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.