Trevor Roller Shutter Services Pty Ltd v Crowe

[2010] VSCA 328

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0151

TREVOR ROLLER SHUTTER SERVICES PTY LTD	Applicant
	v
DUANE A CROWE	Respondent

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JUDGE:	MAXWELL P, ASHLEY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 November 2010
DATE OF JUDGMENT:	25 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 328
JUDGMENT APPEALED FROM:	Crowe v Trevor Roller Shutter Services Pty Ltd [2010] VSC 536

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JURY – Civil cases – Trial judge’s ruling that jury be dispensed with and proceeding be heard as a cause – Considerations of time and efficiency – Whether trial without jury generally preferable – Question of general importance to the administration of justice – Leave to appeal granted – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rules 1.14, 47.02 and 47.03 – Juries Act 2000 (Vic), s 24 – Civil Procedure Act 2010, ss 7 and 49.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Stanley QC with Mr M Wheelahan SC and Mr J Gorton	Thomsons Lawyers
For the Respondent	Mr T Casey QC with Mr G Coldwell	Alessi & Kemp

MAXWELL P

ASHLEY JA:

1. This is an application by summons dated 25 November.  The applicant is the defendant in a proceeding currently being heard by a judge of the trial division of the Supreme Court.  The application is for leave to appeal from orders made by the trial judge on 23 November, after the trial had commenced, by which his Honour dispensed with the jury and ordered that the proceeding be heard as a cause.

1. The defendant signified to the judge that it wished an opportunity to challenge these orders.  His Honour indicated that the trial would proceed pending consideration by this Court as to whether an application for leave to appeal would be entertained. 

1. The Bench has been convened at short notice and has been ably assisted by counsel, at short notice, to enable the question of leave to be determined with minimum disruption to the trial.  We have been informed that the trial has one, and perhaps two, days to go before completion.

1. In our view, subject to several matters which we will mention, there should be a grant of leave to appeal.  We will refer in a moment to the conditions of the grant of leave.

1. The reasons given by the judge for the orders he made are expressed in general terms, and refer to considerations of time and efficiency which, in his Honour's view, will generally favour trial without jury.  The ruling is attended by doubt, in our view, and does raise a question of general importance for the administration of justice in this State, such that a grant of leave to appeal is appropriate. 

1. If the ruling were to stand, it seems to us that it is likely to be treated as a significant ruling affecting the way in which other trial judges would approach the exercise of power in relation to dispensing with juries.  For that reason, as well as because of a desire to suspend this trial for as short a period as possible, the hearing of the appeal will be fixed at an early time in the new year and, as usual, before a bench of three.

1. The course we propose to adopt is that propounded by senior counsel for the applicant party, the defendant.  Counsel has submitted that this is a matter of such importance that it is prepared to undertake, first, that it will pay the respondent/plaintiff's costs of the appeal in any event.  Secondly, if the appeal succeeds on this question and it becomes necessary for there to be a retrial with a jury, the applicant/defendant has undertaken to pay the plaintiff's costs of the retrial in any event. 

1. The course proposed is that leave to appeal be granted, the trial be permitted to proceed to its conclusion – that is to say, the completion of evidence and the presentation of final addresses to the judge – but that further proceedings from that point be stayed pending the hearing and determination of the appeal. 

1. That course is put forward, and we adopt it, because of what was said by the High Court in Gerlach v Clifton Bricks Pty Ltd.[1]  The High Court, by majority, said that the decision of a judge to dispense with a jury could not, without more, constitute a miscarriage of justice.  It is common ground that a party aggrieved by a ruling dispensing with a jury could still appeal against the judgment on the ground that, consequent upon the ruling, there was a miscarriage of justice in the way the trial was conducted.  But the applicant submits, and we accept, that this point of principle is important enough for the Court to make sure that it is capable of being reviewed on its merits, that is to say, as an appeal from an exercise of a discretionary power, and that we should not be limited to a retrospective assessment, after the conclusion of the trial, of whether a miscarriage of justice was produced by the ruling to dispense with a jury.

   [1](2002) 209 CLR 478.

1. It follows that we will make orders to give effect to the applicant’s proposal.  The applicant is, in our view, to be commended for proposing terms as to costs which will protect the position of the respondent/plaintiff.  Through no fault of his own, the plaintiff is now caught up in an important test case.

1. Before pronouncing the orders, we think it appropriate to say that pending the hearing and determination of the appeal, trial judges should refrain from adopting the approach taken by his Honour, as expressed in the ruling.  We mean not to convey any view about the correctness of the ruling but simply that it would be prudent for judges, in the interim, to proceed in accordance with accepted practice in deciding questions of this kind.

1. We have mentioned the two undertakings.  The other condition of the grant of leave is the filing of an authenticated order in respect of the interlocutory application, that is to say, the orders dispensing with the jury and that the matter proceed as a cause.

1. We will ask the Acting Registrar to list the matter for a directions hearing before the end of the year, for the setting of a timetable for submissions, some discussion about a hearing date and consideration of the content of the appeal book.  The only material additional to what has been provided already which would appear to be necessary is the material which the judge himself had read, that is, the evidentiary material, medical reports and so on.  That, we would think, would be relevant to an investigation of the issue, at least in the particular case, of what difference an order for a jury, or without, might have made.

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