Stankowski v Commonwealth of Australia - [2003] NSWSC 923

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CITATION: Stankowski v Commonwealth of Australia [2003] NSWSC 923

HEARING DATE(S): 8/10/03

JUDGMENT DATE:
10 October 2003

JUDGMENT OF: O'Keefe J

DECISION: 1. For more abundant caution, the order made by Bell J on 25 September 2003 is discharged; 2. The issues of fact in the matter be tried without a jury; 3. The trial continue before me sitting alone; 4. The evidence already given in the presence of the jury be evidence in the proceedings before me; 5. I give leave to the defendant to recall for further cross-examination any witness already called whose cross-examination the defendant reasonably claims would have been different had that witness been cross-examined other than before the jury; 6. I reserve the question of costs including, but not limited to, the costs incurred as a consequence of the recall of any witness who has given evidence to date.

CATCHWORDS: Practice and procedure - Discharge of jury - Jurisdiction to order hearing without jury - Judge continuing to hear matter without jury - Evidence in proceedings before jury - Order after discharge of jury for evidence in proceedings before jury to be evidence in continuing trial - Test - interests of justice - Discretion - Grounds for exercise of discretion to continue trial without jury

LEGISLATION CITED: Courts Legislation Amendment (Civil Juries) Act 2001
District Court Act 1973: ss 77, 78, 79, 79A
Supreme Court Act 1970: ss 85, 86, 87, 88, 89

CASES CITED: Csalar v Circosta (2002) 55 NSWLR 212
Girlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Jakamarra v Krakouer (1998) 195 CLR 516
Pace v Read (2000) 179 ALR 437
Pambula District Hospital v Herriman (1988) 14 NSWLR 287
Patton v Buchanan Borehole Collieries Pty Ltd (1992-1993) 178 CLR 14

PARTIES :
Steven Stankowski
Commonwealth of Australia

FILE NUMBER(S): SC 21240/95

COUNSEL: Plaintiff - Mr A Melick SC with Dr K Sant
Defendant - Mr R Burbidge QC with Mr G Johnson

SOLICITORS: Plaintiff - James Taylor & Co, Solicitors
Defendant - Australian Government Solicitor

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O’Keefe J

10 October 2003

1 Stephen Stankowski (the plaintiff) was a sailor aboard the aircraft carrier HMAS Melbourne on 10 February 1964, when that vessel collided with a destroyer, HMAS Voyager, in the course of naval exercises in which both vessels were engaged. The plaintiff has sued the Commonwealth of Australia (the defendant) for damages arising out of such event, claiming that although he did not sustain any physical injury, the trauma that he claims to have suffered at, and following, the collision gave rise to a set of psychiatric symptoms that have been labelled Post Traumatic Stress Disorder (PTSD).

2 The action was commenced in November 1995. For reasons that are not apparent from the file, the hearing date fixed was not until 29 September 2003. The plaintiff applied to have his matter heard with a jury, but not until 23 September 2003. That application came before Bell J on 25 September 2003. The defendant did not consent to the making of the order sought, but informed the Court that:

“We take the view essentially, at the end of the day, that it is a matter for the Court. We think it appropriate to bring to attention factors which are relevant to the exercise of discretion, but beyond that we don’t wish to be heard.”

3 Senior counsel for the defendant then took the Court through the provisions of the Supreme Court Act 1970 (the Supreme Court Act) relating to whether there should be a trial by jury or not, including amendments that had been effected by the Courts Legislation Amendment (Civil Juries) Act 2001. It was submitted on behalf of the defendant that the amendments so effected did not operate to displace the provisions of ss 85-89 of the Supreme Court Act as in force at the date on which the plaintiff commenced his action. Because the rules concerning the filing of a notice to set a matter down for trial had been amended, the defendant raised the question as to whether it was:

ie, time considerations

sic, but semble ‘on’

4 The defendant then put before the Court a number of considerations that, on its submission, militated against the Court being satisfied “that it is in the interests of justice that it (the plaintiff) should be permitted to have a jury” – the obligation so to show being on the plaintiff.

5 Bell J ordered that the plaintiff’s case “be heard by a judge and a jury of four”. However, by agreement between the parties, her Honour gave no reasons for the making of such order.

6 The trial of the plaintiff’s action commenced before a jury of four on 29 September 2003. The defendant’s Further Amended Defence of 10 September 2003 put in issue, inter alia, the employment of the plaintiff by the defendant, that the collision between the two naval vessels was caused by the negligence of the officers and crew of either of the vessels or other officers and servants of the Commonwealth and raised matters of causation, remoteness and failure to mitigate. However when, at the outset at the outset of the case, counsel for the plaintiff was asked, in the absence of the jury, what the issues were, he replied:

“The issues are whether the negligence of the Commonwealth in any way caused or materially contributed to a psychiatric injury, namely post traumatic stress disorder, or a depressive (dis)order to Mr Stankowski.”

7 When counsel for the defendant was asked, in the absence of the jury, to define the issues, he said that “the issue is indeed as my learned friend has enunciated it” . As a consequence, the jury was empanelled to try the case on the basis that it was for assessment of damages.

8 When opening the defendant’s case to the jury, senior counsel expanded on his earlier statement of the issues as follows:

“Now, the Commonwealth’s position is simply this. It does not dispute that if Mr Stankowski did suffer this disorder, and if it did cause him to lose monies, then he must be compensated. That is the Commonwealth’s position. It goes on, however, to say that there is no convincing evidence that he has PTSD or any similar disorder. Furthermore, there are a great number of matters which strongly suggest that he does not have it.”

9 The hearing proceeded for four days, over the course of which the plaintiff, his wife, two other lay witnesses and a consultant psychiatrist gave evidence in the plaintiff’s case. The evidence of the plaintiff extended over the course of three days. All of the witnesses came from outside New South Wales. The plaintiff, his wife and the two other lay witnesses came from South Australia; the consultant psychiatrist from Victoria.

10 On 7 October 2003, when the plaintiff’s case was coming close to its end, an application was made on behalf of the plaintiff to discharge the jury. In the course of such application, senior counsel for the plaintiff indicated that he would seek to have the trial proceed with a judge alone because of a number of questions that had been asked by the jury, including whether the plaintiff was an Australian citizen. The argument on behalf of the plaintiff included a submission that there was “a simple solution, and that is we discharge the jury and proceed with your Honour alone”. This course was opposed by the defendant. However, the jury was discharged for reasons set out in a judgment dated 7 October 2003. Before this was done, senior counsel for the plaintiff again made it clear that the plaintiff was requesting that the further hearing of the matter continue before me. No other orders were then made, but an application was pressed on behalf of the plaintiff to have the hearing of the action continue before me without a jury, and for the making of an order that the evidence given before the jury and me, be evidence in the continuing trial. This course was objected to on behalf of the defendant, who made extensive submissions. Whilst initially they included a submission that there was no power or jurisdiction in the Court to continue the hearing without a jury, nor any power or jurisdiction to order that the evidence in the trial to date be evidence before me, ultimately the submissions relied on by the defendant were as follows:

status quo

Supreme Court Act

(b) the order made by Bell J on 23 September 2003.

2. On both bases there was a status quo that needed to be displaced, the onus being on the plaintiff to do so.

3. The plaintiff must demonstrate that it is in the interests of justice that the trial proceed before a judge alone, and this has not been done.

status quo

11 Section 89 of the Supreme Court Act provides that:

“In any proceeding on a common law claim (except proceedings to which s 88 applies), the Court may order, despite ss 85, 86 and 87, that all or any issues of fact be tried without a jury.”

12 Sections 85, 86, 87 and 89 of the Supreme Court Act, as they stood at the time of institution of the plaintiff’s action, were to the same effect and in substantially the same terms as ss 77, 78, 79 and 79A of the District Court Act 1973 (Patton v Buchanan Borehole Collieries Pty Ltd (1992-1993) 178 CLR 14 at 21 per Gaudron J) (Patton). The provisions of s 79A of the District Court Act 1973 were in all material respects the same as those of s 89 of the Supreme Court Act; the one exception being irrelevant in the present case, as the exception in s 79A of the District Court Act 1973 was irrelevant in Patton.

13 In Patton, it was held that:

District Court Act

ii) The discharge of a jury does not necessarily terminate a trial.

iii) The word “tried”, as used the section, means “heard and determined”.

14 In reaching these conclusions, the High Court said that:

“The section should be construed liberally in conformity with its terms free from unexpressed limitations. The fact that the section is remedial and is designed to give the court procedural flexibility which, in appropriate situations, will produce beneficial consequences is an added reason for giving to it the full scope which the natural and ordinary meaning of its words support.” (at 17 per Mason CJ, Deane and Dawson JJ)

15 Furthermore, the Court said that:

“…the section necessarily contemplates that the trial judge may, in an appropriate case, determine the questions the subject of an order under s 79A by reference to what has taken place and will take place at the trial. It would be artificial in the extreme to interpret the power without regard to considerations of time and convenience and the desirability of avoiding unnecessary expense that would have been present in the minds of those who framed the section.” (at 18 per Mason CJ, Deane and Dawson JJ)

16 Gaudron J was of the opinion that:

District Court

17 McHugh J was of the opinion that:

District Court Act

18 McHugh J pointed out that events occurring during the course of the trial may make it “…inimical to the administration of justice to continue with a jury trial…” In the context of the case before the High Court, this included considerations arising out of the discharge of the jury during the course of the trial. This is clear from the question posed by his Honour, namely:

“…whether, having discharged the jury and made an order under s 79A, the judge had power without the consent of the parties to determine the case on evidence given before, as well as after, the jury was discharged.” (at 30)

”Once jurisdiction is conferred on a Court, it may and should exercise that jurisdiction where it is appropriate to do so.” (at 31)

19 The decision in Patton, and what was said by the various Justices in the course of their judgments, is relevant to s 89 of the Supreme Court Act, the sections related to it, and the circumstances of the present case. There is undoubted power or jurisdiction to make an order for the continuance of the trial without a jury, and to make consequential orders in relation to both the use of the evidence adduced to date, and as to other matters relevant to the future conduct of the trial.

20 The order made by Bell J, it was submitted, stood in the way of the trial continuing before me without a jury, although it had earlier been submitted on behalf of the defendant that such order was unnecessary in the light of the legislation as it stood at the relevant time. If it is appropriate that the matter should proceed before me without a jury, and that orders be made under s 89 that the evidence to date be evidence in the continuing trial, then there is undoubted power to set aside the order made by Bell J. Such order has not been taken out, and the basis on which the order is made is not the subject of stated reasons.

21 Section 89 confers power or jurisdiction on the Court to make the orders sought by the plaintiff. The making of such orders is discretionary, however it should be borne in mind that it is “a broad discretion to dispense with civil juries where that would be in the interests of justice.” (Patton at 28; see also Pambula District Hospital v Herriman at 400–401). The test referred to by the High Court is that advanced on behalf of both the plaintiff and the defendant in the present action. It is the criterion referred to in s 85(2)(b). That is the appropriate test to apply.

22 As there is power to make the orders sought, it is necessary to consider whether, in the exercise of the discretion conferred on the court, such orders should be made. In considering the exercise of the discretion it has been submitted on behalf of the defendant that the court should bear in mind the restrictions placed on the matters that may be considered by the court on such an application. In Pambula, these were dealt with in detail by Kirby P and Samuels JA, but may be summarised as follows:

1. It is not to the point to consider wholly general or universal characteristics which raise only the inherent and inevitable consequences of employing or not employing juries in civil trials.

2. That is not to say that the general characteristics of a particular mode of trial may not have consequences on a particular litigant that would warrant account being taken of them in the exercise of the discretion under the section as they produce such consequences in the particular case.

3. In order to make good an application, it is necessary to show grounds which are “particular to the case in hand”.

23 I am conscious of the fact that in Girlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, the majority of the Court (Gaudron, McHugh and Hayne JJ), when confronted with a submission based on Pambula said that in the circumstances of that case it was:

District Court Act.

24 However, the dissenting minority (Kirby and Callinan JJ) referred to the decision as “orthodox”, and stated that the proposition on which the reasoning of the majority in that case rested:

“…says no more than that, where a discretion is conferred by statute, it must be exercised in accordance with the language by which it is conferred, and to achieve the purposes for which the power has been granted.” (at 503)

25 The decision in Pambula has not been expressly overruled or departed from in Girlach v Clifton Bricks Pty Ltd (supra) and it is, in my opinion, incumbent on a single judge of the court to apply such decision.

26 In my opinion the orders sought by the plaintiff should be made in the exercise of the discretion conferred on the court. It is in the interests of justice to do so because of considerations of time, convenience, the avoidance of unnecessary expense and the absence of prejudice to the opposing party, namely the defendant. If the matter were to proceed before another jury, an additional four days of hearing time would be likely to be involved to get to the stage to which the trial has proceeded to date. This would involve a not insignificant loss of the court’s time during which other matters will not be able to be heard (Jakamarra v Krakouer (1998) 195 CLR 516 at 526, para 29 per Gummow and Hayne JJ; Csalar v Circosta (2002) 55 NSWLR 212 at 218; Pace v Read (2000) 179 ALR 437 at para 41). The convenience of continuing without interruption or repetition is self-evident and was so treated by the High Court in Patton. It is, perhaps, even more manifest in the present case because of the number of interstate witnesses. The costs of the four days of hearing to date in this Court are considerable. Those costs include senior and junior counsel for both parties and the particular costs incurred by the plaintiff arising out of the fact that the plaintiff, the lay witnesses and the medical expert called to date, all come from interstate. A second trial before a jury would involve further expense and waste of the costs of hearing to date. Those costs would be borne either by the plaintiff, if he were unsuccessful, or by the defendant in the event that the plaintiff was successful. In either event there would be extra solicitor and client costs over and above the party and party costs that would have to be borne by both the plaintiff and the defendant. There would be no such waste were the matter to continue before a judge alone based on the evidence given to date. However, since questions of credibility are significant in the defendant’s case it would be more convenient and efficient if the matter were to continue before me. Like Judge Denton in Patton (at 32), I have been present and able to apprehend the evidence given. That costs in the particular action are relevant to the exercise of the discretion conferred by s 89 is both inherent in the conclusion, and expressly referred to in the reasoning, in Patton (at 18). Such a consideration is not inconsistent with Pambula. In that case, the order that was appealed against had been made before any trial had commenced. There was no question of loss of costs already incurred. No prejudice to the defendant has been established and, as I understand it, no actual prejudice was ultimately asserted by the defendant. Absence of prejudice to the opposing party as a relevant consideration is expressly referred to in Patton (at 28).

27 Senior counsel for the plaintiff referred to a number of factors that he submitted should be taken into account in relation to the exercise of the discretion. Questions of delay to the plaintiff, the efficient conduct of the litigation, an asserted unfair forensic advantage to the defendant, the fact that the defendant had not required a jury as at 23 September 2003 and had identified no legitimate reason for a change in attitude, were relied on. A number of these have already been dealt with. I do not consider it necessary to deal with the others in detail. Suffice it to say that the trial will proceed on the same date whether it is heard with a jury or without a jury. Insofar as the efficient conduct of the litigation involves the control of the hearing by the court, there should not be any difference arising from the tribunal of fact being differently constituted. It is difficult to judge whether an unfair forensic advantage would result from a retrial or not. It has not been established that it would. The asserted change of heart on the part of the defendant may be a factor suggestive of absence of prejudice, however, it is not a matter I take into account.

28 Although at one stage of the submissions it was argued that the cross-examination of the plaintiff might have been different had the trial been conducted without a jury, and that the tender of a medical report by a doctor who is now deceased, Dr Wu, might have been more extensive had the court been differently constituted, these were not ultimately pressed. Nonetheless they are relevant matters to take into account in the exercise of the discretion conferred by s 89 of the Supreme Court Act, as was recognised by Gaudron J in Patton (at 24). However, the submission can readily be dealt with by the form of the ancillary orders made.

29 Before concluding these reasons I should indicate that, although at one stage of the argument I was minded to allow a period of 14 days from the date of this judgment to elapse before embarking on the continuance of the hearing so as to enable any appeal to be lodged, on reflection I have come to the conclusion that the trial of the matter should be continued without delay. In coming to this conclusion, I am conscious of the time that has already elapsed since the action was instituted in 1995, more than 30 years after the events that gave rise to the action. The suggestion by me was in response to a remark by senior counsel for the defendant in which he sought in advance an indication of the outcome. However, when I raised the matter he very fairly and frankly indicated that he “was really directing (his) attention to the question of whether the defendant needed evidence here and so on…”, not to any delay of the hearing so as to facilitate a possible appeal.

30 In the circumstances I propose, having made the necessary orders, to proceed with the further hearing without delay. The court is available to continue such hearing today, however, counsel for both parties have requested that I adjourn the further hearing until Monday 13 October 2003 to enable them to take the necessary steps to have the witnesses available and other matters made ready, so as to continue with the hearing.

31 For the foregoing reasons, I make orders as follows, namely that:

1. For more abundant caution, the order made by Bell J on 25 September 2003 is discharged.

2. The issues of fact in the matter be tried without a jury.

3. The trial continue before me sitting alone.

4. The evidence already given in the presence of the jury be evidence in the proceedings before me.

5. I give leave to the defendant to recall for further cross-examination any witness already called whose cross-examination the defendant reasonably claims would have been different had that witness been cross-examined other than before the jury.

**********

Last Modified: 10/13/2003

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Citations

Stankowski v Commonwealth of Australia [2003] NSWSC 923

Cases Citing This Decision

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Statutory Material Cited

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CITATION:	Stankowski v Commonwealth of Australia [2003] NSWSC 923
HEARING DATE(S):	8/10/03
JUDGMENT DATE:	10 October 2003
JUDGMENT OF:	O'Keefe J
DECISION:	1. For more abundant caution, the order made by Bell J on 25 September 2003 is discharged; 2. The issues of fact in the matter be tried without a jury; 3. The trial continue before me sitting alone; 4. The evidence already given in the presence of the jury be evidence in the proceedings before me; 5. I give leave to the defendant to recall for further cross-examination any witness already called whose cross-examination the defendant reasonably claims would have been different had that witness been cross-examined other than before the jury; 6. I reserve the question of costs including, but not limited to, the costs incurred as a consequence of the recall of any witness who has given evidence to date.
CATCHWORDS:	Practice and procedure - Discharge of jury - Jurisdiction to order hearing without jury - Judge continuing to hear matter without jury - Evidence in proceedings before jury - Order after discharge of jury for evidence in proceedings before jury to be evidence in continuing trial - Test - interests of justice - Discretion - Grounds for exercise of discretion to continue trial without jury
LEGISLATION CITED:	Courts Legislation Amendment (Civil Juries) Act 2001 District Court Act 1973: ss 77, 78, 79, 79A Supreme Court Act 1970: ss 85, 86, 87, 88, 89
CASES CITED:	Csalar v Circosta (2002) 55 NSWLR 212 Girlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Jakamarra v Krakouer (1998) 195 CLR 516 Pace v Read (2000) 179 ALR 437 Pambula District Hospital v Herriman (1988) 14 NSWLR 287 Patton v Buchanan Borehole Collieries Pty Ltd (1992-1993) 178 CLR 14
PARTIES :	Steven Stankowski Commonwealth of Australia
FILE NUMBER(S):	SC 21240/95
COUNSEL:	Plaintiff - Mr A Melick SC with Dr K Sant Defendant - Mr R Burbidge QC with Mr G Johnson
SOLICITORS:	Plaintiff - James Taylor & Co, Solicitors Defendant - Australian Government Solicitor