Rubin v Buchanan - [2011] QSC 275

SUPREME COURT OF QUEENSLAND

CITATION:

Rubin v Buchanan and Anor [2011] QSC 275

PARTIES:

HELEN STONE RUBIN
(plaintiff)

v

MATTHEW JOHN BUCHANAN
(first defendant)

and

BANK OF QUEENSLAND LIMITED
ACN 009 656 740
(second defendant)

FILE NO/S:

BS 9120 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application for trial by jury

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

21 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2011

JUDGE:

Boddice J

ORDER:

The application is dismissed1.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TRIAL – OTHER MATTERS – where the plaintiff makes application pursuant to r 475 of the Uniform Civil Procedure Rules 1999 (Qld) for an order that the proceeding be determined by trial by jury – where neither party elected trial by jury in their pleadings – whether it is necessary for a party to establish trial by jury is more appropriate – whether the case is an appropriate one for determination by a jury

Rules of the Supreme Court 1991 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Borland v Makavskas (unreported, QSC, 17 May 2000)

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [1999] QSC 384

McDermott v Collien (1953) 87 CLR 154

McLennan v Yared (unreported, QSC, 17 October 2001)

Neilsen v State of Queensland [2001] 1 Qd R 500

COUNSEL:

Cooper SC for the plaintiff

Crowe SC with Porter, B for the defendants

SOLICITORS:

Slater & Gordon Lawyers for the plaintiff

HWL Ebsworth Lawyers for the defendants

The plaintiff, who is claiming damages from the defendants for breach of fiduciary duty, negligence and misleading and deceptive conduct, makes application pursuant to r 475 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) for an order that the proceeding be determined by trial by jury. The defendants oppose that application.

The claim

The plaintiff alleges that in May and June 2005 she received written and oral financial advice from Storm Financial Services, and that on 29 June 2005 she met with the first defendant, a bank manager for the second defendant, seeking his professional advice as to the wisdom of acting on the advice from Storm Financial Services. The plaintiff alleges that in reliance upon the first defendant’s advice she invested moneys which were subsequently lost.

Plaintiff’s submissions

The plaintiff submits trial by jury is appropriate in the present case as liability depends to a large extent upon a disputed conversation between the plaintiff and the first defendant, and such disputes are regularly determined by juries in criminal trials. Further, there is no evidence that trial by jury will cause any increase in costs or court time, or that the defendants will be prejudiced in any way.

Respondent’s submissions

The defendants submit the application should be dismissed on a number of bases. First, no explanation has been given by the plaintiff as to the reasons for her wish to alter her initial election. Second, the first defendant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rubin v Buchanan

Details

AGLC: Rubin v Buchanan [2011] QSC 275
Case: [2011] QSC 275
Decision Date: 21 September 2011

CaseChat Overview and Summary

In the case of Rubin v Buchanan, the plaintiff sought to have their case heard by a jury, despite neither party having elected for a jury trial in their pleadings. The matter was heard in the Supreme Court of Queensland, where the plaintiff sought an order under rule 475 of the Uniform Civil Procedure Rules 1999 (Qld) for the case to be determined by trial by jury. The court was required to decide whether the plaintiff had to establish that a jury trial was more appropriate and whether the case was suitable for jury determination.

The court examined the criteria for determining whether a case was appropriate for a jury trial, noting that while there was no explicit requirement for the plaintiff to establish that a jury trial was more appropriate, the court had discretion to consider the matter. The court also examined the nature of the case and whether it involved questions of fact that were suitable for determination by a jury. The court found that the case involved complex factual issues that were more suited to determination by a judge, and that a jury trial would not be appropriate in this instance.

Consequently, the court dismissed the plaintiff's application for a jury trial. The court held that while the plaintiff had the right to request a jury trial, it was not necessary for them to establish that a jury trial was more appropriate, but the court had discretion to consider the matter. In this case, the court found that the case was not suitable for determination by a jury, and dismissed the application.

No orders were made in favour of the plaintiff, and the case will proceed to trial before a judge alone.

Orders

Orders of the court

The application is dismissed1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rubin v Buchanan and Anor [2011] QSC 275
PARTIES:	HELEN STONE RUBIN (plaintiff) v MATTHEW JOHN BUCHANAN (first defendant) and BANK OF QUEENSLAND LIMITED ACN 009 656 740 (second defendant)
FILE NO/S:	BS 9120 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application for trial by jury
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	21 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2011
JUDGE:	Boddice J
ORDER:	The application is dismissed1.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TRIAL – OTHER MATTERS – where the plaintiff makes application pursuant to r 475 of the Uniform Civil Procedure Rules 1999 (Qld) for an order that the proceeding be determined by trial by jury – where neither party elected trial by jury in their pleadings – whether it is necessary for a party to establish trial by jury is more appropriate – whether the case is an appropriate one for determination by a jury Rules of the Supreme Court 1991 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Borland v Makavskas (unreported, QSC, 17 May 2000) Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [1999] QSC 384 McDermott v Collien (1953) 87 CLR 154 McLennan v Yared (unreported, QSC, 17 October 2001) Neilsen v State of Queensland [2001] 1 Qd R 500
COUNSEL:	Cooper SC for the plaintiff Crowe SC with Porter, B for the defendants
SOLICITORS:	Slater & Gordon Lawyers for the plaintiff HWL Ebsworth Lawyers for the defendants