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Trevor Roller Shutter Service Pty Ltd v Crowe

Trevor Roller Shutter Service Pty Ltd v Crowe

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Case Copied 10 February 2011 33 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

TREVOR ROLLER SHUTTER SERVICE PTY LTD	S APCI 2010 0151
	Appellant
v
DUANE ALEX CROWE	Respondent

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JUDGES:	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2011
DATE OF JUDGMENT:	10 February 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 16
JUDGMENT APPEALED FROM	[2010] VSC 536 (Beach J)

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JURY – Payment of fees – Whether appellant required extension of time in which to pay first day’s jury fees – No extension required – Jury fees may be paid any time before trial begins – If extension granted pursuant to s 24(4) Juries Act 2000 (Vic) jury fees must be paid by end of first day of trial – For purposes of s 24 Juries Act 2000 (Vic) trial by jury begins at time jury is empanelled – On day appellant wished to pay jury fees trial had not begun – Juries Act 2000 (Vic), s 24.

JURY – Payment of fees – S 24 Juries Act 2000 (Vic) requires jury fees to be paid to Prothonotary – R 47.03(2) Supreme Court (General Civil Procedure) Rules 2005 (Vic) inconsistent with s 24 Juries Act 2000 (Vic) – R 47.03(2) Supreme Court (General Civil Procedure) Rules 2005 (Vic) invalid to extent of inconsistency – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 47.03(2) – Juries Act 2000 (Vic), s 24.

JURY – Prima facie entitlement – Whether trial judge’s decision dispensing with jury and directing matter be heard as a cause miscarried – Decision to dispense with jury cannot be made on basis of universal characteristics of jury trials – Decision was made on basis of characteristics peculiar to trial itself – Time and costs savings identified by trial judge insufficient to displace prima facie entitlement – Trial by judge alone not necessarily more efficient than trial by jury – Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 inapplicable to exercise of discretion by trial judge – Civil Procedure Act 2010 (Vic) not proper consideration to exercise of discretion by trial judge – Exercise of discretion based upon wrong principle and irrelevant considerations – Appellant acquiesced in matter proceeding to trial – Appellant failed to make timely application for interim stay of proceedings pending application for leave to appeal – Once trial commenced error not productive of substantial injustice – Appeal dismissed – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 1.14, 47.02 and 47.03 – Juries Act 2000 (Vic), s 24 – Civil Procedure Act 2010 (Vic).

JURY – Right to – Not affected by enactment of Civil Procedure Act 2010 (Vic) – Civil Procedure Act 2010 (Vic), ss 7 and 49.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M F Wheelahan SC with Mr J P Gorton	Thomsons Lawyers
For the Respondent	Mr T J Casey QC with Mr G K Coldwell	Alessi & Kemp

WARREN CJ

NETTLE JA
ASHLEY JA:

This is an appeal from an interlocutory order,[1]…

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.

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Details

Case: [2011] VSCA 16
Decision Date: 10 February 2011

CaseChat Overview and Summary

The case of Trevor Roller Shutter Service Pty Ltd v Crowe involved a dispute over the payment of jury fees in a civil case. The appellant, Trevor Roller Shutter Service, argued that the respondent, Crowe, was required to pay jury fees within a specific timeframe as per Rule 47.03(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The respondent, however, contended that the trial judge's decision to dispense with a jury and proceed with a trial by judge alone was improper. The Supreme Court of Victoria heard the appeal and had to decide whether the respondent was required to pay the jury fees within the specified timeframe and if the trial judge's decision to dispense with the jury was legally sound.

The primary legal issue was whether the respondent was required to pay the jury fees within the timeframe specified by Rule 47.03(2). The court had to interpret Section 24 of the Juries Act 2000 (Vic) and determine if Rule 47.03(2) was consistent with the Act. Additionally, the court had to consider whether the trial judge's decision to dispense with the jury was based on proper legal principles and if the appellant's failure to make a timely application for an interim stay of proceedings had any bearing on the outcome.

The Supreme Court held that the respondent was not required to pay the jury fees within the timeframe specified by Rule 47.03(2) because, according to Section 24 of the Juries Act, jury fees could be paid any time before the trial began. The court found that Rule 47.03(2) was inconsistent with Section 24 of the Juries Act and, therefore, invalid to the extent of the inconsistency. Furthermore, the court ruled that the trial judge's decision to dispense with the jury was based on incorrect legal principles and irrelevant considerations. The court noted that the appellant had acquiesced in the matter proceeding to trial and that the appellant's failure to make a timely application for an interim stay did not result in substantial injustice. Consequently, the appeal was dismissed.

In summary, the Supreme Court determined that the respondent was not required to pay the jury fees within the timeframe specified by Rule 47.03(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) due to the inconsistency with Section 24 of the Juries Act 2000 (Vic). The court also held that the trial judge's decision to dispense with the jury was based on improper legal principles and irrelevant considerations. The appeal was dismissed, and the trial judge's decision to proceed with a trial by judge alone was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 24 of the Juries Act provides that:1) A party requiring a civil case to be tried by a jury must pay the prescribed fee- a)if the case is to be tried in the Supreme Court, to the prothonotary; and b)if the case is to be tried in the County Court, to the registrar of that court. 2) The party that required a civil case to be tried by a jury must pay to the prothonotary or the registrar (as the case requires) the prescribed fee for a jury for the second and each subsequent day of the trial. 3) Subject to subsection (4), the fee required to be paid under this section for the second and each subsequent day of a trial must be paid before the trial resumes on the day in respect of which the fee is payable. 4) The court may extend the time for payment of a fee required to be paid for any day of a trial, but not beyond the end of that day. 5) If the prescribed fee is not paid by any party by the time required for payment, the court must discharge the jury and continue to hear and determine the case without a jury. 6) If, on the last day of a trial, the jury serves for more than 8 hours, the party that is required to pay the fees for the jury for that day must pay a further day’s fee for the jury before the end of the next day on which the court is open for business. 7) If a party cancels a requirement for trial by a jury not less than 14 days before the trial is listed to commence, a refund of the fees paid under this section less prescribed administrative expenses may, on application, be made to the party and the Consolidated Fund is, to the necessary extent, appropriated accordingly. 8) No fees are payable if the court, on its own motion, orders that a jury is required in a civil trial.The judge’s reasons for judgment As has been seen, the plaintiff’s contention below was that, if the defendant required a trial by jury, the defendant was bound by Rule 47.03(2) to put the plaintiff in funds to pay the jury fees within 14 days after the matter being set down for trial (which is to say, by 24 February 2010); and that, in effect, the defendant’s failure to do so had disentitled the defendant from seeking a trial by jury. The defendant argued, to the contrary, that Rule 47.03(2) did not apply because the plaintiff had specified in the writ that the proceeding was to be tried with a jury. The judge did not, in terms, accept one or other of the competing arguments. Having mentioned the plaintiff’s non-compliance with orders made by an associate judge that the first day’s jury fees be paid by 16 (later 19) November 2010, he referred to s 24(4) of the Juries Act2000, saying - That sub-section was susceptible of application whether or not Rule 47.03(2) applied in the circumstances of the case. Then his Honour said this: This, at least, is clear: whether or not his Honour considered that Rule 47.03(2) applied, he did conclude that, if the defendant was to have trial by jury, it would be necessary to make an order extending time for payment of the first day’s fees.

Ratio Decidendi

Legal Principle Established

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