Gunns Ltd v Marr (No 5)
[2009] VSC 284
•20 July 2009
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9575 of 2004
| GUNNS LIMITED & ORS | Plaintiffs |
| v | |
| ALEXANDER MARR & ORS | Defendants |
No. 4173 of 2009
| TASMANIAN PULP & FOREST HOLDINGS LIMITED AND GUNNS FOREST PRODUCTS PTY LIMITED | Plaintiffs |
| v | |
| ALEXANDER MARR & ORS | Defendants |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2009 | |
DATE OF JUDGMENT: | 20 July 2009 | |
CASE MAY BE CITED AS: | Gunns Limited & Ors v Marr & Ors (No. 5) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 284 | |
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PRACTICE AND PROCEDURE – Trial by jury or by judge sitting without a jury – Supreme Court Rules r 47.02 – Claims against six defendants, in respect of five separate incidents; only one defendant involved in each claim - Applicable principles relevant to determination - Complexity of fact and legal issues – Order directing trial without jury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs in both proceedings | Mr P. Santamaria and Mr I.G. Waller | Clayton Utz |
| For the Seventh, Eighth, Tenth, Twelfth and Fourteenth Defendants in proceeding 9575/2004 and For the Fifth, Sixth, Seventh, Ninth and Tenth Defendants in proceeding 4173/2009 | Mrs J. Batrouney SC and Mr R. Attiwill, Mr M. Gronow and Ms E. Holt | Herbert Geer & Rundle |
| For the Fifteenth Defendant in both proceedings | Ms C. Symons | Lander & Rogers |
HIS HONOUR:
Introduction
Gunns Limited (“Gunns”), two of its subsidiaries (Tasmanian Pulp & Forest Holdings Limited and Gunns Forest Products Pty Limited) and Robin and Heather Simon (all jointly described as “the Gunns plaintiffs”) make claims in tort against six defendants Adam Burling, Louise Morris, Lou Geraghty, Ryan Dimmick, The Huon Valley Environment Centre Inc and Neil Funnell. The claims relate to six separate incidents in rural Tasmania in 2003 and 2004.
Although there are two separate writs (a 2004 writ with Gunns and the Simons as plaintiffs and the second, the 2009 writ, by the two Gunns’ subsidiary companies), the issues raised in both writs are the same.
When the 2004 proceeding was initially commenced, there were 14 defendants; however, the claims against eight of the defendants have been resolved. Only one of the defendants, Ms Morris, is alleged to have been involved in each of the incidents.
In both proceedings, the defendants have given notice pursuant to r 47.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) that they require a trial by jury. The Gunns plaintiffs now seek to dispense with this mode of trial and to have the proceedings determined by a judge sitting alone.
The nature of the claims
The 2004 proceeding has a tortuous history[1] and the statement of claim is now in its fourth version. It will, I think, need to be amended again.
[1]See Gunns Limited v Marr [2005] VSC 251, Gunns Limited v Marr (No. 2) [2006] VSC 329, Gunns Limited v Marr (No. 3) [2006] VSC 386, Gunns Limited & Ors v Marr & Ors (No. 4) [2007] VSC 91 and Gunns Limited & Ors v Marr & Ors [2008] VSC 464.
Each of the claims has as its nub the interference by one or other of the defendants with the operation of the business of the Gunns plaintiffs on the following occasions:
(a)at Triabunna on 15 January 2003;
(b)at Triabunna on 15 February 2004;
(c)at Lucaston on various dates between 16 February 2003 and 4 June 2003;
(d)at Lucaston on 24 March 2004;
(e)at the Styx 4A Coupe in the Styx Valley on 24 November and 25 November 2003; and
(f)at the Hampshire Mill site on 24 March 2004. [2]
[2]Page 108-117 of the amended statement of claim (v4) which recites the relief sought in respect of each claim. The Lucaston events are rolled up into one claim.
The various causes of action alleged against the defendants include:
(a)Intentional interference with contractual relations;
(b)Intentional injury to the Gunns plaintiffs in their trade and business;
(c)Trespass;
(d)Conversion;
(e)Nuisance.
Moreover, the claims of the Gunns plaintiffs are not limited to the individual actions of particular defendants as it is also alleged that they acted in concert, either with other defendants or others not party to these proceedings and, accordingly, are liable for their conduct. Their claim for damages is expansive. There are claims for specific pecuniary losses, for trouble and inconvenience consequential upon any tortious economic loss, as well as for aggravated and exemplary damages.
The relevant principles
There was no real dispute about the principles relevant in an application such as this, which I set out as best I can below:
(a) Subject to compliance with the Rules of Court, a party is entitled as of right to seek trial by jury provided the claim is founded in contract or in tort.[3]
[3]R 47.02(1); Pezzimenti v Seamer [1995] 2 VR 32, 41. Altmann v Dunning [1995] 2 VR 1, 6.
(b) For that right to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary).[4] Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of a trial by jury.
[4]R 47.02(1)(a) and (b) and (2).
(c) Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial (subject to compliance with the Rules of Court and the provisions of the Juries Act)[5] unless the Court is persuaded to dispense with the jury.[6]
[5]E.g. s 24(5) which provides that where jury fees have not been paid the Court must discharge the jury and determine the case as a cause.
[6]Roux v Australian Broadcasting Corporation [1992] 2 VR 577, 585, Dunning v Altmann [1995] 2 VR 1, 6, 16, State of Victoria v Psaila; State of Victoria v Lamb [1999] VSCA 193 [24].
(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the Court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.[7]
[7]Dunning v Altmann [1995] 2 VR 1 6, 17.
(e) A Court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.[8]
[8]Pezzimenti v Seamer [1995] 2 VR 32, 38, 40.
(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.[9]
[9]State of Victoria v Psaila; State of Victoria v Lamb [1999] VSCA 193 [24].
(g) The onus in persuading a Court to dispense with a jury trial rests upon the party making that application.[10] A Court will not lightly make such an order, given the right of the other party to seek trial by jury.[11] There must be some special reason to do so.
[10]Sullivan v Scottish and Australian Bank Ltd (1904) 22 WN (NSW) 2, Nicholl v Federal Capital Press (1990) 101 FLR 356.
[11]McDermott v Collien (1953) 87 CLR 154.
(h) The considerations which may influence a Court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.[12]
[12]Dunning v Altmann [1995] 2 VR 7.
(i) Subject to the statement of general principle set out in (h), 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)[13]
[13]Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Limited [1969] VR 401, 405.
- the stage at which the proceeding or trial has reached
(j) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is chosen is a trial according to law.[14]
[14]Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 [11].
Submissions
Counsel for the Gunns plaintiffs contend that, given the number of claims and their disparate factual bases, the matters are of such complexity that it will be very difficult, if not impossible, for a fair trial to be had if heard by a jury. They identified nearly 500 questions that ”a jury would be required to answer at trial” if the claims were heard together.
Counsel for Morris, Funnell, Burling, Geraghty and the Huon Valley Entertainment Centre (“the HGR defendants”)[15] argue that, notwithstanding the separate causes of action, the trial should proceed with a jury. Having given notice requiring a jury, they contend they should only be deprived of that right if there are persuasive reasons to do so. Whilst they accept that there are complex legal issues, they contend that resolution of the factual disputes is within the ken of the jury. They identified over 60 questions that a jury would be required to answer in returning a verdict on all the claims. Counsel for Dimmick had no instructions on the issue.
[15]Each of these defendants are represented by Herbert Geer and Rundle.
Analysis
As I have said, the claims as now pleaded by the Gunns plaintiffs relate to six separate events. The first incident, at Triabunna in January 2003, now nominates Louise Morris and Neil Funnell as defendants. The second incident, again at Triabunna, in February of 2004, does not name any of the current defendants as parties and can be put to one side. The third and fourth incidents at Lucaston in 2003 and 2004 nominate Morris, Adam Burling, Lou Geraghty and Ryan Dimmick as defendants. The claim concerning the Styx Valley Coupe in November 2004 is against Morris alone, and finally the Hampshire Mill claim involves Burling, Morris and Geraghty and is said to have occurred in March 2004. In each claim it is alleged that the particular defendants are either individually liable or liable on the basis that they acted in concert with others. In each claim, the Gunns’ interests seek specific amounts of damage (labour costs, wages, costs of the engagement of security firms et cetera), as well as damages for trouble and inconvenience. Aggravated and exemplary damages are sought in each of the claims.
The HGR defendants have, in submissions previously filed, characterised problems of complexity in the following terms:
“Complexity of proceeding and issues
(1)The present proceeding is a complex one, and the issues involved are by no means confined to factual disputes. It includes legally sophisticated causes of action such as interference with contractual relations and injuring the plaintiffs in their trade or business, the scope of which in Australia is by no means clear.
(2)Further, the plaintiffs make claims for damages for trouble and inconvenience (statement of claim paragraphs 57(k), 157(h), 159 and 262), and claims for aggravated and exemplary damages (paragraphs 58, 66, 158, 160, 172, 177, 263 and 271), which are again by no means legally or factually straightforward, and will each require extensive evidence and argument.
(3)This proceeding also involves a number of allegations of people acting in concert, which like conspiracy claims are notoriously time consuming to litigate and determine.
(4)Further, the factual disputes are potentially wide ranging, and involve a wide range of alleged incidents occurring on many different days over a six month period.”
I invited the parties to provide me with an estimate as to the number of questions which would have to be answered by the jury in returning their verdict, assuming all claims were heard together. The HGR defendants responded with a note that identified the questions for the jury as follows:
“Triabunna 2003 claim
1. (a) Is the defendant Louise Morris liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations or alternatively
(ii) injuring them in their trade and business? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
2. (a) Is the defendant Neal Funnell liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations;
(ii) injuring them in their trade and business, or alternatively
(iii) trespass? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
Lucaston Claim
3. (a) Is the defendant Adam Burling liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations,
(ii) injuring them in their trade and business,
(iii) trespass,
(iv) conversion, or alternatively
(v) nuisance? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
4. (a) Is the defendant Louise Morris liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations,
(ii) injuring them in their trade and business,
(iii) trespass,
(iv) conversion, or alternatively
(v) nuisance? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
5. (a) Is the defendant Lou Geraghty liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations,
(ii) injuring them in their trade and business,
(iii) trespass,
(iv) conversion, or alternatively
(v) nuisance? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
6. (a) Is the defendant Brian Dimmick liable in damages to the plaintiffs
for –(i) wrongful interference with contractual relations,
(ii) injuring them in their trade and business,
(iii) trespass,
(iv) conversion, or alternatively
(v) nuisance? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
7. (a) Is the defendant the Huon Valley Environment Centre liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations,
(ii) injuring them in their trade and business,
(iii) trespass,
(iv) conversion, or alternatively
(v) nuisance? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
Hampshire Claim
8. (a) Is the defendant Adam Burling liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations, or alternatively
(ii) injuring them in their trade and business? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
9. (a) Is the defendant Louise Morris liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations,
(ii) injuring them in their trade and business, or alternatively
(iii) trespass and deceit? and
(b) if so, what amount (if any) should be awarded for –
(i) damages,
(ii) aggravated damages, and
(iii) exemplary damages?
10. (a) Is the defendant Lou Geraghty liable in damages to the plaintiffs for –
(i) wrongful interference with contractual relations, or alternatively
(ii) injuring them in their trade and business? and
(b) if so, what amount (if any) should be awarded for –
(i) damages
(ii) aggravated damages, and
(iii) exemplary damages?”
The Gunns plaintiffs provided a 64 page document which suggested the jury would need to be asked 482 questions. Whilst it may have identified questions that might arise for consideration by a jury, it bore no relationship whatsoever to the manner in which questions would usually be asked of a jury in returning its verdict. On the other hand, on the material currently available, the HGR defendants’ document properly identifies the questions which a jury would be asked to answer in returning its verdict. [16] In total, there are about 68 separate questions that would need to be answered.
[16]Subject to one qualification: The HGR list of questions does not include any reference to the Styx Valley Coupe claim which still remains alive against Morris. I anticipate that a further five questions would need to be asked in relation to that claim.
The Gunns plaintiffs contend that the legal issues alone involving consideration of principles such as acting in concert, interference with trade/business or with contractual relations and in trespass all militate against a jury hearing in this action. I am not so sure that the legal niceties pose the greatest problem to a jury hearing this trial. Juries in criminal trials are regularly charged in relation to concepts of common enterprise and/or acting in concert, and nowhere is it suggested that these concepts are beyond the wit of a properly charged jury; often such juries have to return verdicts relating to crimes with complicated elements requiring considerable explanation and consideration. Similarly, because the causes of action in trespass, conversion, nuisance and interference with trade or business/contractual relations are not regularly heard by juries in this State does not mean that a jury cannot be adequately charged in relation to such claims once the legal principles have been identified and reduced to “plain English”.
The paramount problem as I see it, however, is the multiplicity of questions that the jury would have to answer in returning its verdict in relation to five separate incidents, each of which would have been capable of being pleaded by the Gunns plaintiffs in separate statements of claim. I accept that each claim factually is of relatively small compass. However, when the claims are heard together, with each requiring separate verdicts in relation to particular defendants, as well as verdicts in relation to specific and different forms of damage arising out of each incident, then the complexities become obvious as demonstrated by the questions which would need to be answered by the jury on the HGR Defendants’ own assessment and observations as to the complexity of the issues required to be considered in the course of the hearing.[17]
[17]See [13] and [14].
This State has a long and proud tradition of claims in tort (particularly in injury and defamation cases) being tried by juries (in this Court and in the County Court by juries of six). Judges, rightly, are reluctant to dispense with a mode of trial chosen by a litigant that ensures that the invaluable commonsense and knowledge of six members of the community of life outside and well away from 210 William Street, Melbourne is brought to bear upon a dispute between fellow citizens.
Bearing this in mind, and in order to ensure that the defendants were not deprived of their entitlement to a jury trial by the Gunns plaintiffs’ pleading of multiple different causes of action in a rolled up claim, I suggested to the parties that the claims be split and that separate trials be undertaken in relation to each event. This had a particular attraction in relation to the first incident, Triabunna 2003, in which there are two defendants, Ms Morris and Mr Funnell, with this being the only claim in which Mr Funnell was involved. The trial would have been relatively short and the jury would not have been inundated with allegations of facts and analysis relating to the other defendants and claims. I was able to provide the parties with a certain trial date of 9 November 2009. I gave the parties time to consider this sensible (if I may immodestly say so) solution to resolve the complexity problem. The Gunns plaintiffs, with some reservations, were prepared to undertake a trial in this form if I so ordered it. To my mind surprisingly, counsel for Ms Morris and Mr Funnell declined the opportunity to have this form of trial and maintained the submission that the trial of all claims be heard before a jury.
I am firmly of the view that this is too great a task for a jury, given the multiplicity of claims, defendants and the different forms of damage sought. I am unaware of any civil trial in this State in which a jury has considered five separate causes of action allegedly occurring over a period of two years with multiple defendants, some involved in one claim but not in others. The concept of a jury considering over 60 separate questions relating to five different factual scenarios and requiring, as part of the task, separate verdicts as to different forms of damage is, I think, too great. Counsel for the HGR defendants placed reliance upon what was said by Brooking JA in State of Victoria v Psaila[18] when his Honour spoke of the ability of a jury to deal with matters of considerable complexity. All who have practiced in this area would readily acknowledge this proposition. However, it is to be remembered that his Honour’s observation was in the context of an appeal against the decision of a County Court judge who dispensed with a jury in a single issue trial involving alleged negligence on the part of a school authority. The claim related to a game of T-ball in a schoolyard at a primary school at Wendouree; eons away from the facts and issues in these two proceedings.
[18][1999] VSCA 193 [24].
I am also conscious of the likely duration of a jury trial (up to 25 days, in my view) and the effect that that would have upon the jury’s consideration of the multiple issues that I have identified. This, of course, is not determinative, but reinforces my view that it is not appropriate to have this matter determined by a jury.
Conclusion
Ultimately, I am persuaded that a trial by jury is inappropriate in the circumstances of this case. Accordingly, I propose to order that the trial be held before a judge sitting without a jury and that it commence on 2 February 2010.
I will give further directions as to the conduct of the trial at the next directions hearing on 10 August 2009.
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CERTIFICATE
I certify that this and the 11 preceding pages are a true copy of the reasons for Judgment of Forrest J. of the Supreme Court of Victoria delivered on 20 July 2009.
DATED this twentieth day of July 2009.
Associate
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