Nugent v Techni Waterjet - [2012] VSC 465

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 285 of 2011

ADRIAN NUGENT	Plaintiff
v
TECHNI WATERJET PTY LTD	First Defendant
and
SURDEX STEEL PTY LTD	Second Defendant

No. 1405 of 2011

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
SURDEX STEEL PTY LTD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	15, 16 and 17August 2012. Written submissions subsequently filed by the parties.
DATE OF RULING:	9 October 2012
CASE MAY BE CITED AS:	Nugent v Techni Waterjet & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 465

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PRACTICE AND PROCEDURE – Trial by Jury or by Judge alone – Order 47 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Section 49 of the Civil Procedure Act 2010 (Vic) – Time and costs savings insufficient to displace prima facie entitlement to trial by jury.

APPEARANCES:	Counsel	Solicitors
For Mr Adrian Nugent	Mr J Mighell SC Ms N Wolski	Zaparas Lawyers
For Techni Waterjet Pty Ltd	Mr D Curtain SC Mr S Smith	Hall & Wilcox
For Surdex Steel Pty Ltd	Mr C J Blanden SC Mr R H Stanley	Moray & Agnew Lawyers
For Victorian Workcover Authority	Mr R Dyer	Russell Kennedy

HIS HONOUR:

Introduction

Mr Adrian Nugent, the Plaintiff, sues the Defendants for damages arising out of a work accident on 9 November 2007.

Both Techni Waterjet Pty Ltd,[1] the first defendant (Mr Nugent’s employer), and the Second Defendant, Surdex Steel Pty Ltd,[2] (the occupier of the premises where the accident occurred), filed notices for trial by jury in February 2011.
[1]“Techni Waterjet”.
[2]“Surdex”.

On 15 August 2012, the trial commenced before a jury of six. On 17 August, the third day of the trial, Surdex sought to serve an expert report and subsequently applied for an adjournment. The application was not opposed by the other parties. Notwithstanding my disquiet concerning Surdex’s conduct, I discharged the jury without verdict and adjourned the trial to 19 November 2012. Mr Nugent and Surdex now seek to have the trial continue before a judge alone. Techni Waterjet wants a jury trial.

For the reasons outlined below, I have decided that the trial should be heard by a jury.

The trial

Mr Nugent’s claim arises out of a shoulder injury that he allegedly sustained as a result of lifting a piece of steel at Surdex’s premises. Contributory negligence is alleged by both defendants.

There is also a recovery action under s 138 of the Accident Compensation Act 1985 (Vic) by the Victorian Workcover Authority[3] against Surdex. I have ordered that the evidence in the primary proceeding be taken as evidence in the recovery action. In addition, the findings in the primary proceeding in relation to the liability of the respective defendants and contributory negligence on the part of the plaintiff will be adopted for the purpose of the recovery action.
[3]“VWA”.

Prior to the discharge of the jury, Mr Nugent and his partner Ms Jacqui Walford gave evidence and were cross-examined. Their…

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.

Continue reading Nugent v Techni Waterjet

Details

AGLC: Nugent v Techni Waterjet [2012] VSC 465
Case: [2012] VSC 465
Decision Date: 9 October 2012

CaseChat Overview and Summary

Nugent v Techni Waterjet was a case before the Supreme Court of Victoria. The dispute involved a claim for damages for breach of warranty in relation to a waterjet cutting machine. The plaintiff, Nugent, alleged that the machine sold by the defendant, Techni Waterjet, was defective. The matter was contested and proceeded to trial. A significant issue was whether the case should be heard by a jury or by a judge alone, given the nature and complexity of the claims involved. The court had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) and the Civil Procedure Act 2010 (Vic), specifically Order 47 and section 49, respectively.

The court examined whether the case fell within the categories outlined in Order 47 of the Rules, which pertain to the trial of civil cases by a judge alone. It also assessed whether any of the exceptions under section 49 of the Act applied, which would entitle the case to a trial by jury. The court had to balance the potential time and cost savings of a trial by judge alone against the prima facie entitlement to a trial by jury. After considering the arguments, the court determined that the case did not meet the criteria for a trial by judge alone, as the time and cost savings were not sufficient to outweigh the plaintiff's entitlement to a trial by jury.

Accordingly, the court ruled that the case should proceed to trial by jury. The reasoning emphasised the importance of preserving the right to a trial by jury in appropriate cases, despite the potential procedural efficiencies of a trial by judge alone. The court held that the plaintiff's entitlement to a trial by jury was not displaced by the considerations of time and cost savings. The final orders were that the matter would proceed to trial by jury, subject to any further directions the court might give.

Orders