Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22 30 May 2002 S43/2001
ORDER
1. Appeal allowed with costs.
2. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 28 April 2000 be set aside.
3. The matter be remitted to that Court to hear and determine the grounds of appeal other than those seeking to challenge the order dispensing with a jury.
4. The costs of the appeal to the Court of Appeal to be in the discretion of that Court.
On appeal from the Supreme Court of New South Wales
Representation:
J M Ireland QC with J F Burn for the appellant (instructed by Gary Robb & Associates)
B W Rayment QC with A R Ashburner for the respondent (instructed by Hunt & Hunt)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Gerlach v Clifton Bricks Pty Ltd
Appeals – Interlocutory orders – Interlocutory order dispensing with a jury in the trial of a civil matter – Leave to appeal against interlocutory order not sought – Action tried by judge alone – Later appeal against both final judgment and order to dispense with a jury – Whether order to dispense with a jury gave rise to a substantial wrong or miscarriage warranting an order for a new trial.
Practice and procedure – Interlocutory order – Entitlement of disaffected party to save up challenge as ground of appeal against final judgment.
Courts – Statutory conferral of discretionary powers – Need to exercise powers in accordance with the statutory grant – Need to afford liberal construction to powers conferred on courts.
Words and phrases – "substantial wrong or miscarriage".
GAUDRON, McHUGH AND HAYNE JJ. In 1989, the appellant sued the respondent, in the Supreme Court of New South Wales, for damages for personal injuries which he alleged that he had suffered in the course of his employment by the respondent. The proceedings were remitted for hearing in the District Court. Soon after the proceedings were instituted, the respondent took the necessary steps to require trial by a judge and jury.
The proceedings were fixed for trial in May 1998. A few days before the hearing, the appellant applied for, and obtained in the District Court (Judge Christie), an order, pursuant to s 79A of the District Court Act1973 (NSW)[1], dispensing with the jury. The respondent did not seek leave to appeal against this order. The trial proceeded before another judge (Acting Judge Morrison), and the appellant obtained judgment for $390,000.
[1]"In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury." Section 79A was repealed…
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.
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Details
AGLC
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
Case
[2002] HCA 22
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning an interlocutory order made by the District Court of New South Wales, which dispensed with a jury trial in an action brought by Mr Armin Gerlach (the appellant) against Clifton Bricks (Queanbeyan) Pty Ltd (the respondent) for damages for negligence. The respondent had initially requisitioned a jury trial, but the appellant later applied to have the jury dispensed with, citing the cost of medical witnesses and the potential prejudice arising from his criminal record before a jury. The District Court granted this application. The respondent appealed this order to the Court of Appeal of New South Wales, which set aside the order dispensing with the jury and, finding the action had not been tried according to law, ordered a new trial.
The central legal issues before the High Court were whether the Court of Appeal erred in setting aside the order dispensing with the jury and ordering a new trial, and whether an interlocutory order dispensing with a jury, if wrongly made, could be challenged on an appeal against the final judgment, even if leave to appeal the interlocutory order itself had not been sought. The Court also considered the principles governing the exercise of statutory discretionary powers by courts and the extent to which an appellate court can correct interlocutory orders that affected the final result.
The High Court allowed the appeal, holding that the Court of Appeal had erred in setting aside the order dispensing with the jury and ordering a new trial. The Court affirmed the principle that an appellate court can correct an interlocutory order if it affected the final result, but clarified that this does not mean that every interlocutory order can be challenged on appeal against the final judgment. The Court found that the Court of Appeal had not properly considered whether the order dispensing with the jury had caused a substantial wrong or miscarriage of justice.
Consequently, the High Court set aside the orders of the Court of Appeal. The matter was remitted back to the Court of Appeal to hear and determine the grounds of appeal other than those challenging the order dispensing with the jury. The costs of the appeal to the Court of Appeal were left to be determined by that Court.
Orders
Orders of the court
1. Appeal allowed with costs.
2. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 28 April 2000 be set aside.
3. The matter be remitted to that Court to hear and determine the grounds of appeal other than those seeking to challenge the order dispensing with a jury.
4. The costs of the appeal to the Court of Appeal to be in the discretion of that Court.
Background
Background to the litigation
This appeal[15] concerns the practice of New South Wales courts of dispensing with a jury in the trial of a civil action for which a party, with the right to do so, has summoned a jury.[15]From Clifton Bricks Pty Ltd v Gerlach unreported, Supreme Court of New South Wales (Court of Appeal), 28 April 2000 per Handley JA, Priestley and Giles JJA concurring; [2000] NSWCA 90.The facts and order dispensing with a jury Mr Armin Gerlach (the appellant) was employed by Clifton Bricks (Queanbeyan) Pty Ltd (the respondent). He claims that in 1983 he suffered an injury to his back in the course of his employment. In May 1985 his employment was terminated. Unemployed, he resorted to alcohol and prohibited drugs, allegedly to cope with back pain. This led to his arrest and conviction for involvement with drugs. Between 1993 and 1995 he served a term of imprisonment. He sued the respondent for damages for negligence as his employer. The appellant's case was commenced in the District Court of New South Wales. The respondent disputed liability. One aspect of its case was a suggestion that the appellant had been dismissed on suspicion of involvement in the removal of thousands of bricks belonging to the respondent, the absence of which had been discovered by a stocktake. As well, there were disputes about whether the appellant had reported his alleged injury and whether his claimed incapacity for work was occasioned by that injury or by his excessive use of alcohol. In the normal course of events, the appellant's action would have been heard before a single judge of the District Court. That is the mode of trial that applies to such a proceeding, except where the District Court Act 1973 (NSW) ("the Act") otherwise provides[16]. However, in accordance with the Act[17], the respondent filed a requisition for trial by jury. It paid the applicable fee. The proceedings were thereupon listed to be tried before a judge and a civil jury of four persons[18]. Eventually, the trial was set down for hearing in the District Court in Sydney on 19 May 1998. This was fourteen years after the alleged injury and nine years after the jury had been requisitioned. [16]eg the Act, s 77(5)(b).[17]The Act, s 78(1) as it then stood. The section has since been repealed by Courts Legislation Amendment (Civil Juries) Act 2001 (NSW), Sched 1 item 4. See now s 76A. The repeal does not affect the present matter.[18]cf Henchman, "The New South Wales Jury of Four Persons", (1959) 33 Australian Law Journal 235. On 15 May 1998, the "second last working day before the trial"[19], the appellant's legal representatives applied to the District Court, on motion, for an order dispensing with trial by jury. That motion was heard by Christie DCJ. The respondent opposed the order.[19]Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 at [11]. The trial was listed for hearing on a Tuesday, the motion was heard on the preceding Friday. The transcript of the argument on the motion reveals that the appellant relied essentially upon two grounds. The first was that costs would be incurred to bring medical witnesses, particularly one from Canberra who reportedly intended to charge $3,000 a day for his time in Sydney. This witness also had difficulty in travelling to Sydney until later in the week. The second reason advanced (said to be more important) was the appellant's criminal record and sentence of imprisonment. It was submitted that this would cause prejudice to the appellant's case before a jury, whereas (as the appellant's counsel put it) a judge would disregard that fact if it did not bear on the personal injury issue.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HUGH AND HAYNE JJ
KIRBY AND CALLINAN JJ
The respondent appealed to the Court of Appeal. By its amended notice of appeal it appealed "from the decision of Judge Christie on 15 May 1998 dispensing with the Jury and of Acting Judge Morrison in the substantive matter on 21 May 1998". The Court of Appeal (Priestley, Handley and Giles JJA) unanimously held that the order dispensing with the jury should not have been made. The Court set aside that order. Because, in its opinion, the order dispensing with the jury should not have been made, the Court of Appeal concluded that the action had "therefore not been tried according to law" and it set aside the judgment in the action and ordered that there be a new trial. The issue in this matter is whether the Court of Appeal was right to make the orders which it did.Interlocutory orders and appeal against final judgment In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about what evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings. It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example[2]. As was said, in a very early judgment of this Court[3]:"There is only one judgment of the Court appealed from … and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him."As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford[4]:"On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it."In both Nolan v Clifford and Crowley v Glissan reference was made to Maharajah Moheshur Sing v Bengal Government[5] as authority for the proposition stated.[2]Bunning v Cross (1978) 141 CLR 54 at 82 per Jacobs J.[3]Crowley v Glissan (1905) 2 CLR 402 at 403 per Griffith CJ.[4](1904) 1 CLR 429 at 431.[5](1859) 7 Moo Ind App 283 at 302 [19 ER 316 at 323]. Reference might also be made to Jones v Gough (1865) 3 Moo PCC (NS) 1 at 12 [16 ER 1 at 5]; Forbes v Ameeroonissa Begum (1865) 10 Moo Ind App 340 at 359-360 [19 ER 1002 at 1009]; Sheonath v Ramnath (1865) 10 Moo Ind App 413 at 423 [19 ER 1029 at 1032]. The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms[6]. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley[7] where it is said that "on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result" (emphasis added).[6]See, for example, Nolan v Clifford (1904) 1 CLR 429 at 431: "all points … are open".[7]The Doctrine of Res Judicata, 3rd ed (1996) at 79-80, par 170.
Ratio Decidendi
Legal Principle Established
Established by:
HUGH AND HAYNE JJ,
KIRBY AND CALLINAN JJ