Humphris v ConnectEast (No 2)
[2016] VSC 419
•27 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 03458
| CLIVE ARTHUR HUMPHRIS and DOROTHY JUNE HUMPHRIS | Plaintiffs |
| v | |
| CONNECTEAST NOMINEE COMPANY PTY LTD (ACN 108 736 992) and CONNECTEAST PTY LTD (ACN 101 213 263) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2016 |
DATE OF RULING: | 27 July 2016 |
CASE MAY BE CITED AS: | Humphris v ConnectEast (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 419 |
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PRACTICE AND PROCEDURE – Mode of trial – Trial by jury or by judge sitting without a jury – Supreme Court (General Civil Procedure) Rules 2015 r 47.02 – Claim in negligence and nuisance against entities established to design, construct and operate the East Link Project – Self-represented litigant – Complexity of factual and legal issues – Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16 considered and followed; Kyriackou & Ors v Edwards [2014] VSC 201 distinguished.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | The First Plaintiff in person for both Plaintiffs | |
| For the Defendant | Ms C G Button | Ashurst Australia |
HER HONOUR:
This proceeding was issued by Mr Clive and Mrs Dorothy Humphris, a retired couple, on 30 June 2014. The writ specified the mode of trial to be by judge and jury. The defendants are ConnectEast Nominee Company Pty Ltd and ConnectEast Pty Ltd (‘defendants’), entities established to facilitate the construction and operation of the Eastlink Project, which resulted in the construction of the East Link tollway between Mitcham and Frankston in eastern Melbourne (‘freeway’). Mr and Mrs Humphris were, between February 2004 and April 2009, residents of a property in Donvale, near the freeway. Mr and Mrs Humphris were aggrieved at the noise levels emanating from traffic travelling along the freeway, and sold their home in or about April 2009.
The proceeding, and indeed the dispute, has a protracted history. This proceeding is the second proceeding involving these parties and this subject matter, the first proceeding having been dismissed by Lansdowne AsJ in February 2014 (her Honour’s decision was upheld by Ginnane J) on appeal. A more detailed background and chronology is set out in a previous ruling dealing with the defendants’ application to strike out the statement of claim.[1]
[1]see [2015] VSC 12.
The current version of the statement of claim is the version drawn by pro bono counsel, and dated 4 June 2015. The critical paragraphs of the statement of claim are as follows:
8.Negligently, and in breach of the duty, in or about 2004-2009 the defendants failed to design, construct, commission, operate and repair the East Link Freeway and building and other works done in connection with it so as not to cause or permit excessive traffic and other noise to be heard at adjoining or nearby properties including the property, including by failing to construct any, or any adequate noise barriers to prevent such excessive traffic noise being audible at adjoining or nearby properties including the property.
9.In or about early 2008, pursuant to the concession deed and the terms, the defendants, or alternatively the second defendant, commenced to occupy and operate the East Link Freeway in close proximity to the property:
(a)thus causing excessive traffic noise to be heard at the property; and
(b)without making any or alternatively any adequate provision to prevent or abate excessive traffic noise from being heard at the property at all hours of the day and night,
thereby causing the plaintiffs and other persons at the property annoyance and discomfort in breach of the duty.
10.Despite demand from the plaintiffs, in the period 2008 onwards the defendants:
(a)continued to cause and permit excessive traffic noise to be emitted from their East Link Freeway onto the property; and
(b)neglected, failed and refused to place any or any adequate noise barriers or other protections or otherwise take any steps to prevent or abate excessive traffic noise from being heard on or at the property.
11.Further, negligently and in breach of their duties to the plaintiffs in negligence and nuisance, the defendants:
(a)continued by their operation of the East Link Freeway in close proximity to the plaintiff’s property to cause excessive traffic noise to be heard in and near the property; and
(b)failed and refused to take any steps to abate or prevent the nuisance thereby caused.
12.By reason of the defendants’ negligence and nuisance, the plaintiffs have suffered loss and damage.
PARTICULARS
Due to the excessive traffic noise, the plaintiffs lost amenity in the property, and been caused annoyance and discomfort. They were forced to sell the property in April 2009 for a sum more than $225,000 less than its previous market value.
While this is not spelt out in the statement of claim, the plaintiffs’ primary contention is that a more substantial noise abatement wall should have been built adjacent to their property to limit the intrusion of traffic noise from the freeway.
In their defence filed on 24 July 2015, the defendants plead, in summary, as follows:
(a) on or about 14 October 2004 they entered into a concession deed with the State of Victoria, which provided for the design, construction, operation, maintenance and repair of the freeway (‘Eastlink project’);
(b) the Concession Deed and the East Link project were authorised by Parliament;
(c) the first defendant was responsible only for the design, construction and commissioning of the freeway, while the second defendant is responsible for the operation, maintenance and repair of the freeway, and was responsible for certain areas of the design, construction and commissioning of the freeway;
(d) the terms of the Concession Deed specified ‘Objectives’, ‘Performance Criteria’ and ‘Policies’ with respect to traffic noise and noise reduction;
(e) the defendants entered into a contract with Thiess Pty Ltd and John Holland Pty Ltd (‘TJH joint venture’) for the design and construction of the freeway. The TJH joint venture held themselves out to be experts in providing engineering and construction services to the infrastructure and transport services sectors, and were required by the terms of the Concession Deed to use Design and Construction Best Practices, to design and construct the freeway in conformity with the terms of the Concession Deed, and were required to submit design documentation to an independent reviewer;
(f) the TJH and the defendants engaged CW‑DC Pty Ltd as a design consultant. CW‑DC Pty Ltd was, and held itself out to be an independent expert experienced in the design of works including road, bridge and tunnel design as well as the interfaces between such works and associated urban design, landscaping and customer service requirements, and was required to comply with the Concession Deed;
(g) CS‑DC Pty Ltd, with the involvement of WE Bassett Pty Ltd and other consultants, designed the ‘Noise Walls Design Package’, which specified the design and construction of noise walls, including the location of noise walls for the section of the freeway closest to the property. The design and construction of the noise walls was reviewed by the Proof Engineer and Construction Verifier and by the Independent Reviewer appointed pursuant to the terms of the Concession Deed; and
(h) after the opening of the freeway on 28 June 2008, noise levels at, or proximate to the property complied with the relevant noise standard, as demonstrated by noise monitoring carried out at a property less than 50 metres away from the plaintiffs’ property between 10 and 15 October 2008.
Since the close of pleadings in July 2015, there have been a number of disputes concerning discovery and the presentation of evidence. In late 2015, the plaintiffs foreshadowed applying to amend their statement of claim to include a claim for psychological injury, but abandoned that course of action after the hurdles facing the plaintiffs in recovering damages for personal injury were pointed out to them. They also sought to amend their statement of claim to reintroduce the causes of action which were the subject of the successful summary judgment application in the first proceeding, namely, their claims based upon the defendants’ alleged breaches of the Concession Deed. In the end, the plaintiffs elected to confine their claim to the statement of claim dated 4 June 2015.
Notwithstanding the mode of trial, I made orders that, subject to the orders of the trial judge, that evidence-in-chief be given by way of witness statements, in order to give all of the parties ample notice of the manner in which the other parties intend to put forward their case at trial. Mr and Mrs Humphris have each filed witness statements, and do not intend to call any other witnesses and/or expert evidence.
The defendant has filed witness statements on behalf of three lay witnesses, and rely upon an expert report of an engineer specialising in acoustic assessment and design for road and railway infrastructure.
The proceeding is now ready to be set down for trial. On 7 July 2016, the defendants issued a summons seeking orders pursuant to r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) that the trial of the proceeding be heard by a judge alone.
Rule 47.02 relevantly provides that:
(1)A proceeding commenced by writ and founded on contract … or tort … shall be tried with a jury if:
(a)the plaintiff in the writ … signifies that the plaintiff … desires to have the proceeding so tried; and
(b)the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.
…
(3)Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
As indicated during the course of the hearing, I agree that the summary of the relevant principles set out in the defendants’ written submissions are an accurate summary of the position with respect to applications of this kind, and are reproduced below (omitting citations):
(a) the court has an ‘overriding discretion to determine the mode of trial, regardless of the wishes of the parties’;
(b) the discretion may be exercised whenever it is ‘warranted by the dictates of justice’;
(c) the party applying for the order bears the onus;
(d) there must be good cause before the court will deprive a party of the prima facie right to a jury trial;
(e) the range of considerations which the court may consider is unfettered, although the following considerations are relevant:
(i) the complexity of factual matters and legal issues relating to liability;
(ii) the complexity of the jury’s task in assessing damages;
(iii) the potential duration of the trial;
(iv)the stage of the proceeding has reached;
(f) the fact that a litigant is self-represented is a factor that may be taken into consideration in assessing whether it is ‘viable’ for the litigant in person to conduct a trial with a jury;
(g) the likelihood of the jury frequently having to be sent out while legal argument proceeds on objections;
(h) the volume of written material to be copied for and considered by the jury;
(i) whether it would be unusual for a case of the kind being considered to be tried by jury (cf personal injury, medical negligence and defamation cases where it is not uncommon for the matter to be tried by jury); and
(j) savings of time and efficiency will rarely be so significant as to warrant the order being made without more.
As noted above, the summary above is an accurate distillation of the principles regarding the determination of an application by a party to dispense with a regularly invoked entitlement to a trial by jury. However, it arguably underplays some of the key principles which emerge from the authorities, in particular the following principles identified by J Forrest J in Matthews v SPI Electricity (Ruling No 8):[2]
(a)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;
(b)the onus of proof in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause; and
(c)even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time.
[2](2012) 35 VR 643, 653.
Further, in Trevor Roller Shutter Services Pty Ltd v Crowe,[3] the Court of Appeal rejected a submission that the decision of Aon Risk Services Ltd v Australian National University:[4]
… sanctions the application of cost and efficiency considerations generally to the determination of matters of practice and procedure, including applications for the determination of the mode of trial of a proceeding, and so dictates a departure from the approach to trial by jury which previously obtained.
[3](2011) 31 VR 249, 259–261.
[4](2009) 239 CLR 175.
Further, the Court of Appeal stated (omitting citations):
Fifthly, it was not appropriate for the judge to take the Civil Procedure Act into account and, even if it had been a relevant consideration, nothing in s 7 of the Civil Procedure Act detracts from a party’s prima facie entitlement to a trial by jury. As counsel for the appellant submitted, the overarching object of efficiency articulated in s 7 of the Civil Procedure Act is little different to the object prescribed by Rule 1.14 of the Rules. In Altmann v Dunning Hedigan J (sitting as a member of the Full Court) held that Rule 1.14 is relevant to the exercise of power under Rule 47.02(3) and promotes a construction of the power which is consonant with the discharge of a jury both before and after the beginning of trial. But it is apparent from the later decision of this court in Victoria v Psaila that, despite the overarching objective of Rule 1.14, costs and time savings which are no greater than what might be described as the inevitable consequence of trial before judge alone are not alone sufficient cause to warrant depriving a party of its prima facie entitlement to trial by jury. Given the similarities between Rule 1.14 and s 7 of the Civil Procedure Act, it should not be supposed that s 7 was intended to make any difference.
Finally, that conclusion is reinforced by the following passage in the explanatory memorandum which accompanied the passage of clause 49 of the Civil Procedure Bill 2010:
In relation to a court’s power to make orders with respect to the place, time and mode of trial in subclause (3)(i), ‘mode of trial’ refers to trial by judge or jury. Rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005… currently sets out substantive rules as to mode of trial. It grants some litigants a limited prima face right to trial by jury. This prima facie right to trial by jury is subject to the court’s discretion – rule 47.02(3) provides that a court may ‘direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury’. The Bill merely restates this general discretion in subclause (3)(i). It is not intended that the Bill should change the status quo in regard to the court’s discretion as to mode of trial. A party’s prima facie right to trial by jury under rule 47.02 will remain.
Accordingly, the onus upon the defendants in this application is quite onerous. The defendants rely upon the following matters as supporting their submission that the interests of justice warrant a trial by judge alone:
(a) the proceeding involves, as shown by the defences to the statement of claim, complex issues of law and fact: in particular, the plaintiff’s case in negligence depends upon the establishment of a duty of care outside of the recognised classes of duty of care. Further, a jury will be required to determine whether the acts complained of by the plaintiffs were authorised by statute, and if so, whether they were done ‘in a proper manner’;[5]
[5]Metropolitan Water, Sewerage & Drainage Board v OK Elliott Pty Ltd (1934) 52 CLR 134, 143 (‘Metro’).
(b) a jury will be required to consider large volumes of written material, including voluminous documents annexed to the witness statements filed by the defendants, and complex technical acoustic evidence;
(c) the current case is of a kind that is typically tried by a judge alone;
(d) the defendants’ (and the Court’s) experience of the manner in which Mr Humphris has concluded the litigation (including the first proceeding) to date suggests that the interests of justice will be undermined. First, the defendants are likely to be prejudiced by irrelevant and intemperate allegations and remarks during the course of the trial, which are likely to contravene the established rules regarding what can and cannot be said before a jury. Further, the contents of Mr Humphris’ witness statement, and his submissions during the course of this and earlier interlocutory applications indicate that it is likely that Mr Humphris will seek to give large amounts of irrelevant evidence, and cross‑examine the defendants upon irrelevant matters, which will require the jury to be repeatedly sent out for argument to occur with respect these objections; and
(e) while the defendants recognise that cost and efficiency are not of themselves determinative of an application such as this, the length of time which will be required in hearing and determining objections, and the risk that one (or more) juries will be discharged will mean that public resources will be wasted, and the defendants will incur costs that are unlikely to be recoverable given the plaintiffs’ failure to pay existing outstanding costs orders.
The plaintiffs resisted the application on the basis that the proceeding is actually a reasonably straightforward dispute. The plaintiffs will be the only witnesses they call upon their behalf. They intend to rely upon only one folder of critical documents. The only complexity arises out of the defendants’ conduct in discovering large quantities of irrelevant documents.
The remainder of the plaintiffs’ submissions are largely summarised in an email sent in reply to an email sent by my associate after the conclusion of the hearing of the application regarding the plaintiffs’ obligations under the Juries Act 2000 (Vic) to pay jury fees.
The Plaintiffs preferred method for a Jury Trial remains.
As the Plaintiffs have now established that ConnectEast acted in default of the EastLink Concession Deed, a State Government contract, the matter therefore is now in the Public interest and therefor the best interests of the Public would be served by having a Jury Trial.
As I have previously stated, a Trial by Judge alone has a greater probability of being appealed by ConnectEast than a verdict handed down by a Jury under instruction from a Judge.
A Jury Trial is likely to cause ConnectEast to more carefully consider an appeal and is also less likely to have the Public however interpreted, have any opinion that a verdict handed down by a Judge alone was in any way not absolute.
With some hesitation, I will dismiss the defendants’ application, without reservation to their rights to make a further application in the future. Of course, the Rules provide that the Court may decide at any time that the trial of the proceeding continue before a judge alone. It may well be that the trial judge ultimately allocated to hear the trial, either prior to the trial, or during the course of the trial, determines that the circumstances warrant proceeding by judge alone. The plaintiffs should be on notice that Mr Humphris ought to refrain from making intemperate accusations and hostile remarks directed at the defendants and their legal representatives, and refrain from pursuing irrelevant matters and making allegations which he has been told again and again are legally unsustainable. If he continues to do so, either in the lead up to trial, or during the course of the trial itself, the plaintiffs run the very real risk that the defendants will make further application under r 47.02(3), and that such an application will be successful, or that the trial judge will dispense with a jury trial on his or her own motion.
The conduct of the proceeding by Mr Humphris to date, and indeed the conduct of Mr Humphris during the course of the hearing of the application before me does not fill me with unbridled confidence that Mr Humphris either comprehends or will abide by the warning in the above paragraph. In particular, Mr Humphris’ submissions during the course of the application largely focussed upon the defendant’s failure to comply with orders, their ongoing discovery of documents, and alleged inconsistencies between the submissions relied upon by the defendants in previous applications, rather than focussing on the actual issue at hand. Also somewhat concerning were Mr Humphris’ reference to the defendants ‘cheating’ and ‘misappropriating funds’, as well as his stubborn refusal to accept previous decisions of the Court that the plaintiffs have no standing under the Concession Deed. But, consistently with the approach of Bell J in Bernard v Seltsam,[6] I ‘would not lightly interfere with the right of a self‑represented party to a trial with a jury’, and, at this stage, I cannot conclusively determine whether a trial by jury with these particular self‑represented litigants is viable. Further, Mr Humphris’ submission that a jury verdict is less likely to be the subject of an appeal has some force.
[6](2010) 28 VR 46, 48.
The other matters relied upon by the defendants cause me less concern. While it is correct that no examples of cases of this kind being tried by a jury immediately come to mind, the fact is, there are very few cases of this kind actually tried in this State, at least in my experience. While the legal issues in their case may be of some complexity, I do not see how determination of whether the test in Metro applies, and if so, the application of that test, is beyond the capacity of a properly instructed jury. While the contractual, design, and licence documents may be voluminous, one might expect that the jury will need to be taken to limited portions of those documents concerning noise modelling, noise attenuation, and like matters in relation to a relatively confined geographic area, rather than all of the matters concerning the design and construction of the freeway. As for the expert evidence, it is noteworthy that Dr Burgemeister was able to summarise his opinions regarding the four questions asked of him by the defendants in a page and a half. In any event, juries in this State deal with complex and detailed evidence regarding medical, engineering, occupational health and safety, and road design and safety issues, among others, on a day to day basis. It is not uncommon for juries to hear trials involving multiple defendants. Further, defamation trials in this State are routinely conducted by a jury, and such proceedings do not lack legal and factual complexity.
The defendants placed significant reliance upon the decision of Macaulay J in Kyriackou v Edwards (‘Kyriackou’),[7] where his Honour formed the view that the factual and legal issues associated with the proceeding were so complex as to warrant making an order that the trial proceed before a judge alone.
[7][2014] VSC 201.
However, having been closely involved in the management of Kyriackou over a period of some time, I can confirm that the factual and legal issues in Kyriackou were substantially more complex than in this proceeding. This is best illustrated by the following passages of his Honour’s reasons:[8]
[8]Ibid [19]-[20].
What is in issue on that general topic includes:
·whether it was true to say that Kyriackou was the controlling or directing mind of the various companies or joint venture;
·what information was given by Edwards to ASIC about that situation;
·whether doing so breached a contractual duty, a tortious duty, or a fiduciary duty arising from the concepts of legal professional ilege and/or a solicitor’s duty of loyalty to a client;
·the intersection between those duties and the obligations of a solicitor to answer accurately questions asked of him under a compulsory examination conducted pursuant to s 19 of the ASIC Act; and
·what bearing that information, if in fact given, had on ASIC’s decision to commence proceedings when other information was, allegedly, also given by other complainants concerning the plaintiffs’ conduct of the joint venture.
Edwards further alleges that any loss suffered by the plaintiffs was caused by their own actions. That is, he alleges that the reason the ASIC proceeding was instituted was because ASIC suspected Kyriackou and the companies which he controlled operated an unregistered managed investment scheme and that the companies were trading whilst insolvent and had not kept proper books and records. It also suspected, Edwards alleges, that Kyriackou diverted funds that were part of the scheme for his own use. Those assertions are in issue.
Dr Hanak argued that the factual issues thrown up by the pleadings are in themselves complex. Perhaps more significantly, he argued that the legal context in which those factual disputes have to be resolved will necessitate an understanding of – and therefore directions to the jury about – the following legal issues:
(a) The law of confidentiality.
(b) The law of legal professional ilege.
(c)A explanation of a managed investment scheme in corporations law and the regulatory environment surrounding it.
(d)The legal content of the notion of a ‘controlling mind’ of a corporation.
(e)The different principles concerning, on the one hand, causation and assessment of damage or compensation on common law principles and, on the other hand, equitable principles (ie, in relation to the breach of fiduciary duty).
Further, in Kyriackou, the parties expected to call thirty witnesses, compared with six in the current case. And, while the reasons refer to an estimate of three weeks for a trial by jury,[9] the proceeding was in fact later set down for trial by judge alone on an estimate of three weeks. Accordingly, the complexity and scale of the trial in Kyriackou was materially different from the current case.
[9][2014] VSC 201 [29].
As for the issue of whether a jury trial is not viable by reason of the likelihood that there will be frequent interruptions by reason of the need to deal with objections to evidence‑in‑chief and cross‑examination based upon relevance, I accept that there is a real risk that this may occur. But the defendants have the advantage of having the plaintiffs’ witness statements, so that objections to the admissibility of the plaintiffs’ evidence‑in‑chief could be determined in advance of the empanelment of a jury. I accept that the prospect that Mr Humphris will attempt to cross‑examine the defendants’ witnesses on irrelevant matters is not as easily dealt with in advance. However, one has to have faith in the capacity of a judge of the Common Law Division of this Court to control the conduct of the trial, and, if necessary, reach the conclusion that a trial by jury is not viable. As noted during the course of the hearing, if a jury were to be discharged on the basis of the manner in which Mr Humphris conducted the plaintiffs’ case, it is highly unlikely that another jury would be empanelled. Accordingly, the risk that Court time and public resources would be wasted would be limited. As for the additional costs that the defendants’ might incur, while the plaintiffs have not met some outstanding costs orders, they have met others, and there is no evidence to suggest that they have no assets.
Accordingly, I will dismiss the defendants’ application by their summons filed 7 July 2016, set the matter down for trial in or about March 2017 on an estimate of five to ten days, and give directions for the preparation of court books. I will list the hearing for directions before the trial judge approximately a fortnight before the commencement of the trial. Subject to any submissions to the contrary, I propose to reserve the parties’ costs of the application.
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