Malo v South Sydney District Junior Rugby Football League Ltd

[2008] HCATrans 135

[2008] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2007

B e t w e e n -

HARRY MALO

Applicant

and

SOUTH SYDNEY DISTRICT JUNIOR RUGBY FOOTBALL LEAGUE LIMITED

First Respondent

MAROUBRA RUGBY LEAGUE FOOTBALL CLUB

Second Respondent

Application for special leave to appeal

HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 MARCH 2008, AT 2.40 PM

Copyright in the High Court of Australia

MR M.J. SLATTERY, QC:   May it please your Honours, I appear with my learned friend, MR F. TUSCANO, for the applicant.  (instructed by Maurice Blackburn Cashman)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.A. PRIESTLEY, for the second respondent. 
(instructed by Thompson Cooper Lawyers)

HEYDON J:   Yes, Mr Slattery.   

MR SLATTERY: Your Honours, this application raises, in my submission, a short but important point, which is whether in the exercise of the discretion under section 85 of the Supreme Court Act to order trial by jury rather than trial by judge alone, whether the nature of juries as representatives of the community and the community values they represent can be and should be taken into account as a relevant consideration in the exercise of that discretion.  The short point, essentially, is the Court of Appeal – that is what is thrown up by the section.  The Court of Appeal in the heart of its reasoning said, in effect, that could not be taken into account and that is the point. 

Your Honours, your Honours will find section 85 in appeal book page 46. Its essential features are that the Parliament has decided the trial shall take place without a jury but that there is a discretion which is enlivened when a party requisitions for a jury under section 85(2)(a) that the trial may take place in the exercise of the court’s discretion by jury rather than by judge if:

the Court is satisfied that the interests of justice require a trial by jury in the proceedings.

Your Honours, it is important, we say, to recognise the fact that the section, although it says that trial by judge alone is the normal mode of trial, that it does not abolish trial by civil jury and Parliament, in effect, has decreed that trial by civil jury as it now stands with all its usual characteristics is an alternative mode of trial that can be chosen where the circumstances are right.

The section does not say or authorise the treating of civil jury trial as, in effect, an inherently deficient mode of trial.  Nor, in our submission, does it raise this sort of problem that the court is not in exercise of its discretion to, in effect, compare jury and non-jury trials with their normal characteristics and say which one would be better, but the court should really assume that a jury trial with all its natural characteristics is, although not the normal mode of trial, the mode that can be ordered. 

One of those important characteristics, we submit, your Honour, is this, that the civil jury in New South Wales and through the other States of Australia where civil juries are still summoned are an important element of participation of members of the community in the administration of justice through the representation of community values.  Now, so much has been said on high authority and we have cited some observations to that effect, your Honours, by Chief Justice Gleeson in Swain’s Case at paragraph 7.  Your Honour will find the reference to that at the foot of page 48 of the application books.

What happened in this case, your Honour, was that the present applicant applied for trial by civil jury, the exercise of the discretion under section 85. That was granted by Justice Simpson at first instance. Then the Court of Appeal reversed her Honour. In terms that can be shortly stated, the heart of the reasoning in the Court of Appeal, your Honours, I would suggest is to be found in four main paragraphs. They raise the problem, in my submission, that is at the heart of this special leave point. They are at pages 27 to 29 of the application book, your Honours, and they are paragraphs 29, 31, 32 and 34. It is those paragraphs I wish to briefly take your Honours to, to indicate the point.

The Court of Appeal in discussing Justice Simpson’s judgment said in the middle of paragraph 29, quoting Justice Tamberlin in the Stalyce Holdings Case that:

“where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved” was not intended and ought not be read as the touchstone for the rationale of trial by jury (in defamation or other matters), let alone the touchstone whereby the Supreme Court may decide whether it is satisfied that the interests of justice require it to order trial by jury. 

They are saying, in effect, that the community values represented by jury input are not part of the exercise of the discretion which is called for under section 85. This is made even clearer in paragraphs 31 and 32 of the judgment on page 28 of the application book. If your Honours go to line 20, in paragraph 31 the court says:

Parliament has made the call that trial by judge alone is the norm.  Absence of a “representative” or “community” viewpoint is not an inherent defect of trial by judge alone.

They are saying, in effect, that the absence of a community viewpoint is not something that can be said to detract from trial by judge alone, the normal mode.  That is really the converse of saying that we cannot take it into account in preferring, in some circumstances, trial by civil jury.  Perhaps the clearest place it is expressed is in paragraph 32 where the court says in the middle of the paragraph:

Nor does it permit judicial fact-finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern “moral, ethical or general social values”, assuming them to be relevant to the task at hand.

It is effectively saying that the judicial fact-finding in a non‑jury situation cannot be dispensed of because of this community input.  The same thing is said in 34 and then it is applied to the circumstances of this case in paragraph 41 where the court says that it respectfully disagrees with the approach taken by Justice Simpson and she has applied Justice Hall’s test in Muir v Council of Trinity Grammar School, a test that at least includes:

the invocation of “general community contemporary values” –

Now, the effect of that, your Honours, is this, that if an important relevant consideration of the essential characteristics of trial by civil jury is the fact that juries represent community values, it is important that that be able to be weighed in the balance in favour of, in effect, dispensing with trial by judge alone and ordering trial by civil jury.

What the court has said, in effect, is that it cannot do that.  The court has said that we cannot take that into account and we will not apply or will not give consideration to that, and those paragraphs say that.  In my submission, that was an error in the exercise of the discretion because what the court was not entitled to do was in effect say that that inherent characteristic of trial by jury is a characteristic that could be discounted.  The section effectively says that it is important that there be a choice available and trial by jury is not abolished.  That is a characteristic of trial by jury.  It is something that should be taken into account. 

That is what Justice Simpson did and your Honours will find back in her judgment on pages 8 and 9 of the application book, in the circumstances of this case, which involved a very serious injury, as the background facts indicated, of a man in a rugby league match who was made a quadriplegic as a result of an accident which has led to these proceedings.  Your Honours, she says in paragraph 23 and then again in paragraph 29 that the case throws up important questions of the administration of amateur sporting clubs which are intimately associated with community activities.  These are not large businesses.  These are situations in the community in which ordinary members of the community can see and experience the administration of those clubs can provide a view about how, of course under the direction of the judge in the trial, but nevertheless provide a view about community values in this very local situation.

HEYDON J:   The problem is that there are innumerable instances where breach of duty of care in negligence litigation calls on an assessment of community values. If your submission was correct, as put in some of the terms you have been using, would it not mean there would be a very extensive right, really, to trial by jury, which seems to contradict the structure of section 85?

MR SLATTERY:   The circumstances in which it was ordered would need to be teased out further, your Honour, but one can imagine there are many situations involving large businesses where individuals were not ordinarily involved in administering the management side of the operation where, in effect, the judge would probably be the best person to make the decision, but where there is, as there was here, a very local flavour to the case in which the individuals were watching sport, administering sport, being involved in decision making about how particular games were to be conducted and how particular clubs were to be run, in my submission, you are getting very close to community activity which jurors would understand far, far better than something more remote, financial or complex. 

There may be many other cases, your Honours, such as the old categories of fraud where personal reputation is taken into account, where malicious prosecution was the issue.  I can put the reverse, your Honour.  If the section is construed the way the Court of Appeal says, it is hard to imagine any situation in which it will ever operate.  Very few are able to be suggested and this is not in reality abolition of trial by civil jury.  That is the converse really of what your Honour is putting.

HEYDON J:   But section 85(2) in a way suggests that you have to find justice could not be served unless there was a trial by jury. The interest of justice could not be advanced unless there was a trial by jury. I do not know that that could be said in this case.

MR SLATTERY:   It is not a matter of necessity.  It is somewhere between - the old test was an even playing field and if it was more favoured one way or the other, that was sufficient.  This is not a test of necessity but it is a test of what is required.  In my submission, if it is sufficient that in the particular facts, the particular case, that experience of the community in that kind of activity and the experience and values that community can bring to bear in a common and practical way in fact-finding about that activity and in the normative process of, in effect, finding under judicial direction what the appropriate standard of care is and whether or not it has been breached, in my submission, the trial by jury is the appropriate or could be seen to be the appropriate course.  Your Honour, that is the point stated.

The other disadvantage, if I can put it that way, of the Court of Appeal’s decision is that an opportunity has been missed to, in effect, give some kind of guidance to ‑ ‑ ‑

HEYDON J:   Speaking for myself, that word causes my blood pressure to rise.  It is not supposed to be giving guidance.  It is supposed to be deciding.

MR SLATTERY:   I do not wish to raise your Honour’s blood pressure any further.  Your Honour, I have ‑ ‑ ‑

HEYDON J:   What did they do wrong?  What do you say they should have done that they did not do?

MR SLATTERY:   Well, I have taken your Honours to the paragraphs and what our submission is, that in those four paragraphs they have said you cannot take into account in the exercise of this discretion the value of the civil jury as the voice of community values.  That is what they are saying in those four paragraphs.  In my submission, that is the error.

KIEFEL J:   They are saying that is not really found in the statutory framework. 

MR SLATTERY:   They are saying that, your Honour, but the statutory framework has within it these simple facts.  There is a choice between, ultimately, a normal trial by judge alone and a jury.  Circumstances can require trial by jury.  We are not going to abolish trial by jury.  What do you take?  You take trial by jury with all its characteristics.  One of those characteristics, in my submission, your Honour, is what we have been talking about, which is the important representation of community values.  They say you cannot take it into account.

KIEFEL J:   But the Court of Appeal was really saying that the section requires an identification of a feature that you can attach then to the interests of justice requiring a jury.  So there is almost a presumption in favour of a judge hearing the matter unless that feature is identified.  Can you identify it here apart from some balancing exercise which involves juries and community values somehow determining a duty of care concept?

MR SLATTERY:   The one I can identify is the one that Justice Simpson identified that I took Justice Heydon to, your Honour.  That is the one.  Those are my submissions.

HEYDON J:   Thank you, Mr Slattery.  We need not trouble you, Mr Walker.

In our opinion, if special leave were granted, there would be insufficient prospects of successfully demonstrating on an appeal that the Court of Appeal fell into error in construing section 85. Accordingly, special leave is refused with costs.

AT 2.58 PM THE MATTER WAS CONCLUDED