Morton v Morgan Stanley Smith Barney Australia Pty Ltd

[2011] VCC 324

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-10-05926

SITA ROSE MORTON	Plaintiff
v.
MORGAN STANLEY SMITH BARNEY	Defendant
AUSTRALIA PTY LTD

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2011
DATE OF JUDGMENT:	24 March 2011 (revised 25 March 2011)
CASE MAY BE CITED AS:	Morton v. Morgan Stanley Smith Barney Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 324

REASONS FOR JUDGMENT

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Catchwords:  Practice and Procedure – Claim for economic loss as a result of alleged negligent investment advice – Plaintiff required trial by jury – Whether trial by jury appropriate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms B. Coglin	Maurice Blackburn
For the Defendant	Mr S. Rubenstein	Mallesons Stephen Jacques
HIS HONOUR:

1           The parties were not able to agree on a trial date or an interlocutory timetable. There were a number of matters debated before me today, including:

a.	whether a trial date should be fixed at the present time;
b.	whether the matter should be fixed as a jury trial;
c.	the adequacy of the plaintiff’s statement of claim;
d.	a request for particulars contained in a letter from the defendant’s solicitors, dated 24 February 2011;
e.	the sequence for serving of experts reports; and
f.	the costs of the directions hearing, and as a consequence of the order that the plaintiff deliver an amended statement of claim.

2           The plaintiff gave notice in the writ that she desired trial by jury. If possible, that wish of the plaintiff should be accommodated. I consider, however, that the nature of the present dispute is not such that it would be appropriate to try this matter with a jury.

3           The plaintiff’s claim, on the most simplistic view, is a claim that she received negligent investment advice as a result of which she suffered financial loss. The claim is made in contract, tort and breach of statutory duty. The parties have been in dispute as to the adequacy of the plaintiff’s statement of claim. The present articulation of the claim is set out over 15 pages and a schedule recording many transactions over more than 3 years.

4 I have determined that in some, not insignificant, respects the statement of claim requires amendment to clarify the basis of the claim. The defendant’s solicitors have attacked the articulation and particularisation of the claim in correspondence which I generally consider to have been entirely inappropriate, particularly in view of the requirements of parties pursuant to the overarching purpose of the Civil Procedure Act 2010 and the overarching obligations contained in that Act.

5           Fortunately, the argument before me proceeded on a more limited basis and I have indicated in the orders I have made the specific matters which the plaintiff must address in an amended pleading. This dispute and, in particular, the substantive matters raised by the defendant which I consider require attention by way of an amended pleading, are indicative of the complexity of the claim made by the plaintiff and the difficulty there would be for the trial of this matter to proceed before a Judge and jury.

6           Juries consider very complex issues of fact and law in both criminal and civil trials. I consider it likely that the cost and length of a jury trial in this matter would be considerably greater than if it proceeded before a Judge alone. In contested criminal matters, there is no alternative to a jury trial. However, in civil trials and particularly a case of this complexity, considerations of justice and efficiency require that the trial be heard by a Judge sitting alone.

7           I do not think it is necessary for me to give reasons for the other orders I have made. During the course of discussion with Counsel I have debated the reasons why special orders are required in this case to ensure that the issues in dispute are properly

delineated. Although I have required the plaintiff to file and serve and amended
statement of claim, I consider that with proper cooperation between the parties and, if
the defendant had concentrated on matters of substance by way of complaint, the
parties should have resolved any disputes without needing to appear before the
Court.

8           In the orders I have made, I have set out a procedure for the parties to discuss any further differences they may have in relation to the plaintiff’s proposed amended pleading. Again, it is to be hoped that the parties will sort those matters out between themselves without returning to Court or, if the matter needs to come back, the dispute will have been narrowed appropriately to matters of substance.

9           These are the reasons which have led me to make the costs order in relation to the plaintiff’s further amendment to the statement of claim. I do not consider it appropriate that those costs should be paid by the plaintiff as a matter of course, as the Rules would require unless I otherwise order. I have therefore made a different order.

10         I have reserved the costs of the directions hearing today because there were significant issues, hidden amongst a fog of insignificant matters, that the parties could not resolve. It was necessary for those matters to be discussed before the Court and finally determined by order. In those circumstances, it is appropriate to simply reserve the costs of today and it is likely that those costs will be either absorbed in any settlement of the matter or will follow the event, if the matter is determined at trial.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 24 March 2011 and revised on 25 March 2011.

Dated: 25 March 2011

Hannah Christensen

Associate to His Honour Judge Anderson