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.

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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

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

1. 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”.

1. 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.

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

The trial

1. 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.

1. 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”.

1. Prior to the discharge of the jury, Mr Nugent and his partner Ms Jacqui Walford gave evidence and were cross-examined.  Their evidence had concluded by the time of the adjournment application.  Whilst giving evidence, both Mr Nugent and Ms Walford were, at times, clearly distressed.  Over the afternoon of 15 August 2012 and the following morning, Mr Nugent was examined, cross-examined and re-examined – totalling around three hours in the witness box.  He gave evidence of, amongst other things, the incident at Surdex, his health, medical treatment, ability to work before and since the accident, the injury to his arm and shoulder and the effects of this on his life.  Ms Walford gave evidence for no more than half an hour as to her partner’s health and capabilities before and after the injury and the effects of his injury on their relationship.

The Relevant legislation, Rules and Principles.

1. Rule 47.02 of the Supreme Court (General Civil Procedure)Rules 2005 reads as follows:

(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if—

(a)the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and

(b) the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.

(2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders.

(3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

1. The provisions of the Civil Procedure Act 2010 (Vic)[4] apply to this proceeding.  Section 7(1) of the CPA defines the overarching purpose of the Act and the rules in relation to civil proceedings as being “to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute”. More specifically, s 49 deals with the Court’s power “to order and direct trial procedures and conduct of hearing”. In particular:

   [4]“CPA”.

(1)In addition to any other power a court may have, a court may give any direction or make any order it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.

…

(3)Without limiting subsection (1), a court may give any direction or make any order it considers appropriate with respect to -

...

(i) the place, time and mode of trial;

...

1. The Court of Appeal has considered the question of dispensing with a jury on a number of occasions;[5] most recently in Trevor Roller Shutter Services Pty Ltd v Crowe.[6]  The principles relevant to such an application are as follows:

   [5]See Altmann v Dunning [1995] 2 VR 1; State of Victoria v Psaila [1999] VSCA 193; Trevor Roller Shutter Services Pty Ltd v Crowe [2011] VSCA 16.

   [6][2011] VSCA 16.

(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.[7] (emphasis added)

[7]Birti & Anor v SPI Electricity & Anor [2011] VSC 566, [14]-[16]; Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling 8) [2012] VSC 318.

1. There are a number of examples of cases in which a court, notwithstanding a party’s entitlement to a jury trial and the trial having commenced before a jury, has determined that the interests of justice require that it continue before a judge alone.  For instance in Altmann v Dunning[8] Smith J discharged a jury on account of the complexity and difficulty of the quantum issues which the jury would have been required to determine.  His Honour’s decision was affirmed by the Appeal Division of this Court.

Submissions

[8][1995] 2 VR 1. See also Rigg v State of New South Wales (1993) Aust Tort Reports 81-230.

Mr Nugent

1. Mr Nugent argues that the Court should have regard to the wider public interest and efficient use of court resources.  His Counsel identified the following factors as significant:

·    the matter proceeded for three of the allocated ten days;

·    the further hearing on 19 November 2012 is an expedited date (in light of the adjournment proceedings) in circumstances where other matters listed before the Court in November 2012 will be affected;  

·    if heard as a cause, further evidence would take no more than three days;

·    the necessity for Mr Nugent to again give evidence and be cross-examined will be unfair, particularly in light of the psychiatric illness which is claimed by him to arise as a consequence of the accident;

·    if Mr Nugent was to give evidence again and be subjected to cross-examination it may lead to a forensic advantage to the Defendants;

·    it is unfair for Ms Walford to give evidence again  - she was distressed and broke down whilst giving evidence on 16 August 2012; and

·    the Court should have regard to ss 8 and 9 of the CPA.

Techni Waterjet

1. Techni Waterjet submits that the trial should be heard by jury.  It argues:

·    it is a ‘straightforward claim’ arising out of a single accident;

·    there is very little controversy as to medical opinion concerning Mr Nugent’s injury;

·    neither Defendant proposes to call any medical evidence;

·    the factual matters as to liability and damages for the jury to consider will be ‘very simple’;

·    there was just over one day of evidence before the trial was adjourned;  

·    that the discrepancy in duration of the trial between that involving a jury and a judge alone will only be the “inevitable” discrepancy arising from the competing modes of trial as described in State of Victoria v Psaila:[9]

The only other matter relied on by his Honour in his ruling on the mode of trial was the suggested fact that the trial would be about two days shorter if a jury was dispensed with, with a resulting saving in costs in circumstances in which the plaintiff's parents were impecunious. It is, and has probably always been, the case that in claims for damages for personal injuries most plaintiffs, and the parents of most young plaintiffs, can ill afford the costs of the litigation. As regards the shortening of the trial, counsel for the State rightly observed to his Honour that one would always expect a jury trial to be longer than a trial by judge alone. In the present case, it was not suggested, nor would there have been any basis for a suggestion, that the difference in duration between a trial by judge alone and a trial by jury would, in consequence of some particular facts, have been greater than that which can perhaps be described as inevitable.[10]

·    That its conduct did not contribute to the discharge of the jury; and

·    The distress to Mr Nugent and his partner was in the examination, not the cross-examination and the method of cross-examination will not differ in the next trial.

[9][1999] VSCA 193.

[10]Ibid [23].

Surdex

1. Surdex seeks to have the matter proceed before a judge alone.  It argues:

·    that the Court’s discretion is wide and relies on the principles set out in Gunns Ltd v Marr (No 5)[11]; Messade v Baires Contracting Pty Ltd (Rulings 2, 3, & 4)[12] and Trevor Roller Shutter Service Pty Ltd v Crowe.[13]  The common theme is that the discretion should not be exercised ‘too lightly’ and there must exist ‘some special reason’ or ‘good cause’ to deprive a party of their entitlement to have the trial heard by a jury;

[11][2009] VSC 284 [9]

[12][2011] VSC 75 [35]

[13][2011] VSCA 16 [36]-[44]

·    that the shortened time and cost should be factored in given Mr Nugent and Ms Walford have already given evidence which could be utilised without need for repetition.  It says that it is likely Mr Nugent would be further cross-examined, such further evidence would be limited to facts directly relevant to his actions and movements at the time of the accident;  

·    the medical evidence could largely be adduced by the tender of medical reports, whereas a number of doctors are likely to be called and cross examined in front of a jury.  Expert evidence is also likely to take less time without a jury; and

·     that the emotional impact of giving evidence will have on Mr Nugent and Ms Walford must be considered.

Analysis

1. Mr Nugent and Surdex carry the burden of persuasion that Techni Waterjet should be deprived of its entitlement of a trial by jury, which it has regularly sought.  They must demonstrate a special reason for this course to be undertaken.

1. The reality is that this is a quintessential jury case; Mr Nugent’s case centres on the lifting of a moderately light piece of steel with the assistance of a co-worker.  Questions of the nature of the lift he was carrying out and whether a crane should have been used are the type of issues juries in this state have regularly determined over many decades.  The resolution of these issues requires the application of everyday common sense and experience to questions of breach of common law and statutory duties.  This is not a difficult or complex case and it is clear, as the parties have indicated in their submissions, that there will be a relatively small amount of medical evidence.  No doubt the trial judge will be able to determine what medical evidence should be led given the submissions made by the parties on this application. 

1. There is no question that it is an unfortunate state of affairs that Mr Nugent and Ms Walford will have to give evidence again if Mr Nugent’s application is denied.  But this is not the calamity that Mr Nugent or Surdex perceives - the evidence is quite confined and the Defendants have indicated that there will be little change in the conduct of the new trial.

1. This is essentially a one-issue case with a particularly limited contest in relation to the medical evidence.  Of course there will be some saving in relation to time and cost by the trial continuing as a cause but that is not a determinative factor.  Indeed, the savings may not be great as Surdex suggests because of its desire to further cross-examine Mr Nugent if the matter continued before a judge alone.  Notwithstanding Mr Nugent’s submissions, I cannot see any particular forensic advantage to the Defendants if a re-trial is ordered, and no specific disadvantage was identified by Mr Nugent.  Moreover, the trial had not reached a stage where the public interest would require it to be concluded by a judge sitting alone.

1. The adjournment was not occasioned by any fault on the part of Techni Waterjet.  The inconvenience to the two witnesses is to be regretted but, in my opinion, does not of itself, or when taken into account with the other considerations, constitute good cause to displace Techni Waterjet’s entitlement to a jury trial.  It will, of course, be held to the content of its submissions in relation to the efficacy of the trial proceeding as a jury.

1. In those circumstances I am not persuaded there is good reason to order trial by judge alone.  The trial will proceed on 19 November before a judge and jury.  The costs of this application will be reserved for determination by the trial judge.