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Gunns Ltd v Marr (No 5)

Gunns Ltd v Marr (No 5)

Case [2009] VSC 284 20 July 2009

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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…

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 Gunns Ltd v Marr (No 5)

Details

AGLC: Gunns Ltd v Marr (No 5) [2009] VSC 284
Case: [2009] VSC 284
Decision Date: 20 July 2009

CaseChat Overview and Summary

Gunns Ltd took action against Marr and five other defendants in the Supreme Court, seeking damages for alleged breaches of statutory duty and negligence arising from five separate incidents. The court was required to decide whether the trial should proceed by way of a jury or by a judge sitting without a jury. The applicable legal principles revolve around the complexity of the fact and legal issues involved in the case, and the relevant provisions of the Supreme Court Rules.

The court considered the nature and complexity of the claims, which involved six defendants and five separate incidents, with only one defendant involved in each claim. The court examined the potential difficulties in ensuring a fair trial for all defendants if the trial proceeded with a jury, given the potential for confusion and the risk of prejudice. The court concluded that the complexity of the fact and legal issues, as well as the potential for prejudice, warranted a trial by a judge sitting without a jury. The court found that the claims were suitable for a trial by a judge alone, and made an order directing that the trial proceed without a jury.

The court's reasoning was based on the principles set out in the Supreme Court Rules, which provide that a trial may be ordered to proceed by a judge sitting without a jury where it is in the interests of justice to do so. The court found that the complexity of the fact and legal issues, as well as the potential for prejudice, made it appropriate to order a trial by a judge alone. The court also considered the potential difficulties in ensuring a fair trial for all defendants if the trial proceeded with a jury, and concluded that these difficulties warranted a trial by a judge sitting without a jury.

The final orders of the court were that the trial of the claims against the six defendants would proceed by a judge sitting without a jury. The court also made orders for the allocation of the trial, including the setting of a trial date and the provision of further particulars by the parties. The court's decision highlights the importance of considering the complexity of the fact and legal issues, as well as the potential for prejudice, when determining whether a trial should proceed by way of a jury or by a judge sitting without a jury.

Orders