Pavlomanolakos, E.R. v National Australia Bank

[1992] FCA 278

IN THE FEDERAL COURT OF AUSTRALIA	)
1
SOUTH AUSTRALIA DISTRICT REGISTRY )	No. SG2 of 1992

)

GENERAL DIVISION )

On ADDeal from a Sinale Judae of the

Federal Court of Australia

BETWEEN : EVANGELOS ROBERT PAVLOMANOW(0S

Applicant

AND : NATIONAL AUSTRALIA BANK

First Respondent

AND : MURRAY LONGMUIR

Second Respondent

AND : BRENTON JOHN CLARK

Third Respondent

MINUTES OF ORDER

JUDGES MIING ORDER :	Spender, Lee and Heerey JJ
DATE OF ORDER	12 May 1992
WHERE MADE	Adelaide
THE COURT ORDERS THAT:

The application for leave to appeal is refused, with costs.

the Federal Court Rules.

NOTE: Settlement and entry of orders is dealt with in 0. 36 of

IN THE FEDERAL COURT OF AUSTRALIA )

1

SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SG2 of 1992

1

GENERAL DIVISION )

On Appeal from a Sinale Judge of the Federal Court of Australia

BETWEEN : EVANGELOS ROBERT PAVLOMANOLAKOS

Applicant

AND : NATIONAL AUSTRALIA .BANK

First Respondent

AND : MURRAY LONGMUIR

Second Respondent

AND : BRENTON JOHN CLARK

Third Respondent

CORAM	Spender, Lee and Heerey JJ.
PLACE	Adelaide
DATE	12 May 1992

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J: This is an application for leave to appeal from a decision by a single judge of this court (O'Loughlin J), who	on 9 March 1992 declined an application by the applicant in
proceedings SG2 of 1992, Mr. Pavlornanolakos, who has brought proceedings against the National Australia Bank Limited and others, to have the issues in those proceedings tried by a jury.

Section 39 of the Federal Court of Australia Act

1976 provides:

" In every s u i t i n the C o u r t , u n l e s s the C o u r t or a

Judge o t h e r w i s e o r d e r s , the t r i a l s h a l l be by a

Judge w i t h o u t a j u r y . "

Section 40 provides a qualification to that prima

facie position by providing:

" The Cour t or a Judge may, i n a n y s u i t i n wh ich

the	e n d s o f j u s t i c e	appear	t o r e n d e r	it	e x p e d i e n t
to d o so,	d i r e c t	the	t r i a l w i t h a	j u r y of	the

s u i t or o f a n i s s u e o f f a c t , and m a y for t h a t

purpose	make	a l l	s u c h	o r d e r s ,	i s s u e	a l l	s u c h
w r i t s	and	c a u s e	a l l	s u c h	p r o c e e d i n g s	t o be	had

and t a k e n a s the C o u r t or Judge thinks n e c e s s a r y ,

and upon the f i n d i n g o f the j u r y the C o u r t m a y

g i v e s u c h d e c i s i o n and pronounce s u c h judgment a s

the c a s e r e q u i r e s . "

These proceedings are based primarily on the provisions to be found in Part V of the Trade Practices Act 1974, the part headed "Consumer P r o t e c t i o n " . Northrop J was concerned with proceedings of that kind in Insurance Commissioner v. Australian Associated Motor Insurers Ltd (No.

a (1983) 49 A.L.R. 714, although the facts of that case were
significantly different from the facts in this present matter.

His Honour, in refusing an order that the trial of

the suit be heard by a judge and jury, said at 716:

"	In the Federal C o u r t , the normal method or mode
o f t r i a l o f a s u i t i s by judge a l o n e , s 39 o f the
Federa l Cour t o f A u s t r a l i a A c t . "

Later on the same page he said:

" B e f o r e the c o u r t or a judge exercises the

d i s c r e t i o n c o n f e r r e d by s 40 o f the Federa l C o u r t

o f A u s t r a l i a A c t , some s u b s t a n t i a l r e a s o n m u s t be

shown for a d e p a r t u r e from t h a t normal method or

mode o f t r i a l . T h i s was the v i e w e x p r e s s e d by

F u l l a g a r J i n M c D e r m o t t v. C o l l i e n (1953) 87 CLR

154 i n r e l a t i o n t o a s u i t i n the High Cour t . In

t h a t c a s e h is Honour, i n e x e r c i s i n g a d i s c r e t i o n

c o n f e r r e d by s t a t u t o r y p r o v i s i o n s r e m a r k a b l y

s i m i l a r t o t h o s e c o n t a i n e d i n s 40 o f the Federal

Cour t o f A u s t r a l i a A c t , r e f u s e d t o d i r e c t a t r i a l

o f a s u i t by a judge and j u r y , and i n so d o i n g s a i d

( a t p 157):-

" B u t , so f a r a s a n y question o f general

p o l i c y i s i n v o l v e d , i t i s s e t t l e d for me by

the High C o u r t Procedure A c t . T r i a l w i t h o u t

a j u r y i s the normal mode o f t r i a l o f

a c t i o n s	i n	t h i s	c o u r t ,	and	some	s p e c i a l
r e a s o n m u s t	be	shown	for	a	d e p a r t u r e	i n a n y

p a r t i c u l a r c a s e from t h a t normal mode. The

second t h i n g t h a t seems c l e a r i s t h a t i t i s

not enough to show t h a t the c a u s e o f a c t i o n

i s o f a k i n d which c o u l d quite p r o p e r l y be

t r i e d w i t h a j u r y and which was n o r m a l l y

t r i e d w i t h	a	j u r y	i n England	before	the
J u d i c a t u r e A c t	1873	(36 &	37	V i c t c	66).

The d e c i s i o n s o f Hodges J (Proud v. Ferauson

[l9131 VLR 129) and o f I s a a c s J ( H u n t l e y v.

A l e x a n d e r (1922) 30 CLR 566) perhaps s u g g e s t

t h a t the n a t u r e o f the c a u s e o f a c t i o n i s

not	even	a	r e l e v a n t c o n s i d e r a t i o n .	I	would
not	be	prepared	t o a s s e n t	t o	t h a t a s a
general	p r o p o s i t i o n r	i n d e e d	I	would	r a t h e r

h a v e	t h o u g h t	t h a t	it	m i g h t	i n some	c a s e s be
a	p o t e n t	c o n s i d e r a t i o n .	B u t	i t	i s	c l e a r

t h a t it i s not enough t o s a y : ' T h i s i s a

k i n d	o f	a c t i o n	which	i s quite	s u i t a b l e for
t r i a l w i t h a	j u r y ,	and	I	would	l ike t o h a v e

it t r i e d w i t h a j u r y . '

The p l a i n t i f f i n t h i s c a s e c a n n o t , i n my

o p i n i o n , s a y more t h a n t h a t . I t seems t o me

t h a t it i s a c o m p l e t e answer to h i m for the

d e f e n d a n t t o s a y : ' T h i s i s a k i n d o f a c t i o n

which i s a l s o q u i t e s u i t a b l e for t r i a l

w i t h o u t a j u r y . ' "

Northrop J conc luded by saying a t 717:

" In the p r e s e n t c a s e , I am not persuaded t h a t the

e n d s o f j u s t i c e appear t o r e n d e r it e x p e d i e n t

t h a t t h i s s u i t s h o u l d be t r i e d by judge and j u r y .

The f a c t s g i v i n g rise t o the s u i t a r e f a c t s which

under the Federa l Cour t o f A u s t r a l i a A c t n o r m a l l y "

a r e t o be d e t e r m i n e d by a judge w i t h o u t a j u r y .

And he held that the respondents had not shown any special reason for a departure from the normal method or mode of trial.

In the present matter the primary judge, for similar reasons, declined to order a jury trial. He said:

' . . . thank you, M r Pavlomanolakos. The application

for trial by judge and jury is refused. The Federal Court Rules and the Act do make provision for trials by jury, but to the best of my knowledge in the fifteen years or so that the Federal Court has been in operation there has never been a jury trial in any of the registries throughout Australia. "

Later he said, having referred to the position in civil trials in South Australia under South Australian legislation, that that was:

' ... another reason why one would look very

carefully before determining to proceed on a trial by jury. There would have to be something very exceptional and so far this case does not indicate that it is of that type of calibre. The

refused. " application for trial by jury is therefore

Implicit in his Honour's comments is the conclusion that the facts giving rise to the suit are facts which under the Federal Court of Australia Act normally are to be determined by a judge without a jury. His Honour in the exercise of the discretion conferred by S. 40 of the Federal Court of Australia Act declined to make the order that section permits.

On an application for leave to appeal from the exercise of a discretion, it has to be shown that the judge was wrong and that substantial injustice would be done by leaving the decision to stand. It seems to me that this is a clear case where the court ought not to interfere with the exercise of the discretion. For my part, it seems to me that his Honour was plainly right in declining to order a jury on the material before him.

The type of case which his Honour was considering and in which the request for a jury was made, is of a type in which the Federal Court has had very much experience. It is the type of case which normally is tried without a jury. It is the sort of case in which the mode of trial specified by S. 39 of the Federal Court of Australia Act applies.

Having said that, what is now said to be the special circumstances or the matters which the interests of justice

require a departure from the ordinary position? There seemed to me to be two. The first of them relies on the provisions of clauses 39 and 40 of Maana Carta. In the context of

Carta and provisions of an Act by the Parliament of Australia, it has to be remembered that courts do not administer justice in the abstract but justice according to law.

The Federal Parliament has, in ss. 39 and 40, provided for the position in relation to trial with and without jury in suits in the Federal Court of Australia. Disconformity with the provisions of Maana Carta do not render the provisions of a Commonwealth statute invalid. Sir Samuel Griffith in

Gee v. Martin: Chow Ouin v. Martin (1906) 3 C.L.R. 649 said at
652:

" The first point made by Mr. Le Mesurier was that the Immiaration Restriction Act 1901 was unconstitutional, because its provisions were contrary to the provisions of Maana Charta, and the Statutes which had since confirmed it, and also inconsistent with certain treaties. The contention that a law of the Commonwealth is invalid because it is not in conformity with Maana Charta is not one for Serious refutation. "

Courts in Australia, and in particular this court, have to administer justice according to law. As Sir Samuel has explained, where there is a specific statutory provision within power, then that is what the courts are obliged to

The second matter which has been advanced as suggesting

a departure from the normal mode of trial, is a complaint by

Mr. Pavlomanolakos that, from a comment that the primary judge	made, one can infer that he was biased, or at least there was
the apprehension of bias, in the sense that a reasonable observer might feel that he might not bring an impartial mind to the issues in dispute.
It seems to me that the complaint of bias, either actual or apprehended, is not a sufficient reason for an order that trial be by judge and jury. If there is any value or merit in the complaint of bias, that ought to be the subject of an
application and, if necessary, appeal in the ordinary way. To my mind it cannot be rectified or cured by the imposition of a jury in addition to the judge who is said to be affected by either actual or apprehended bias.
In my view, therefore the complaint concerning a prejudgment by the primary judge does not constitute a substantial reason for departing from the normal mode of trial envisaged by S. 39 of the Federal Court of Australia Act.
This is a matter of practice and procedure involving the exercise of a discretion by the primary judge. I am for my part not satisfied that the primary judge was wrong. Nor am I satisfied that substantial injustice would be done by leaving the decision stand.
For those reasons it seems to me plain that this is a case where the application for leave to appeal ought be refused. The order that I propose is that the application for
leave to appeal be refused, with costs.
LEE J: I agree. HEEREY: I agree.
SPENDER J: The order of the court is that the application for leave to appeal is refused, with costs.

I certify that the preceding

asons for judgment herein

Associate

Date: 12 May 1992

The applicant appeared in person.

Counsel for the respondents	:	Dr. R. J. Baxter with MS L. Kirk
instructed by	Finlaysons
Date of hearing	12 May 1992