Kendall v State of Victoria (Ruling)
[2025] VCC 46
•5 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI- 21-01168
| TRACEY KENDALL | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2025 | |
DATE OF RULING: | 5 February 2025 | |
CASE MAY BE CITED AS: | Kendall v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 46 | |
RULING
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Subject: PRACTICE AND PROCEDURE — Application by plaintiff for change of mode of trial — Defendant requested jury in accordance with rule 47.02 of the County Court (General Civil Procedure) Rules 2015 — Non-payment of Jury fees — Proceeding relisted as a Cause — No sufficient reason now provided for the exercise of the Court’s discretion to amend the mode of trial
Catchwords: Mode of Trial
Legislation Cited: County Court (General Civil Procedure) Rules 2015 (Vic)
Cases Cited:Deka v Johns [2009] VSC 296; Roland Von Marburg v Aldred and Anor [2016] VSC 565; Ladd v Comensoli [2025] VSC 24; Birti & Anor v SPI Electricity & Anor [2011] VSC 566.
Ruling: Application for trial by jury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Plunkett | Robinson Gill |
| For the Defendant | Ms J Still | Hall & Wilcox |
HER HONOUR:
The application
1The proceeding is currently listed for hearing before a judge alone on 27 February 2025 with an estimate of 7 to 10 days.
2These reasons address the plaintiff’s application filed 10 January 2025 to change the mode of trial from judge alone to judge and jury.
3The application was heard on 3 February 2025. Mr Plunkett of Counsel appeared on behalf of the plaintiff and Ms Still of Counsel appeared on behalf of the defendant.
4The defendant opposed the application.
5The plaintiff relied upon an affidavit of Danielle Meyer sworn on 31 January 2025 together with exhibits.
6The defendant relied upon an affidavit of Katherine Goldberg sworn on 31 January 2025 together with exhibits.
Background
7The plaintiff commenced this proceeding by Writ filed on 25 March 2021 in respect of injuries she alleges she sustained as a result of the suicide of her husband, William Maxwell (“the deceased”) on or about 27 March 2018. The plaintiff elected a trial by judge alone in accordance with rule 47.02 of the County Court (General Civil Procedure) Rules 2015 (“the Rules”).
8The defendant filed a notice requesting a jury within the requisite time.
9On 20 April 2023, Judge Pillay made Orders setting the proceeding down for trial on 20 May 2024 before a judge and jury. His Honour ordered, inter alia:
·“By 15 April 2024, the party requesting a jury is to pay the first day jury fee. In default, by 29 April 2024 any other party may pay the fee. If the fee is not paid by 29 April 2024, the trial will proceed before a Judge sitting alone.”
10On 12 April 2024, the plaintiff filed Consent Orders dated 11 April 2024 seeking to vacate a directions hearing listed on 12 April 2024, as the parties had settled a dispute regarding discovery.
11On 12 April 2024, Judicial Registrar Bales ordered, inter alia:
·The plaintiff has leave to file and serve an Amended Writ and further Amended Statement of Claim in the form dated 11 April 2024.
·The defendant has leave to file and serve an Amended Defence to the Amended Statement of Claim by 27 May 2024.
·The trial date of 20 May 2024 be vacated.
12Neither party paid the jury fee, in accordance with the Orders of Judge Pillay.
13On 2 July 2024, the parties sent signed Consent Orders to the Court in which the parties agreed that the matter should be relisted for hearing before a judge alone with an estimate of 7 to 10 days.
14Consistent with the signed Consent Orders, Judicial Registrar Bales on 3 July 2024, re-listed the trial on 27 February 2025 before a judge sitting alone with an estimate of 7 to 10 days.
The Rules
15The mode of trial is governed by rule 47.02 of the Rules which provides:
(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if-
(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) 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.
(2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders.
(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.
(4) Trial with a jury shall be with a jury of six.
Relevant legal principles
16The relevant principles to be taken into account in an application under rule 47.02(2) of the Rules to change the mode of trial have been set out in a number of cases and can be summarised as follows:
(a)Subject to compliance with the procedures laid down by the rules of Court, a party is entitled to seek trial either by jury or judge alone as provided by rule 47.02.
(b)For the right to a trial by jury to be enlivened, it is necessary for the party seeking a trial by jury to comply with the procedural requirements of rule 47.02(1)(a) and (b). Otherwise the trial will be, as the rule provides, before a judge sitting alone (absent an order of the Court to the contrary).
(c)Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury. Notwithstanding the right of the parties to seek a trial by either judge sitting alone or by jury, there resides in a Court an overriding discretion to determine the mode of trial regardless of the wishes of the parties.
(d)A Court may at any stage of a proceeding, direct a trial with or without a jury if satisfied that it should do so.
(e)The onus in persuading a Court to dispense with the mode of trial determined by the operation of the Rules rests upon the party making that application. A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the Rules of the Court. [1]
[1] Deka v Johns [2009] VSC 296 at [6]; Roland Von Marburg v Aldred and Anor [2016] 565 at [61]-[63];
Ladd v Comensoli [2025] VSC 24 at [6].
17Those principles apply in this case.
Submissions
18The plaintiff’s primary position was that the Court could simply order an extension of time in which the jury fees could be paid. It was submitted that this would allow the plaintiff to pay the jury fees and ensure compliance with the Rules, thereby allowing the plaintiff to have a jury trial.
19The plaintiff’s secondary position was that the Court should exercise its discretion and order that the matter proceed with a jury pursuant to rule 47.02(2) of the Rules.
20The plaintiff argued that the Court should take into account the plaintiff’s desire for a jury and the fact that the defendant had not identified any reasons why the matter should not proceed before a jury.
21The plaintiff submitted that the right to trial by jury is an important fundamental right and all other matters being equal, a preference for this mode of trial ought be accommodated. To that end, she submitted that the application to change the mode of trial ought to be accommodated in the absence of any evidence of prejudice or any difference in trial preparation conducted since that time.
22The plaintiff said that this was a “bog standard” industrial accident case and was therefore appropriate to be heard by jury.
23The defendant argued that the onus is on the plaintiff to justify a change in the mode of trial.
24The defendant submitted that the plaintiff had not provided any explanation as to why the plaintiff now sought a jury or why the Court should go behind the Consent Orders signed by the parties in which the parties agreed to have the matter fixed as a cause.
Analysis
25The availability of a trial by jury and the choice of any party as to the mode of trial is an important right of parties in civil litigation concerning personal injuries. That choice is communicated primarily by each party invoking the Rules.
26In this proceeding, the defendant initially requested a jury trial in accordance with the Rules.
27The right to a jury trial was lost when the parties failed to pay the jury fees and when the parties consented to the matter being listed before a judge alone.
28The defendant continues to seek that mode of trial i.e. before a judge alone.
29The plaintiff’s reasons for changing the mode of trial must be sufficient to outweigh the maintenance of the mode of trial.
30The onus rests on the plaintiff as the party seeking an order changing the mode of trial to persuade the Court that it should do so. As J Forrest J said, such an application is to be approached on the basis that:
“…A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court.”[2]
[2] Deka v Johns [2009] VSC 296, [6].
31The plaintiff’s primary submission is misconceived. It ignores the Order of Judge Pillay that if the jury fee was not paid by 29 April 2024, the trial would proceed before a judge sitting alone.
32If a party ignores a Court order, they do so at their own peril.
33As at 30 April 2023, there was no entitlement to a jury trial. This was due to a combination of two things – the Rules and the Order of the Court. The right to a jury trial was lost at that time.
34Further, payment of jury fees is governed by Section 24 of the Juries Act 2000 (Vic) (“Juries Act”) rather than the Rules.
35Section 24 of the Juries Act reads as follows:
(1) A party requiring a civil case to be tried by a jury must pay the prescribed fee –
(a)if the case is to be tried in the Supreme Court, to the prothonotary; and
(b)if the cases to be tried in the County Court, to the registrar of that court.
(2) The party that required a civil case to be tried by a jury must pay to the prothonotary or the registrar (as the case requires) the prescribed fee for a jury for the second and each subsequent day of the trial.
(3) Subject to subsection (4), the fee required to be paid under this section for the second and each subsequent day of a trial must be paid before the trial resumes on the day in respect of which the fee is payable.
(4) The court may extend the time for payment of a fee required to be paid for any day of a trial, but not beyond the end of that day.
(5) If the prescribed fee is not paid by any party by the time required for payment, the court must discharge the jury and continue to hear and determine the case without a jury.
(6) If, on the last day of a trial, the jury serves for more than 8 hours, the party that is required to pay the fees for the jury for that day must pay a further day's fee for the jury before the end of the next day on which the court is open for business.
(7) If a party cancels a requirement for trial by a jury not less than 14 days before the trial is listed to commence, a refund of the fees paid under this section less prescribed administrative expenses may, on application, be made to the party and the Consolidated Fund is, to the necessary extent, appropriated accordingly.
(8) No fees are payable if the court, on its own motion, orders that a jury is required in a civil trial.
36Whilst the Court has power under section 24(4) of the Juries Act to extend the time for payment of a jury fee, that power is limited to extending the time for payment of a fee required to be paid for any day of the trial but not beyond the end of that day. Section 24 of the Juries Act does not empower the Court to extend the time for payment of the jury fee in any other circumstances.
37The plaintiff’s secondary submission is that the Court has power under rule 47.02(2) of the Rules to reinstate the jury.
38The plaintiff has not provided a proper explanation as to why she did not pay the jury fees when she had the opportunity to. The plaintiff has not provided an explanation as to why Consent Orders were signed seeking a trial by judge alone.
39The plaintiff’s affidavit material does not refer to any reasons such as a change of heart or change in circumstances which may, or may not be, sufficient to alter the mode of trial.
40The plaintiff’s affidavit and the submissions made on her behalf appear to be based on an assertion that the defendant has an obligation to establish why the matter should be more appropriately heard as a cause.
41Despite denying it, the plaintiff’s approach would amount to a reversal of the onus. The plaintiff submitted that the defendant had not addressed the type of indicia referred to in Birti.[3] It was submitted that the defendant had not established that this was a case which should not be heard by a jury.
[3] Birti & Anor v SPI Electricity & Anor [2011] VSC 566.
42The plaintiff’s argument that this was a “bog standard” industrial accident case and should be heard by a jury understated the issues.
43This case does not appear to be a “bog standard” industrial accident case. It involves potential arguments about secondary victims, the nature and scope of any duty owed to secondary victims. There are allegations of bullying and harassment relating the deceased.
44This is an application as to the mode of hearing – it is not an application as to whether it is an appropriate matter to be heard by a jury.
45The plaintiff’s approach is misconceived and does not discharge her onus.
Conclusion
46In my view, the plaintiff has not provided a sufficient reason to alter the mode of trial. She has not discharged the onus of persuading me that the mode of trial be altered.
47The application by the plaintiff for a trial by jury is dismissed.
48The trial date of 27 February 2025 as a cause with an estimate of 7 to 10 days is confirmed.
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