Giurina v Greater Geelong City Council

[2024] VSC 258

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2022 02430

ERMANNO  GIURINA (AS THE EXECUTOR OF THE ESTATE OF CAROLINA NACINOVICH ALSO KNOWN AS LINA NACINOVICH)	Plaintiff
v
GREATER GEELONG CITY COUNCIL	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2024
DATE OF JUDGMENT:	16 May 2024
CASE MAY BE CITED AS:	Giurina v Greater Geelong City Council
MEDIUM NEUTRAL CITATION:	[2024] VSC 258

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PRACTICE AND PROCEDURE – Claim in trespass – Mode of trial – Entitlement to jury trial – Complex legal issues – Possibility of reconsideration of mode of trial after mediation – Supreme Court (General Civil Procedure) Rules 2015 r 47.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant

HIS HONOUR:

1. Mr Ermanno Giurina appeals from an order made by a Judicial Registrar on 15 November 2023. The appeal is a de novo appeal.[1] The order was included in a directions order made for the conduct of Mr Giurina’s proceeding which he had commenced in the Major Torts List against the defendant, to which I will refer as the Council. Mr Giurina appeals against order 16, which provides that the proceeding is fixed before a judge alone on 21 October 2024 on an estimate of 2 to 3 sitting days. Mr Giurina had sought trial before a judge and jury.

   [1]Supreme Court (General Civil Procedure) Rules 2015 r 84.05(4).

1. In the Other Matters section of the order the Judicial Registrar stated:

The parties submitted proposed timetabling orders by agreement, save as to a disagreement concerning the mode of trial: the plaintiff sought that the trial be listed to be heard before a jury, whereas the defendant sought that it proceed before a judge alone. Having regard to the nature of the proceeding and the standard practice for proceedings in the Major Torts List, I indicated to the parties that I considered that it would be more appropriate to list the matter before a judge alone, but that the issue could be reagitated by the plaintiff at the post-mediation directions hearing, when it would be clearer if there are any features of the claim that mean that a jury would be more appropriate.

1. Prior to the directions hearing before the Judicial Registrar, the parties exchanged emails on 14 November 2023 whereby the Council advised Mr Giurina that, in their opinion:

This is not a case that requires a jury to assess alleged loss and damage. Also, we consider it extremely unlikely that a court would make orders  for a jury.

For those reasons, our client will not agree to that inclusion in the proposed orders. 

Mr Giurina replied that he did not consent to trial by judge alone.

1. The Council is not represented at this hearing.

Background

1. Mr Giurina commenced this proceeding by writ dated 28 June 2022, in which he sought trial before a judge and jury. His claim concerns a property in Geelong West, which forms part of an estate of which he is executor. On 12 August 2019, the municipal building surveyor of the Council made an emergency order under s 102 of the Building Act 1993 (‘the Building Act’) concerning that property. It required Mr Giurina to cause the property to be inspected by the municipal surveyor and other officers of the Council. Following the Council’s refusal to cancel that first emergency order, Mr Giurina appealed to the Buildings Appeals Board, but that appeal was rejected on 6 September 2019.

1. Thereafter, the municipal building surveyor and other officers of the Council carried out an inspection of the property pursuant to the first emergency order without Mr Giurina’s knowledge. On 9 September 2019, the municipal building surveyor made a second emergency order which required Mr Giurina to carry out demolition and other work at the property. At some point between 9 September 2019 and before 27 September 2019, the municipal building surveyor caused work under the second emergency order to be carried out. This work was the demolition of the front brick fence, the front porch and chimney. As a result of this work, a large hole was caused in the roof of the dwelling at the property.

1. Mr Giurina was unaware that the demolition work had been carried out as the second emergency order was not served on him in accordance with s 102(2) of the Building Act. He states that he did not know anything about the second emergency order until he received an email on 30 September 2019 from the Council’s solicitors. For the purposes of this decision, I have taken these facts from Mr Giurina’s account of the events, as I have not heard from the Council.

1. Mr Giurina’s claim is one in trespass. He alleges that, as a consequence of the Council’s unlawful entry and demolition, he suffered injury and loss and he claims damages, declarations and other remedies. He intends to rebuild what was unlawfully demolished by the Council and use the property as a residence. He claims damages of $280,100 of which $80,100 is attributable to the claimed cost of reinstating the building as it was before the demolition. Mr Giurina also seeks aggravated and exemplary damages.

1. Under Order 47 of the Supreme Court (General Civil Procedure) Rules 2015, the Court has power to deal with the mode of trial. As Mr Giurina is claiming in tort and is prepared to pay the jury fees required before trial, he is entitled to trial by jury unless the Court otherwise directs under r 47.02(3), that there be trial without a jury. The Court can make such a direction if, in its opinion, the proceeding should not, in all the circumstances, be tried before a jury.

1. Mr Giurina emphasised that the Council has not appeared to argue that the trial should not be before a jury. However, the authorities are clear that the Court retains a discretion to order a trial by judge alone whether or not a party seeks that order.

1. Mr Giurina submits that a properly directed jury would be able to determine the legal issues. Those issues principally concern the legal consequence of the failure of the Council to serve the second emergency notice on him before carrying out the demolition  works of which he complains. I  proceed on the assumption that Mr Giurina will be able to prove that the second emergency order was not served, but I do so without making a finding about that fact.

1. On that assumption, the question is what legal force did the second emergency order have. Can it be relied on to authorise the demolition work? Mr Giurina submits that it cannot be so relied on, because he was not served with it.

1. The determination of this issue involves a question of interpretation of the relevant provisions of the Building Act in accordance with the High Court’s decision in ProjectBlue Sky Pty Ltd v Australian Broadcasting Authority.[2] 

   [2](1998) 194 CLR 355.

1. In his written submissions Mr Giurina refers to another reason why the Court should allow trial by jury, when he states:

After the outcome of this appeal the parties are at the stage where this proceeding will be referred to mediation being Order 9 of [the Judicial Registrar’s] orders. If this Court were to allow my appeal and order that the trial be by jury this may put pressure on [the Council] to more readily come to a settlement with me given that the parties cannot predict how a jury will react to the facts in this case. Hence an order that the trial be before a jury may tend to promote settlement given the stage in the proceedings where the parties are at. 

I have taken that factor into account.

1. While I give considerable weight to the right of Mr Giurina to have his tort claim tried before a jury, I have formed the opinion that the proceeding should not, in all the circumstances presently available to me, be tried before a jury. This is because the complexity of the legal issues make it inappropriate for it to be tried before a judge and jury.

1. In Halligan v Curtin,[3] J Forrest J stated relevant principles to deciding whether a trial should be before a jury and noted that subject to compliance with the rules of the Court, a party is entitled to seek trial by jury provided the claim is founded in contract or in tort. The relevant principles to which his Honour referred included the following:

subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:

·     the complexity of the factual matters that the jury will need to consider;

·     the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;

·     the complexity of the jury’s task in relation to the assessment of damages;

·     the potential duration of the trial (although this, of itself, could never be the determining factor); and

·     the stage at which the proceeding or trial has reached.[4] 

[3]Halligan & Ors v Curtin & Anor [2013] VSC 124 (‘Halligan’); see also Trevor Roller Shutter Service Pty Ltd v Duane Crowe (2011) 31 VR 249; Birti v SPI Electricity Pty Ltd [2011] VSC 566.

[4]Halligan (n 4) [15](j).

1. While I take into account Mr Giurina’s right to have a trial of his claim in tort before a jury, I have also taken into account the countervailing consideration of the complexity of the legal issues that a jury would have to decide. 

1. I do not consider that the course proposed of the jury following directions from a judge about statutory interpretation and the application of High Court authority is appropriate.

1. One possibility would be for the judge to decide the legal issues and, if Mr Giurina’s claim still exists following that determination, that the assessment of damages proceed before a jury. But that process may involve the same evidence about the Council’s actions being given twice. The Court has to keep in mind the overarching purposes of the Civil Procedure Act2010 to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[5]

   [5]Civil Procedure Act2010 (Vic) s 7(1).

1. I also take into account that the Judicial Registrar’s orders permit Mr Giurina to reagitate the question of whether there are issues that could be determined by a jury at the post-mediation directions hearing.

1. I have taken into account Mr Giurina’s submission that he has a greater possibility of obtaining a settlement at the mediation if the trial is to be before a jury. But, in my opinion, because of the complexity of the legal issues to which I have referred, in all the circumstances available to me at present, the proceeding should not be tried before a jury. I do not remove the possibility that this issue can be reagitated by Mr Giurina at the post-mediation directions hearing where, as the Judicial Registrar stated, it will be clearer whether there are any features of the claim that make a trial before a jury more appropriate.

1. I dismiss the appeal.