Murphy v State of Victoria (Ruling No 2)
[2015] VCC 1069
•12 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-11-01027
| LEONIE JANINE MURPHY | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2015 | |
DATE OF RULING: | 12 August 2015 | |
CASE MAY BE CITED AS: | Murphy v State of Victoria (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1069 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Mode of trial – application by defendant for trial by judge sitting alone – self-represented plaintiff – plaintiff elected for trial by jury – procedural fairness – principles relevant to mode of trial – general discretion under Rule 47.02 as to the appropriate mode of trial – onus of proof of persuading Court to dispense with trial by jury rests with defendant – trial management – nature and complexity of evidence and factual matters – likelihood of reference being made to inadmissible and prejudicial statements – defendant discharged its onus
Legislation Cited: County Court Civil Procedure Rules 2008, r47.02
Cases Cited:Matthews v SPI Electricity (Ruling No 8) [2012] VSC 318
Ruling: Defendant’s application for order for trial by jury granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr J R M Tracey | Victorian Government Solicitor |
HIS HONOUR:
1 In this application the defendant seeks an order – notwithstanding the election by the plaintiff, who is self-represented, for trial by jury – that the mode of trial be by judge sitting alone.
2 The principles relevant to an application under Rule 47.02 of the County Court Civil Procedure Rules 2008 concerning the mode of trial were conveniently set out by J Forrest J in Matthews v SPI Electricity (Ruling No 8)[1] as follows:
[1][2012] VSC 318
“(a) subject to compliance with the rules of the court, a party is entitled to seek trial by jury provided the claim is founded in contract or in tort;
(b) for that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the court to the contrary). Part 6 of the Juries Act provides the statutory basis for the conduct of the trial by jury;
(c) where a party has given notice regularly 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;
(d) notwithstanding the right of a party to opt for a jury trial, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties;
(e) a court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so;
(f) as a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact;
(g) the onus of proof in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause;
(h) even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time;
(i) the considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice;
(j) subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:
•the complexity of the factual matters that the jury will need to consider;
•the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;
•the complexity of the jury’s task in relation to the assessment of damages;
•the potential duration of the trial (although this, of itself, could never be the determining factor); and
•the stage at which the proceeding or trial has reached; and
(k) a decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.”
3 In deciding this issue, I do so adopting and applying the principles as set out above.
4 As to the application, the parties have filed written submissions as to their respective positions by reason of previous Orders made by me.
5 I am satisfied, on the basis of statements made by the plaintiff in the course of the directions hearings conducted by me in managing the pre-trial issues which arise in this instance, that the plaintiff genuinely believes that it is only via a trial by jury that she will be given procedural fairness.
6 It is clear that the plaintiff maintains that position regardless of my having explained to her the concept of judicial independence and the reasons why her belief is misguided.
7 The plaintiff also asserts that:
· Her Honour Judge Lewitan, on 21 May 2014, made an Order confirming the mode of trial in this instance be trial by jury;
· That the matter was fixed as a trial by jury by his Honour Judge Carmody;
and that those Orders cannot be revisited by myself.
8 In dealing with this application, I am satisfied that Rule 47.02 confers upon me a general discretion as to the appropriate mode of trial in this proceeding which I should exercise in complying with my obligations under the Civil Procedure Act to ensure that the trial is managed in such a way as to give effect to the overarching purpose of the Act, namely to ensure that this proceeding is conducted in a just, efficient, timely and cost-effective manner such that it resolves the real issues in dispute between the parties.
9 I am further satisfied that the onus of proof of persuading the Court to dispense with a trial by jury rests with the defendant in this instance; that I should be reluctant to make an order dispensing with a trial by jury, and that the plaintiff’s desire to maintain a trial by jury should be given effect to unless there is good cause to make an order to the contrary.
10 Having regard to my position in managing the pre-trial issues which have arisen in this instance in the course of the five lengthy directions hearings conducted by myself, I am satisfied:
· That I well understand the issues in the case;
· That the defendant is entitled to make the application which it now makes;
· That such an application has not been previously considered by either their Honours Judge Lewitan or Judge Carmody; and
· That it is incumbent upon me in undertaking the pre-trial management in this proceeding that I deal with the application at this time and that it is appropriate that I determine it at this time.
11 By way of background, the plaintiff’s claim in this instance arises out of an agreement entered into between the plaintiff and the defendant on 23 March 2005 in which the defendant agreed to deal with allegations made by the plaintiff that she had been subjected to inappropriate and unsafe work practices in the course of her employment with the defendant between December 2003 and March 2005, by paying the plaintiff $30,000 and re‑employing her on the basis of conditions set out by that agreement.
12 The plaintiff alleges that the defendant failed to honour all of its obligations under that agreement.
13 It is clear that the background of the claim involves allegations by the plaintiff that between December 2003 and March 2005, she was bullied and exposed to sexually-explicit, demeaning, violent, discriminatory and totally inappropriate behaviour which was performed by and/or condoned by senior members of the police force.
14 As I understand the plaintiff’s position, she considers it to be essential in the presentation of her case to adduce evidence that:
· Various members of the police force, in particular Mr Makepeace, were responsible for allowing and/or authorising the behaviour which pre-dated and gave rise to the March 2005 agreement;
· There was no bona fide intention by the defendant to ever give effect to the March 2005 agreement;
· The failure by the defendant to make good its obligations under the agreement was really a continuation of the campaign commenced in 2003 by Mr Makepeace and others, to destroy the plaintiff’s capacity to carry out the duties involved in her employment with the defendant.
15 On 4 August 2015, I made an Order that the plaintiff should file a copy of her proposed opening address in this instance to assist me to make the ruling the subject of the present application.
16 The plaintiff’s handwritten opening address was provided to me on the day of the hearing, a copy of which was provided to the defendant with the plaintiff’s consent.
17 In the course of various directions hearings, I have explained to the plaintiff that her case must be confined to the pleadings in the Amended Statement of Claim dated 20 March 2014 and that those pleadings are not such that detailed evidence can be given as to the defendant’s alleged failures which gave rise to the execution of the agreement.
18 Whilst appearing to accept those statements when they were made, it is clear from the plaintiff's opening that the plaintiff, in the course of this trial, intends to refer in detail to the alleged behaviour by the members of the police force which gave rise to the agreement of 23 March 2005.
19 The defendant’s position is that, were the case to be opened by the plaintiff on the basis of that address, an application would be made by the defendant that the jury be discharged.
20 Given the content of that opening which contains various:
· irrelevant assertions as to injustice done to the plaintiff by the Court of Appeal and this Court;
· irrelevant and prejudicial statements by the plaintiff as to the behaviour of a number of the defendant’s employees which pre-dated the 2005 agreement;
I am satisfied that the defendant would be entitled to make such an application.
21 I am satisfied, given the plaintiff’s attitude to the relevance of the behaviour of defendant’s employees which pre-dates the 2005 agreement, that even were the plaintiff’s opening address to the jury to be vetted so as to exclude from that opening any statements relevant to that behaviour, it is extremely likely:
· that in the course of the trial, the plaintiff will seek to take the jury to not only the existence of her belief as to that behaviour, but also to the documentary evidence which the plaintiff asserts justifies the holding of that belief; and
· that the plaintiff will most probably make reference to inadmissible and extremely prejudicial statements which are critical of the defendant.
22 I express this view, taking into account the combination of:
· the plaintiff’s strong personal feelings as to the injustice done to her by reason of the defendant’s alleged activities between 2003 and 2005 which has no relevance to the present case given the nature of the pleadings; and
· the complex factual history which gave rise to the March 2005 agreement, the relevance of which the plaintiff is unable to separate from the admissible evidence in this instance.
23 That this is likely to occur speaks strongly against the maintenance of the current mode of trial.
24 There are a total of thirteen very substantial volumes of court books which, apart from highlighting the likely factual complexity in the case, will be required to be duplicated for each of the jurors.
25 The volume of that evidence alone, in the context of the plaintiff’s insistence that each of the documents contained in her ten lever-arch folders, together with the content of the three lever-arch folders which have been prepared by the defendant as joint court books in this instance are pivotal to her case, speaks, on the basis of trial management and complexity of evidence, against a jury trial.
26 Further, I am satisfied:
· that the factual matters which the jury will need to consider in this instance are potentially complex, involving, as they do, the hierarchy and structure and operation of the defendant’s workplace; and
· that the trial will invariably require the jury at various times to exclude from their minds the influence of the extraneous, irrelevant or prejudicial assertions which are likely to emerge in one way or another during the course of the trial, given the plaintiff’s demonstrated inability to separate the alleged wrongs occasioned against her prior to the entry of the 2005 agreement from the issues relevant in her trial, namely her obligation to establish:
(i) that the defendant breached the agreement; and
(ii) the damages to which she is entitled by reason of that breach.
27 Whilst there can be no doubt that the duration of a jury trial will be significantly longer, I am satisfied that this issue alone should not to be accorded significant weight.
28 In this instance however, I am satisfied that it is likely that the length of the trial will be prolonged by the fact that that frequent objections are likely to arise as to the admissibility of evidence and that time will be lost given the plaintiff’s inexperience in managing not only a trial but also a trial by jury. For these reasons I am satisfied that it is likely that there will be a frequent need to send a jury out whilst legal argument proceeds and rulings are given, and that the combined influence of these two factors militate with some force in favour of the defendant’s position that the matter should proceed as a cause.
29 There can be no issue that the duty of a trial judge in assisting an unrepresented litigant will invariably involve the trial judge adopting a more interventionist approach than would normally be taken in a trial in which the litigants are represented for the purpose of ensuring:
· that the self-represented litigant obtains such advice and assistance as is necessary to ensure procedural fairness in the context of the operation of the adversarial system;
· that both parties in this instance are afforded procedural fairness; and
· that the jury is not exposed to irrelevant or prejudicial statements or evidence.
30 It is the defendant’s position that such a process may enliven in the jury a perception that the plaintiff’s case should be accorded some merit which it would not otherwise be accorded by reason of such intervention.
31 Whilst I am satisfied that this position by the defendant raises a matter of relevance which should be accorded some weight, I am equally satisfied that it should in no way be determinative of the defendant’s application.
32 In this instance, I am satisfied that there are no real issues which speak in favour of the retention of the mode of trial as a trial by jury other than for the plaintiff‘s misguided perception as to the need for the presence of a jury to provide her with procedural fairness.
33 Taking account of all the matters to which I have referred above, I am satisfied that in this instance the defendant has discharged its onus to persuade me that this matter ought to be tried by a judge alone and that there is good cause for the making of such an order in this instance.
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