the basis relied upon by john holland for the exercise of the discretion
28 By reference to the provisions of s 16 of the OH&S Act, John Holland contends that the ultimate question of fact to be determined in this case is whether there were any steps that John Holland should have taken which it was, in the circumstances, reasonably practicable for John Holland to have taken in order to avoid injury to Mr Meredith, an employee who was injured when operating the machine. John Holland contends that the phrase "reasonably practicable steps" in s 16(2) of the OH&S Act has imported into the fact finding exercise an evaluation which brings into play the social and moral values of the community. It is said that what is reasonably practicable to have been done in the workplace is to be answered by reference to an objective community standard.
29 It is not necessary that I determine at this juncture whether John Holland's characterisation of the ultimate fact to be determined in this case is correct or not. I will proceed on the basis that it is, although it is clearly arguable that the ultimate question may be not whether John Holland took all reasonably practicable steps to avoid the particular injury to Mr Meredith, but whether in relation to the use of the machine, John Holland took all reasonably practicable steps to provide and maintain a working environment which was safe for employees.
30 Despite the contention made in relation to the proper construction of ss 39 and 40 that the task of the Court did not involve any comparison of the attributes of the different modes of trial, John Holland did ultimately contend that the question of what, if any, reasonably practicable steps were available was better determined by a jury than by a judge. It was said that the questions raised in the proceeding were quintessentially jury questions. Six people determining the questions of fact would, it was argued, be beneficial and be expedient to the ends of justice, when compared to a single judge trained only in the law. A jury of six individuals would bring to the task their ordinary life experience and thus bring to bear their own moral and social values. Particular reliance in this respect was placed on the extra-judicial opinion of Sir Frederick Jordan set out in a paper delivered by Evatt J to the Second Legal Convention of the Law Council of Australia held in Adelaide in September 1936: The Jury System in Australia, (1936) 10 ALJ Supp 49 at 72. The passage relied upon is in the following terms:
As regards civil matters, the advantage of the jury system is twofold. In the first place, although the lives of Judges are by no means as cloistered as people are apt to suppose, the Bench being recruited from men who have experienced the rough and tumble of life at the Bar, the combined experience of four men is likely to be greater than that of any one man. I have on occasion known a jury man to stand up and clear up some incidental point emerging in the course of the evidence, which neither witnesses nor counsel was able to explain.
31 The giving effect to moral and social values of the community was a factor that Rares J relied upon in being satisfied that a trial by jury would be a better mode of trial than by judge alone for assessing the particular claims and defences in the proceeding with which he was concerned. Some support for the contention that the involvement of community standards is a factor in favour of the exercise of the Court's discretion is also found in Tamberlin J's decision in Stalyce Holdings (Aust) at [15]. In that case, his Honour did not directly consider s 40 of the Federal Court Act, but considered whether a proceeding should be transferred from the Federal Court to the Supreme Court of New South Wales pursuant to
s 86A of the Trade Practices Act 1974 (Cth) or s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). His Honour was involved in determining whether it was in the interests of justice to transfer the proceeding to the Supreme Court, where it was likely that the proceeding would be heard by a jury. In that context his Honour observed that the matter before him was:
not a case where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved.
32 The role that the moral or social values of the community may have to play in the exercise of a discretion like that in s 40 of the Federal Court Act has also received significant attention from a number of decisions of the New South Wales Supreme Court, including its Court of Appeal. Section 85 of the Supreme Court Act 1970 (NSW) relevantly provides that proceedings in the Supreme Court of New South Wales are to be tried without a jury, unless the Court orders otherwise. The discretion to order that the proceedings be tried with a jury may be exercised upon the Supreme Court being "satisfied that the interests of justice require a trial by jury in the proceedings".
33 The similarity between s 85 of the Supreme Court Act and ss 39 and 40 of the Federal Court Act is apparent, although the word "require" when contrasted with the phrase "render it expedient" suggests that the discretion to direct a jury trial provided by s 40 of the Federal Court Act is somewhat less constrained. Nevertheless, the authorities on s 85 are instructive. Of particular interest is the decision of the Court of Appeal in Maroubra Rugby League Football Club Inc v Malo [2007] NSWCA 39. That decision examined and disagreed with the approach taken in the judgment there under appeal and the judgments of Hall J in Muir v Council of Trinity Grammar School [2005] NSWSC 555 and Adams J in Cross v Theiss Pty Ltd [2006] NSWSC 1455. Each of Marouba, Muir and Cross involved an application for a jury trial in personal injury cases based on the alleged negligence of the respondents.
34 In Maroubra, Mason P delivered the lead judgment of the Court (Ipp JA and Tobias JA agreeing). At [28] Mason P referred to the decision of Tamberlin J in Stalyce Holdings and continued:
29 Tamberlin J's reference to cases "where general community contemporary values are involved, as may be the case in proceedings where moral, ethical or general social values are involved" was not intended and ought not to be read as the touchstone for the rationale of trial by jury (in defamation or other matters), let alone the touchstone whereby the Supreme Court may decide whether it is satisfied that the interests of justice require it to order trial by jury. Section 86A of the Trade Practices Act 1974 uses the words "in the interests of justice" in a context different to the one at hand. Section 85 of the Supreme Court Act is concerned, and only concerned, with whether the interests of justice require departure from the mandated general rule that civil proceedings in the Supreme Court are to be tried without a jury.
30 One frequently encounters statements in other contexts that jurors bring a range of views to a problem, and that those views (individually and collectively) may be closer to the assumed thinking of "the public" or "the community" than that of a judge sitting alone. Sometimes this reasoning proceeds from the maxim that two heads are better than one. At other times, one detects a notion that the life experience of judges is somehow deficient to the task at hand, or at least not as full as that of the group of randomly selected jurors. (Cf Cross at [11]-[12].) At other times the thrust is that a jury verdict is more acceptable simply because the defendant's fate has been determined by his or her "peers" or because there has been public participation in the curial process.
31 Whatever the objective reality, these considerations are not a sufficient basis for resolving the matter posed by s85(2)(b). Parliament has made the call that trial by judge alone is the norm. Absence of a "representative" or "community" viewpoint is not an inherent defect of trial by judge alone.
32 Section 85(2)(b) does not direct or permit the Court to weigh which mode of trial is preferable in the proceedings and to prefer trial by jury if traditional considerations or perceptions would have supported that mode (see McDermott v Collien [1953] HCA 44; (1953) 87 CLR 154 at 157). Nor does it permit judicial fact-finding to be dispensed with on the basis that jurors may be perceived to be better equipped to discern "moral, ethical or general social values", assuming them to be relevant to the task at hand. The standard required by s85(2)(b) is high and absolute, namely that the judge must be satisfied that the interests of justice require trial by jury in the instant proceedings.
35 At [34], Mason J concluded as follows:
34 Decision-making may be value-laden. But great caution is, in my view, required before a court could be satisfied that reference to "community" or "moral, ethical or general social values" were pertinent to any proceedings and that this could satisfy the judge that the interests of justice require departure from the general rule.
36 In concluding that the exercise of discretion conferred by s 85 does not direct or permit the court to weigh which mode of trial is preferable by reference to traditional considerations or perceptions as to which is the better mode of trial, Mason P relied on the observations of Fullagar J in the passage from McDermott to which reference has already been made. The decision of the New South Wales Court of Appeal in Maroubra supports the conclusion that the exercise of a discretion such as that contained in s 40 of the Federal Court Act, requires the identification of a special reason, in the sense earlier identified.
37 In my view, John Holland has not identified a special reason by its contention that the question of what reasonable steps could have been taken by John Holland is a question better determined by a jury. John Holland's argument merely restates one of the traditional universal considerations relied upon by proponents of trial by jury; that many heads are better than one in reflecting the experience and values of the general community. John Holland's reliance on the opinion of Sir Frederick Jordan demonstrates that John Holland relies on an ordinary as opposed to a special reason. There is nothing special in the application of that ordinarily asserted advantage to the particular question or questions said to arise in this proceeding. There was nothing pointed to by John Holland to suggest why the value laden considerations said to arise in this case would be peculiarly better determined by a jury. There are a multitude of causes of action (regularly considered by this Court) where judgments need to be made by the Court by reference to standards of requisite behaviour conditioned by requirements of reasonableness, fairness, conscientiousness or similar value laden considerations.
38 The absence of a special reason in this case is distinguishable from the circumstances that attended Ra. In that case, Rares J was satisfied that the critical issues in the proceeding before him were quintessentially better determined by a jury, not by reference to an inherent characteristic of juries of universal application, but by reference to a peculiar advantage that a jury trial brought to the particular kind of case there at play. The peculiar advantage was identified in the following passage:
[19] One of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications.
39 Additionally, the facts in Ra were unusual and were likely to involve giving effect to contemporary moral and social values of the community. In that case it was alleged that defamatory imputations were made against the applicant, including that she was a brothel owner and madam who kept foreign women as sex slaves.
40 Another matter relied upon by John Holland is that in Victoria, a proceeding founded on tort shall, unless the Court otherwise directs, be tried with a jury: Supreme Court (General Procedure) Rules 2005, Order 47.02. Reliance on that circumstance is made in support of the proposition that personal injury claims raise issues which are quintessentially jury questions. John Holland contends that the issues raised by this proceeding are analogous to those usually raised in personal injury litigation. Even if that were true, the fact that personal injury cases in Victoria are commonly tried with a jury is not a reflection of any widespread and universally accepted view that personal injury cases raise quintessential jury questions. It is only a reflection of the particular regime adopted in Victoria - a regime different to that adopted elsewhere in Australia including in the Federal Court.
41 Reference to O 47 of the Supreme Court (General Civil Procedure) Rules adds little to the task I have before me. Order 47 sets out the normal mode of trial in the Supreme Court of Victoria. It provides that a proceeding founded on contract or tort shall be tried with a jury where a party so elects and the Supreme Court does not otherwise order. Any other proceeding in the Supreme Court of Victoria is to be tried without a jury unless the court otherwise orders. The particular provisions regulating the mode of trial in the Supreme Court of Victoria are very different to the regime created by ss 39 and 40 of the Federal Court Act.
42 The position in Victoria is also very different to that in the rest of Australia, where civil jury trials are far less common and in some States and Territories are either uncommon or non-existent. The following analysis made in 2006 is given by Jacqueline Horan in her article "The Law and Lore of the Australian Civil Jury and Civil Justice System" (2006)
9 FJLR 29 at 29 (Note 2):
Over the last century, parliamentarians in all Australian States have introduced legislation that virtually removed the right of Australian citizens to a jury in a civil trial. The right to civil jury trial is virtually abolished in South Australia; Juries Act 1927 (SA) s 42. In Western Australia the right to jury trial is restricted to claims of defamation, fraud, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage; Supreme Court Act 1935 (WA) s 42. In Tasmania the right to a jury exists in relation to most common law cases other than motor vehicle accidents but is virtually never used; Supreme Court Civil Procedure Act 1932 (Tas) ss 27, 29. In Queensland there is a prima facie right to a civil jury trial in common law cases however, legislation has been enacted to limit this right. As a result, civil jury trials are uncommon in Queensland; Supreme Court Act 1955 (Qld) ss 51, 52. In the Territories and the Federal courts there is no prima facie right to a civil jury trial. Those courts have the power to order one but this is seldom done; Juries Act 1963 (NT) s 7, Australian Capital Territory Supreme Court Act 1933 (Cth) s 14. The Supreme Court Act 1970 (NSW) s 85 prevents jury trials in all matters except defamation claims unless a party requests a jury trial and the court is satisfied that the interests of justice require a trial by jury. Most Australian civil jury trials are now conducted in Victoria. Uniform defamation laws introduced nationally this year removed the right of parties to have the jury determine damages.
43 John Holland also supported its application by asking the Court to take into account the historical use in Australia of jury trials for dealing with allegations of serious crime. Reliance in this respect was placed upon Flick J's observation in Harding at [39] that:
Relevant to the exercise of the discretion is a recognition of the important role that juries have long played in English and Australian law and the circumstances in which juries have traditionally been employed.
44 John Holland referred to the requirement in s 80 of the Constitution that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. By reference to s 80 of the Constitution and various High Court authorities which have considered it, John Holland argued that juries have traditionally been utilised as the mode of trial to deal with allegations of serious crime. It was argued that there is a strong tendency towards the use of jury trials in a contest between the State and its citizens where more than the allegation of a summary offence is involved.
45 John Holland acknowledged that this proceeding is a civil penalty proceeding and that no criminal offence was being alleged against it. However it contended by reference to a report of the Australian Law Reform Commission - 'Principled Regulation, Federal Civil and Administrative Penalties in Australia' ALRC 95, Chapter 2 ("the ALRC Report") that civil and criminal penalties are both concerned with punishment and are justified by some of the same justifications, including retribution for the contravention of a legal requirement and the protection of third parties or society at large. It was contended in particular that civil penalties resemble criminal fines and may be more severe than criminal penalties in many cases.
46 The maximum civil penalty for a breach of s 16(1) of the OH&S Act is 2,200 penalty units (currently equating to $242,000). This, John Holland contended, demonstrated the severity of the punishment which John Holland may be subjected to and justified the analogy sought to be made by John Holland with serious crime and the use of jury trials in that arena.
47 Additionally, John Holland referred me to clause 11 of Schedule 2 of the OH&S Act which deals with the power of a court to grant relief from liability in certain circumstances. Clause 11(5) provides that in a case tried by a judge with a jury, it is the judge who may grant the relief. John Holland says that clause 11 demonstrates that Parliament contemplated that a civil penalty proceeding brought under the OH&S Act may be tried with a jury.
48 John Holland's contention that it is relevant to recognise the important role that juries have played and the circumstances in which juries have been traditionally employed may be correct, as long as care is taken to recognise the general policy preference embodied in ss 39 and 40. However, even if John Holland's proposition is accepted without qualification, that would not lead to the result which John Holland seeks.
49 Firstly, if regard is to be had to the circumstances in which juries have been traditionally employed, given that this proceeding is a civil penalty proceeding, the most relevant circumstance to look at must be the circumstances attending civil penalty proceedings. John Holland made no reference to that matter. According to the ALRC Report, civil penalties have been available under the Customs Act 1901 (Cth) since its enactment in 1901; civil monetary penalties have been available under Part IV of the Trade Practices Act 1974 (Cth) since 1974; and under the Corporations Act 2001 (Cth) (and its predecessors) since 1993. Civil penalty provisions have been available under Commonwealth industrial legislation since the enactment of the Conciliation and Arbitration Act 1904 (Cth).
50 The Federal Court has jurisdiction to deal with civil penalty proceedings brought under all of that legislation and many other Commonwealth Acts, yet there is no history of jury trials in civil penalty proceedings in this Court. If the situation is different in other courts, that is not a matter which has been brought to my attention.
51 Secondly, the relevance of taking into account the circumstances attending criminal proceedings is questionable. As the ALRC Report observed at paragraph 2.47, whilst the imposition of civil penalties has a punitative purpose of punishing the offender, the procedure under which the offender is sanctioned for a breach of a civil penalty provision is based on civil court processes. By their nature, civil court processes offer fewer protections to an alleged offender than do criminal court processes. The burden of proof upon the prosecuting authority is lower and the privilege against self incrimination may not be available. More pertinently, the constitutional guarantee of a jury trial for a trial on indictment is not available.
52 The s 80 constitutional guarantee is the reason why since at least 1901, jury trials have been traditionally employed in relation to indictable offences against the law of the Commonwealth. Neither the Constitution or any relevant Act of Parliament requires trial by jury in relation to civil penalty proceedings. The absence of that requirement cannot be overlooked. The circumstances attending the trial of indictable offences and those attending civil penalty proceedings are very different. The fact that the mode of trial mandated for indictable offences has maintained the traditional use of juries in that arena, says little about what the ends of justice may find expedient in relation to proceedings where no requirement for a jury trial does or has ever existed.
53 John Holland's contention that a basis for the exercise of my discretion is the severity of the punishment to which John Holland is exposed in this proceeding was supported by reference to the maximum penalty of $242,000 for a contravention of s 16(1). Reference to that potential penalty did not, however, demonstrate why I should regard that potential penalty as severe let alone so severe as to equate generally with the potential penalties for serious crime traditionally tried by jury.
54 John Holland sought to rely upon s 4JA of Crimes Act 1914 (Cth) ("the Crimes Act"). That provision is in the following terms:
Some indictable offences punishable by fine only may be dealt with summarily