Martin v A G Woodland Pty Ltd and Anor (Ruling)

[2021] VCC 883

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-04110

PAUL MARTIN	Plaintiff
v
A G WOODLAND PTY LTD	First Defendant
and
STEVEN WHITWOOD	Second Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	Melbourne (eHearing)
DATE OF HEARING:	2 July 2021
DATE OF RULING:	2 July 2021
CASE MAY BE CITED AS:	Martin v A G Woodland Pty Ltd & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2021] VCC 883

RULING

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Subject:  CIVIL PROCEDURE

Catchwords:             Mode of trial – jury trial – COVID-19 pandemic – where the defendant sought a jury trial – whether proceeding should proceed as a cause

Legislation Cited:     Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Cases Cited:Cossari v Wells [2020] VSCA 133; Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; Belbin & Ors v Lower Murray Urban and Rural Water Corporation (Ruling No 1) [2012] VSC 359

Ruling:  Matter to remain as a jury trial

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Winneke QC	Galbally & O’Bryan
For the First Defendant	Mr M Hooper	IDP Lawyers
For the Second Defendant	Mr A Clements QC with Mr M Clarke	Meridian Lawyers

HER HONOUR:

1Mr Paul Martin claims damages in relation to an injury he suffered on 12 February 2013, when he was knocked from a ladder in the course of his employment whilst working as a painter and carpenter.  The first defendant was his employer.  The second defendant, Mr Steven Whitwood, was his co-worker, who Mr Martin claims caused his fall.  Mr Martin claims that as a result of this incident, he suffered various injuries to his right shoulder, knee, and elbow, as well as a psychiatric injury including major depression.

2These proceedings were issued on 2 September 2019 and the case is currently listed for hearing on 6 July 2021.

3In early June 2021, Mr Martin moved to the Gold Coast and resides in an area which is in lockdown and is deemed a red zone by the Victorian Government. Under current COVID restrictions, Mr Martin will only be able to attend Victoria and give evidence in person at his trial under the following restrictions:

(a)   if he is a non-Victorian resident, he may only enter Victoria with an exemption;

(b)   if he is still a Victorian resident, he may only return if he self-quarantines for 14 days, gets tested within 72 hours of arrival, and is tested again at the end of his quarantine period, and provides a negative result.

4Given his inability to attend in person, Mr Martin seeks for this matter to proceed as a remote hearing and as a judge alone trial.

5Further, Mr Whitwood also resides on the Gold Coast and is subject to the same restrictions as Mr Martin.  Mr Whitwood supports Mr Martin’s application that the matter proceed as a remote hearing and as judge alone trial.

6The first defendant, who issued a Notice for a jury on 14 October 2019, submitted that this case should proceed as a jury trial next week, and that both Mr Martin and Mr Whitwood give evidence remotely.  This proposal was objected to by both Mr Martin and Mr Whitwood on the basis that there was a real risk that the jury would favour evidence given by the first defendant in person, over that of remote evidence given by Mr Martin and Mr Whitwood.

7I accept that even with an appropriate direction from a judge, there is such a risk. Therefore, in considering this application, I have determined that a jury trial should only proceed if the critical witnesses are able to give evidence in person.  As this is not possible due to the location of Mr Martin and Mr Whitwood, it is necessary for me to consider Mr Martin’s application that the jury be dispensed with.

8Subject to compliance with the Rules of Court, a party is entitled, as a right, to seek trial by jury provided the claim is founded in contract or in tort.  This right was enlivened in this case by the first defendant filing the requisite notice within time, and paying the jury fees.

9Where a party has given proper notice 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. This power is provided for under rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

10As was stated by the Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe,[1] a party who gives notice in accordance with the Rules has a prima facie entitlement to trial by jury and that party should not be deprived of such an entitlement in the absence of good cause.[2]

[1] [2011] VSCA 16

[2](Ibid) at paragraph [38]; see also Belbin & Ors v Lower Murray Urban and Rural Water Corporation (Ruling No 1) [2012] VSC 359 at paragraph [8]

11In Cossari v Wells,[3] in a joint judgment of Justice Beach, Kaye and Osborn, it was noted that “each case must be considered on its merits”.[4]  Relevant issues for the Court to consider included the likelihood of the matter being able to be heard as a jury within an appropriate timeframe; and the nature of the issues in the proceeding.[5]

[3] [2020] VSCA 133

[4]        (Ibid) at paragraph [39] 

[5]        (Ibid) at paragraph [39]

12The onus in persuading a court to dispense with a jury trial ordinarily rests with the party making the application, in this case Mr Martin.   

13In support of his application to dispense with a jury, Mr Martin’s solicitor, Mr Patrick Santamaria, swore an affidavit dated 1 July 2021.  In it he detailed the arrangements he had made for Mr Martin to give evidence remotely and that it was Mr Martin’s preference that the matter proceed as judge alone.

14Last year, due to COVID-19, civil jury trial jury trials were suspended indefinitely. On numerous occasions, I ruled that the dictates of justice demanded that cases proceed as a cause, notwithstanding a party having requested a jury in accordance with the rules.  At the time, it was unknown when jury trials would resume.

15This moment in time is different.  The Queensland state government will announce later today whether the lockdown there will continue.  Further, there is a reasonable prospect that once the Gold Coast is declared an orange zone, Mr Martin will be able to attend Melbourne in the not too distant future.  Although nothing is certain in these COVID times, if this case is relisted for trial in six weeks’ time, the parties can be reasonably confident that the case can proceed as a jury trial.

16In considering this application, I note that there is no evidence before me that Mr Martin will suffer prejudice from a short delay of his trial.  I am also mindful that this is the first trial date allocated in this matter.

17In weighing up the competing considerations in this application, I am not persuaded that the interests of justice are such that the defendant should be denied its right to a jury trial.  I therefore order that the trial date be adjourned and refixed for 25 August 2021.

18In the application, the first defendant also submitted that Mr Martin’s right knee injury was not stable, and this was a further ground for an adjournment of the trial.  This was opposed by Mr Martin.  I have not considered it necessary to consider this alternate ground for an adjournment, in circumstances where I am satisfied it is necessary to adjourn the trial now due to COVID-19.

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