chosen that mode of trial, it should not be taken away without good reason. The Court's discretion was 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. The Court's discretion under r 47.02(3) should be given as wide a scope as its expression allows. 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). The material did not persuade the Court to exercise its discretion to deny the plaintiff her chosen mode of trial. Although the application was based upon the pleadings as they presently stood, 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 in a position to consider their complexity and the admissibility of any expert evidence in accordance with the authorities. The Court was not satisfied that the suggested questions were indeed those which would be put. When the actual issues between the parties were refined, the Court would be in a position to consider their complexity and the admissibility of any expert evidence in accordance with the authorities. The Court was not persuaded that the Court's discretion should be exercised to ensure the effective, expeditious and economical disposition of the plaintiff's claim. The appeal was dismissed.

The Court ordered that the appeal be dismissed. The parties were directed to proceed with the litigation in accordance with the original plan, with the plaintiff's chosen mode of trial by jury. The defendant was allowed to renew his application at any later stage.

Orders