Gebrehiwot (who sues by his Litigation Guardian Gebree Menges) v State of Victoria (Ruling No. 3)
[2021] VCC 144
•22 February 2021
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-05267
| TADDIS GEBREHIWOT (who sues by his Litigation Guardian GEBREE MENGES) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 February 2021 | |
DATE OF RULING: | 22 February 2021 | |
CASE MAY BE CITED AS: | Gebrehiwot (who sues by his Litigation Guardian Gebree Menges) v State of Victoria (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 144 | |
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), r47.02
Cases Cited:Gebrehiwot v Victoria [2020] VSCA 315
Ruling: Matter to remain as a jury trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Gold | Robinson Gill |
| For the Defendant | Ms R Ellyard | Russell Kennedy |
HER HONOUR:
1In this proceeding, the plaintiff claims damages from the defendant for assault, unlawful arrest, and false imprisonment which the plaintiff alleges was committed against him by three-named police officers in November 2014.
2The case previously ran as a jury trial in August 2019, and following a recent Court of Appeal decision,[1] it has been remitted to this Court for a re-trial. By consent, the parties seek orders for the service of updated medical material and special damages, a judicial mediation and, if unresolved, for it to be relisted for trial in May 2021.
[1] Gebrehiwot v Victoria [2020] VSCA 315
3This is an application by the defendant for this case to be re-listed as a jury trial. The plaintiff’s objection to a jury trial related to his concerns that this would result in a delay of the re-trial.
4Since 16 March 2020, due to COVID-19, civil jury trials have been indefinitely suspended in this Court. However, since November 2020, the Court has successfully resumed a limited number of criminal jury trials. In the imminent future, it is expected that the County Court building in Melbourne will have the capacity for some civil jury trials to resume on a limited basis. Once this occurs, the dispensing of civil juries need not be as widespread as it was last year.
5The limitations on the resumption of civil jury trials include the following:
(a) There are only two civil jury court rooms available, both of which have been recently renovated to allow for social distancing;
(b) There is a limitation on the number of jury trials that can be empanelled on any given day, noting that priority will be given to Supreme Court and County Court criminal jury trials.
6I consider the following factors relevant to my consideration of this application:
(i) The defendant’s right to a trial by jury was enlivened[2] by it filing the requisite notice on 24 November 2017.
(ii) 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.
(iii) The Court now has a limited capacity to hear some civil jury trials, subject to the restrictions detailed above.
(iv) This claim involves allegations made by the plaintiff against police officers. If this case proceeds as a cause, the trial judge will make written findings in respect of all witnesses, including the credibility of the plaintiff and those police officers. I consider a written judgment has the potential to cause greater reputational damage to those police officers than a verdict from a jury, who need only answer yes or no and if yes, award a sum of money.
[2]Rule 47.02 Supreme Court (General Civil Procedure) Rules 2015 (Vic)
7Considering those factors, I am not persuaded to dispense with a jury trial at this time. I will seek to list it on the next available date for a jury trial in May 2021.
8The parties should note that I am making this ruling in anticipation of there being a jury panel available on the day of trial, and that one of the modified court rooms is available for use. I reserve the right for any party, or the Court on its own motion, to seek or make an order dispensing with a jury in this matter, if that mode of trial would result in anything but a very short delay of this trial.
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