Rees v Bailey Aluminium Products Pty Ltd
[2006] VSC 360
•29 September 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No.7149 of 2002
| GARY REES | Plaintiff |
| V | |
| BAILEY ALUMINIUM PRODUCTS PTY LTD BARRY PHILLIPS | Defendant Third Party |
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JUDGE: | King J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2006 | |
DATE OF JUDGMENT: | 29 September 2006 | |
CASE MAY BE CITED AS: | Rees v Bailey Aluminium Products Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 360 | |
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Costs – application to set aside verdict of the Jury – application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr A Ingram | Clark & Toop |
| For the Defendant For the Third Party | Mr P Scanlon S.C. Mr S Reid | Hall and Wilcox Rigby Cooke |
HER HONOUR:
Introduction
On 18 July 2006 a personal injury trial, with a jury, commenced. After a trial of 12 days the jury retired to consider the verdict on 2 August 2006. The jury had been asked to answer the following questions, which had been drafted by counsel:
1.Was there negligence on the part of the defendant that was a cause of the plaintiff’s injury, loss and damage?
2. If yes to question (1), in what amount do you assess the plaintiff’s damages?
3.If yes to question (1), was there contributory negligence on the part of the plaintiff that was a cause of his injury, loss and damage?
4.If yes to questions 1 and 3, by what percentage is it just and equitable that the plaintiff’s damages be reduced having regard to his share in the responsibility for his injury, loss and damage?
5.If yes to question 1, was there negligence on the part of the third party that was a cause of the plaintiff’s injury loss and damage?
6.If yes to questions 1 and 5, what percentage is it just and equitable that the third party contribute to the damages which the defendant must pay to the plaintiff, having regard to the extent of the third party’s responsibility for the plaintiff’s injury, loss and damage?
On 2 August 2006 the jury returned a verdict by answering the first question No. Accordingly the Court did not seek, and they did not answer, the remaining questions. After the jury had been discharged counsel for the defendant moved for judgment in accordance with the jury’s verdict and an order that the plaintiff pay the defendant’s costs to be taxed. The third party also moved that the costs of the third party be taxed and paid for by the defendant. There was then some discussion about the application of a “Bullock or Sanderson order”. At the conclusion of the discussion the Court indicated that it would enter judgment for the defendant and third party, make an order that the plaintiffs pay the costs of the defendant and would reserve the issue of the third party costs until there was a chance to examine the authorities in relation to the type of order that would be appropriate.
The Court then asked counsel for the plaintiff if he required some time to prepare any arguments in relation to the third party’s costs and the certification of the transcript. It was indicated that such time would be appropriate and it was directed that there be written submission provided in respect of those questions. Subsequent to that discussion the following passages then occurred at pages 1174 and following:
MR McGARVIE: Your Honour, we would request that your Honour reserve the formal entry of judgment until that issue is determined.
HER HONOUR: Is there any reason for that?
MR. McGARVIE: Caution, your Honour, and…
HER HONOUR: But there is a verdict.
MR. McGARVIE: There is a verdict, and there is in the circumstances where costs need to be further addressed anyway, we would submit that there is no haste in respect of the need to formally enter judgment; nothing is going to alter between now and Monday or whenever it is that this is going to be finally dealt with following written submissions, and those circumstances when the formal judgment would, in any case, ordinarily deal with questions of costs and certification and so forth, that it’s appropriate to reserve the entry of judgment in both the main proceeding and the third party proceeding until the loose ends are tied up, your Honour.
HER HONOUR: Anyone disagree with that?
MR SCANLON: Yes.
HER HONOUR: What a surprise, Mr Scanlon.
MR. SCANLON: Time will run, if they want to appeal that Mr McGarvie – time will run if they want to appeal and what happens to the costs; it won’t affect his appeal. If he wants to appeal he’ll appeal.
HER HONOUR: I’m sorry I don’t follow that.
MR. SCANLON: What I’m saying is that if you enter judgment today time will run in relation to an appeal – it’s not what he said but that’s what I suspect he’s trying to say – the question of costs won’t affect that appeal. If they want to appeal they can appeal, and we say you should enter judgment today.
HER HONOUR: Will anything be adversely affected if I don’t enter judgment until Tuesday of next week?
MR. SCANLON: Yes, because we want judgment entered against (sic) us in accordance with the jury verdict.
HER HONOUR: I’m just asking will anything adverse occur to the defendant or to the third party – we know what the verdict is and that judgment isn’t entered until I’ve determined the issue of costs, what adverse …..
MR. SCANLON: If your Honour pleases. No , I’ve got nothing further to say.
The matter was then adjourned until 9.30 am on Tuesday the 8th of August 2006 for argument and determination of costs. Written submissions were ordered to be supplied by Monday 7 August 2006. Those submissions were received on the date and related to the issue of costs.
On resumption of the hearing on 8 August 2006 counsel for the plaintiff made an application under rule 47.02 (3) that I direct a trial without jury on the basis that the trial is not over until a judgment has been entered, and of course, as a result of the application of the plaintiff on the previous hearing, judgment had not as yet been entered. This application had been foreshadowed to the defendant and the third party at some stage during the previous day, but no notification had been given to the Court.
The Application
The plaintiff seeks pursuant to rule 47.02(3) of the Supreme Court Rules that I direct that the trial of this matter be heard without a jury and that I should decide the case on the basis of all the evidence that was led in the trial over which I presided and give judgment accordingly.
The Submissions
The submissions of the plaintiff in respect of this argument can be put in relatively short compass. They submit that rule 47.02(3) of the Supreme Court Rules permits the Court to intervene at any stage of the proceedings, including after verdict, but before the trial is over, if it determines that the appropriate course is to discharge the jury and decide the matter itself.
The basis upon which the plaintiff submits that the Court should so act, is that the conduct of senior counsel for the defendant had “so poisoned the well of justice in such a way that the plaintiff did not receive a fair trial”.
The conduct complained of related to some of the questions that were asked, what was said to be the theatrical behaviour of counsel for the defendant and the failure to put certain matters to witnesses that had been raised with other witnesses.
The defendant’s submissions in respect of these matters can also be put in short compass. The defendant submits that this application has been made merely because the plaintiff is unhappy with the verdict and if that is the situation then he has other avenues to pursue to deal with the verdict of the jury. He further submits that although the trial is not over, in terms of judgment not having been entered, the trial is over, in terms of a verdict being returned and the jury having been discharged.
The defendant further submits that if the plaintiff was of the view that there was no evidence fit to go to a jury on the question of negligence, or on the issue of contributory negligence, then he could and should have sought leave to move non ostante veredicto. Further he submitted that if the plaintiff was of the view that the trial had been prejudiced by the behaviour of counsel for the defendant then he should have moved prior to the verdict of the jury for a discharge of that jury and delivery of a verdict by the Judge.
Counsel for the third party submits that the case has been tried before a jury and a verdict obtained and it is now too late for the plaintiff to make application pursuant to rule 47.02(3) for the Court to discharge the jury and determine its own verdict.
Counsel further submits that the behaviour of Mr Scanlon S.C. was not such that would cause the discharge of the jury at this stage of the proceedings, nor at any earlier stage of the proceedings. Finally on behalf of the third party it is submitted that the remedy for the plaintiffs’ dissatisfaction of the verdict of the jury lies elsewhere such as in an appeal to the Court of Appeal.
The Decision
A. The Law
I set out the relevant Order and Rules of Civil Procedure.
MODE OF TRIAL
47.02 (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 defendant (as the case requires) desires to have the proceedings so tried and
(b)the proper jury fees are paid
(2)Any other proceeding shall be tried without a jury, unless the court otherwise orders.
(3)Notwithstanding any significance 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
(4)Trial with a jury shall be with a jury of six.
The plaintiff relied upon the decisions of the Court of Appeal in Altmann v Dunning[1] and Herald and Weekly Times and Bolt v Popovic[2] which the plaintiff submitted supported the argument that rule 47.02(3) does not cease to have effect even after a jury’s discharge.[3] The plaintiff particularly relied upon a passage in the decision of Warren AJA in Herald and Weekly Times v Popovic[4] wherein her Honour referred to the remarks of Hedigan J in Altmann v Dunning with approval.
[1][1995] 2 VR 1
[2][2003] 9 VR 1
[3]paragraph 15 Plaintiff’s submission in reply to oral and written submissions of the defendant and third party on rule 47.02(3) application
[4]supra paras 482-487
The law in relation to this rule, prior to the decisions in Altmann v Dunning and Herald and Weekly Times v Popovic, had been discussed in the decision in Prestinezi v Steel Tank and Piper Consolidated Pty Ltd[5]. In that decision the Full Court determined that the trial Judge not having reserved leave to the plaintiff to move non obstante veredicto was obliged to enter judgment in accordance with the jury’s answers to the questions.
[5][1981] VR 421
In that case no issue has been raised during the trial, or prior to verdict, that there was no evidence upon which the jury could find that the plaintiff was guilty of contributory negligence and that question was one of the questions left to the jury. After the verdict, which had found the plaintiff guilty of contributory negligence, counsel for the plaintiff had moved for judgment for the whole amount assessed by the jury as the plaintiffs damages irrespective of the findings of the jury. His Honour the trial Judge had then granted that application.
The Court examined the history of the law and concluded:
“…..the absence of binding authority. Provide compelling reasons for concluding that the better practice is for the trial judge, where he is persuaded that there is no evidence on which the jury could find contributory negligence against the plaintiff, either to reserve leave to move non obstante veredicto and then take the jury’s verdict, or to direct the jury to answer the question in favour of the plaintiff. This would accord with the practice followed with exceptions in jury actions in this Court since Humphrey v Collier supra, at least until recent times. In my opinion the procedure of taking a jury’s verdict and thereafter, without leave having been reserved, entertaining a motion for judgment contrary to it, is not warranted by authority and it is not a desirable one.”[6]
And
“In this Court, after a trial judge has accepted a general or special verdict, or the jury has answered questions submitted to it and been discharged, there is no power in the judge to give judgment inconsistent with the verdict or findings of the jury. No power remains to give judgment directly instead of directing and obtaining a verdict and giving judgment, because the jury has finally given its verdict or finally authorised only the entry of a verdict consistent with its findings…….
The trial judge may, however, by the consent of the parties, disregard the jury’s verdict or findings and give a contrary judgment Edmond Weil Incorporated v Russell supra at p 46 Phillips v Ellinson Bros. Pty ltd. supra at pp 229 and 239 by a practice which corresponds with that at common law, if the trial judge before verdict and without dissent, hears an application by the defendant for leave to move for judgment notwithstanding verdict, or himself raises and considers the grant of such leave, the parties are treated as impliedly consenting to that course and are bound if the leave is given.”[7]
[6]supra at p 437
[7]supra at p 440
In Altmann v Dunning[8] the trial was conducted before a judge and jury. At the conclusion of all of the evidence, and before the retirement of the jury for verdict, the plaintiff applied pursuant to rule 47.02(3) of the Supreme Court Rules for an order directing a trial by judge alone. That application was opposed by counsel for both defendants. His Honour discharged the jury without verdict and proceeded to determine the trial himself. His power and exercise of his discretion to discharge the jury were reviewed by the Full Court.
[8][1995] 2 VR 1
Hedigan J with whom the other members agreed stated:
“But whatever the precise meaning of all the rules that preceded the 1986 Rules, the form of r. 47.02(3) creates the power and invests the judge with discretion to direct a trial without a jury if he forms the opinion that in all the circumstances it should not be tried before a jury. Rule 47.02(1) establishes the right to a jury if the procedural requirements are followed. Clearly, however, the manner of expression of r 47.02(3) was designed to excise and dispense with the old rules, with all their alterations, increments and complications, by investing the court with the broadest possible and unfettered discretion to direct trial without a jury if it formed the opinion that it should not be tried with a jury. In so doing, enlarged both the power and the discretion.
The breadth of language of O. 47.02(3), coupled with the self evident departure from the intricacies and elaborations of both the English Rules and the former Victorian Rules, reinforces the construction that the intended power and discretion is wide enough to dispense with a jury both before trial and during trial after discharge.”[9]
[9]supra at p 17
In my view this was supported and further clarified by his Honour Fullagar J in his reasons concurring with the decision of Hedigan J where he said;
“The foregoing is written with the intention only of providing support for the conclusion of the other members of the court that r. 47.02(3) authorises the trial judge of his own motion, after the discharging of the jury in the middle of a jury trial, thereupon to direct that the whole case shall be tried by himself upon all the evidence including the evidence already given up to that stage.”[10]
[10]supra at p 5
The most recent decision of this Court on the issue Herald and Weekly Times v Popovic,[11] was a decision relating to a defamation case where the trial Judge reserved non obstante veredicto the question of whether certain of the defences were matters for the jury or matters for the trial judge as a matter of law. This reservation of the issue was made despite the objection of the defendants. The Court was determining whether the question was capable of reservation in this manner, in light of the objections. Gillard AJA defined the issue that the Court was dealing with in this case as follows:
“It can be seen that issue on this appeal is indeed a narrow one. Did the learned trial judge have power to reserve liberty to the plaintiff to move for judgment notwithstanding the verdict of the jury, in the face of opposition by the defendants? The learned trial judge reserved leave and hence complied with the principle’s stated in Prestinenzi’s case. Having reserved leave he was entitled to consider the motion for judgment contrary to the jury’s verdict. But was he wrong reserving leave over objection?”
Then further on his Honour questioned the practicality of this issue:
“Given that the breach of the rule does not affect the jurisdiction of the court enter judgment notwithstanding the jury’s verdict, one asks the question, what practical use does it have in this day and age? Why should the reservation depend upon all parties consenting? If the parties do not consent, the judge cannot reserve the right. ….”
[11]ibid [2003] 9 VR 1
His Honour Gillard AJA finally determined:
“The trial judge reserved the right to the parties to move for judgment notwithstanding the jury’s answer to the questions. The reservation authorised him to consider the motion. This was in accordance with the authorities. He followed that course despite opposition from the defendants. Some of the authorities suggested there had to be consent. Others were to the contrary, the Rules, in my opinion, authorised him to reserve the question despite lack of consent.
In my opinion, what the learned trial judge did accords with the Rules and represented a common sense and practical approach to the entry of judgment. As things turned out, the argument concerning the various defences took in excess of three days. His honour reserved his judgment. It is better for the administration of justice that time and care is taken by judicial officers to each a conclusion rather than making a hasty judgment under pressure which may result in error. In my opinion, what the learned trial judge did was in accordance with the Rules of Court. He clearly had the jurisdiction to enter judgment notwithstanding the jury verdict. The lack of consent by the appellants was not a vitiating factor and Rules justified the course he adopted. This conclusion accords with common sense which was apparent in Skeate v Slaters Ltd and which prompted Gavan Duffy J’s observation in Humphrey v Collier.”
Winneke P and Warren AJA agreed with the decision of his Honour with Warren AJA stating that in her view the trial judge does not need the consent of both parties or even require the issue to be raised by the parties but is potentially capable of reserving the issue on his own motion.
Accordingly, in my opinion, there is nothing in the authorities to which I have been referred, and upon which the plaintiff relies, that entitles me to disregard the verdict of the jury and substitute a verdict of my own for theirs. If the plaintiff had asked that I reserve that right for the matter to be argued subsequent to the verdict of the jury then I would undoubtedly have that power. I am not confident that I would have exercised the power, as in my opinion, the plaintiff was in fact asking me to discharge the jury on the basis that they were incapable of bringing in a fair and impartial verdict according to the evidence, but I would certainly at least have considered the application.
I do not need to decide the matter of whether the conduct of the proceedings by counsel for the defendant “prejudiced the well of justice as to make the trial unfair” to finally determine this matter. As a matter of fairness to counsel involved in the proceedings, I am of the view that it is appropriate to say something about the matters raised by the plaintiff in respect of this issue, and my comments will be brief. I do not intend to go through each of the allegations and complaints made in respect of counsel’s conduct during the case, but I will say that I would not have set aside the verdict of the jury on that basis. A trial is a robust procedure, the matters were strongly contested between the parties, counsel for the plaintiff made numerous objections and they were either upheld or dismissed. Some of the theatrics of counsel that were referred to by the plaintiff are surely not unexpected in a trial in which one is appealing to a jury. When the theatrics went too far or when objection was taken, that objection was upheld and counsel for the defendant made it clear to the jury that what he had done was not appropriate. Equally during my charge to the jury I made similar references to the inappropriateness of some of the behaviour and told the jury to put matters like that to one side.
Further the verdict of the jury was in my view clearly open on the evidence before them, and did not rely upon the total rejection of the evidence of the third party, as has been submitted by the plaintiff. The plaintiff chose not to join the third party as a defendant, that is their choice, but the issue of whether the ladder was negligently manufactured, such as to make it inherently unsafe because it could be unknowingly overextended, or whether it had been overextended by the third party as a result of deliberate misuse was a matter that would have occupied the minds of the jury in their deliberations.
It is clear that the jury did not accept, on the balance of probabilities, that the ladder had been manufactured in such a manner, or with such a defect, as to make it inherently unsafe and unfit for its purpose by reason of its ability to be able to be unknowingly overextended. Two experts were called who gave contradictory views and the jury were entitled to prefer the evidence of one to the other.
The behaviour of counsel in conducting a strongly fought and robust trial did not in my opinion extend over the line such as to make this an unfair trial.
On the issue of costs, I find no reason why the plaintiff should not indemnify the defendant for the costs of the third party. It was entirely reasonable and appropriate that the defendant join the third party in this action.
Accordingly I enter judgment for the defendant, I direct that the third party claim be struck out, and order that the plaintiff pay the taxed costs of the defendant, the defendant pay the taxed costs of the third party and the plaintiff indemnify the defendant for the taxed costs of the third party. I certify the transcript of the proceedings.
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