Ladd v Comensoli - [2025] VSC 24

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2021 01424

BERNARD LADD	Plaintiff
v
ARCHBISHOP PETER COMENSOLI AND TRUSTEES OF THE CHRISTIAN BROTHERS	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2025
DATE OF RULING:	3 February 2025
CASE MAY BE CITED AS:	Ladd v Comensoli
MEDIUM NEUTRAL CITATION:	[2025] VSC 24

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PRACTICE AND PROCEDURE — Application by plaintiff for change of mode of trial —No party requested jury in accordance with rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 — No sufficient reason now provided for the exercise of the Court’s discretion to amend the mode of trial — Application for trial by jury dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N Vallins	Angela Sdrinis Legal
For the First Defendant	C Shaw KC with G Grey	Wotton Kearney
For the Second Defendant	P Lamb	Carroll & O'Dea Lawyers

HER HONOUR:

The plaintiff commenced this proceeding by writ filed 4 May 2021 in respect of sexual abuse occurring during a summer holidays camp for catholic school students and physical and psychological abuse sustained at St Leo’s College. The plaintiff elected a trial by judge alone in accordance with rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules). Neither defendant filed a notice requesting a jury within the requisite time. Accordingly, by the operation of the Rules all parties had chosen a trial by judge alone. This proceeding is listed for trial on 12 February 2025.

These reasons address the plaintiff’s application filed 21 January 2025 to change the mode of trial from judge alone to judge and jury.

The 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 of the defendant by notice in writing to the plaintiff and the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defence (as the case requires) desires to have the proceedings so tried; and
(b)the prescribed fees for the purposes of s 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 (1), the Court may direct a trial without a jury if its opinion the proceeding should not in all circumstances be tried before a jury.
(4)Trial with a jury shall be with a jury of six.

The plaintiff’s application is therefore an application under rule 47.02(2) of the Rules.

Principles

In Deka v Johns,[1] J Forrest J dealt with an application under rule 47.02(2) of the Rules for an application by a defendant to change the mode of trial from judge alone to jury. In that application, all parties…

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 Ladd v Comensoli

Details

AGLC: Ladd v Comensoli [2025] VSC 24
Case: [2025] VSC 24
Decision Date: 3 February 2025

CaseChat Overview and Summary

The plaintiff, Ladd, applied to the Supreme Court of New South Wales for a change in the mode of trial from a trial by judge alone to a trial by judge and jury in a personal injury matter. The defendant, Comensoli, opposed the application on the grounds that no party had requested a jury in accordance with rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 and that no sufficient reason had been provided for the exercise of the court's discretion to amend the mode of trial.

The central legal issue before the court was whether the plaintiff's application to change the mode of trial should be granted in the absence of a prior request for a jury trial and a sufficient reason for the amendment. The court considered whether the plaintiff had demonstrated exceptional circumstances that warranted the exercise of its discretion under rule 47.02. The plaintiff argued that the case involved complex factual issues that required the input of a jury, while the defendant contended that the absence of a prior request and any compelling reason for a jury trial precluded the amendment of the mode of trial.

The court held that the plaintiff had not provided a sufficient reason for the exercise of its discretion to amend the mode of trial. The court noted that the plaintiff's application was made at a late stage in the proceedings and that the plaintiff had not demonstrated any exceptional circumstances that would warrant a change in the mode of trial. The court also emphasised the importance of parties making timely requests for a jury trial and the principle that such requests should not be made as a tactical manoeuvre. Consequently, the court dismissed the plaintiff's application for a trial by jury.

As a result of the court's decision, the case will proceed to trial by judge alone. The plaintiff's application for a change in the mode of trial was dismissed, and the case will continue in the Supreme Court of New South Wales with a judge presiding over the proceedings.

Orders