Strasberg v Westfield Limited

[2002] NSWSC 1052

Reported Decision: (2002) 56 NSWLR 47

New South Wales

Supreme Court

CITATION:

STRASBERG v WESTFIELD LIMITED [2002] NSWSC 1052

FILE NUMBER(S):

SC 20867 OF 2001

HEARING DATE(S):

4 November 2002

JUDGMENT DATE:

8 November 2002

PARTIES :

MARIE-ANN STRASBERG
(Plaintiff)

v

WESTFIELD LIMITED t/a WESTFIELD HORNSBY
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	C Evatt (Plaintiff) R McHugh (Defendant)
SOLICITORS:	Ward Maxwell & Co (Plaintiff) Speed & Stracey (Defendant)
CATCHWORDS:	Jury trial - false imprisonment - Supreme Court Act s89(2)(a) - "local investigation"
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	Dwyer v IPC Magazines Ltd (unreported, 21 April 1993) Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Wilson & Ors v NSW Land and Housing Corporation [2002] NSWSC 506
DECISION:	See paragraph 14

- 5 -

DLJ:3
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 8 NOVEMBER 2002

20867 OF 2001


MARIE-ANN STRASBERG
(Plaintiff)

v

WESTFIELD LIMITED t/a WESTFIELD HORNSBY
(Defendant)
JUDGMENT (Jury trial – false imprisonment – Supreme Court Act s89(2)(a) – “local investigation”)

1 The plaintiff instituted her action against the defendant by filing a Statement of Claim on 30 October 2001. The causes of action now relevant are defamation and false imprisonment. The pleading of the causes of action has been the subject of two judgments of myself: 26 April 2002 ([2002] NSWSC 340) and 8 August 2002 ([2002] NSWSC 689). The current pleading is the Second Further Amended Statement of Claim filed on 16 August 2002.

2 The defendant by Notice of Motion filed on 19 September 2002 seeks the following orders:

1. An order pursuant to s89(2) of the Supreme Court Act 1970 (NSW) (as continued in force) that the issues of fact arising on the plaintiff’s claim in respect of false imprisonment be tried without a jury.
2. In the alternative, an order that the issues of fact arising on the plaintiff’s claim in respect of false imprisonment be tried with the same jury that tries the issues arising under s7A of the Defamation act 1974 (NSW) on the plaintiff’s claim in respect of defamation.

3 In the event that order 1 is not made, the plaintiff does not oppose order 2.

4 The applicable law is s89(2)(a) as in force immediately before the 2001 amendments effected by the Courts Legislation Amendment (Civil Juries) Act assented to on 1 December 2001 and commencing on 18 January 2002 (see Wilson & Ors v NSW Land and Housing Corporation [2002] NSWSC 506 – O’Keefe J at paragraphs [7] and [8]).

5 S89(2)(a) is as follows:

89(2) In any proceedings to which s88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury, where:
(a) prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury…

6 S88 is as follows:

88 Proceedings on a common law claim in which there are issues of fact-
(a) on a charge of fraud against a party; or
(b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage,
shall be tried with a jury.

7 It is to be observed that s89(2) expressly refers to “conveniently” in 2(a). This is to be compared to the general provision in s89(1) which provides that in any common law proceedings all or any issues of fact should be tried without a jury subject to the exceptions referred to in that section – s88 - and notwithstanding earlier ss85, 86 and 87. Thus, the consideration to which their Honours addressed themselves in Pambula District Hospital v Herriman (1988) 14 NSWLR 387, an application under s89(1), must be viewed contextually, and do not necessarily flow on to the considerations of s89(2).

8 Evidence was tendered in support of and in opposition to the defendant’s motion. That evidence is made up of an affidavit of Peter Stuart Speed sworn 16 October 2002. It was agreed that really this affidavit, to which is annexed a floor plan and correspondence as to particulars, advances the ultimate consideration very little. It seeks to raise an issue to the effect that in the event of there being a “view” (to which concept I will return), the configuration of and personnel at the shopping centre would preclude a realistic appreciation of the surroundings, or, at least, impede the jury’s function under s54 of the Evidence Act. For the plaintiff, an affidavit of the plaintiff’s husband, Joe Strasberg, sworn 31 October 2002 was read, it is argumentative as well, though offers some explanation for exhibits 1, a bundle of photographs taken at the location on 23 0ct 2002. There is a further exhibit, namely exhibit A, a photograph taken, as I understand it, from a parking area through the access therefrom into the general area where the events are alleged to have occurred.

9 There appears to be no authority in relation to the nub of this motion, namely, the question of “local investigation”. In Dwyer v IPC Magazines Ltd (unreported, 21 April 1993) I had occasion to consider the then s89 of the Supreme Court Act, but in the context of “scientific” investigation, and dismissed the defendant’s motion under s89(2)(a) that the action be tried without a jury (unreported, 21 April 1993). An application for leave to appeal was refused (unreported, NSWCCA, 2 August 1993).

10 For the defendant it is submitted that s89(2)(a) has two jurisdictional limbs:

89(2)(a) any
[i] prolonged examination of documents, or
[ii] scientific or local investigation
is required and
[iii] cannot conveniently be made with a jury…

11 In relation to “local investigation” I am persuaded that the ordinary meaning of those words (as context) commands that they be understood as what is generally known as a “view”. Certainly the structure of the action as particularised and some of the information contained in the affidavits points to, I am persuaded, a view possibly being “required”. The question arises as to whether or not such a view “cannot conveniently be made with a jury”.

12 The location of the defendant’s premises is at Hornsby. That, to my mind, is not a matter of geographical inconvenience; as a matter of practicality the Sheriff can “bus” the jury to the location and the usual arrangements can be made for the Judge and the judicial staff, court reporter, counsel and solicitors to attend.

13 Assuming for the moment that no order as sought in paragraph 1 of the Notice of Motion is made, then, of course, the trial judge will have to entertain any application under s53 of the Evidence Act, taking into account the matters referred to in s53(3). The Judge will also, of course, have to take into account that the jury will be present (s53(2)(b)).

14 At this point I am not persuaded that what is described as the “second jurisdictional limb”, namely, that the local investigation “cannot conveniently be made with a jury”. Thus, the first order in the Notice of Motion will have to be refused. In any event, as a matter of discretion, taking into account that neither mode of trial is inherently more just: Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353 at [11] per Gaudron, McHugh and Hayne JJ, by reason of the nature of the relevant cause of action being one which the Legislature has hitherto prescribed to be tried by jury (unless the exceptions apply), would compel the exercise of the discretion in favour of retention.

1. Accordingly, I decline to make order 1 in the Notice of Motion.

2. I order that the issues of fact arising on the plaintiff’s claim in respect of false imprisonment be tried with the same jury that tries the issues arising under s7A of the Defamation Act 1974 and the plaintiff’s claim in respect of defamation.

3. I grant liberty to the parties to approach the Associate to the List Judge to have the matter relisted before him with respect to the present fixture for 5 days on 28 April 2003.

4. The defendant is to pay the plaintiff’s costs of the motion.

5. The exhibits are to be returned.

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Last Modified: 11/08/2002