(c) The exercise of the power to dispense with juries
80Although the primary judge purported to act under s 21(3) of the 2005 Act, authorities dealing with the more general discretion conferred by s 21(1) of that Act and analogous provisions cast light on the approach to the exercise of the s 21(3) power.
81The power to dispense with a jury following the inclusion of s 89(1) of the Supreme Court Act in 1988 (see [57] above) was considered by the Court of Appeal in Pambula . Leave to appeal was granted in that case because, following the enactment of s 89(1), it was apparent that different judges of the Common Law Division and the District Court were approaching the determination of whether cases should be tried without a jury in different ways. The appeal was heard in conjunction with other appeals and references to the Court which raise substantially the same question: Pambula (at 389).
82In Pambula , Cole J (as his Honour then was) dispensed with the jury in common law proceedings involving allegations of medical negligence in purported exercise of the s 89(1), Supreme Court Act power to do so. It was not suggested by the parties that there would be significant dispute about the facts or that complex medical questions would be raised which would involve any prolonged examination of documents or consideration of scientific investigations: Kirby J (at 389). Cole J reached his decision in part by adopting factors for dispensing with a jury he had set out in Smoje v Trend Laboratories (Cole J, 27 May 1988, Supreme Court of New South Wales, unreported) and because it would be shorter, cheaper, counsel could discuss ranges of damages with the court and there would be reasons for the decision which could be tested on appeal: see Pambula (at 392 - 393). Kirby P enumerated (at 393 - 394; see also Samuels JA (at 408 - 409)) Cole J's list of factors from Smoje , and described them (at 402) as "observations of a general character relating to the nature of jury trials as such".
83Both Kirby P (at 402) and Samuels JA (at 413) held that Cole J erred in taking such universal characteristics into consideration. Kirby P said (at 402 - 403):
"The basic flaw in Cole J's reasoning was in considering to be relevant as such, universal characteristics of jury trials. This was impermissible because the scheme of the legislation assumes that jury trials will continue to be available for proceedings on a common law claim such as this. Indeed, whether or not s 86 of the Act confers a 'right', strictly so called, it does envisage that a party to proceedings on a common law claim will continue to have an entitlement to requisition a jury . Having done so (as the appellant is to be taken to have done here) the exercise of the discretion called for by s 89 requires the party seeking the alternative mode of trial to discharge the onus to satisfy the Court that it should exercise its discretion upon the particular application made, to order that the trial be had, despite that fact, without a jury . It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by, Parliament when contemplating that jury trial would continue, except where the discretion under s 89(1) of the Act was exercised.
...
The foregoing conclusions could be arrived at by reference to nothing more than the terms of the section and the statutory context in which it appears, together with reference to the legislative history and a passing glance at the Parliamentary debates. But when to this material is added the long history of civil jury trials in this jurisdiction and the necessity in the present case, to deprive a party that is taken to have requisitioned a jury, of its entitlement to have that mode of trial , the error in Cole J's judgment becomes even more clear. It is plain that his Honour accepted as the standard to apply whether it had been shown that: 'It is a case of such singularity that it would be more efficiently, more shortly or in a less costly manner litigated before a jury.' " (Emphasis added)
The passages emphasised reflect the basic principle that the onus is on an applicant seeking to change the mode of trial to persuade the court to do so: see Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356 (at 362) per Higgins J (as his Honour then was) and the cases there cited; see also McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10 (at [9]) per Nicholas J.
84Kirby P (at 404) held that the s 86 entitlement to requisition a jury had to be reconciled with the s 89 dispensation power by "the judge deciding the matter start[ing] from the acceptance of the entitlement of the requisitioner to have a jury and, notwithstanding that entitlement, for other relevant reasons shown, [determining] that in the particular case the trial should be had without a jury."
85Samuels JA (at 411) described s 86 of the Supreme Court Act as establishing "a conditional right to a jury...the right to a jury which is defeasible only upon exercise of the judicial discretion supplied in s 89(1)". He considered (at 412) the discretion conferred by s 89(1) to be "one by which an accrued statutory right (...the right, conditional though it may be, to a jury) may be displaced". In addition to disapproving of Cole J's recourse to extraneous general matters, his Honour (at 413) considered Cole J had posed a test that was wrong in principle leading to his discretion miscarrying. This was because his Honour appeared "to have made retention of the jury, not dispensation, the subject matter of the discretion; and regarded that element as dependent upon whether the case before him was 'of such singularity that it would be more efficiently, more shortly, or in a less costly manner litigated before a jury' [whereas]...the issue for determination...was whether there were considerations ... which required an order for trial without the jury already requisitioned for reasons affecting the interests and expectations of the litigants before him".
86Mahoney JA dissented. In his Honour's view the construction of s 89(1) was to be determined in accordance with the principles enunciated by Dixon J in Water Conservation and Irrigation Commission (New South Wales) v Browning . He concluded "there was nothing in the provisions of the statute or the nature of subject matter of the statute which makes...ordinary incidents of a court and its lists a matter outside the scope of this undefined discretion". Accordingly he held Cole J had not erred in the exercise of the discretion. He also made the following statement (at 421) upon which the appellants unsurprisingly seized:
"It was, however, submitted that the learned judge had, in making the orders he did, acted on his own initiative and without application by either party. I do not think that the power given by s 89 may be exercised by the court on its own initiative. There are instances in which, under the Act or the rules, a judge may act without application by either party. I do not think that this is one of them. I do not mean that, in the exercise of the power in the course of, for example, the settlement of a busy list or the formulation of cases to be heard on circuit, a judge must have, as a condition of the power, a formal motion and a supporting affidavit. An application may be made in some cases informally and in the course of, for example, the giving of directions generally in respect of a case or class of case. But if, for example, both parties decline to seek an order under s 89(1) it is not, in my opinion, open to the judge to make one." (Emphasis added)
87It is not immediately apparent that Cole J had acted of his own initiative in Pambula. However it appears the Court (see 393, 394) considered that Cole J had incorporated his reasons in Smoje into his reasons in Pambula. In Smoje , Cole J forcefully expressed the view that the court could exercise the s 89 discretion of its own motion. His Honour reached that conclusion because s 89 was found in Pt 6 of the Supreme Court Act , dealing with procedure and because "in the absence of any restriction by Statute or Rules, the Court has control over its procedures". His Honour also found comfort for his conclusion in the statements in the Second Reading Speech that the "new provision will provide the Court with [a] broad discretion...".
88I would understand Mahoney JA's rejection of the proposition that the court could exercise the s 89 power of its own initiative to have been directed to Cole J's statements in Smoje . It might also be thought that Kirby P's emphasis (at 402, see [ 83 ] above) on there being a moving party for a dispensation order and the onus that party bore, as an implicit rejection of the proposition that the court could make such an order of its own motion.
89As Heydon JA pointed out in Combined Excavations and Supplies v Bowis [2000] NSWCA 298 (at [36]), the reasoning in Pambula was applied to s 79A of the District Court Act in Forbes Services Memorial Club Ltd v Hodge [1995] NSWCA 151. In Forbes , Kirby P (with whom Priestley and Cole JJA agreed) explained (at 5) that the point Pambula "was designed to uphold, Parliament having reserved a facility of jury trials in certain cases, was that judges asked to dispense with a jury should not do so upon a footing that it was necessary to show that a case was, as such, singular or suitable for jury trial". His Honour added that "[w]ith every respect to those of a different view, Pambula merely states an elementary rule that a statutory power must be exercised by a donee of the power only for the purpose that is afforded and not to contest that purpose".
90Forbes and Combined Excavations and Supplies v Bowis recognised that what are "considerations of a universal character relevant to jury trials as such" ( Pambula (at 407)) raises a "question of characterisation on which reasonable minds can and will differ": Combined Excavations and Supplies v Bowis (at [2] - [3]) per Spigelman CJ. The latter case proved the proposition with Spigelman CJ and Davies AJA holding that the primary judge had erred in taking such considerations into account in making an order dispensing with a jury and Heydon JA disagreeing.
91Section 79A of the District Court Act arose in Gerlach v Clifton Bricks Pty Ltd . In that case the plaintiff successfully applied for an order dispensing with a jury. A judge heard the case, found in the plaintiff's favour and awarded him damages. On appeal the Court of Appeal (Handley JA, Priestley and Giles JJA agreeing) applied Pambula and held (at [8], [10]) that the dispensation order had erroneously been made by reference to the general consequences of trial with a jury in every case. The Court also held (at [10]) that by virtue of the error in dispensing with the jury the action had not been tried according to law. A new trial was ordered as the Court could not hold that a properly conducted jury trial could not possibly have produced a different result.
92The High Court allowed an appeal by majority (Gaudron, McHugh and Hayne JJ, Kirby and Callinan JJ dissenting). The majority relevantly held (at [11]) that the Court of Appeal had erred because, even if it was assumed that the order dispensing with a jury should not have been made, a party to litigation who had been wrongly deprived of the mode of trial it desired but had nevertheless had a trial, must be assumed to have had a trial according to law. Accordingly it could not be concluded that a substantial wrong or miscarriage warranting a new trial (Supreme Court Rules 1970, Pt 51AA r 16(1)) had been occasioned.
93The majority (at [14]) found it unnecessary to consider whether "what are said to be principles established by the Court of Appeal's decision in Pambula District Hospital v Herriman are consistent with the many decisions of this Court that deal with the construction of provisions in the form of s 79A of the District Court Act ". Kirby and Callinan JJ did refer to this issue (at [75]ff). In their Honours' view Pambula did not offend the principle stated in such cases as Knight v F P Special Assets Ltd and Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14. Rather, their Honours emphasised, Knight did not stand for the proposition that "a conferral of jurisdiction and power was totally uncontrolled simply because the repository of the power was a court [and it is] [t]he words of the grant [which] chart the ultimate boundaries of the power".