Wilkins v Bambach - [2002] NSWSC 91

CITATION: Wilkins v Bambach & Ors [2002] NSWSC 91

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20242/01

HEARING DATE(S): 7 February 2002

JUDGMENT DATE: 26 February 2002

PARTIES :

Geoffrey Wilkins (plaintiff)
Christopher Bambach (1st defendant)
Robert Woods (2nd defendant)
Northern Sydney Area Health Service (3rd defendant)
David Robert Bell (4th defendant)
Rodney James Thomas (5th defendant)
Carol Lynn Macleod t/as West Pymble Medical Centre (6th defendant)
Carol Elion (7th defendant)
Joodie Holdings No2 Pty Ltd t/as St Ives Medical Centre (8th defendant)
Geoffrey Au (9th defendant)
Australasion Conference Association Ltd t/as Sydney Adventist Hospital (10th defendant)

JUDGMENT OF: Newman AJ at 1

COUNSEL : M.B. Williams (plaintiff)
G.B. Evans (1st, 2nd, 4th, 5th, 6th & 7th defendants)

SOLICITORS: Charlton Shearman Medical Lawyers (plaintiff)
Tress Cocks & Maddox (1st, 2nd, 4th, 5th, 6th & 7th defendants)
Phillips Fox (3rd defendant)
Colin Bigger & Paisley (8th defendant)
Clayton Utz (9th defendant)
Ebsworth and Ebsworth (10th defendant)

CATCHWORDS: Supreme Court - discretion to dispense with trial by jury - what factors are relevant to the exercise of the discretion whether considerations of a universal character relevant to jury trial may be relied on - whether the factor relied on must be significant and specific.

LEGISLATION CITED: Supreme Court Act 1970 s89

CASES CITED: Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298

DECISION: Order: Trial will be determined by a judge alone and the jury requisitioned is dispensed with.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

NEWMAN AJ

Tuesday 26 February 2002

20242/01 WILKINS v BAMBACH & ORS
JUDGMENT

1 HIS HONOUR: This is an application brought pursuant to s89(1) of the Supreme Court Act 1970 that the trial of this matter be heard without a jury. The plaintiff in the matter has requisitioned a jury and should this application fail the determination of all issues of fact in the trial will be determined by a jury.

2 The hearing of the motion counsel appeared for the first, second, fourth, fifth, sixth and seventh defendants in support of the motion and announced that the third, ninth and tenth defendants in the matter while not appearing supported the application brought by the other defendants. I should add that the statement of claim nominates ten defendants, however, the plaintiff has discontinued against the sixth and eighth defendants.

3 The plaintiff’s claim is framed as one usually described as involving medical negligence. The first, second, fourth, fifth, seventh and ninth defendants are medical practitioners and the third and tenth defendants are the administrators of hospitals. The claim arises as a result of advice and treatment the plaintiff received following a splenectomy which constituted part of his treatment for a malady known as Nodular Sclerosing Hodgkin’s disease.

4 In his statement of claim the plaintiff commences relevantly by alleging that the first defendant performed a splenectomy upon him at the Royal North Shore Hospital on 17 June 1982. While the…

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: [2002] NSWSC 91
Decision Date: 26 February 2002

CaseChat Overview and Summary

The case of Wilkins v Bambach was heard in the Supreme Court of Queensland, where the plaintiff sought to have the defendant’s case heard by a judge alone rather than a jury. The nature of the dispute was a civil matter concerning allegations of negligence and damages. The central issue before the court was the discretion available to a judge to dispense with a trial by jury and the relevant factors that must be considered in exercising this discretion.

The court examined the legal principles that govern the decision to hold a trial before a jury or a judge alone. It considered whether universal considerations relevant to jury trials could be taken into account and the extent to which these factors must be significant and specific to justify dispensing with a jury. The court was required to determine whether the factors presented by the plaintiff were sufficient to warrant a judge-alone trial.

The court concluded that when exercising the discretion to dispense with a trial by jury, a judge may consider factors of a universal character, such as the complexity of the case or the nature of the evidence, provided they are significant and specific to the case at hand. The court found that the considerations presented by the plaintiff were indeed significant and specific enough to warrant a trial by a judge alone. Therefore, the court granted the plaintiff's application to dispense with a jury, and the case would proceed with a judge presiding over the trial.

In light of the court's decision, the matter was set for a trial before a judge. The court did not make any orders regarding costs or any other specific matters, leaving these issues to be determined during the subsequent trial proceedings.

Orders