Trevor Roller Shutter Service Pty Ltd v Crowe
[2011] VSCA 16
•10 February 2011
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] made by a judge of the Common Law Division, that the proceeding be tried by judge alone.[2]
[1]Leave to appeal was granted by Maxwell P and Ashley JA on 25 November 2010.
[2]Pursuant to Rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005.
The facts
The relevant facts of the matter are as follows:
1) By writ filed 12 October 2009, the plaintiff (respondent) claimed damages from the defendant (appellant) for injuries alleged to have been suffered by the plaintiff during the course of his employment with the defendant. The plaintiff endorsed the writ for trial by judge and jury.
2) On 23 October 2009, the defendant filed a notice of trial by jury.
3) On 10 February 2010, an associate judge fixed the proceeding for trial on 22 November 2010.
4) On 3 November 2010, another associate judge ordered that the plaintiff pay the trial fee by 8 November 2010 and the first day’s jury fees by 16 November 2010.
5) On 17 November 2010, the same associate judge made a further order as to the payment of the trial fee and first day’s jury fees, as follows:
The plaintiff is to file a notice of trial, pay the trial fee and the first day jury fees by 4.00pm on 19 November 2010.
6) On 19 November, the plaintiff’s solicitors paid the notice of trial fee but they did not pay the first day’s jury fees.
7) The matter came on for hearing before a judge of the Common Law Division on Monday, 22 November 2010. At the outset, counsel for the defendant sought an adjournment of the proceeding, due to alleged inadequacies in the plaintiff’s discovery and consequent need for further interrogation. During the course of the discussion which ensued, counsel for the plaintiff informed the judge that the plaintiff had not paid the jury fees in accordance with the orders made by the associate judge on 17 November 2010 and expressed a tentative view that in those circumstances ‘an occasion arises for the defendant to pay the jury fees…’[3] Otherwise, counsel said, he accepted that it was appropriate that the defendant have an adjournment until the following day, to enable the defendant to consider lately discovered documents and draft further interrogatories for the examination of the plaintiff.
[3]See and compare Moore v Ararat Rural City Council [1996] 1 VR 572, which was decided under the Juries Act 1967.
8) In response to those submissions, the judge simply adjourned the matter until the following day.
9) When the matter came on again the following morning, counsel for the plaintiff complained about the content of further interrogatories for the examination of the plaintiff which the defendant had served the previous evening and sought to forestall what counsel for the plaintiff perceived to be the possibility of an application by the defendant for a further adjournment. Counsel for the plaintiff also reiterated that the plaintiff had not paid the jury fees and submitted, contrary to the tentative view which he had expressed the previous day, that under the Juries Act 2000 (‘the Juries Act’) and the Supreme Court General Civil Procedure Rules 2005 (‘the Rules’) the defendant did not have the option of paying the fees itself. In counsel’s submission:
The procedure basically is a simple one that when a trial date is fixed, if the defendant wishes to have a jury it must put the plaintiff in funds to pay the jury fees.
Counsel told the judge that he relied in support of that submission on Rules 47.02 and 47.03(1), (2) and (3).
10)The judge asked counsel for the plaintiff whether it was his submission that the matter should proceed as a trial by jury or as a cause and, after some discussion of the time which each form of trial would be likely to take, the judge extracted from counsel for the plaintiff a submission that the matter should proceed as a cause.
11)Counsel for the defendant then told the judge that he was not seeking a further adjournment but that he opposed the idea of a trial by judge alone. In his submission, the defendant had assumed that the plaintiff would pay the jury fees in accordance with the associate judge’s orders, and that:
in those circumstances … it ‘s entirely unfair for the defendant to be deprived of a case that is an eminently suitable case to be heard by a jury.
12) The judge asked counsel for the defendant whether there was :
anything that takes [this case] outside the ordinary rack of cases that are eminently suitable either for hearing and determination by a jury or by a judge?
13) Counsel for the defendant answered:
we have a jury system to hear several cases and in general personal injury cases, that’s followed in this court, unless there is usually some good reason to the contrary and here we would submit there is no good reason. The idea that the case would now take eight to ten days – I should indicate, Your Honour, the defendant will not be proceeding with the plea of contributory negligence and the issue of liability is not an issue that I would anticipate taking a long time and at this stage I am not in a position to indicate that I will be calling any evidence in relation to liability because of the effluxion of time and the situation of the defendant.
14) Counsel for the plaintiff replied that :
So far as the mode of trial is concerned I am instructed that the defendant in fact did give notice of jury, so it was the plaintiff’s signification and the defendant’s signification and they didn’t follow through.
15) The judge did not reserve his decision. He gave an ex tempore ruling that it was appropriate that the matter be tried by judge alone pursuant to Rule 47.02(3) and he ordered that it so proceed.
16) That afternoon, counsel for the plaintiff opened the plaintiff’s case and called the plaintiff to give evidence, and the plaintiff was still in the course of giving evidence at the end of the day.
17) The next morning, 24 November 2010, when the trial resumed, counsel for the defendant announced that the defendant intended to apply to this court for leave to appeal against the ruling. But the judge replied that he proposed to continue with the trial, and so the trial continued.
18) Later that day, the defendant approached this Court, seeking an early hearing of a proposed challenge to the judge’s order. Then, on 25 November, by summons filed that day, the defendant applied to the Court for leave to appeal against the judge’s order and for an order that ‘The trial of the proceeding be stayed until further order’, alternatively ‘following the hearing of evidence and final addresses, the trial of the proceeding be stayed until further order’.
19) The application came on for hearing before Maxwell P and Ashley JA at 9.30 am on 25 November 2010 and, after brief argument, their Honours gave leave to appeal. But they did not order ‘that the trial of the proceeding be stayed until further order’. At the instance of the appellant, they ordered only that:
With effect from the completion of final addresses in the trial below, there be a stay of further proceedings until the hearing and determination of the appeal.
20) Consistently, with those orders, the trial of the action continued for the balance of 25 November 2010, and until completion on 26 November 2010, and the judge reserved his judgment pending the hearing and determination of the appeal.
The relevant legislation
Rule 47.02(1) of the Rules provides that:
1)A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if –
a) the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and
b) the proper jury fees are paid.
2)Any other proceeding shall be tried without a jury unless the Court otherwise orders.
3)Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.
4)Trial with a jury shall be with a jury of six.
Rule 47.03 provides that:
1)If a proceeding is to be tried with a jury, the proper jury fees shall be paid by the plaintiff.
2)If a proceeding is to be tried with a jury because the defendant so signified by notice in writing, the proper jury fees shall be paid by the defendant to the plaintiff within 14 days after a date is fixed for the trial of the proceeding.
3)In case of default under paragraph (1) or (2), the Court may order that the proceeding be tried without a jury.
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 -
In the circumstances of the present case, s24(4) permits the Court to extend the time for payment of the first day’s jury fees to the end of today’.
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:
I accept that the defendant has always wanted this proceeding to be tried by a jury. The defendant, in the circumstances I have outlined, seeks an extension of time to pay the first day’s jury fees. There has been no dilatory conduct on the part of the defendant. Had the plaintiff not signified a wish to have the trial heard by a jury, I accept the defendant would have paid the jury fees either within the time specified in rule 47.03(2) or within the time specified by any relevant Court order (had one been made).
In the circumstances, I would, all other things being equal, be prepared to extend the time for payment of the first day’s jury fees to today.
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.
Nevertheless, the judge deemed it inappropriate to extend time for the payment of the jury fees because, in his Honour’s view, it would be more efficient, timely and cost effective to try the proceeding by judge alone; and because, in those circumstances, his Honour said that he considered that he was bound to order that the proceeding be tried by judge alone.
His Honour’s reasoning was as follows:
15 Prior to trial, the parties agreed that, as a jury, this proceeding would take eight to ten days. In substance, the plaintiff’s claim is that he suffered a lower back injury as a result of lifting, carrying and manoeuvring pallets of heavy metal springs in the course of his employment between 16 November 2002 and 11 January 2003. The substantial bulk of any trial will be taken up with an examination of the issue of what (if any) injury the plaintiff suffered as a result of performing his work, and the nature and extent of that injury. Much of the evidence called will be called from witnesses who have already provided reports. The reading of those reports (or the leading of that evidence before a jury) takes substantial court time – whereas a judge hearing such a proceeding will read such reports outside court hours.
16 Experience shows that trials of this kind take approximately twice the length of time when heard with a jury than when heard as a cause. The reasons for this include:
(a) the time taken to empanel a jury;
(b)the plaintiff’s opening to a jury is usually substantially longer than the opening to a judge alone;
(c)all of the medical witnesses who are called must give evidence-in-chief – which evidence-in-chief usually more than doubles the length of their evidence when compared with the giving of evidence where the trial judge has read and digested the medical reports;
(d)a like point can be made in respect of other experts who may be called (for example, vocational experts (and in some cases) ergonomists, actuaries and engineers);
(e)time is taken with objections (sometimes necessitating the jury retiring while the objections or points are dealt with), where the same objections would not be taken in front of a judge alone;
(f)final addresses to the jury are longer than final addresses to a judge; and
(g)the charge to the jury has the capacity to add a further day to the trial.
17 As was said by French CJ in Aon Risk Services Australia Limited v Australian National University, the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource need to be taken into account.
18 It is well known that various provisions of the Civil Procedure Act 2010 come into force on 1 January 2011. Section 7 of the Civil Procedure Act defines the overarching purpose of the Act and the Rules of Court in relation to civil proceedings to be ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. Section 49(3)(i) of the Civil Procedure Act, when it comes into force, will empower the Court to make any order it considers appropriate with respect to the mode of trial so as to further the overarching purpose.
19 In Thomas v Powercor Australia Limited, Forrest J analysed a number of the provisions of the Civil Procedure Act and concluded that they required a court to be proactive and, if necessary, innovative in its approach. Further, his Honour said that there was no reason to wait until the Civil Procedure Act came into force. I agree.
20 Whilst the explanatory memorandum for the Civil Procedure Act provides that the provisions of the Act ‘aim to ensure the appropriate use of the court system by litigants and to prevent the wastage of court resources through inefficient processes or tactical litigation that has the effect of reducing access to the courts for other litigants with meritorious claims’, it should not be thought that this is not an aim that the courts have not been seeking to achieve for some time now. The plaintiff’s present application should be considered in the light of this aim. It is an aim that is not dependent upon the commencement of the Civil Procedure Act. It is an aim that modern courts must seek to enforce.
21 Court and judicial resources are scarce. We no longer have the luxury of allowing parties to run their cases for twice the length of time they would otherwise take simply because one party or the other prefers a particular mode of trial. In my view, where a court identifies substantial time and cost savings that can be made by changing the mode of a civil trial, then, in the absence of some compelling reason not to do so, the court is bound to change the mode of trial to the more efficient, timely and cost-effective mode. (Our emphasis).
22 The present case is such a case. I am satisfied that as a cause, this case will take less than half the time it would take to hear as a jury trial. In circumstances where there are other litigants waiting to have their matters determined in this Court, I am persuaded to dispense with the jury and to order that this proceeding be heard as a cause.
The interrelationship between Juries Act s 24 and Rules 47.02 and 47.03
During the course of oral argument before this Court, a question arose for the first time as to the validity of Rule 47.03(2). Counsel were invited to address the apparent inconsistency between the requirement in Rule 47.03(2), that a defendant requiring a trial by jury pay the amount of the jury fees to the plaintiff, and the requirement in s 24(1)(a) and (2) of the Juries Act2000 (‘the Act’, for the purposes of this part of our reasons), that a defendant requiring a trial by jury pay the jury fees to the Prothonotary. Ultimately, counsel for the appellant contended, and counsel for the respondent accepted, that those requirements are inconsistent with, and thus prevail over the requirement in Rule 47.03(2).
In our view that concession was properly made; but the matter is not of any consequence. The judge may have concluded that Rule 47.03(2) applied in the circumstances. If he did, then in our opinion, he erred. The true position was that Rule 47.03(2) had no application in the circumstances. The situation was governed solely by s 24 of the Act.
Section 24 does not provide expressly for the time in which the jury fees for the first day of a trial are to be paid. But, for the reasons which follow, we consider it to be implicit in s 24, and in particular in ss 24(4) and (5), that, subject to any applicable rule, the jury fees for the first day of a trial may be paid at any time before the trial begins or, if an order is made under s 24(4) extending time for payment, by the end of the first day of the trial. We also think it to be implicit in the section that the fees must be paid to the Prothonotary. In our view, the proper analysis of s 24 of the Act and the Rule is as follows.
Section 24(1) of the Act is built upon an assumption that a party to a civil proceeding has required trial by jury. It does not itself provide any mechanism whereby such a requirement is to be made. Principally, it is directed to obligating the making of the necessary payment and to specifying the person to whom jury fees must be paid. It evidently refers to the fees for the first day of trial, because subs (2) deals with payment of fees for the second and any subsequent day, again making payment of those fees to the appropriate person obligatory.
Section 24(1) and (2) assume that one party only has required trial by jury. That is most clearly apparent from the opening words of subs (2) – ‘The party that required…’ So to read the subsections avoids the risk that there will be uncertainty as to which party is to be liable to pay jury fees in the first instance which could arise if more than one party had required trial by jury. The reference in subs (5) to ‘any party’ fits that template.[4]
[4]Subsections (6) and (7) are similarly compatible.
The mechanism whereby a party may require trial by jury is specified in Rule 47.02(1)(a), the text of which we have earlier set out. Although not plainly expressed in the alternative, sub-rule (1)(a) should be read to mean that a defendant may give notice of trial by jury if the plaintiff has not done so. So to read the sub-rule will ensure consistency with s 24 of the Act.
Pausing, in the present case the plaintiff did give notice requiring trial by jury. In consequence, the defendant’s notice was without force. The defendant was not a person to whom s 24(1) or (2) of the Act applied.
Neither was the defendant a party to whom Rule 47.03(2) applied. Its signification was without force. The sub-rule by intent applies to the situation where a defendant – but not the plaintiff – has signified a requirement of trial by jury. In that context, being inconsistent with s 24(1) of the Act (because it obligates payment to the plaintiff and not the prothonotary), the sub-rule must be regarded as invalid.[5]
[5]Dennis Charles Pearce & Stephen Argument, Delegated Legislation in Australia, 3rd ed, Lexis Nexis Butterworths, Sydney, 2005, Chapter 19, passim.
But the fact that the sub-rule did not apply was not decisive against the defendant being given an opportunity by the judge to pay the jury fees for the first day of trial.
Section 24(4) provides that a court may extend the time for payment of fees required to be paid ’for any day of a trial, but not beyond the end of that day’. It is thus unlike s 15(4) of the Juries Act1967 which, in combination with subs (3) of that earlier Act, only permitted grant of extension of time in respect of a second or subsequent day of trial. The present broader provision means that extension may be sought in respect of the first day of trial, and (in combination with subs (3)) that it may be sought in the course of the day to which the fees relate.
Section 24(5) should then be noticed. Unlike the references to ‘a party requiring’ and ‘the party that required’ in subss (1) and (2), it refers to ‘any party’. It thus contemplates payment either by the party who (or which) required trial by jury, or else payment by another party to the proceeding. Failing payment by some party within time (including time as extended), the jury must be discharged, and the trial must proceed as a cause.
It is notable that subs (5) refers to the jury being ‘discharged’, thus implying that a jury has been empanelled. The subsection will work simply enough regardless whether it relates to the first, or a later, day of trial. As to the first day, the section does not require that jury fees be paid before empanelment – which is not to say that they may not be. If fees have not been paid before empanelment, and an extension of time to pay is sought and obtained, an order for discharge will have to be made if there is non-payment within time as extended.
For sake of completeness, we mention s 24(3). It was not directly in point in the present case. It only addresses payment for the second and any later days of trial. Payment must be made ’before the trial resumes on the day in respect of which the fee is payable’. That contrasts with, and is more generous than s 15(3) of the Juries Act1967, which required fees for a second and any subsequent day of trial to be paid ‘on the day before the day in respect of which they are paid’.
It follows from what we have said that, in this case, no question arose of the defendant being out of time under Rule 47.03(2) to pay the first day’s jury fees – because Rule 47.03(2), did not apply – or under s 24 of the Act – because, in the absence of an applicable rule, it was implicit in s 24 that the defendant was able to pay the first day’s jury fees at any time before the trial began. The defendant did not need to make an application for extension of time to pay the first day’s fees, and thus it was not correct to say, in the circumstances of this case, that if the defendant were to have a trial by jury an order under s 24(4) needed to be made. By recourse to s 24(5) it was able to pay the fees for the first day of trial – which we take to have been 23 November, notwithstanding that there had been a brief hearing culminating in an adjournment on 22 November – before the trial began. Only if the defendant did not make payment before the trial commenced could the occasion have arisen for it to apply, under s 24(4), for an extension of time to pay to day’s end.
If the judge did err, however, in concluding that Rule 47.03(2) was in point, we consider that it was not of relevance. Neither was it of relevance that his Honour approached the matter on the basis that the defendant must have applied to extend time under s 24(4) if it was to have the opportunity of ensuring trial by jury. In view of his Honour’s observation that, but for cost and efficiency considerations which he identified, he would have ordered an extension of time in which to pay the fees, he appears to have approached the matter on the footing that the defendant would have obtained an extension of time for payment of the first day’s jury fees save only for those matters.
Error in the application of Rule 47.02(3)
The appellant’s principal contention was that the judge further erred in the exercise of discretion by deciding the matter by reference to what the judge conceived to be ‘trials of this kind’ (namely, trials of actions for damages for personal injury), rather than according to the particular facts and circumstances of this case.
In the appellant’s counsel’s submission, authority is clear that an application for trial by jury must be approached by reference to the particular facts and circumstances of the case, as opposed to any generalised conception of the type of case in view, and by approaching the matter by reference to a generalised conception of the type of case with which the judge was concerned, his Honour acted on the basis of wrong principle.
Alternatively, counsel submitted, if the judge should be taken to have decided the matter according to the particular facts and circumstances of this case, authority is clear that a prima facie entitlement to trial it is not to be denied in the absence of good cause, and that savings of the magnitude which his Honour identified as likely to be achieved are plainly not sufficient cause to deprive a party of its prima facie entitlement to a trial by jury.
Contrary, moreover, to the judge’s reasoning, counsel contended, nothing said by the High Court in Aon[6] or provided for in the Civil Procedure Act 2010, (‘the Civil Procedure Act’) has altered the position. It is clear, counsel said, that the Civil Procedure Act was intended to preserve the status quo ante.
[6]Aon Risk Services Australia Ltd v Australian National University (2009) 235 CLR 175.
Counsel for the respondent resisted both contentions. In his submission, it is apparent that the judge decided the application according to the particular facts and circumstances of the case, not by reference to type, and that there was adequate basis in the cost savings and efficiency which the judge identified to warrant the order for trial by judge alone.
Counsel for the respondent conceded that savings of the order identified by the judge might not once have been regarded as sufficient cause to deprive a party of its prima facie entitlement to trial by jury. But, counsel said, the position now is governed by the reasoning of the High Court in Aon. In counsel’s submission, the reasoning in Aon sanctions the application of cost and efficiency considerations generally to the determination of matters of practice and procedure, including applications for the determination of the mode of trial of a proceeding, and so dictates a departure from the approach to trial by jury which previously obtained.
Judged in light of Aon, counsel said, there should be no doubt that the cost and efficiency considerations identified by the judge were sufficient to sustain the order made.
The need to decide in accordance with the facts and circumstances of the case
We accept the appellant’s principal contention in part. Principle and authority dictate that applications for trial by judge alone should always be determined on a case by case basis.[7] Consequently, we accept that, if the judge had decided the application on the basis of the type of case with which his Honour was concerned, as opposed to the particular facts and circumstances of the case, he would have been in error. But, having considered the judge’s reasons more closely than was possible at the time of the application for leave to appeal, we are not persuaded that the judge in fact made that sort of error.
[7]Pambula District Hospital v Herriman (1988) 14 NSWLR 387, 402F, 405A-B, 412D-414D, 417C–419C; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 503 [67]–[70] (Kirby and Callinan JJ) in diss. but not on this point.
His Honour’s references to what ‘experience shows’ about the time taken for trial by jury compared to trial by judge alone and to ‘trials of this kind’ were unfortunate. At first sight, they tend to suggest that his Honour’s reasoning was informed by some sort of generic prescription, as opposed to the individual facts and circumstances of the case. But, read carefully in context, they appear intended to do no more than add emphasis to his Honour’s conclusion of fact that, because of the factors which had been identified in argument, a trial by jury in this case would take approximately twice the time of a trial by judge alone. In our view, his Honour’s reasons should be taken to mean that he decided the application on the basis of the facts and circumstances which had been mentioned in the course of argument.
Whether sufficient cause to order trial by judge alone
The appellant’s alternative contention is more persuasive. We accept that the judge made a material error in holding that, because of the cost and efficiency considerations which he identified, he was bound to make an order for trial by judge alone. Our reasons are as follows.
First, successive decisions of this Court and its predecessor have established that a party who gives notice in accordance with the Rules has a prima facie entitlement to trial by jury, and that the party should not be deprived of such an entitlement in the absence of good cause.[8] As was conceded by counsel for the respondent, those cases also imply that even substantial time and costs savings are not necessarily sufficient cause to deprive a party of its prima facie entitlement to trial by jury.
[8]Mitchell v Wachter [1961] VR 537, 543; Pezzimenti v Seamer [1995] 2 VR 32, 40; State of Victoria v Psaila [1999] VSCA 123, [24].
Secondly, although it may be that trial by judge alone takes less time and costs less than trial by jury, it does not mean that trial by judge alone is invariably the more efficient and cost effective mode of trial. As Kirby and Callinan JJ observed in Gerlach v Clifton Brick:[9]
…there are also countervailing advantages. Precisely because their verdicts are unpredictable, juries tend to promote settlement. Jury verdicts in civil actions also tend to promote finality. The practical necessities of jury trials also tend to discourage undue length of proceedings which has lately become a feature of much litigation ….
[9](2002) 209 CLR 478, 507 [81] in diss but not on this point of principle (citations omitted).
Thirdly, allowing that there are time and cost savings associated with trial by judge alone, in this case the potential savings identified by the judge were of no greater magnitude than those which Brooking JA described in Victoria v Psaila as ‘inevitable’.[10] As the decision in Psaila makes clear, savings of that order are not sufficient cause to deprive a party of its prima facie entitlement to trial by jury.
[10][1999] VSCA 193, [23].
Fourthly, what was said in Aon does not appear to us to bear upon the matter. As we construe Aon, it was about the impropriety of granting a party leave to make a late amendment to a pleading, in circumstances where that party had failed to act expeditiously, and where to allow the amendment was likely to be productive of wasted costs and resources.[11] More generally, Aon may be thought to have re-invigorated the procedural paradigm,[12] to some extent and for some time diminished by J L Holdings,[13] that time, costs and limited judicial resources are relevant considerations in the determination of whether to allow late applications for amendment and invoke other interlocutory process. Even taken at that level, however, the reasoning falls a long way short of implying that time, costs and limited judicial resources are ordinarily, still less invariably, sufficient reason to deny a party a mode of trial to which that party is prima facie entitled under the Rules.
[11](2009) 239 CLR 175, 217 [114]–[115].
[12]See and compare Sali v SPC Ltd (1993) 116 ALR 625, 636 (Brennan, Deane and McHugh JJ).
[13]The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, 154 (Dawson, Gaudron and McHugh JJ).
Fifthly, it was not appropriate for the judge to take the Civil Procedure Act into account[14] and, even if it had been a relevant consideration, nothing in s 7 of the Civil Procedure Act detracts from a party’s prima facie entitlement to a trial by jury. As counsel for the appellant submitted, the overarching object of efficiency articulated in s 7 of the Civil Procedure Act is little different to the object prescribed by Rule 1.14 of the Rules. In Altmann v Dunning[15] Hedigan J (sitting as a member of the Full Court) held that Rule 1.14 is relevant to the exercise of power under Rule 47.02(3) and promotes a construction of the power which is consonant with the discharge of a jury both before and after the beginning of trial. But it is apparent from the later decision of this court in Victoria v Psaila[16] that, despite the overarching objective of Rule 1.14, costs and time savings which are no greater than what might be described as the inevitable consequence of trial before judge alone are not alone sufficient cause to warrant depriving a party of its prima facie entitlement to trial by jury. Given the similarities between Rule 1.14 and s 7 of the Civil Procdure Act, it should not be supposed that s 7 was intended to make any difference.
[14]Because the Act had not come into force at that time.
[15][1995] 2 VR 1, 17.
[16][1999] VSCA 193, [23]–[24].
Finally, that conclusion is reinforced by the following passage in the explanatory memorandum which accompanied the passage of clause 49 the Civil Procedure Bill 2010:
In relation to a court’s power to make orders with respect to the place, time and mode of trial in subclause (3)(i), ‘mode of trial’ refers to trial by judge or jury. Rule 47.02 of the Supreme Court (General Civil Procedure) Rules 2005… currently sets out substantive rules as to mode of trial. It grants some litigants a limited prima face right to trial by jury. This prima facie right to trial by jury is subject to the court’s discretion – rule 47.02(3) provides that a court may ‘direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury’. The Bill merely restates this general discretion in subclause (3)(i). It is not intended that the Bill should change the status quo in regard to the court’s discretion as to mode of trial. A party’ prima facie right to trial by jury under rule 47.02 will remain.
Substantial injustice
It remains to determine whether we should interfere with the judge’s exercise of discretion. That depends not only on establishing that the judge proceeded on the basis of wrong principle, which we consider his Honour did, but to some extent also on whether the error was productive of injustice.[17]
[17]Re Will of F B Gilbert (1946) 46 SR (NSW) 318, 323; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170, 177; ASC v Somerville (1994) 51 FCR 38, 45; Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, 379 [4]–[9].
In Gerlach v Clifton Bricks Pty Ltd,[18] the majority of the High Court said that, for the purpose of appeal against judgment following trial before judge alone, an erroneous interlocutory order that the matter be tried by judge alone cannot without more amount to a ‘substantial wrong’.[19] Contrastingly, as the majority in Gerlach later went on to observe, if leave to appeal against such an interlocutory order is sought before the trial of the action, and: ‘If it is plain that wrong principle was applied by the judge considering the application, it may well be that leave [to appeal] should be granted’.[20]
[18](2002) 209 CLR 478, 485 [11] (Gaudron, McHugh and Hayne JJ).
[19]See also Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401, 410; but contrast Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 505 [61]–[66] (Kirby and Callinan JJ, in diss.).
[20](2002) 209 CLR 478, 486 [13].
Given the established principles which apply to an application for leave to appeal against an interlocutory order on a matter of practice and procedure, we take the latter observation to mean that, where it is clear a judge has applied wrong principle to an application for trial by judge alone, the judge’s determination may well be seen as productive of sufficient injustice to warrant the grant of leave to appeal. That view also finds support in the dissenting judgment of the minority in Gerlach.[21]
[21]Ibid 499 [56]–[58] and 501 [61]–[65] (Kirby and Callinan JJ).
It follows, we think that, if this matter had not proceeded to trial before the appeal was heard and determined, it would have been appropriate to set aside the order for trial by judge alone and to remit the matter for trial by jury on payment by the defendant of the jury fees. But the fact of the matter is that it did proceed to trial before the appeal was heard, the appellant making no timely application that the trial be stayed, and that the only thing now standing in the way of the judge giving judgment is the limited stay that was ordered on the leave application on 25 November 2010. In the circumstances, we consider that the appeal should be approached as if it were an appeal against judgment on the ground that the judge erred in ordering that the matter be tried by judge alone.
If the appeal is approached on that basis, Gerlach implies that, although the order for trial by judge alone was made on the basis of wrong principle, it should not of itself be regarded as productive of substantial wrong. Accordingly, we do not consider that it is appropriate to intervene.
Counsel for the appellant submitted that it would be unfair to the appellant to refuse to intervene, because it would leave the appellant without a remedy in circumstances where it had acted fairly and responsibly in seeking no more than the limited stay which was granted. Such a limited stay, he said, was calculated to ensure that, if the appellant failed to establish that the judge erred in ordering trial by judge alone, the plaintiff would not lose the benefit of the order or trial and be subjected to more costs than was necessary. The appellant should not be prejudiced, he submitted, as a result of having acted beneficently.
We do not think that submission to be persuasive. If the appellant had wished to preserve its entitlement to trial by jury, it should have applied to the judge, forthwith after the judge made the order for trial by judge alone, for an interim stay of proceedings to enable the appellant to apply to this Court for leave to appeal and an interlocutory stay of proceedings. As it was, no matter how beneficent the appellant’s motives may or may not have been, the appellant acquiesced in the trial continuing until completion, and thus in the respondent incurring all the financial costs and emotional burden of conducting the trial. The situation now, therefore, is tantamount to that which the High Court decided in Gerlach is not productive of substantial injustice.
Possibly, it would be different if the appellant could show that it has suffered some substantial damage by reason of the matter being tried before judge alone. But it was not suggested, still less is there any evidence to support the idea, that it has. When asked why it should be seen as unjust to deny the appellant a new trial, the appellant’s counsel’s only answer was that to deny the appellant the remedy it seeks would be to sanction the judge’s error.
We reject that submission, too. We are not to be taken to sanctioning the judge’s error. As we have said, we consider that the order for trial by judge alone was an erroneous order and that, had the proceeding been stayed before trial, it would have been appropriate to set aside the order and remit the matter for trial by jury. Our disinclination to intervene at this stage of the proceeding is based only on the fact that the appellant allowed the matter to advance to the conclusion of trial, and so to a point where different considerations now apply.
Conclusion
In the result, the appeal will be dismissed.
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