Messade v Baires Contracting Pty Ltd (Ruling No 5)
[2011] VSC 177
•3 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7692 of 2009
| JAMAL MESSADE | Plaintiff |
| v | |
| BAIRES CONTRACTING PTY LTD | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 28 February, 1, 2, 3, 7, 8, 9 and 10 March (written submissions as to indemnity certificate 25 March) 2011 | |
DATES OF RULING: | 3 May 2011 | |
CASE MAY BE CITED AS: | Messade v Baires Contracting Pty Ltd (Ruling No 5) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 177 | |
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COSTS – Appeal Costs Fund – Section 10 Appeal Costs Act – Indemnity certificate – Discharge of jury owing to interaction between juror and plaintiff outside of Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC Ms T Riddell | Clark Toop & Taylor |
| For the Defendant | Ms M Hartley SC Ms P Cefai-Talbot | Hall and Wilcox |
HIS HONOUR:
This ruling concerns an application by Mr Messade pursuant to s 10 of the Appeal Costs Act 1998.
The circumstances of the discharge of the jury are set out in Ruling No 3.[1]
[1][2011] VSC 75 [12]-[30].
Counsel for Mr Messade filed written submissions on 25 March 2010. I thought that this was a somewhat unusual application with a degree of statutory interpretation required. Accordingly, I invited the Secretary to the Appeals Cost Board to consider whether the Board wished to make any submissions relevant to the construction of s 10 in the light of the circumstances disclosed in my ruling.
On 5 April, the Secretary replied, indicating the Board did not wish to make any submissions and indeed perceived that the provisions of the Act prevented it from doing so.
Appeal Costs Act
Section 10 of the Appeal Costs Act reads as follows:
10. Application for indemnity certificate if civil proceeding discontinued
(1) If-
(a)the hearing of any civil proceeding is discontinued; and
(b)the reason for the discontinuance was not attributable in any way to the act, neglect or fault of any of the parties to that proceeding or their legal practitioners; and
(c)a new trial is ordered-
a party to that proceeding may apply to the court before which the proceeding is discontinued for, and the court may grant, an indemnity certificate in respect of the party's own costs of the discontinued proceeding.
(2) The court may only grant an indemnity certificate under subsection (1) if it is satisfied that the reason for the discontinuance was as set out in subsection (1)(b).
(3) A party granted an indemnity certificate under subsection (1) who pays, or is ordered to pay, any additional costs as a consequence of the order for a new trial is entitled to be paid by the Board, on an application made to it by that party in the approved form, an amount equal to that party's own costs of the discontinued proceeding that the Board considers to have been reasonably incurred.
Analysis
The short point is whether the discharge of the jury was occasioned “in any way” by an “act, fault or neglect” of Mr Messade.
In my earlier ruling, I concluded that the interaction between Mr Messade and the jurors at Flagstaff Station was not intentional, notwithstanding that it occurred on two consecutive days. It was Mr Messade’s eye contact with the juror on the second day that led to her sense of apprehension. This, in turn, would, I inferred, have led to her discussions with the other jurors (not unnaturally) and my decision to discharge the jury. I emphasise here that I make no criticism whatsoever of the juror or the other jurors involved – quite the opposite. They performed their duty by bringing the matter to my attention.
Returning now to section 10. I am not satisfied that there was either neglect or fault on the part of Mr Messade, despite a healthy scepticism as to how it could be that he came into contact with the jurors on two consecutive days.
That leaves the question as to whether any act on the part of Mr Messade, in any way, contributed to the discharge of the jury. It may be said that without his presence at the station, there would have been no discharge of the jury. That, in my view, would be to approach the section the wrong way. For the discharge to be “attributable” to the act of a party (or a practitioner) there must be, I think, a direct relationship between the conduct of the party and the discharge of the jury. For instance, if Mr Messade had spoken to the juror, then that would be a direct action that produced, ultimately, the discharge of the jury. On the other hand, mere eye contact between the juror and Mr Messade does not constitute a direct relationship between his actions and the discharge of the jury.
To put it another way, the act that resulted in the discharge of the jury was the apprehension and discomfort experienced by the juror as a result of the eye contact with Mr Messade. It was that, combined with the inevitable adverse repercussions that would flow from discussion with other jurors (two of whom were present at the station) about that interaction, that led to the discharge – not the mere presence of Mr Messade at the station.
Conclusion
I am satisfied that there was no act, fault or neglect on the part of Mr Messade which in any way led to the discharge of the jury.
The conditions of s 10(1) are satisfied and my discretion to grant a certificate is, therefore, enlivened. It is still up to the “Court to be satisfied that it is appropriate in all the circumstances that a certificate should be granted”.[2] With some hesitation, I am so satisfied and will grant a certificate.
[2]Eureka Funds Management Ltd v Freehills Services Pty Ltd (No. 2) [2008] VSCA 177 [7].
An additional observation
There is one other matter that I should mention now relevant to this application. It is vital that legal practitioners involved in the conduct of cases before civil and criminal juries in this Court (or in the County Court) ensure that their clients are properly and thoroughly advised as to the necessity to avoid contact of any sort with members of the jury. In preliminary directions, a jury is routinely told by the trial judge to avoid contact with witnesses or parties. No doubt the jurors adhere to this instruction. But it works both ways. Practitioners have an obligation to the Court and to the administration of justice to ensure that their clients are also given advice to avoid such contact, so that chance meetings or encounters are kept to a minimum or, hopefully, eliminated.
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