When I was called up for jury duty and picked as a juror, I was surprised to learn of the existence of juries of 6 in civil cases. That was of course before I was a lawyer. Mine was a personal injuries case about an alleged back injury, but it settled, robbing me for at least a long time of my opportunity to participate in the third great arm of government.
Gunns Ltd v Marr is an extraordinary proceeding unfolding itself slowly in the Supreme Court. The environmentalist defendants sought trial by jury. Justice Forrest (ho ho) said — No, too complicated, and too long a trial: Gunns Ltd v Marr (No. 5) [2009] VSC 284. I knew that civil juries are common in personal injuries and defamation cases, but I must confess I remained until just now unaware that either party has a right to specify trial by jury of any claim founded in contract or in tort. That means professional negligence claims against anyone, not just doctors, could at the election of one or other party presumptively be heard by a jury. So too could an application for relief against an oppressive costs agreement or a lawyer’s suit for fees.
Here is his Honour’s handy summary of the law on civil juries in the Supreme Court:
‘9 There was no real dispute about the principles relevant in an application such as this, which I set out as best I can below:
(a) Subject to compliance with the Rules of Court, a party is entitled as of right to seek trial by jury provided the claim is founded in contract or in tort.[3]
(b) For that right to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the Court to the contrary).[4] Part 6 of the Juries Act 2000 (Vic) provides the statutory basis for the conduct of a trial by jury.
(c) Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial (subject to compliance with the Rules of Court and the provisions of the Juries Act)[5] unless the Court is persuaded to dispense with the jury.[6]
(d) Notwithstanding the right of a party to opt for a jury trial, there resides in the Court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.[7]
(e) A Court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so.[8]
(f) As a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact.[9]
(g) The onus in persuading a Court to dispense with a jury trial rests upon the party making that application.[10] A Court will not lightly make such an order, given the right of the other party to seek trial by jury.[11] There must be some special reason to do so.
(h) The considerations which may influence a Court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice.[12]
(i) Subject to the statement of general principle set out in (h), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:
- the complexity of the factual matters that the jury will need to consider
- the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants
- the complexity of the jury’s task in relation to the assessment of damages
- the potential duration of the trial (although this, of itself, could never be the determining factor)[13]
- the stage at which the proceeding or trial has reached.
(j) A decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.’[14]
[3] R 47.02(1); Pezzimenti v Seamer [1995] 2 VR 32, 41. Altmann v Dunning [1995] 2 VR 1, 6.
[4] R 47.02(1)(a) and (b) and (2).
[5] E.g. s 24(5) which provides that where jury fees have not been paid the Court must discharge the jury and determine the case as a cause.
[6] Roux v Australian Broadcasting Corporation [1992] 2 VR 577, 585, Dunning v Altmann [1995] 2 VR 1, 6, 16, State of Victoria v Psaila; State of Victoria v Lamb [1999] VSCA 193 [24].
[7] Dunning v Altmann [1995] 2 VR 1 6, 17.
[8] Pezzimenti v Seamer [1995] 2 VR 32, 38, 40.
[9] State of Victoria v Psaila; State of Victoria v Lamb [1999] VSCA 193 [24].
[10] Sullivan v Scottish and Australian Bank Ltd (1904) 22 WN (NSW) 2, Nicholl v Federal Capital Press (1990) 101 FLR 356.
[11] McDermott v Collien (1953) 87 CLR 154.
[12] Dunning v Altmann [1995] 2 VR 7.
[13] Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Limited [1969] VR 401, 405.
[14] Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 [11].
