Shannon & Anor v ANZ Banking Group Ltd

[1995] HCATrans 49

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B28 of 1994

B e t w e e n -

GARY SHANNON and WENDY IRENE SHANNON

Applicants

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, PHILLIP RICHARD WINSTONE and IVAN DEBELAK

Respondents

Application for special leave to appeal

BRENNAN J
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 1995, AT 10.54 AM

Copyright in the High Court of Australia

MR F.L. HARRISON, QC:   May it please the Court, I appear with my learned friend, MR P.J. DUNNING, for the applicants.  (instructed by Tobin & Co)

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland:   May it please the Court, I appear with my learned friend, MR T.D. NORTH, for the respondents.  (instructed by Minter Ellison Morris Fletcher)

MR HARRISON:   If the Court pleases, this is an application for special leave to appeal from a decision of the Court of Appeal, affirming an order of Mr Justice Ryan, that the present action be tried without a jury.  Under the Rules of the Supreme Court of Queensland, it is provided by Order 39 rule 4, that:

Subject to the provisions of the following Rules, and to the provisions of any Act requiring the action to be tried without a jury, the plaintiff may in his statement of claim, and any defendant may, in his defence, require the issues of fact shall be tried by a Judge with a jury and thereupon the same shall be so tried.

The result of an order for trial without a jury was achieved by the respondents by their having the matter placed on the list of commercial causes under the Commercial Causes Act 1910 thereby activating the power under section 4(4) for the judge to:

give such directions as in the Judge’s opinion are expedient for the speedy and inexpensive determination of the questions in the action really at issue between the parties.

It is on that basis that the judge ordered that the action be tried without a jury.

It is submitted that this is a matter of importance because the decision made as to the application of those provisions, in our submission, opens an easy avenue for a party to avoid trial by jury in a wide range of cases, having regard to the wide range of matters that may be listed as commercial causes.

BRENNAN J:   Is there any dispute as to whether it was properly characterised as a commercial cause?

MR HARRISON:   There was below, but we do not dispute that before your Honours.

BRENNAN J:   Then, you are canvassing the question of the exercise of a discretionary power, are you?

MR HARRISON:   In our submission, no, your Honour, because the power was exercised as though it were a matter of merely balancing the convenience of a jury on the one hand, and the inconvenience of having complicated issues tried by a jury on the other hand.  Instead of being exercised with a view to achieving, in the words of the section, “the speedy and inexpensive determination of the questions in the action”, it is submitted that ‑ ‑ ‑

BRENNAN J:   That sounds to me very much like a challenge to the exercise of a discretionary power.

MR HARRISON:   With respect, your Honour, it amounted to the application of the wrong test.

BRENNAN J:   Well, that may be so.

MR HARRISON:   And the test applied by the Court is one which would then be open to be applied in all subsequent matters.  In the present case, it is submitted that it is clear from the approach at least taken by the respondent - defendants.  They contend that with or without a jury, the action will be long and complicated.  It is submitted that in those circumstances it is a misapplication of the section to apply what, in our submission, was in effect a presumption by the Court that a jury is inappropriate for the determination of matters involving some complexity rather than, as in our submission, is required by the Commercial Causes Act, only granting a trial without a jury if it will achieve the result of a speedy and inexpensive trial.

In other words, it turns the section into one that is available only where the result will be something short, quick and cheap into something that is available in any complicated action that can be brought within the description of a commercial cause.  In doing so that has created a very large inroad into the rights of an ordinary litigant in matters that have a commercial aspect and that is as far as, in our submission, the matter needs to go to come within the commercial causes definition; an inroad into the ordinary litigant’s right to a trial by jury.

Your Honours, the Court approached the matter, in our submission, or the gravamen of the Court’s dealing with this point is to be found at page 17 of the application book.  The Court had been dealing at length with the argument as to whether or not the matter came within the description of a “commercial cause”.  Then, at about line 59 the Court dealt with the point that we seek to raise here:

It is unnecessary to deal in detail with the other matters raised by the appellants.  None is of particular substance.  The primary Judge’s experience and common sense would have amply demonstrated to him, without any evidence to that effect, that this action was likely to be long and complex and that, while there would be issues of credibility, the interwoven factual and legal issues would have made the management of the trial and the ascertainment of the jury’s verdict difficult and prone to error.  It was well within his discretion to conclude that a trial by judge alone without a jury, would be more “expedient for the speedy and inexpensive determination of the questions in the action really at issue between the parties.”

It is submitted, with respect, in their Honour’s conclusion in that passage that their Honours, in another respect, go beyond the mere exercise of a discretion in that they have treated the matter as one to be determined not on the basis of it being established by evidence before the Court that the matter will be one in which the trial will be difficult to manage and the ascertainment of the jury’s verdict difficult.  Their Honours in the Court of Appeal came to that conclusion, with respect, as their Honours say, without any evidence to that effect that the matter would be such.  And that, in our submission, involves, with respect, an unfounded presumption or using the word in its most literal sense, a prejudice against the trial of matters by a jury.

BRENNAN J:   That really reflects their Honours’ estimate of the problems as a matter of practice and procedure of dealing with one mode of trial rather than another.

MR HARRISON:   Your Honour, with respect, perhaps one would not be able to cavil with such an approach if the matter had approached the stage where the issues had been determined by the pleadings being closed and there had been discovery and one knew precisely what issues were to be dealt with.  This application was made immediately after the delivery of the statement of claim before even a defence had been delivered.  So that their Honours, with respect, were not in a position to say in what respects matters, if disputed in the statement of claim, might be complex and difficult would in fact end up being that way when the matter was ready for trial.

BRENNAN J:   Were there not affidavits filed setting out the nature of the problems that were being investigated by the defendants’ solicitors?

MR HARRISON:   There was an affidavit filed by Mr Roberts which has been attached to the other side’s argument.  In fact, objection was taken, as I have mentioned to my learned friend this morning, to paragraphs 5 and 6, parts of 7 and 8 and the whole of 10 of that affidavit on grounds which, with respect, I do not think I should trouble your Honours with, but to the effect that they were mere assertion and speculative.  His Honour Mr Justice Ryan reserved the objections but did not deal with them in his judgment.  His failure to do that was one of the grounds of appeal, as appears, I am sorry to say, in material not before your Honours at page 116 of the appeal book before the Court of Appeal.

BRENNAN J:   The case is sounding less and less like a special leave application, Mr Harrison.

MR HARRISON:   Your Honour, fundamentally, in our submission, the matter goes back to whether the court was correct in treating the matter as one to be dealt with on the basis of a general view of the matter and on a general balancing, rather than on a strict application of the words of the Commercial Causes Act which would result in a much narrower application in practice of that provision.  I do not think there is anything more that I wish to put to your Honours.

BRENNAN J:   Thank you, Mr Harrison.  We have lost sound.  The Court will adjourn until the connection is resumed.

AT 11.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.13 AM:

BRENNAN J:   Mr Solicitor, we need not trouble you in this matter.

The Court of Appeal was correct in holding that the proceedings pending in the Supreme Court of Queensland fall within the definition of the term “commercial causes” in the Commercial Causes Act 1910 ( Qld). The question which the applicant seeks to canvass is therefore the correct exercise of discretion on a matter of practice or procedure. That is not a question which warrants a grant of special leave to appeal. Special leave is refused.

MR KEANE:   The respondents ask for costs, your Honours.

BRENNAN J:   Have you got anything to say to that, Mr Harrison?

MR HARRISON:   No, your Honour.

BRENNAN J:   There will be refusal of special leave with costs.

AT 11.14 AM THE MATTER WAS CONCLUDED