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]…
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- Case
- [2011] VSCA 16
- Decision Date
CaseChat Overview and Summary
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.
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