Mulquiney v Reynolds (Ruling No 1) - [2020] VSC 119

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST

S ECI 2019 02580

BETWEEN:

DANIEL MULQUINEY	Plaintiff
and
VINCENT REYNOLDS	First Defendant
and
STATE OF VICTORIA	Second Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2020
DATE OF RULING:	16 March 2020
CASE MAY BE CITED AS:	Mulquiney v Reynolds & Anor (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2020] VSC 119

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CIVIL PROCEDURE — Mode of trial — Where trial fixed for trial by jury — Where Court has suspended all new jury trials until further notice due to COVID-19 pandemic —Whether to dispense with jury and proceed as a cause or adjourn hearing for later jury trial — Where plaintiff had been granted an expedited hearing — Rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Birti v SPI Electricity [2011] VSC 566 considered - Civil Procedure Act 2010 (Vic) s 7 – Overarching obligation to facilitate just, efficient, timely and cost-effective resolution of the real issues in dispute – Trial to proceed as a cause.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Seccull QC with Mr J Gordon	Rightside Legal
For the Defendant	Ms M Britbart QC with Mr B House	Minter Ellison

HIS HONOUR:

The plaintiff, Mr Mulquiney, has brought a proceeding alleging that he was sexually abused whilst a student at a Victorian State primary school in 1988 and 1989 when he was 10 or 11 years old. The claim is against the alleged perpetrator and against the State of Victoria. The claim is for damages for psychiatric injuries and for economic loss consequent upon those injuries.

In August of last year, 2019, in response to an application for an expedited hearing, a judge of this Court ordered that this proceeding be tried on 16 March 2020 (today) before a judge and jury. In circumstances which I will shortly explain, the plaintiff has applied for the matter to proceed before a judge alone. The State opposes that course. The first defendant has filed no appearance in the proceeding, is currently incarcerated and is not expected to participate in the trial.

Over the weekend just passed it was reported in the media, accurately, that as of today no new jury trials will be commenced in Victoria until further notice in response to a worldwide pandemic known as COVID – 19 (coronavirus). Time does not permit me to explain in detail the nature of this emergency, but it is well known to all. Jury trials have been suspended due to the risk to jurors and others of the spread of the coronavirus through the close contact which jurors must have to one another throughout a trial. The purpose of containing the spread is to slow the rate of infection and thereby defer the time of peak infection to allow State medical resources to cope with those who need treatment. It is not currently known how long the suspension of…

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.

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Details

Case: [2020] VSC 119
Decision Date: 16 March 2020

CaseChat Overview and Summary

In Mulquiney v Reynolds, the plaintiff sought a determination regarding a dispute, with the matter being heard in the Supreme Court of Victoria. The issue at the heart of the case was whether the trial, initially scheduled for a jury, should proceed as a cause, or be adjourned to allow for a later jury trial. This decision arose in the context of the COVID-19 pandemic, which led the Court to suspend all new jury trials until further notice. The plaintiff had been granted an expedited hearing, and the question of how to manage the trial in these extraordinary circumstances was brought before the Court.

The legal issues the court needed to address centred on the appropriate mode of trial under the circumstances. Rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provided a framework for the Court to consider the expeditious resolution of the real issues in dispute. The overarching obligation under the Civil Procedure Act 2010 (Vic) s 7 was to facilitate a just, efficient, timely, and cost-effective resolution of the dispute. The Court also took into account the case of Birti v SPI Electricity [2011] VSC 566, which emphasised the importance of achieving a just outcome in the circumstances.

After considering these factors, the Court ruled that the trial should proceed as a cause, rather than being adjourned for a later jury trial. The Court found that proceeding as a cause was the most just, efficient, and timely resolution of the real issues in the case, given the current circumstances. The decision was made in line with the overarching obligation to facilitate a just, efficient, timely, and cost-effective resolution of the dispute, as well as the need to adapt to the exceptional circumstances presented by the COVID-19 pandemic. The Court's ruling ensured that the plaintiff's right to a fair and timely resolution of their dispute was not unduly prejudiced by the pandemic.

Orders