Patton v Buchanan Borehole Collieries Pty Limited

[1992] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl of 1992

B e t w e e n -

RONALD PATTON

Appellant

and

BUCHANAN BOREHOLE COLLIERIES

PTY LIMITED

Respondent

MASON CJ DEANE J. DAWSON J GAUDRON J.

MCHUGH J.

Patton(2) 1 24/9/92

TRANSCRIPT: OF PROCEEDINGS

AT CANBERRA ON THURSDAY. 24 SEPTEMBER 1992. AT 10.34 AM

Copyright in the High Court of Australia

MR J.A. CRUMPTON, QC:  If the Court pleases, I appear with

my learned friend, MR K.W. ANDREWS, for the

appellant. (instructed by Maurice May & Co)

MR v. BRUCE, QC:  May it please the Court, I appear with my

learned friend, MR M.L. WILLIAMS, for the

respondent. (instructed by Sparke Helmore &

Withycombe)

MR CRUMPTON:	Your Honours, in this matter we have, of course, furnished an outline of argument and the
appellant's case runs in accordance with that outline and in brief we would seek to persuade the
Court that the analysis of the discretion given to
the district court trial judge made by His Honour,
Mr Justice Mahoney in the Pambula District Court
case was correct and that the terms of section 79A of the District Court Act as amended in 1987 were
such that it was an unfettered discretion and that it has not, and indeed, we would submit, cannot be
shown, that in exercising his discretion the trial
judge made any error.

If I may take Your Honours then briefly, if

Your Honours wish, to the outline of argument. The case out of which this appeal arises was a civil

trial in 1988 for a claim for damages for

negligence resulting in loss of hearing by the

plaintiff - - -

MASON CJ:  We are familiar with the circumstances which gave

rise - - -

MR CRUMPTON: Yes, well, I thought Your Honours might not

wish me to proceed very far with that.

Your Honours, it is submitted that the the Supreme Court of New South Wales and that this

Court would not be prepared to accept what was done

by the Court of Appeal in the present case, namely

simply to say that the G & J Shopfittings case

decided this matter. It does not appear that there

is any dispute, Your Honours, between the parties

that the provisions of section 89 of the

Supreme Court Act and the provisions of section 79A

of the District Court Act which were enacted by the

New South Wales Parliament at the same time are any

different in effect. That is to say that whatever

discretion is given to the trial judge, either in	the district court or the supreme court is in
essence the same.

We would submit that His Honour

Mr Justice Kirby who in effect gave the only

judgment of the Court of Appeal in the

G & J Shopfittings case, the other members of the

Patton(2) 24/9/92

court simply agreeing with him, with, on the part

of Mr Justice Meagher, some remarks, that with all

due respect to His Honour Mr Justice Kirby, that he

was incorrect in taking the point of view that

there was any substantial difference between the

rules of the Supreme Court of Victoria which were

referred to by Mr Justice Sholl in the

Wilson v Burridge case and suggesting that there
was a limited power given by section 89(2) of the

Supreme Court Act.

Your Honours, when one looks at the terms of

section 79A of the District Court Act - I might

take Your Honours to that. Your Honours, that

section is, we would submit, in the broadest

possible terms. Section 79A:

In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury.

There are no restrictions placed upon that

discretion given to the trial judge and we would

refer Your Honours to the principles in that case

which are outlined in House v The King, and which

are referred to in some detail at page 415 of the

Pambula District Hospital v Herriman case.

If I may read from the judgment of

Mr Justice Mahoney, who was the dissenting judge in	that case, at page 415, a passage which relates to
House v The King, but quoting from the judgment of Your Honours - - -

MASON CJ: What is the reference to that?

MR CRUMPTON: It is (1988) 14 NSWLR 415, Your Honour.

His Honour there is quoting from the judgment of and Mr Justice Deane, in the case of

Norbis v Norbis and, about half-way down on

p~ge 415, Your Honours there said: 

"The principles enunciated in House v The King
(1936) 55 CLR 499 were fashioned with a close

eye on the characteristics of a discretionary

order in the sense which we have outlined.	If
the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers

to the questions, it would be wrong to allow a

court of appeal to set aside a judgment at	first instance merely because there exists
just such a difference of opinion between the judges on appeal and the judge at first
instance."

Patton(2) 3 24/9/92

MASON CJ:  How does this help resolution of the question

here?

MR CRUMPTON:  His Honour the trial judge, if I may go back

to some detail of what happened, heard an

application to dispense with the jury and he

declined at that time, that is the first day of the

week at Singleton. Your Honours will remember from

the detail of the matter that there was a one week

sitting of the District Court at Singleton but it

was put to His Honour the trial judge that there

were complicated matters of a scientific nature in

the sense of being engineering and medical evidence

and that the case with a jury could not conclude

within that time.

DEANE J:	But even if you be right on your construction of 79A, is it not apparent that what the trial judge
did in this case is precisely the sort of thing
which should not be done under such a section?
That is to say, "Empanel the jury, we may or may
not take advantage of them.  If the time does not
allow it I will just send them away.", is superfluous. I mean, that is an insult to the
jury.

MR CRUMPTON:	With respect, Your Honour, he did not, in fact, refuse the application.	I bear in mind what
Your Honour says about the jury.

DEANE J: But you do not treat a jury as something you

empanel, whose time you take on the basis that come

Friday we will see whether or not we can finish and

if we cannot we will tell them we have just wasted

their time and send them away. It is exactly what

should not happen in the administration of justice.

MR CRUMPTON:  Your Honour, I take, of course, Your Honour's

point about the way in which such a jury panel may

feel but - - -

DEANE J:  It probably has not much to do with your case

here, Mr Crumpton, but I must confess I read it

with surprise.

MR CRUMPTON:  Yes, that was the way in which it was dealt

with, that His Honour did not, as it were, close

the door to dispensing with the jury. He declined

to dispense with them at that stage and said that

he was persuaded to some extent by what turned out,

as it were, to be an incorrect estimate of the case

given on the part of the defendant but having

declined to dispense with the jury at that stage,

he did say, without making any final judgment, and this appears at page 13 of the appeal book in this Court. At line 5 of page 13:

Patton(2) 24/9/92

I see no reason why we should not start

the case with a jury but if it becomes

apparent that the case cannot finish I will

consider then what I can do. It is impossible
to predict at the present time what stage we

will reach by then.

And His Honour goes on with some further comments

as to the matter and then at line 13 says:

so that the course of discharging the jury and

hearing the rest of it myself may be the only

practical course open.

So that, to the extent that that affects the

matter, Your Honours, it means that he did not

refuse the application as such, but declined to

Our respectful contention, Your Honours, is that it	discharge or dispense with the jury at that stage.
does not matter, for the purpose of the section,
whether the power given to the judge by the Parliament is exercised before or during the
hearing of a trial with a jury and, to that extent,
we call in in aid the remarks that were made in what we submit with respect was very similar legislation, namely the Victorian Supreme Court
Rules by His Honour Mr Justice Sholl in
Wilson v Burridge. In that aspect of the matter
may I read to Your Honours a passage from His Honour Mr Justice Sholl's judgment in that
case. Your Honours, in that case His Honour said
at page 435 at about the middle of the page - it is
not numbered otherwise - it is a passage which
begins:

I think that if a judge were to discharge the

jury in a case the hearing of which had

already commenced before himself and a jury,

and were to direct that the trial continue

before himself alone, that would amount within

the rule to directing a trial without a jury,

case without a jury, because he himself would	and to directing in effect trial of the whole
have heard all the evidence, including that
already given, and would be in a position to
act on the whole of the evidence at the
conclusion of the trial.

If I may come back to that shortly, Your Honour.

May I just refer to the material in the second

reading speech in the New South Wales Parliament.

Your Honours will recall that section 35 of the

Interpretation Act New South Wales allows that

material to be taken into account in the
interpretation of the Act and I am referring there

in the Interpretation Act, Your Honours, to section

Patton(2) 24/9/92

34(2)(f) and, of course, to section 33. Section
34(2)(f) providing:

Without limiting the effect of subsection (1), the material that may be considered in the

interpretation of a provision of an Act, or a

statutory rule made under the Act, includes -

(f)	the speech made to a House of Parliament
by a Minister on the occasion of the moving by that Minister of a motion that

the Bill of the Act be read a second time

in that House -

And I think, Your Honours, we did, with the

material that was sent down, include photostat

copies of that document.

Your Honours, at the page which is paginated

at the top 13659, the last two sentences summarize

what the minister was putting:

For that reason, these bills will provide the

courts with a discretion to direct, in the

with a jury. Even that new discretion does	interests of justice, that trial not proceed
not go as far as other jurisdictions that
allow juries to be used only with the approval of the court, but it will better equip the courts of this State to prevent hardship and
injustice where necessary. I commend the
bills.

MASON CJ: You rely on the words "that trial not proceed

with a jury", do you?

MR CRUMPTON: Yes, Your Honour.

MASON CJ:  But when you read that sentence in the light of

what is said on 13658, is the minister directing

his attention to the continuation of a trial which

has already begun?

MR CRUMPTON:  We would submit, Your Honour, that material is

one which can support that view.

MASON CJ: But 13658 hardly supports that view, does it,

because it is dealing with the -larger problem of

congestion in the lists, the need to reduce

congestion by ensuring that the judges have a power

to direct trial by judge alone, not with a jury.

MR CRUMPTON: Yes, that is so.

MASON CJ: There is no identification there of this

particular problem.

Patton(2) 6 24/9/92

MR CRUMPTON:  Not on that page that Your Honour refers to,

but even on that page, in the middle of the page

the minister says:

As I have already explained, the courts of New

South Wales are alone in not having a broad

discretion to dispense with civil juries where

that would be in the interests of justice -

In the last paragraph on that page, the minister

says in the third sentence:

The existing section will be repealed and

replaced. The new provision will provide the

court with the broad discretion to which I

have already referred. The new provision is

quite clear and is very similar to language
employed in the statutes of the other
jurisdictions which I have mentioned. In
practice, the right of a party to a common law

action to elect pursuant to section 89(1) to

have a matter tried by a jury will continue,

but subject to this new discretion which will

allow a court to direct otherwise. In

exercising this discretion, the court will be

able to have regard to all relevant

circumstances and be able to make a decision

particular case. consistent with the needs of justice in each

Then he goes on to deal with parts of section 89. Our respectful contention, Your Honours, is

that one looks first at the terms of the section,

section 79A, which we would respectfully submit

could not be given in broader terms. Although it

might be said when one looks at the material in the

debate that what initiated it may be thought to be

the judgment of His Honour Mr Justice Clarke in

Peck's case, but the discretion which was given in

It was, we would respectfully submit to the Court,	fact by the Parliament was much broader than that.
a beneficial discretion in the interests of justice and that it should not be read down.

The discretion, Your Honours, clearly is one

which is undefined in the Act from which it comes,

and if I may put to Your Honours some passages from

the judgment of His Hononur Mr Justice Mahoney in

relation to discretion as such. On page 416 of the

Pambula District Hospital case, (1988) 14 NSWLR,

His Honour Mr Justice Mahoney said, just below the

letter Don page 416:

The Parliament gave a discretion which was

unfettered in its terms and not limited to

cases in need of an urgent hearing. What is

Patton(2) 24/9/92

to be determined is how a discretion granted

in such terms is to be construed and what are

the considerations by reference to which it

may, or may not, be exercised.

The discretion granted bys 89(1) is not,

by the terms of the subsection, restricted.

We submit, of course, as has indeed been held in

one of the New South Wales cases, that there is no

distinction, for practical purposes, between

section 79A of the District Court Act and

section 89 of the Supreme Court Act. So that we
make the same submission here in the terms in which

His Honour made it:

The discretion granted bys 89(1) is not,

by the terms of the subsection, restricted:
the subsection does not specify the
considerations which are or are not to be

taken into account. The construction of a

discretion granted in such terms has been

determined by the High Court. Thus, in Water
Conservation and Irrigation Commission (New

South Wales) v Browning •••.• Dixon J

considered a discretion granted in terms which

gave "no positive indication of the

considerations upon which it is intended that
the grant or refusal of consent shall depend".

In relation to that discretion, his Honour said:

" ••• The discretion is, therefore,

matter and the scope and purpose of the	unconfined except in so far as the subject
statutory enactments may enable the Court to pronounce given reasons to be
definitely extraneous to any objects the
legislature could have had in view. No
doubt the Commission is placed under a

duty to consider an application for

consent to a transfer and to grant or to

refuse or withhold consent. And I agree
with the view expressed by Jordan CJ that
the use of the word 'entirely', while it

indicates that the discretion is meant to

rest in the Commission alone, does not

necessarily indicate that it is intended
to be arbitrary and unlimited.

And a little further down, at line B, he says:

But, though the discretion is neither arbitrary nor completely unlimited, it is

certainly undefined. I have before remarked

on the impossibility, when an administrative

discretion is undefined, of a court's doing

Patton(2) 24/9/92

more than saying that this or that

consideration is extraneous to the

power •...• But there must be some warrant in

the provisions, the nature or the subject

matter of the statute before so much can be

said of a particular consideration that has

been acted upon. What warrant have we in

point of law for saying that the

considerations governing the Commission's

refusal of consent to the transfer to Carbone

can be material to no purpose falling within

the scope and object of the Commission's

discretion?"

His Honour Mr Justice Mahoney then goes on to say:

The present discretion is, of course, a

judicial discretion but, in my opinion, the

approach to it should be analogous to that to

which Dixon J referred. And it is therefore

proper to approach each exercise of the

discretion and each attack upon it by asking:

what is the warrant in the provisions, in the

nature or in the subject matter of the

statute, for saying that the consideration

referred to was extraneous to the power or

ought to have been taken into account?

And if I may proceed with a further passage there:

It was submitted first that under the

pre-existing law, a party had a "right" to

choose the mode of trial, by judge alone or by

judge and jury; that that "right" was not

previously defeasible; and that therefore the

discretion should be read as subject to the

maintenance of such a "right" and defeasible

only in special or particular circumstances.

The amendment to section 89 is, of

course, to be construed against the history of

the Act and the amendments previously made to

relevant sections of it. But there are, in my

opinion, difficulties in accepting that

submission. There was not, before the

amendment, any such general "right" to trial

by jury as the submission suggests.

And we would respectfully say that the provisions

of section 77, 78, 79 and 79A of the District Court

Act, when one looks at them, are in exactly the

same situation.

McHUGH J: But is not your difficulty that 79A refers to

questions of fact be tried without a jury, it does

not talk about being determined by a jury, and that

distinction is made in section 77, which says:

Patton(2) 9 24/9/92

the Judge shall ••••. determine all questions of

fact unless a jury has been summoned.

and then subsection (3) says:

an action shall be tried without a jury -

Now, the judge would not be trying the case if he

just simply takes over the evidence that has

already being heard. Assuming you can interrupt a
jury trial and discharge the jury and make an order

under 79A, without the consent of both parties how could the judge make use of the evidence which had

already been heard?

MR CRUMPTON:  I am sorry, if Your Honour means that if you

could not do that without the consent of both

parties?

McHUGH J: Yes.

MR CRUMPTON:  Your Honour, our respectful submission is that

the section is in such sweeping terms that he could

do that. But to seek to answer Your Honour's

question, one would have to look at the situation

as being that the judge had in fact heard the

evidence. I take it that Your Honour has in mind

the type of situation where you could not use the

evidence or the transcript of the evidence without

the consent of both parties.

McHUGH J: Yes. It is not being tried. That evidence would

not be available to be used ••••• , and that is what

the judge did in this case. He used the evidence

that had been taken in front of the jury.

MR CRUMPTON:  Yes, well our response to that general

situation, perhaps it is not directly answering

Your Honour's question, is that the legislation is

the same for practical purposes as the Victorian

rules which were considered by Mr Justice Sholl in

Wilson v Burridge.

McHUGH J: Except that rule did not have the word "tried" in

it, did it?

MR CRUMPTON:  Your Honour is referring to rule 5, I take it?

McHUGH J: Yes. It talks about "may direct a trial without

a jury".

MR CRUMPTON: Yes.

Nnotwithstanding anything contained in

rule 2, the court or a judge may direct the

trial without a jury of any cause, matter or

issue requiring any prolonged investigation,

Patton(2) 10 24/9/92

examination of documents or accounts or any

scientific or local investigation which cannot

in their, or his opinion, conveniently be made

with a jury."

McHUGH J: The point to be thrown up in this particular

case, if Judge Denton had made an order under 79A

and then said "I have got to go off to Sydney and

hear this criminal trial, some other District Court

Judge can now hear the action". The question would

be: how would you get the earlier evidence in front

of him, and you could not do it without the consent of the parties or some enactment, of which there is

none, is there?

MR CRUMPTON: Well, in relation to some other judge hearing

the matter, we would respectfully submit that that

does not arise in the present case. It might have

its own difficulties but here the situation is

that - and I am coming back, of course, to what

His Honour Justice Sholl said in relation to the

Supreme Court Rules in Victoria.

McHUGH J:	He said that the judge would be in a position to act on the whole of the evidence.
MR CRUMPTON:	Yes, Your Honour, because in the present case

His Honour Mr Justice Denton had heard the whole of

the evidence and unless one reads a restriction

into the section to say that once the jury trial

has started that there is no power then, in our

respectful submission, he did have the power to do

precisely what he did do.

McHUGH J: Except you might say that the questions of fact

had been determined by him without a jury but you

qould not say they had been tried before him,

because they were not being tried before him for

his decision until he made the order.

MR CRUMPTON:  Your Honour, our submission is that - and I am

reading from the judgment of His Honour

Justice Sholl:

I think that if a Judge were to discharge the

jury in a case the hearing of which had

already commenced before himself and a jury,

and were to direct that the trial continue

before himself alone, that would amount within

the rule to directing a trial without a jury,

and to directing in effect trial of the whole

case without a jury, because he himself would

have heard all the evidence, including that

already given, and would be in a position to

act on the whole of the evidence at the

conclusion of the trial.

Patton(2) 11 24/9/92

Here, of course, that was the situation with

His Honour Justice Denton, and when the original

application made by us for dispensation with the

jury was dealt with by His Honour, he did not

decline to make the order at that stage or, as it

were, rule against that possibility; he left it

open to see, as he put it, how the trial eventuated

so far as its length and complexity was concerned.

So that we would respectfully submit that whether or not - and we would submit that there was no formal motion required, but that he had the power

under section 79A to dispense with the jury and

that, within the provisions of the Act, discharging

or dispensing with the jury - I appreciate that

His Honour had empanelled a jury, but he had not

refused any application to dispense with the jury,

as distinct from subsequently discharging it, and

that he had the power under section 79A to do just

what he did do.

McHUGH J: Well, it is a simple point; you are either right

or wrong.

MASON CJ: Statements of that kind generally give rise to

one inference only.

MR CRUMPTON:  I am sorry, I have not quite taken

Your Honour's point in that.

MASON CJ: They generally indicate antagonism.

MR CRUMPTON:  Yes, indeed.

DEANE J: Or disagreement.

MR CRUMPTON:  Or disagreement, that is true. Your Honour,

we seek to come back to the very sweeping terms in
which section 79A is given and to the fact that it

is a beneficial power given, as indeed was remarked

in the speech of the minister, and that it would

have to be shown that His Honour made an error of

fact or law in dealing with the matter as a

d±scretionary matter. Our respectful submission is

that he did not make, nor indeed has it been

suggested at any stage by the respondent that he

did make, any such .error of fact or error of law.

We would respectfully submit that his discretion,

being a beneficial discretion in the interests of

justice, as was remarked by the minister, was one

which a Court of Appeal would not seek to interfere
with unless such an error of fact or law were

shown.

DEANE J:  Mr Crumpton, can I divert you for a moment? On

the top of page 23 of the appeal book - it is	just
something I wanted to confirm with you - has
His Honour made a slip in the first line when	he

Patton(2) 12 24/9/92

says, "It was then put for the plaintiff"? Should

that be the defendant?

MR CRUMPTON:  Yes, it should be, Your Honour, certainly. I

think there is no disagreement between the parties

as to that. So that, Your Honours, if I may go

back to the judgment of His Honour

Mr Justice Mahoney in the Pambula case,

(1988) 14 NSWLR, at page 418, at the very top of

the page, His Honour said in one submission:

It was submitted that, in this case, the

learned judge went beyond the considerations

relevant to the particular case.

I do not think that the court cannot take

into account matters to which reference was made in argument as irrelevant, such as the

general state of the court list at a

particular time. It is clear that it is

relevant to have regard to the effect which

the exercise of the discretion will have on

the parties to the particular proceeding.

Thus, as was alleged in argument to be the

case, the fact that trial by jury would

increase the costs of one of the parties by

some $10,000 would be relevant. The fact that

the hearing of the particular case would be

delayed and that delay would prejudice a party

would also be relevant.

However, it was submitted that it is not

open to the court to order trial by judge

because of matters which do not directly, in

this way, affect the particular case. I do

not think that such a general proposition
should be accepted. In the exercise of other
general powers, the court can and does have

regard to matters outside the considerations

which directly affect the particular case.

And His Honour there deals with some common

occurrences in court and, at line D, says:

It is, in my opinion, now generally recognised

that it is part of the function of a judge to

ensure that, subject to the requirements of

justice and the interests of the parties,

proceedings progress through the courts with

due speed.

Your Honours, our submission comes back to this,

that because of the sweeping terms of section 79A,

that it should not be read down to suggest that course of the trial, dispense with the jury and direct that the trial be heard by a judge alone,

Patton(2) 13 24/9/92

that the considerations which His Honour expressed

in dealing with the matter were appropriate in the

circumstances; that is to say, that it was clear

that the case could not be concluded, as had been

earlier put by the plaintiff. That, I appreciate,
is an irrelevant matter, but he was dealing with
matters which were pertinent to the particular case

before him and he has not, in our respectful

submission, made any error in dealing with that,

any error of law or any error of fact, unless one

read down the section to say that once he had
empanelled a jury that he could not direct the

hearing of the case before him alone.

I am reminded, Your Honours, that His Honour

the trial judge did expressly, as I think was

referred to before, leave open the question of

whether he would subsequently dispense with the

jury and, in our respectful submission, that

obviates, we would respectfully submit, the

difficulty as suggested by Your Honour

Mr Justice McHugh in relation to matters of

evidence.

McHUGH J: Your opponent does not seem to have taken the

point at any stage anyway.

MR CRUMPTON:  Yes, we would rely on Coulton v Holcolme in

relation to that, Your Honour, yes. But if the

judge has a discretion, as we submit, to dispense

with the jury after the jury has been empaneled,

and we submit that it would require a quite

unjustified reading down of the terms of the	section to take that view, then he was entitled to
do what he did. It is a discretionary matter and
one might ask rhetorically, where is the error in
exercising his discretion? The reasons that he
gave in relation to dealing with the matter were
indeed not broad matters, but matters relating to
the difficulties of the plaintiff and the
impossibility of the obvious further delay, as
there was only one or two hearings a year at
Singleton, that the plaintiff would meet in seeking, I mean then, being met with the situation
where he would have a totally new trial before a
view, would be far from being in the interests of jury to commence again. Certainly that, on any
justice and of dealing reasonably speedy with cases
for that purpose.

Before this section 79A was enacted,

Your Honours, there was no general right for a
party to have a jury; it was a restricted right.

And if I may go back for a moment to the Victorian

rules that were referred to in G & J Shopfittings

case.

Patton(2) 14 24/9/92

Your Honours, in the G & J Shopfittings case

at page 370 - - -

MASON CJ: What are you going to that for?

MR CRUMPTON:	Only to the passage between F and G:
The Victorian Rules are in material respects
different from those of this Court. There is
no equivalent provision in our Rules for the
positive power to "direct the trial without a
jury".

We would submit that that in fact is not correct,

Your Honours, that the Victorian Rules in fact are

more limited than the legislation with which we are
dealing, namely that all or any questions of fact
be tried without a jury. Those are the submissions

of the appellant, Your Honours.

DEANE J:  Mr Crumpton, is there a provision in the New South

Wales Interpretation Act about the use of headings?

MR CRUMPTON:  Yes, there is, Your Honour. The headings are

in section 35:

Headings to provisions of an Act or

instrument, being headings to -

(a) Parts, Divisions or Subdivisions into

which the Act or instrument is divided; or

(b) Schedules to the Act or instrument -

and 79 was in a schedule -

shall be taken to be part of the Act or

instrument.

There are further provisions that

DEANE J: Which means you rely on that to get to the word

"dispense" •

MR CRUMPTON: Yes, we certainly do, Your Honour.

DEANE J:  Is there anything that supports the approach that

to dispense with a jury, apart from dictionaries,

means that you are, as it were, doing away with the

jury after you have already got one, as distinct

from - - -

MR CRUMPTON: Discharging a jury, Your Honour means?

DEANE J: Dispense in one sense indicates doing without

something that is already there, as distinct from -

I mean, you do not dispense with something if it is

Patton(2) 15 24/9/92

not there at all. I was just wondering if there

was anything in any of the cases that dealt with

the word "dispense".

MR CRUMPTON: 

There is a discussion in one of the cases -

and I can give Your Honour the reference in a
moment - where it seems to be suggested that

dispensing with a jury means dispensing with the

whole mode of trial by jury, as distinct from
discharging a jury, where it was suggested that an

order for a discharge of a jury, as distinct from
dispensing with a jury, would mean that the mode of

trial may still be by jury so that you would have a

fresh jury if appropriate then in the case unless

some further order was made.

Your Honour, in respect to the Interpretation

Act, we do of course rely on the provisions of

section 33 that:

In the interpretation of a provision of an Act

or statutory rule, a construction that would

promote the purpose or object underlying the

Act or statutory rule (whether or not that

purpose or object is expressly stated in the

Act or statutory rule or, in the case of a

statutory rule, in the Act under which the

rule was made) shall be preferred to a

construction that would not promote that

purpose or object.

Here of course, we say that one of the purposes was

to give the trial judge a wide power to dispose of,
to use a neutral term, a jury if that were in his

discretion appropriate in the interests of justice.

Your Honours, coming back to the matter that

Your Honour Mr Justice Deane raised, section 35(5)

provides that:

This section does not limit the application of

section 34 in relation to the use of any

heading, marginal note, footnote or endnote in

the interpretation of the provision to which
the heading, marginal note, footnote or

endnote relates.

Your Honours, of course, section 34(2)(f) was the

one that was referred to earlier as relating to the

speech by the Minister on the moving of the second

reading. Section 34(2) also provides for a variety

of matters to be considered.

Your Honour, the reference in relation to

discharge or dispensing with is Boral

Resources (NSW) Pty Limited v Attard. That is an

unreported decision but is included in the

Patton(2) 16 24/9/92

documentation that was sent down to the Court,

Your Honours. That does just simply rely on - and	G & J Shopfittings, say, probably from the
appellant's point of view, it does not take the
matter any further.

DEANE J: Thank you.

MR CUMPTON:  Those are the matters that we put,

Your Honours.

MASON CJ: Thank you, Mr Cumpton. Mr Bruce?

MR BRUCE: Yes, thank you, Your Honour. May I hand to

Your Honours the outline of the respondent's argument. Your Honours, we say that, with respect,

it is a very short point. We do not take issue

with, and we do not suggest that His Honour erred

in discharging the jury; we do not suggest that it
was not open to the plaintiff in the proceedings,

the appellant here, to make an application pursuant

to section 79 at any stage, up to and including the

time, at which they did make both of the

applications which they made.

What we do say, however, is that that

application having been made what then followed was
an error by His Honour, because what His Honour

decided was to continue the further hearing as if

it had been before him alone from the beginning of

the trial without the consent of the parties, and

it is our submission that the trial which had

commenced at Singleton concluded with the discharge of the jury. There was then, after that discharge,

an application for the dispensing with the jury in

order that it be tried without a jury. That

application was acceded to. Once that application

was acceded to, there had to be a trial on that

basis.

McHUGH J: Mr Bruce, this does not seem to be the point that

was argued in the trial though, does it?

MR BRUCE: Your Honour, what His Honour foreshadowed was

that he intended to discharge the jury and to then

continue to hear the matter alone. It was put to

him that there was no power to adopt that course.

McHUGH J: Well, you would seem to concede that there was

but -

MR BRUCE:  No, Your Honour, I do not, with respect.

McHUGH J: Once he discharged the jury, you concede it was

open to the appellant to make an application

pursuant to section 79A and, subject to the

question of how the earlier evidence got before the

Patton(2) 17 24/9/92

judge, there was no reason why he could not have

continued to hear it.

MR BRUCE:  Oh, yes, Your Honour, but he could not get before

him absent consent of the parties.

McHUGH J: But that last point - if you look at pages 22 and

23 of the appeal book, you do not seem to have

taken any objection to that point at the trial.

MR BRUCE:  But what he was deciding, if one goes to the

appeal book, is that he would proceed and hear the

matter as if he had heard it from the beginning.

McHUGH J: Well, at page 22 line 11, His Honour records you

saying:

For the defendant it is put that it would be

inappropriate to change the method of trial in

view of my earlier judgment that such method

was inappropriate.

And then over at the top of page 23:

It was then put for the -

defendant -

that there is no power for the jury to be

dispensed with once the trial has begun.

MR BRUCE: Yes, Your Honour. With respect, that was in the

context of His Honour's proposition which appears

at the commencement of his judgment, I think, to

the effect that - at page 21:

What is in dispute in all those circumstances

is what course should be taken or could be

taken? The two courses open are to abort the

trial completely or for me to continue the

trial with a view to deciding issues of fact It is put for the plaintiff that I should

myself.

exercise the discretion stated in s79A of the

District Court Act and having discharged the

jury on the basis of that discretion continue

to hear the remainder of the case without a

jury -

and that is what His Honour was directing his

attention to and that is what he decided.	It was
put that he did not have power to do that.

GAUDRON J: Was that also put at the beginning of the week,

Mr Bruce?

Patton(2) 18 24/9/92

MR BRUCE: At the beginning of the week, Your Honour, the

question was whether or not he should exercise his

discretion.

GAUDRON J: Yes, but when His Honour indicated that he

really would not make a decision, was it then put

to him that if he did not make a decision he might

find himself at the end of the week where he could

not do anything?

MR BRUCE:  No. It was not put at that stage.

DAWSON J:  Mr Bruce, you may be right, but why would the

consent of the parties be necessary for the judge

to take into account the evidence that was called

before the jury was dispensed with?

MR BRUCE: Because, Your Honour, for the reasons that we

seek to inelegantly put in the outline and those

put by His Honour Mr Justice McHugh, that there has

not been a trial before the judge of the issue.

DAWSON J:  I may be naive but there is a trial before a

judge and a jury. It is a trial before them both.

If one goes, why does it cease to be a trial before

the judge?

MR BRUCE: Because the Act, when there is a jury, it commits

to the judge the determination of the question of

the law to the jury, the determination of the

questions of fact throughout the proceedings in the

court up to the instant that the jury is

discharged. The judge has no function in relation

to the latter, so there has never been - - -

DAWSON J; Any doubt when the jury is dispensed with.	,
MR BRUCE:	I am sorry?

DAWSON J: Any doubt when the jury is dispensed with.

MR BRUCE: _Certainly. If a jury is dispensed with

DAWSON J: And the evidence is there, he has heard it. He

is nitpicking.

MR BRUCE:  He has heard evidence, but he has heard it in a

context where he is not the trying - - -

DAWSON J:  He said it in the capacity as a judge, and once

the trial becomes a trial before the judge, he has

heard it in the capacity of judge, why can he not

use it?

MR BRUCE:  Because, at the time it was heard, it was not heard before him as the trier - - -

Patton(2)	19	24/9/92
DAWSON J:	It was heard before both of them.	He was not the

trier of the facts at that time, but he becomes the

trier of fact when the jury is dispensed with.

MR BRUCE: With respect, Your Honour, once he becomes the

trier of fact, when the order is made -

DAWSON J: What harm would occur if you took the view that I

am putting to you?

MR BRUCE:  Is Your Honour directing Your Honour's question

to the effect on a trial, or the consequences to a

party?

DAWSON J:	If the Court of Appeal's evidence is presented in different ••.•. but really that does not amount to	a different way to a jury and you may say
very much, does it?

MR BRUCE: Well, with respect, Your Honour, in jury trials

it can be quite dramatically different. For

example in the rarified atmosphere here, it is one
thing to hear a case. In other courts in other

places, perhaps the attention of a judge is not

directed in the same way as might be necessary to

determine the fine nuances of demeanour, for

example, if he is not the trying body. Things

might be going on before a jury where a judge does not turn his attention to whether - - -

DAWSON J: That might go to the exercise of the discretion.

In some cases that might be all important. The

judge may say, "Well, I am not going to proceed

that way because it is inappropriate", but there

may be other cases in which it is not

inappropriate.

'

MR BRUCE:  But, Your Honour, with respect, whether or not it

is appropriate or not does not go to the question,

in our respectful submission, of whether there has

been a trial. It might be no harm whatsoever and

t~e parties might agree that the judge could simply

proceed on the basis of the material before him.

But, if they do not agree, he is not, in his

function as the trying body, at a trial before him.

There are many factors apart from the one I

originally dealt with in response to Your Honour's

question about what could be. It may well be in

certain cases, a different attitude is taken in dealing with the judge in a jury trial, to that

which might be taken if he were the trier of all

the issues, and there are all sorts of factors that

change the live - - -

DAWSON J:  I am willing to concede in argument that there

may be cases in which it would be inappropriate for

Patton(2) 20 24/9/92

the judge to then proceed. There may be cases in

which it is not, and why.should he not, and you say

because of technical reasons.

MR BRUCE:  Where there is not a problem it could well be

that the parties would simply assent to that course

being followed and the case could go on and the

matter could be disposed of. But when there is not

a procedure before the judge seized with the

obligation to make all the decisions when he has

put before him all the evidence, then there has not

been a trial.

DAWSON J: The parties, of course, could always consent to

dispense with the jury?

MR BRUCE: Certainly.

DAWSON J: The section says it is for the judge now.

MR BRUCE:  The parties could consent at any stage from the

time that the entitlement to a jury crystallized

and in the district court under the Act there is an

entitlement to a jury once a party files a

requisition if the amount in issues is above $5000,

I think it is. So from that point on, there is an

entitlement to a jury. That entitlement may be

brought to an end by the parties agreeing or one

party agreeing to forego that claim, that

entitlement, or by an order under section 79A,

without the consent of the parties. Your Honours,

the case is as long and as short as that

proposition and that is all we would wish to put.

If Your Honours please.

MASON CJ: Thank you, Mr Bruce. Do you have anything in

~eply, Mr Crumpton?

MR CRUMPTON:  Only this, Your Honour, that of the matters

that were raised, that no objection was made at the

trial as, indeed, I think it now common ground, to

the use of the earlier evidence nor was any

objection taken to the manner of presentation of
the earlier evidence. Nothing of that nature was
put to His Honour and at the time of the appeal to
the Court of Appeal no point in respect of either
of those matters was taken. We would submit that
the respondent cannot seek to use those here, on

the basis of Coulton v Holcombe.

Your Honours, I have just been reminded of one

thing. If I may put this to Your Honours, very

briefly, it is not perhaps strictly in reply to

what my learned friend has said but in relation to

what His Honour Mr Justice Mahoney, in broad terms

was referring to in Pambula's case, that the first

trial started in 1986 and that is six years ago.

Patton(2) 21 24/9/92

That is just put in relation to the matters of the

power and the evil which was sought to be corrected

by the power given under 79A to a district court

judge. Your Honour, those are the matters.

MASON CJ: Thank you, Mr Crumpton.

MR BRUCE:  Your Honour, there was one matter which

Justice Deane raised in relation to the use of

headings. If Your Honour goes to section 35(3), it

is our submission that the effect is that in this

case you cannot take the heading into account.

MASON CJ: Thank you. The Court will consider its decision

in this matter and will adjourn until 10.15 am

tomorrow.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

Patton(2) 22 24/9/92