Combined Excavations & Supplies v Bowis

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40310/00 DC 868/99 SPIGELMAN CJ HEYDON JA DAVIES AJA

COMBINED EXCAVATIONS & SUPPLIES PTY LIMITED v PAUL JAMES BOWIS

JUDGMENT 1 SPIGELMAN CJ: The statutory provisions and submissions are outlined in the judgment of Heydon JA which I have read in draft. This appeal proceeded on the basis that the decision in Pambula District Hospital v Herman (1988) 14 NSWLR 387 was applicable. The issue before this Court was whether Delaney DCJ correctly applied the principles in that case. 2 On one of the formulations by Kirby P at 407C: the Appellant's contention was that his Honour took into account "considerations of a universal character relevant to jury trials as such" and the Respondent contended that his Honour took into account the "impact which such considerations may have in the particular case". 3 This raises a question of characterisation on which reasonable minds can and will differ. As Heydon JA notes, Kirby P said in Forbes Services Memorial Club Limited v Hodge (Supreme Court of NSW, Court of Appeal, 8 March 1995, unreported): "This case has demonstrated that in the application of the principles in Pambula , universal considerations and particular attributes of the particular case will sometimes merge into each other." 4 Delaney DCJ stated his reasons as follows: "In this case, to not accede to the application made by the Applicant, would be compared to the other litigants in this jurisdiction, disadvantage the plaintiff in the following ways: 1. The case would have to transferred to Sydney with the attendant uncertainties of the listing system occasioned by the fact that this would be a jury trial. 2. It would delay the opportunity of the plaintiff to be able to have his case heard by many, many months, if not a year. 3. It would mean that the plaintiff's witnesses, solicitors, medical practitioners would all have to go into Sydney, rather than come to a Courthouse close to their place of residence, or place of business. 4. It would mean that the purpose of the case management alterations to both the Supreme and District Court rules will not be able to be met in the way in which in particular more recent amendments have sought; particularly those amendments in the Supreme Court." 5 The difficulty of applying the relevant distinction is highlighted by the different results that have occurred in cases where basically similar considerations have needed to be assessed. 6 In Pambula itself, Kirby P, when he came to exercise the discretion, referred to the evidence of the costs of bringing witnesses from the country to the city in a context in which the submission was made that: "… jury trials tend more frequently to be cancelled or not reached, such costs would add a significant and special burden in the present case which would not be present in other cases." (at 405E-F) 7 His Honour concluded at 405G-406A: "The difficulty with this evidence is that it depends upon features that are inherent in the jury system as such. It depends upon the listing arrangements of the court in respect of all jury trials. It is particular to the present case because there are so many witnesses from the country. But the cause of the inconvenience of cancellation is jury trial and the jury list as such. The same facts could doubtless be given in virtually every jury case with witnesses from country districts." 8 In Forbes considerations of this same general character were accepted as relevant. One consideration which Madgwick DCJ took into account, permissibly as the Court of Appeal held, was expressed as follows in Forbes at p4: "Great difficulty and considerable expense going beyond party and party costs, would be involved in securing the attendance of orthopaedic specialists at the trial of the proceedings before the jury. As it happened in the present case the three orthopaedic specialists who practice in this State west of the Great Dividing Range had been retained by the two parties. There was a possibility that one, two or three of them might be called upon to give oral evidence if the matter were tried before a jury. This would involve not only inconvenience of the medical practitioners concerned, but more importantly, to their patients. There was a prospect of disrupting the conduct of their presumably busy practices if they were summoned either to the jury trial in Forbes or to give evidence in another venue to the court however constituted." 9 Kirby P concluded: "When I look at the way in which Madgwick DCJ in this case dealt with the anticipated inconvenience to the medical practitioners retained by the parties, I see no offence against the principles in Pambula. His Honour referred to this consideration as the last of several which he was taking into account, all of which were particular to this case. He was careful to address the inconvenience to the medical practitioners in the context of the other considerations to which he had referred. He was also, as I understand his reasons, pointing to the fact it was an unusual feature of this particular case that the three medical practitioners, being the only specialists in orthopaedic surgery who practiced west of the Great Dividing Range, had been retained by the parties. That would not, one might infer, be a normal condition of litigation whether in cases to be tried by jury or judge alone." 10 His Honour's use of the terminology "an unusual feature" may be equivalent to the terminology of a "significant and special burden" to which his Honour referred at 405F, quoting the submission considered by his Honour in Pambula and which his Honour found not to have been made out in that case. Some special or unusual element is also suggested by the adoption in Pambula by Samuels JA of terminology of "singular circumstances" and "specific difficulties" in the following passage at 413E-F: "… In order to make good an application to dispense with a jury it is not enough to point to the supposed deficiencies of jury trials. It is necessary to show grounds which are particular to the case in hand. This may of course be produced by the pressure of singular circumstances upon the general character of jury trial. For example, the state of the jury list, if it entails a delay likely to exceed a plaintiff's life expectancy, would be a matter involving the particular application of a general condition. … Specific difficulties in obtaining the attendance of witnesses might constitute grounds for preferring the greater flexibility (in point of adjournments and otherwise) of non-jury trial and for dispensing with a jury. But the fact that in the instant trial, alike with all other jury trials, there are problems in securing the orderly attendance of expert witnesses would not." (Emphasis added) 11 In Nankervis v Ulan Coal Miles Limited [1999] NSWSC 899, Wood CJ at CL referred to the number of medical practitioners, including treating doctors from the Mudgee or Lithgow area as a factor, although not a determining factor in the circumstances of that case, which his Honour took into account, because of the probability that a jury trial would mean that the proceedings would have to be transferred to Sydney. It may be that the degree of inconvenience was of some "unusual" quality, such as that which the Court found to exist in Forbes, although his Honour does not identify that matter in these terms. 12 The issue has been considered in this Court most recently in Clifton Bricks v Gerlach [2000] NSWCA 90. In that case, Handley JA, with whom Priestley and Giles JJA agreed said: "7. … The Plaintiff proposed to call a Dr White who practiced in Melbourne and Canberra, and lay witnesses from Queanbeyan, Nowra and Queensland. The judge said that calling the doctor would cost a significant amount of money, but even a lay witness would cost the Plaintiff a lot of money for their accommodation while they waited to be called before the jury. 8. The need to call Dr White to give oral evidence before the jury, instead of giving evidence in report form to a judge subject to possible cross-examination, was not a factor which was special to this case. The plaintiff's decision to qualify and call a doctor who practiced in Melbourne and Canberra in a trial pending with a jury in Sydney could hardly entitle him to an order dispensing with that jury. The added costs and delays in this case occasioned by a need to call Dr White and the lay witnesses from the country and interstate were simply the particular consequences in this case of the general consequences of trial with a jury in every case." 13 Difficult questions of characterisation arise in the application of these distinctions. In my opinion, what is required is the application of a test such as that which Samuels JA described in Pambula as "singular circumstances" or "specific difficulties" with respect to a particular case that do not arise in the general case. These are matters of fact and degree on which differences of opinion are to be expected. I do not propose this test as a universally applicable formula. I adopt these words as a convenient formulation to distinguish a case in which something more appears than the difficulties usually attendant on a jury trial. 14 The reasoning in Forbes indicates that it was such a case and, perhaps, Nankervis was also. Pambula and Clifton Bricks did not involve such matters. The issue as to which side of the line a particular factual situation falls will not always be easy to resolve. 15 Bearing these considerations in mind, it is necessary to determine whether or not Delaney DCJ took into account irrelevant considerations in the manner identified in the authorities. In my opinion his Honour did do so. 16 His Honour commenced the pertinent part of his reasons by stating that the matters which followed manifested a "disadvantage" to the Plaintiff when the Plaintiff was "compared to the other litigants in this jurisdiction". 17 By his reference to "this jurisdiction", I understand his Honour to be referring to the operations of the District Court in Parramatta. His Honour had earlier said that in none of the analogous cases filed in the Parramatta District Court during the course of the year 2000 had there been a request for a jury. 18 The introductory words to his Honour's final statement of reasons indicate that his Honour was comparing the Plaintiff, who might be subjected to a jury trial, with all other Plaintiffs in that particular region who are not subjected to such jury trials. In this, I believe, his Honour was intending to contrast matters of universal application to jury trials with the circumstances of the particular case. 19 In each of the four numbered paragraphs of the pertinent part of his Honour's reasons as set out above, I believe his Honour manifested an error of this character. 20 In the first paragraph, he referred to "uncertainties of the listing system occasioned by the fact that this would be a jury trial". Those uncertainties are of universal application to all jury trials. His Honour's reference in this paragraph to the necessity to transfer the case to Sydney is a manifestation of the fact that civil jury trials do not occur in the Parramatta District Court. However, it is not the act of transfer to which his Honour refers, but the uncertainty associated with the jury trial at the location where such jury trials are conducted in the District Court. That is, in my opinion, a matter of universal application. 21 The second numbered paragraph refers to the issue of delay in a manner which applies to all jury trials. No particular consequence of a "singular" or "specific" character arising from the delay in this case was open on the evidence or referred to in the judgment. (Compare, for example, the acceptance that delays are of such character when a plaintiff's life expectancy is limited in Pambula at 403B per Kirby P and 413E-F per Samuels JA). 22 The third matter referred to is the necessity for witnesses, solicitors and medical practitioners to travel to Sydney, rather than a courthouse close to their place of residence, or place of business. Nothing in his Honour's statement, nor in the evidence upon which this conclusion was based and to which Heydon JA refers, suggests anything in the nature of a "singular circumstance" or a "specific difficulty". In circumstances where jury trials are conducted only in some places and not others, to be required to attend court at the location where they are conducted is an aspect of a universal character which requires something special - as found in Forbes - to bring the inconvenience to an appropriate level so that it distinguishes the particular case from the general. Nothing of that character appears here. 23 The fourth numbered paragraph in the pertinent passage refers to the inability to meet the objective of the administration of justice, common to the Supreme and District Courts, to promote the expeditious disposition of proceedings. His Honour does express this to constitute a relevant consideration in a context to which his Honour referred, in the introductory words, as 'disadvantaging' the plaintiff compared to other litigants. 24 Unlike Heydon JA, in my opinion, these introductory words are pertinent to this fourth numbered paragraph. 25 As I have indicated above, the distinction that his Honour was drawing was between a person who is subjected to a jury trial, as compared with all other comparable litigants who are not so subjected. In my opinion, in paragraph numbered 4, his Honour was taking into account the fact that jury trials make the achievement of case management objectives more difficult. That is a characteristic of all jury trials and nothing appears of a special character in the circumstances of this case. 26 I agree with Davies AJA as to the exercise of discretion on the evidence before the Court. I agree with the orders his Honour proposes. 27 HEYDON JA: Background On 17 October 1996, according to the plaintiff, he suffered injury to his low back and hips when he fell from a truck while employed by the defendant. 28 On 21 July 1999 the plaintiff commenced proceedings in the District Court, Parramatta, by Statement of Claim. The case was placed in the general list with a timetable and standard directions with a view to listing between April and May 2000. 29 On 28 September 1999 the defendant filed a requisition for trial by jury. 30 By Notice of Motion dated 24 March 2000 the plaintiff sought an order under s 79A of the District Court Act 1973 that the case be tried without a jury. 31 Delaney DCJ heard the Notice of Motion on 30 March 2000 and delivered a reserved judgment on 7 April 2000 ordering that the trial be held without a jury. 32 The defendant seeks leave to appeal against that order. Argument on the leave application was presented concurrently with argument on the appeal, in the event that leave were granted, with the consent of both parties. At the conclusion of argument leave was granted, but judgment on the appeal was reserved.

The argument on appeal 33 The defendant contended that the primary judge's reasoning was erroneous in three respects. "4. The claimant contends that the judgment was erroneous in that it: (i) failed to apply appropriate principles as enunciated in previous decision [sic] of this Court thereby wrongly denying the Claimant of its entitlements to trial by jury; (ii) Relied on irrelevant considerations to the exercise of the discretion; and (iii) Took judicial notice of matters without giving the Claimant an opportunity to address them in accordance with s 155(4) of the Evidence Act , 1995."

The Pambula doctrine 34 It is convenient to take the first two contentions together. The reference to previous authorities of this Court is a reference to Pambula District Hospital v Herriman (1988) 14 NSWLR 387 and Forbes Services Memorial Club Ltd v Hodge (unreported, 8 March 1995, Kirby P, Priestley and Cole JJA). 35 In Pambula District Hospital v Herriman the Court of Appeal held by majority that the effect of s 89 of the Supreme Court Act 1970, when read with ss 85, 86 and 87, was that the Supreme Court should not apply criteria of universal application when exercising the discretion to dispense with a duly requisitioned jury, but should act only by reference to the particular circumstances of the case before the court. The provisions in the District Court Act 1973 which correspond with the relevant sections of the Supreme Court Act are: "77. (1) In an action the Judge shall determine all questions of law. (2) In an action the Judge shall, subject to subsection (5), determine all questions of fact unless a jury has been summoned. (3) Subject to sections 78 and 79, an action shall be tried without a jury unless the Court makes an order (which may be made on terms) to the contrary. (4) The Court may order that any question of fact in an action be tried before any other question of fact in the action. (5) In an action, where a jury has been summoned - (a) * * * * * (b) issues of fact on a defence arising under section 63(5) or 64(1)(c) of the Workers' Compensation Act 1926 or under section 151z(1)(e) of the Workers Compensation Act 1987 shall be tried without the jury. 78. (1) In an action (other than an action to which section 79 applies), where the amount claimed exceeds $5,000, any party may, within the prescribed time, by filing a requisition for trial with a jury and paying the fee prescribed by the regulations made under section 150 require that a jury be summoned to try the action, and a jury shall be so summoned. (2) Where the Court makes an order under section 77(3) or 79(1), the plaintiff shall pay the fee prescribed by the regulations made under section 150 and shall not be entitled to take any further step in the action until the fee is paid. (3) The fee paid under subsection (1) or (2) shall be treated as costs in the action, unless the Court otherwise orders. 79. (1) In any action to which this section applies, the Court may, on the application of any party, and shall, on the application of all parties, make an order (which may be made on terms) that the action be tried with a jury. (2) Subject to subsection (4), this section applies to any action in which - (a) damages are claimed in respect of - (i) the death of or bodily injury to any person and the claim is based upon any act, neglect or default involving the use of a motor vehicle; (ii) damage to property caused by or arising out of the use of a motor vehicle; or (iii) any other matter in which the liability incurred is caused by or arises out of the use of a motor vehicle; or (b) contribution is claimed under Part III of the Law Reform (Miscellaneous Provisions) Act 1946, in respect of damages of the nature referred to in paragraph (a). (3) In subsection (2) - 'motor vehicle' means any motor car, motor carriage, motor cycle or other vehicle propelled wholly or partly by any volatile spirit, steam, gas, oil or electricity, or by any means other than human or animal power, and includes a trailer, but does not include any vehicle used on a railway or tramway; …. 79A. In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury." 36 The reasoning in Pambula District Hospital v Herriman was applied to s 79A by the Court of Appeal in Forbes Services Memorial Club Ltd v Hodge. There had been earlier dicta that it applied to s 79A in Langford v Turnbull (unreported, 29 May 1990, p 17 per Kirby P). 37 In the Pambula case, the primary judge, Cole J, was faced with an application by a plaintiff to dispense with a jury in a medical negligence action against a defendant which desired that mode of trial. Cole J assumed that:

(a) the person desiring jury trial had to justify that choice; and

(b) it was a sufficient justification if that person could not demonstrate that the matter could be dealt with more efficiently, more shortly or in a less costly manner before a jury. 38 The majority of the Court of Appeal (Kirby P and Samuels JA; Mahoney JA dissenting) said that proposition (a) was wrong: 402G-403N and 413G. The majority also said that proposition (b) was wrong: 403F-404B and 413A-F. In particular, it was wrong to take into account "universal characteristics" of jury trials such as: "the increased duration, typically, of such trials; the increased cost of such trials; the inability to procure uniformity of verdicts, relying on the Court's experience; the diminished capacity of the parties to predict the outcome of the deliberations of an anonymous and unaccountable jury; the inability to discuss verdict ranges openly before the jury; the diminished facility for appeal because of the absence of reasons and the consequent difficulty of securing settlement by reason of the foregoing" (see 402E-F and 403A). 39 However, Kirby P said: "This is not to say that the general characteristics of jury trials, as such, may not have consequences upon a particular litigant that would warrant account being taken of them, in exercising the discretion under the section as they produce such consequences. Thus, if a litigant were seriously ill or dying, the difficulties and delays of the jury list or of jury trial itself, would certainly be relevant considerations to be taken into account …. Similarly, if for any reason in a particular case, it was thought appropriate and particularly convenient to split the trial, having regard to the evidence to be called, the discretion under the section would be enlivened. If there were any peculiar features in the nature of the damages claim that would make the facility to discuss verdict ranges more appropriate in one case than in the generality of cases, the discretion under the section might be attracted": 403A-C. 40 Kirby P then said (403C-D): "What is not permissible is to challenge the fundamental assumption which Parliament has acted upon, namely that jury trial in proceedings on a common law claim will remain one of the two alternative modes of trial - and one which, special cases apart, any party can requisition. Also impermissible is consideration of the consequences of the conduct of the trial with a jury for other cases standing in the list." 41 Another illustration of an impermissible reason for dispensing with a jury is the greater costs to the parties occasioned by reason of the need, in a jury trial, to call a doctor to give oral evidence in chief, while if trial were not by jury his evidence might be admitted in report form and be subject to possible cross-examination: Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 at [8]. In that case the primary judge said that not only would "calling the doctor cost a significant amount of money, but even the lay witnesses would cost the plaintiff a lot of money for their accommodation while they waited to be called before the jury". The Court of Appeal (Priestley, Handley and Giles JJA) said: "The need to call [the doctor] to give oral evidence before the jury, instead of giving evidence in report form to a Judge subject to possible cross-examination, was not a factor which was special to this case" (at [8]).

It is not clear why there would have been added costs in relation to the lay witnesses, who would have had to have given oral evidence whatever the mode of trial, but it must be accepted that there were added costs flowing from jury trial, and, if so, the reasoning is in complete accord with that in Pambula's case.

The defendant's submissions on the Pambula doctrine 42 The first submission which the defendant made was that a passage which the primary judge cited at page 4.4-.7 from the reasons for judgment of Mahoney JA in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 418-9 was inconsistent with the reasoning of the majority in that case at 402F and 413F. However, the primary judge did not appear to employ Mahoney JA's reasoning as part of his own. He made no reference to it on pages 6 and 7 of his reasons for judgment, where his central reasoning is set out by reference to four factors. 43 The defendant next submitted that the decision in Forbes Services Memorial Club Ltd v Hodge was not inconsistent with the decision in the Pambula case. The primary judge quoted paragraphs 19-24 of Kirby P's reasons for judgment in Hodge's case. The defendant's submission is correct, but the primary judge did not suggest that there was any inconsistency between the two decisions. He quoted from the Forbes case merely in order to expound the Pambula principle. 44 The defendant referred to two matters mentioned by the primary judge which it submitted were irrelevant. One was that the case, involving a work injury, was of a type heard daily in the court by judge alone. The other was that in none of the 26 cases of employees suing employers in the Parramatta District Registry this year had a request been filed for jury trial. In my judgment these observations are only passing remarks not forming part of the decisive reasoning of the trial judge. They are not mentioned on pages 6 and 7 which are at the centre of the primary judge's approach. In oral argument the defendant submitted that these matters showed that the primary judge assumed that the burden of showing that there should be no jury had rested on the defendant, contrary to the reasoning in the Pambula case. I do not think that the passages reveal that error. It was not irrelevant for the primary judge to take account of the fact that the matter was the kind of case which could be heard without a jury, as was illustrated by the daily practice of the court and the almost universal acquiescence of litigants in that practice. 45 The defendant's next submission was that the first three factors which the primary judge relied on in the central part of his reasoning were irrelevant or were only general considerations, which, if soundly based, arose by reason of the inability of the District Court at Parramatta to provide a jury trial. The primary judge put them thus: "In this case, to not accede [sic] to the application made by the applicant, would be compared to the other litigants in this jurisdiction, disadvantage [sic] the plaintiff in the following ways: 1. The case would have to [sic] transferred to Sydney with the attendant uncertainties of the listing system occasioned by the fact that this would be a jury trial. 2. It would delay the opportunity of the plaintiff to be able to have his case heard by many, many months, if not a year. 3. It would mean that the plaintiff's witnesses, solicitors, medical practitioners would … all have to go into Sydney, rather than come to a Courthouse close to their place of residence, or place of business." 46 It is convenient to take each of these factors in turn. The essential question is whether reliance on any of them was tainted by reliance on criteria related only to a characteristic of a jury trial which was "of universal application, without considering any specific application of such criteria to the facts and necessities of the particular case", to use the words of Kirby P in the Pambula case at 405B. Taken in isolation, the reference in factor 1 to "the attendant uncertainties of the listing system" might be read as a reference to the supposed phenomenon described by Kirby P in the Pambula case at 405E: "jury trials tend more frequently to be cancelled or not reached". It seems unlikely that the primary judge was referring to that, because there is no reference to it elsewhere in his reasons for judgment. The only earlier passage to which factor 1 appears to refer is the following (page 2.5-.7): "The requisition for a jury, filed in this case, will require the plaintiff to have his case transferred from the jurisdiction at Parramatta to Sydney and be placed in a list there with an uncertain future as to when that jury trial could take place. If a jury trial was available at the District Court Parramatta, this case could be heard within the next two months."

It would seem, then, that the primary judge was not referring to a universal characteristic of jury trials in the form of a greater tendency for them to be cancelled or not reached, but rather to the particular characteristic of jury trials at Sydney compared with non-jury trials at Parramatta. Even if what has just been described as a "particular characteristic" might be characterised, pursuant to the reasoning in the Pambula case, as a universal characteristic, factor 1 is to be seen as merely preliminary to factor 2, which relates to the impact of these comparative phenomena on the plaintiff in view of his having selected Parramatta as the venue. 47 Reliance by the primary judge on factor 2 did not reveal any application of any general rule or reliance on any universal characteristic of jury trials. It relied rather on the non-general and non-universal factor that a jury trial in Sydney could not be heard for up to a year, while a trial without jury could be heard in Parramatta quickly, and a trial with jury could be heard in Parramatta within two months if jury trial were available there at all. The fact that jury trial is not available there is not a "universal" factor, but a factor particular to the circumstances of the present plaintiff. The circumstances of the District Court at Parramatta compared to those at Sydney are similar to the matters taken into account by Wood CJ at CL in Nankervis v Ulan Coal Mines Ltd [1999] NSWSC 899. He said: "The case is one, I observe, where a jury has been sought by the first defendant. The proceedings were included in a circuit list at the Dubbo sittings of the Court for which the 1999 court calendar allowed one week. The defendants informed the registrar at a callover that as a jury trial, in which all matters were at issue, the likely estimate for hearing would be ten days. The matter is listed in the September 1999 sittings of the Court at Dubbo and because of its position in the list it could confidently be expected to be reached early in those sittings. In accordance with the listing practice, however, a case of ten days duration would normally be regarded as a long case, and transferred to Sydney to be included in the long cases list. Upon that basis, if these proceedings were to be transferred because of that estimate, then the plaintiff would be deprived of an opportunity for a hearing this year. … I am satisfied, having regard to the multiple issues involved in this case, that the length of the trial would be significantly increased if it were to proceed as a jury trial, with the consequence that the fixture will almost certainly have to be vacated and the matter either transferred to Sydney or, subject to other considerations, given a special fixture at some later time. That could not be achieved this year and, as a consequence, the plaintiff would suffer delay on that account."

Thus the length of the estimate, the listing practices at the Dubbo sittings of the Supreme Court and the state of the Supreme Court list in Sydney were matters causing delay to the plaintiff which was accepted as a factor pointing against jury trial. Analogous reasoning was employed by the primary judge here. 48 Similarly, the primary judge's reliance on factor 3 did not offend against Pambula's case. In the argument on the appeal, factor 3 was said to be irrelevant, but this stance was contradicted by the defendant's posture before the primary judge, when it failed to object to the evidence tendered to establish inconvenience. The defendant's submission on factor 3 was linked to a submission that that evidence, the affidavit of Phillip James Banister, should have been rejected. Reception of the affidavit cannot now be complained of, because no objection to it was advanced below either on grounds of relevance or otherwise. That failure to object undercuts the present contention that the primary judge took into account irrelevant circumstances in enunciating factor 3. 49 However, it was further submitted that in substance the primary judge had relied on universal characteristics of a jury trial in taking account of the convenience of the plaintiff's witnesses, lawyers and medical practitioners. Stress was placed on the following passage in the Pambula case at 405E-406A: "Reliance was placed by the respondent upon the fact that additional costs would be incurred in this case by the bringing of witnesses from the country to Sydney. Because, it was suggested, jury trials tend more frequently to be cancelled or not reached, such costs would add a significant and special burden in the present case which would not be present in other cases. An affidavit was placed before the Court by the solicitor for the respondent. This deposed to the necessity to bring ten witnesses to the trial from Mildura to Sydney. The return air fare from Mildura to Sydney is $600. Accordingly the cost of transporting these witnesses to and from Sydney, without allowance for accommodation, would be $6,000. Having regard to accommodation and the special amount payable for loss of income of expert witnesses, the total cost estimated in the event that the proceedings were not reached on the day allocated was $10,000. This evidence was not challenged. Commonsense dictates that, even in a jury trial, provision can be made for staging the attendance of witnesses having regard to the likely times of their being called. The difficulty with this evidence is that it depends upon features that are inherent in the jury system as such. It depends upon the listing arrangements of the Court in respect of all jury trials. It is particular to the present case because there are so many witnesses from the country. But the cause of the inconvenience of cancellation is jury trial and the jury list as such. The same facts could doubtless be given in virtually every jury case with witnesses from country districts. These would not therefore appear to be relevant considerations for the exercise of the discretion provided by s 89. Parliament must be taken to have contemplated precisely this kind of inconvenience." 50 This passage did not appear in the first part of Kirby P's reasons for judgment (dealing with statutory construction and the errors in the approach of Cole J), but in the second part, in which Kirby P was exercising afresh the discretion which had miscarried before the primary judge. Samuels JA agreed "in general" with the first part of Kirby P's reasons for judgment, and with his orders, but not in terms with the second part. 51 The defendant said that the primary judge in this case had relied on the costs flowing from the inconvenience to persons near Parramatta when this was something that could be said of "virtually every jury case" with Parramatta links. Since the Pambula case involved an allegation of medical negligence, it was likely that among the "expert witnesses" to whom Kirby P referred were medical practitioners. 52 In evaluating the significance of this part of Kirby P's reasoning, it is necessary to examine the decision in the Forbes case to which Kirby P, Priestley and Cole JJA were parties. The relevant proceedings were brought by the plaintiff in the District Court at Forbes. The defendant requisitioned a jury. The matter was listed for hearing before Madgwick DCJ at the sittings in Forbes commencing on 29 March 1993. It was a two week civil sittings list, and the case in question was the second case in that list for trial by jury. A jury panel was summoned for the first Wednesday. The first jury case was a defamation case expected to take several days. It was not expected that the parties would settle it. The trial judge, after empanelling the jury, told the remaining members of the jury panel that they would not be required to attend again. He did this because if a second jury case had been embarked on, no other case in the list could have been heard. The defamation case was then unexpectedly settled. The plaintiff expressed a desire for her case to be heard. The eight available members of the jury panel were recalled. Sufficient of them had links with the defendant giving rise to a reasonable possibility of an appearance of bias as to make it impracticable for a jury to be formed out of them. Counsel for the plaintiff then applied for an order dispensing with the jury. Madgwick DCJ acceded to that application for various reasons, one of which was put thus by Kirby P: "Great difficulty and considerable expense going beyond party and party costs, would be involved in securing the attendance of orthopaedic specialists at the trial of the proceedings before the jury. As it happened in the present case the three orthopaedic specialists who practise in this State west of the Great Dividing Range had been retained by the two parties. There was a possibility that one, two, or three of them might be called upon to give oral evidence if the matter were tried before a jury. This would involve not only inconvenience to the medical practitioners concerned but, more importantly, to their patients. There was a prospect of disrupting the conduct of their presumably busy practices if they were summoned either to the jury trial in Forbes or to give evidence in another venue to the Court however constituted." 53 Of this reasoning, Kirby P said: "When I look at the way in which Madgwick DCJ in this case dealt with the anticipated inconvenience to the medical practitioners retained by the parties, I see no offence against the principles in Pambula . His Honour referred to this consideration as the last of several which he was taking into account, all of which were particular to this case. He was careful to address the inconvenience to the medical practitioners in the context of the other considerations to which he had referred. He was also, as I understand his reasons, pointing to the fact that it was an unusual feature of this particular case that the three medical practitioners, being the only specialists in orthopaedic surgery who practise West of the Great Dividing Range, had been retained by the parties. That would not, one might infer, be a normal condition of litigation whether in cases to be tried by jury or judge alone. I see no offence to the Pambula principles in the first consideration to which the appellant has objected. It was not one challenging the jury trial as such. It was one concerned with the fact that three busy medical practitioners were involved whose attendance at court in this case might be necessary because of the conduct of the trial before a jury, generally by oral evidence."

Priestley and Cole JJA agreed. 54 The passage just quoted from Kirby P's reasons for judgment in the Forbes case suggests that the passage from Pambula's case at 405G-406A on which the defendant relies here is not of universal application. The legitimate reliance on the inconvenience to the doctors and their patients in the Forbes case contrasts with the illegitimate reliance on the inconvenience to the Mildura experts in the Pambula case. The fact (if it were a fact: it seems questionable) that the only three orthopaedic specialists practising west of the Great Dividing Range were the witnesses in the Forbes case was not "a normal condition of litigation" does not appear to be a satisfactory basis of distinction. To a patient of a particular doctor, the inconvenience caused by his unexpected unavailability by reason of court commitments is equally great whether there are a few other doctors also unavailable and no others, or a few other doctors also unavailable while most, are, in a sense, available. Patients who seek specialist medical services, wherever they live, are not in a position instantly to move from the consulting rooms of the doctor to whom they have been referred to those of some other doctor: the latter would not normally be free to see them in the short term. 55 In any event the argument of the plaintiff in the present proceedings did not turn on the inconvenience to doctors arising from the risk of cancellation of jury trials. It turned on the comparative convenience of relevant short journeys to Parramatta from South Windsor, Penrith and Castle Hill compared with significantly longer journeys from those places to central Sydney. The greater inconvenience is not inherent in the system of jury trial itself; it flows from the particular circumstance that there is no system of jury trial operating in Parramatta, though there is one in central Sydney. 56 Another authority pointing against the correctness of the submission which the defendant mounted on the passage quoted from 405G-406A of Kirby P's reasons for judgment in the Pambula case is Nankervis v Ulan Coal Mines Ltd [1999] NSWSC 899. A jury was requisitioned. Trial was to be at Dubbo. Since it was estimated that it would last ten days, there was a risk that that fact would cause it to be transferred to Sydney for trial by jury. Wood CJ at CL said: "I observe that apart from the experts who are to be called on the issue of liability, there are a number of medical practitioners, six in number, who the plaintiff expects to call, some of whom are treating doctors from the Mudgee or Lithgow area. [At] a jury trial, their personal attendance will be required, whereas in a non jury trial their evidence could be taken, at least in the first instance, by the tender of their reports. If the case has to be moved to Sydney because of its length, they will be inconvenienced and the costs of the trial will be increased."

Wood CJ at CL thus treated inconvenience to medical practitioners as a factor supporting an order that the jury be dispensed with (as well as the factor of delay to the plaintiff, as was seen earlier). Wood CJ at CL did not appear troubled by any fear that his solutions to the problems before him, so far as they turned on his reliance on inconvenience to doctors and delay to the plaintiff, were open to any criticism that they depended "upon the listing arrangements of the Court in respect of all jury trials", or upon "jury trial and the jury list as such", or upon "facts [which] could doubtless be given in virtually every jury case with witnesses from country districts". It should admittedly be noted that these remarks of Wood CJ at CL were perhaps not decisive elements in his reasoning, since he went on to identify "the more significant and critical aspect" pointing against jury trial, namely the complexity of the issues. 57 These cases highlight the truth of an observation by Kirby P in the Forbes case: "This case has demonstrated that in the application of the principles in Pambula , universal considerations and particular attributes of the particular case will sometimes merge into each other. In each case a matter of judgment is called upon. … Pambula merely forbids the application of a rule of a general character anchored in the supposed inconvenience, delay, or cost of a jury trial as such."

A question of characterisation thus arises in each case. Is the party opposing jury trial appealing to the inconvenience, delay or cost of a jury trial as such or to inconvenience, delay and cost arising from particular attributes of the particular case against the background of universal features of jury trial? 58 Against that background, the question is whether factor 3 offends against the principles stated in the Pambula case. It is true that the doctors involved here practise in the suburbs, not in relatively remote areas such as Mudgee, Lithgow or Forbes: but this consideration does not destroy the relevance of the inconvenience relied on, it goes only to its weight, and it was not submitted that, if relevance existed, the primary judge erred in the weight he gave the matter in reaching his discretionary decision. It is also true that the evidence of inconvenience was not strong in relation to the treating specialists. The relevant paragraph of the affidavit said: "The Plaintiff's treating specialists, Dr Sun and Dr New, conduct practice at Penrith and Castle Hill respectively for their treatment of the Plaintiff."

That leaves open the possibility that either or both of those gentlemen practise in other areas of Sydney which may be nearer central Sydney. However, the defendant did not seek to establish this by cross-examination. This is curious in view of the instructions, accurate or not, which counsel for the defendant passed on to this Court in submissions from the bar table. Further, the omission is not significant: it is impossible to know precisely when the trial will take place, and a doctor practising in several different parts of Sydney may be more considerably disadvantaged on some days than others by a trial in central Sydney. In short, the weaknesses in the evidence go to weight, not relevance, and the defendant did not submit that the primary judge erred on issues of weight. 59 In my judgment there is nothing in Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 which falsifies the above conclusions. In that case the primary judge dispensed with a jury: "… on the basis of the number of witnesses who would have to be called from different parts of the country. The plaintiff proposed to call a Dr White who practised in Melbourne and Canberra, and lay witnesses from Queanbeyan, Nowra and Queensland. The Judge said that calling the doctor would cost a significant amount of money, but even the lay witnesses would cost the plaintiff a lot of money for their accommodation while they waited to be called before the jury. The need to call Dr White to give oral evidence before the jury, instead of giving evidence in report form to a Judge subject to possible cross-examination, which was not a factor which was special to this case. The plaintiff's decision to qualify and call a doctor who practised in Melbourne and Canberra in a trial pending with a jury in Sydney could hardly entitle him to an order dispensing with that jury. The added costs and delays in this case occasioned by the need to call Dr White and the lay witnesses from the country and interstate were simply the particular consequences in this case of the general consequences of trial with a jury in every case" (at [7]-[8]).

If there were added costs and delays occasioned by the need to call witnesses from the country and interstate which were simply the particular consequences in that case of the general consequences of trial with a jury in every case, the reasoning is impeccable, but it is not applicable here. Here the question turns on added inconvenience to patients, costs and delays in relation to professional witnesses not caused by the general consequences of a jury trial in every case, but caused by the unavailability of a jury trial in one place and its availability in another in relation to the particular circumstances of the plaintiff. That authority, unlike this case, did not appear to have turned on the fact that jury trial was not available in one place but was available in another. Rather it was the case that while both forms of trial were available in Sydney, jury trial was thought to produce greater costs and delays than non-jury trial. The circumstances are distinguishable. 60 The defendant next submitted that the principles in Pambula's case continued to apply and could not be varied by District Court Practice Note No 33 or the Supreme Court Rules. This submission is a reference to a passage on page 3.2-.7 and another passage on page 7.1 of the reasons for judgment. On page 3.2-.7 he said: "[Counsel for the defendant submitted] that the general principles which were set down in [ Pambula's case] remained relevant to any consideration of the exercise of the Court's discretion, under s 79A, in the same way that they did in 1988. However, times have changed. Case management projects have been put in place. Practice note 33, which of course recognises the right of the parties to a jury, has been in force since 1995 to arrange for, and ensure, the expeditious disposition of work in the District Court, which has led to substantial reductions in delays. In addition, the Courts have continuously and consistently referred to the necessity to deliver where possible swift affordable justice. In this regard I refer to the recent public statements of the Chief Justice of the Supreme Court and to the amendments to the Supreme Court rules to provide 'quick and cheap justice to members of our community where the circumstances permit that to occur'." 61 It is strictly speaking correct that Practice Note No 33 could not alter the law stated in the Pambula case, because that case turned on an issue of statutory construction, which applies equally to s 79A of the District Court Act by reason of the adoption of the Pambula reasoning in the Forbes case. Practice Notes cannot amend the District Court Act. The same is true of amendments to the Supreme Court Rules. However, both Practice Note No 33 and the amendments to the Supreme Court Rules highlight an ideal which has long been immanent in our law, namely the importance of avoiding delays and expenses which are antithetical to the interests of justice. Practice Note No 33 and the Supreme Court Rules amendments endeavour to secure a nearer approach to that ideal. A possible reading of the passages complained of in text is that they suggest only that a relevant factor is that jury trial will, because of the impossibility of securing it at the most convenient venue, Parramatta, have results producing greater delay and greater expense by reason of greater inconvenience; and these recent developments have highlighted the evils of delay and expense. On this reading, the primary judge may not have phrased his remarks on Practice Note No 33 and the Supreme Court Rules amendments in a perfect way, but to refer to them did not evidence the taking into account of an irrelevant consideration. 62 The first difficulty in this approach is that in the first passage, the reference to the new developments, which follows the summary of the argument advanced by counsel for the defendant that the Pambula principles should be applied, is preceded by the word "However", as though the argument was being rejected. A second difficulty is that the factor referred to in paragraph 4 on page 7 appears to be given a position of primacy over any other consideration, and that paragraph appears to be located in a passage in which the primary judge was expressing the elements in his reasoning which were crucial to the order he eventually made. 63 There is no doubt that the language used by the primary judge is difficult to understand. However, when that language is read as a whole, I do not think that it was asserting that recent developments have altered the Pambula principles. It is highly unlikely that the primary judge can have thought that, or can have intended to communicate the proposition that, the recent developments altered the law stated in the Pambula case and the Forbes case. Accordingly, his language must be given some other meaning. Further, paragraph 4 on page 7 does not appear to be part of the crucial or pivotal reasoning employed by the primary judge. Paragraphs 1-4 at the bottom page 6 and the top of page 7 are prefaced by the words: "In this case, to not accede [sic] to the application made by the applicant, would be compared to the other litigants in this jurisdiction, disadvantage [sic] the plaintiff in the following ways …".

Paragraphs 1-3 answer the description of those opening words, because each of them describes a relevant disadvantage to the plaintiff. That is not so of paragraph 4. It does not describe a further particular disadvantage to the plaintiff. Rather it appears merely to point out that if the defendant's contention had succeeded, the purposes of the case management alterations would be to that extent incapable of being met. So read, paragraph 4 points out in passing a disadvantage in the defendant's approach, but does not treat that disadvantage as a ground for rejecting that approach. If a decision-maker thought that a reason for dispensing with jury trial was that it was slower and more expensive than non-jury trial, unless more appeared (such as delay extending beyond the plaintiff's life expectancy (see the Pambula case at 413E-F) or the factors described in paragraphs 1-3 on page 6 in this case) that would appear to be a consideration which was irrelevant to the exercise of the s 79A discretion. Paragraph 4 on page 7 and the corresponding passage on page 3 appear not to be tainted by that vice: the primary judge was noting an incidental consequence of jury trial without weighing that consequence in the balance against permitting it. 64 This part of the defendant's submissions concluded with the following points: "19. If this decision were to stand: (i) Parties in Parramatta based cases would universally be denied a right to trial by jury; (ii) Principles enunciated by this Court in Pambula District Hospital v Herriman (supra) in exercising discretion would be put into question; (iii) The Claimant would be denied a right to trail [sic] by jury in erroneous circumstances." 65 Dealing with paragraph 19(i), it is not the case that the decision of the primary judge denies all parties in Parramatta based cases a trial by jury. In each case an assessment of the particular circumstances must be called for. For example, some parties in "Parramatta based cases" may have witnesses, solicitors and medical practitioners who are not so located in relation to Parramatta as to point towards the result arrived at in this case. 66 As to paragraph 19(ii), the primary judge's decision does not undercut the Pambula principles. 67 As to paragraph 19(iii), there was no error in the primary judge's reasoning, when fairly read.

Section 144 of the Evidence Act 68 The defendant put one other submission which is in a different category. It was advanced in the following terms: "His Honour took judicial notice of the consequences in not acceding to the Opponent's request for dispensation without complying with s 144(4) of the Evidence Act, 1995 thereby prejudicing the Claimant. Had the consequences been addressed, the Claimant would have had the opportunity to raise alternative transfers to neighbouring Courts." 69 Section 144(1) and (4) of the Evidence Act provide as follows: "(1) Proof is not required about knowledge that is not reasonably open to question and is: (a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. … (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." 70 It seems from grounds 2 and 7 of the Notice of Appeal that the reference to "the consequences in not acceding to the Opponent's request for dispensation" is a reference to the fact that if there were to be a jury trial: "proceedings would need to be transferred to Sydney and there would be placed in a list with an uncertain future as to when that jury trial could take place with consequent delay." 71 This submission would only have merit if there were no notice, whether from the primary judge or otherwise, of the possibility that the primary judge might take account of the matters of common knowledge which he did take into account. Evaluation of the submission would depend on what actually happened at the hearing. There is no evidence on this subject, and no transcript. However, the general question of the locality in which the trial should be held - Parramatta or elsewhere - was raised by the plaintiff in paragraphs 10-11 of Mr Banister's affidavit. They read as follows: "10. It is respectively submitted that, on balance of convenience, the hearing of this action should take place at Parramatta. 11. I am given to understand that there are no facilities for civil jury trial at Parramatta."

It would appear obvious that if the trial could not take place at Parramatta it would have to take place somewhere else, and the likeliest place was Sydney. If the defendant had wished to raise the possibility of a transfer to some place other than Sydney, it was given ample notice of the need to do so by paragraphs 10 and 11.

Orders 72 I would dismiss the appeal with costs. 73 DAVIES AJA: The Appellant, Combined Excavations and Supplies Pty Limited, appeals from an order of a Judge of the District Court of New South Wales, his Honour Judge Delaney, that trial by jury be dispensed with. 74 The Respondent, Paul James Bowis, had instituted proceedings, by way of Statement of Claim filed on 21 July 1999, claiming damages from the Appellant in respect of injuries suffered in an accident during the course of his employment. The Appellant had requisitioned for a jury. 75 Relevant provisions of the District Court Act, 1973 ("the Act") provide: 78 Where jury may be summoned (1) In any action (other than an action to which section 79 applies), where the amount claimed exceeds $5,000, any party may,, within the prescribed time, by filing a requisition for trial with a jury and paying the fee prescribed by the regulations made under section 150 require that a jury be summoned to try the action, and a jury shall be so summoned. 79A Power to dispense with jury In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury.

The requisition for a jury was filed on 28 September 1999. On a motion subsequently lodged on behalf of the Respondent, his Honour ruled, on 7 April 2000, that the trial be held without a jury. 76 The appeal is brought on the ground that, in exercising his discretion under s 79A of the Act, his Honour failed to give effect to the principles enunciated in Pambula District Hospital v Herriman (1988) 14 NSWLR 387, in particular, by applying universal considerations in the exercise of his discretion, contrary to the views expressed by Kirby P and Samuels JA in that case. 77 In Pambula, Kirby P and Samuels JA each expressed the view that the Court should not apply criteria of universal application when exercising the discretion to dispense with a duly requisitioned jury, but should deal with the motion to dismiss on the circumstances of the particular case. The rationale for this approach, as explained by their Honours, was that Parliament has provided for trial by jury when the same is duly requisitioned. Accordingly, general considerations, such as the consideration that a trial is generally more efficient, briefer and carried on at lesser cost if trial be before a judge alone, are irrelevant to the exercise of the discretion. A party is entitled to trial by jury unless there are circumstances in the particular case which justify dispensing with the jury. Mahoney JA expressed the same general principle at p 419, but his Honour dissented as to the width of the factors to be taken into account. 78 Pambula was an appeal from a decision of Cole J, in which his Honour had reiterated the view he had expressed in Smoje v Trend Laboratories Pty Ltd (Cole J, 27 May 1988, unreported) that the discretion conferred by s 89 was "at large" and had gone on to say: "In my view s 89 does not proceed from a presumption that if a party has exercised its right to requisition a jury pursuant to and in accordance with s 86, that thereafter that right prevails so that a significant reason must be shown why it should be deprived of that right in the exercise of discretion under s 89."

In Smoje , Cole J listed the following considerations which, in his view, could be taken into account in the exercise of the discretion: "(1) the length of the trial; (2) the cost to the parties; (3) the likely uniformity of judgments in similar cases; (4) the predictability of verdicts; (5) the facility in trials without juries to discuss appropriate ranges of verdicts, particularly for damages; (6) the facility, in the event of appeal, to know the manner in which any verdict had been determined; (7) the likelihood that predictability of outcome in non-jury trials would result in the settlement of other actions."

Cole J also referred to the effect of the order dispensing with the jury upon other cases awaiting trial. 79 In Pambula, at pp 402-3, Kirby P explained that the approach of Cole J was wrong. His Honour said: "I agree with the appellant that all of these matters referred to in Smoje are, as stated, observations of a general character relating to the nature of jury trials as such. They are not particular to the question of whether a jury which has been summoned should be dispensed with in this particular case. 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. This is not to say that the general characteristics of jury trials, as such, may not have consequences upon a particular litigant that would warrant account being taken of them, in exercising the discretion under the section as they produce such consequences. Thus, if a litigant were seriously ill or dying, the difficulties and delays of the jury list or of jury trial itself, would certainly be relevant considerations to be taken into account, as Clarke J suggested in Peck v Email Ltd . Similarly, if for any reason in a particular case, it was thought appropriate and particularly convenient to split the trial, having regard to the evidence to be called, the discretion under the section would be enlivened. If there were any peculiar features in the nature of the damages claim that would make the facility to discuss verdict ranges more appropriate in one case than in the generality of cases, the discretion under the section might be attracted. What is not permissible is to challenge the fundamental assumption which Parliament has acted upon, namely that jury trial in proceedings on a common law claim will remain one of the two alternative modes of trial - and one which, special cases apart, any party can requisition. Also impermissible is consideration of the consequences of the conduct of the trial with a jury for other cases standing in the list. In this respect, the prediction of Mr Dowd in Parliament was pertinent (see above)." 80 In a later decision of Forbes Services Memorial Club Limited v Hodge (Court of Appeal, 8 March 1995, unreported), Kirby P explained Pambula in this way: "The point which 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. That was the reason given by the trial judge in Pambula (Cole J) for ordering that the case proceed to trial without a jury before a judge sitting alone. Pambula holds that it is not permissible to challenge the fundamental assumption which Parliament has acted upon, namely, that jury trials in proceedings at common law will continue to be permitted where a party with the right to do so has lawfully requisitioned a jury. Considerations of a general or universal character have to be put out of account for the reasons which Samuels JA and I discussed in Pambula ." 81 Having expressed the view that there was an error of law in the approach of Cole J, Kirby P, at pp 405-6, considered the re-exercise of the discretion and said: "Reliance was placed by the respondent upon the fact that additional costs would be incurred in this case by the bringing of witnesses from the country to Sydney. Because, it was suggested, jury trials tend more frequently to be cancelled or not reached, such costs would add a significant and special burden in the present case which would not be present in other cases. An affidavit was placed before the Court by the solicitor for the respondent. This deposed to the necessity to bring ten witnesses to the trial from Mildura to Sydney. The return air fare from Mildura to Sydney is $600. Accordingly the cost of transporting these witnesses to and from Sydney, without allowance for accommodation, would be $6,000. Having regard to accommodation and the special amount payable for loss of income of expert witnesses, the total cost estimated in the event that the proceedings were not reached on the day allocated was $10,000. This evidence was not challenged. Commonsense dictates that, even in a jury trial, provision can be made for staging the attendances of witnesses having regard to the likely times of their being called. The difficulty with this evidence is that it depends upon features that are inherent in the jury system as such. It depends upon the listing arrangements of the Court in respect of all jury trials. It is particular to the present case because there are so many witnesses from the country. But the cause of the inconvenience of cancellation is jury trial and the jury list as such. The same facts could doubtless be given in virtually every jury case with witnesses from country districts. These would not therefore appear to be relevant considerations for the exercise of the discretion provided by s 89. Parliament must be taken to have contemplated precisely this kind of inconvenience. … No other circumstance, special to this case, was urged upon the Court as a reason for ordering that the issues of fact be tried without a jury. Accordingly, the respondent has not demonstrated that this Court should exercise its discretion in favour of such an order." 82 In Forbes, however, Kirby P, Priestley and Cole JJA dismissed an appeal against an order that a jury be dispensed with. The Court held that the trial Judge was not in error in taking into account either an anticipated inconvenience to the medical practitioners in giving evidence if a jury trial were held, because they practised west of the Great Dividing Range and their patients were in that area, or the delay and inconvenience which would be caused in the particular case if the matter were to proceed before a jury. 83 Since these two cases, Wood CJ at CL has ordered that a jury be dispensed with in Nankervis v Ulan Coal Mines Ltd [1999] NSWSC 899. His Honour considered that the issues to be resolved were unduly complex for a jury and there was the additional problem that three of the treating doctors resided in the Mudgee or Lithgow area, and would have to attend personally, probably in Sydney, if there was a jury trial, whereas, in a non-jury trial, the evidence could be taken, at least in the first instance, by the tender of their reports. The distinctions between the facts in Pambula and those in Forbes and in Nankervis, are, if anything, merely differences of degree. No point of principle can be drawn from the distinctions. 84 The principle enunciated in Pambula is that the s 79A discretion is not entirely at large, for a party who duly requisitions for a jury is entitled to one, unless the Court orders to the contrary. It is inherent in the judgment in Pambula that there must be good reason for such an order and that the significance to the law of trial by jury is an important factor to be taken into account. 85 A jury should not be dispensed with unless there is a factor in the particular case of sufficient weight to overcome the right to a jury trial. This will not occur unless there is a factor which transcends the usual problems encountered with jury trials. The complexity of the particular case, or a need for expedition, or the impracticability of bringing a witness or witnesses to Sydney, and like matters, may provide such a factor; but the factor must be a weighty one, for the entitlement to a jury trial is an important right, not lightly to be set aside. In his reasons for judgment in this case, the Chief Justice has referred to terminology such as "unusual feature", "significant and special burden", "singular circumstances" and "specific difficulties". I would not adopt any specific terminology, for s 79A does not use it. However, because the right is an important one, I would not expect a jury to be dispensed with unless there was a factor having attributes to which some such description was appropriate. 86 In the present case, the problem arose because there were no facilities in the Parramatta Registry which were available for civil jury trials. It appeared that, if a jury trial was required, the matter would have to be transferred to the Sydney Registry. This would delay the hearing of the case and could inconvenience the Respondent's witnesses, including the medical witnesses. Evidence was given to the trial Judge that the Respondent's witnesses were located near Parramatta, that his general practitioner was at South Windsor and he was treated by his medical specialists at Penrith and Castle Hill. 87 In setting out his reasons for dispensing with the jury, the learned primary Judge said, inter alia: "In this case, to not accede to the application made by the applicant, would … disadvantage the plaintiff in the following ways: 1. The case would have to [be] transferred to Sydney with the attendant uncertainties of the listing system occasioned by the fact that this would be a jury trial.

2. It would delay the opportunity of the plaintiff to be able to have his case heard by many, many months, if not a year.

3. It would mean that the plaintiff's witnesses, solicitors, medical practitioners would have all have to go into Sydney, rather than come to a Courthouse close to their place of residence, or place of business.

4. It would mean that the purpose of the case management alterations to both the Supreme and District Court rule would be not able to be met in the way in which, in particular more recent amendments have sought; particularly those amendments in the Supreme Court. I have been referred to the view expressed of recent times by Wood CJ at common law at Nankervis v Ulan Coal Mines . I was given that judgment this morning before I commenced to deliver this judgment. His Honour referred to the principles in Pambula Hospital and also to Forbes Services Club . His Honour said that an application such as the present need to be confined to circumstances particular to the instant case. That is what I have done in this case. I have dealt with the particular circumstances of this particular case. In my view the application has been shown to be made out and the order I make is that this trial be held without a jury, in accordance with s.79A." 88 There are four reasons which lead me to think that the primary Judge erred in his approach to the exercise of the s 79A discretion. The first is that his Honour cited a passage from the reasons of Mahoney JA in Pambula. That passage referred to the relevance of the "ordinary incidents of a Court and its lists". The problem with the passage is that it was not consistent with the reasoning of Kirby P and Samuels JA. Mahoney JA was a dissentient on the issue as to the factors which could be taken into account. 89 Secondly, his Honour referred to District Court Practice Note No. 33 which deals with case management. However, there is nothing in Practice Note No. 33 which suggests that jury trials should be discouraged. There was no information before his Honour to show that trial by jury of this case would not follow the ordinary course of jury trials in New South Wales. 90 Thirdly, all the points specified by his Honour are points which are an ordinary outcome of trial by jury in New South Wales. Because of difficulties in providing adequate jury facilities throughout the State, the problem arises, from time to time when a jury is requisitioned, that the venue of the trial must be Sydney, that the parties and their witnesses must attend trial in Sydney and that delay may be caused because of a backlog in the Sydney List. 91 Fourthly, and perhaps of most importance, is the fact that the material before the primary Judge did not identify any particular feature of the case which would provide a good reason for dispensing with trial by jury. In Pambula, Kirby P and Samuels JA both mentioned that a plaintiff who deserved expedition, for example, because of the plaintiff's state of health, may be unable to achieve expedition in a jury list. In Forbes, reference was made to the fact that three orthopaedic specialists, who practiced over the Great Dividing Range, would be seriously discommoded by having to give evidence in Sydney, as would their patients. In Nankervis, Wood CJ at CL referred, inter alia, to the problem faced by the treating doctors from the Mudgee and Lithgow areas if their personal attendance was required in Sydney. No such factor was identified in the material before the primary Judge or in his reasons for decision. Evidence was given, which he accepted, that the Respondent had been treated by medical practitioners at Penrith and Castle Hill, but there was no evidence that the practitioners involved would not have been able readily to give evidence at a jury trial in Sydney. The Respondent's general practitioner is said to have conducted a medical practice from South Windsor and, perhaps, it may be inferred that he would find it more convenient to give evidence at Parramatta than in Sydney. However, there was no particular evidence about this matter. 92 Looking at the reasons of his Honour as a whole, I have come to the view that his Honour did not direct his attention to the issue as expounded in Pambula and that his Honour did not identify and base his order on a factor other than the usual problems of delay and inconvenience inherent in a jury trial in this State. For these reasons, I am of the view that his Honour's approach to the exercise of the s 79A discretion miscarried. 93 In the circumstances, it is desirable that this Court re-exercise the discretion. I have given attention to the affidavit of Philip Douglas Banister which was the material placed before the primary Judge in answer to the requisition for a jury. It seems to me that that affidavit does not raise any significant reason as to why a jury should be dispensed with in this case. 94 It was also submitted that his Honour wrongly took account of the fact of the non-availability of courts for civil jury trials at Parramatta and that the requirements of s 144(4) of the Evidence Act, 1995 were not met. However, it has not been shown that the facts relied upon by his Honour were wrong. 95 Accordingly, I propose that the appeal be allowed, that the order below be set aside and that, in lieu thereof, it be ordered that the motion before the Court be dismissed with costs. The Respondent should pay the costs of this appeal. The Respondent should have a certificate under the Suitors' Fund Act, 1951 if qualified. **********

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