COMMONWEALTH OF AUSTRALIA v COOK

(1) The objections to the considerations referred to by the judges, save for the reference to "choice of forum" were either irrelevant or insubstantial;

(2) The reference by the judge to the failure of the defendant to explain its choice of jury trial was erroneous that mode of trial being the defendant's right under the Supreme Court Act 1970, s86;

(3) (by Kirby P and Sheller JA; Meagher JA dissenting): The taking into account of an irrelevant consideration caused the judge's discretion to miscarry and required the setting aside of the order dispensing with the jury and return of the application to that end to the Common Law Division for reconsideration.

Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (CA) applied.

JURY - civil trial - negligence action - defendant's requisition - belated application by plaintiff for amendment of particulars of negligence - grant of application occasions adjournment of trial - judge (Leslie AJ) dispenses with jury - orders proceedings continue before him sitting without a jury - refers to failure of the defendant to explain its choice of jury trial - held: (by the Court):

(1) The reference of the failure to explain the chosen mode of trial was erroneous as jury trial was the defendant's right by the Supreme Court Act 1970 s86(1);

(2) (by Kirby P and Sheller JA; Meagher JA dissenting): The consideration affected the exercise of the judge's discretion which thereby miscarried;

(3) The proceedings should be returned to the Common Law Division for re-consideration, according to law of any application by the plaintiff that the jury be dispensed with.

Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (CA) applied.

3. Set aside the order of Leslie AJ dispensing with the jury in the trial between Marilyn Gay Cook and the Commonwealth of Australia;

4. Order that any application to order that the proceedings be heard without a jury be returned to the Common Law Division for determination by a Judge of that Division;

5. Order that the costs of the summons and of the appeal be borne by the opponent/respondent but that the opponent/respondent have, in respect of the cost of the appeal, a certificate under the Suitors' Fund Act 1951; and

6. Order that the costs of the proceedings before Leslie AJ be costs in the proceedings so returned to the Common Law Division.

Kirby P These proceedings began as a summons for leave to appeal. the parties agreed that in the event that the Court were minded to grant leave, the Court should proceed to deal with the proceedings as on an appeal. The Court has before it all matters relevant for it to take that course if it should so decide.

AN INJURED WORKER'S CLAIM IS BELATEDLY REFORMULATED

The proceedings arise out of an injury which the opponent, Ms Marilyn Cook, alleges that she suffered in the course of her employment with the Federal Attorney-General's Department. In 1988 she issued a statement of claim by which she alleged that her injury arose out of the negligence of the Commonwealth. In her statement of claim she particularised that negligence in para5. The particulars were as follows:

5(i) Requiring the plaintiff to perform rapid, repetitive and forceful work.

(ii) Failing to take any or adequate precautions for the safety of the plaintiff.

(iii) Failing to provide the plaintiff with a system of work which allowed her to rest her hands and forearms.

(iv) Requiring the plaintiff to work in a desk which was not designed or adequately designed to prevent stress and strain on the plaintiff.

(v) Requiring the plaintiff to operate equipment which placed excessive stress and strain on her forearms.

(vi) Failing to warn the plaintiff that by engaging in rapid, repetitive and forceful use of her arms she was liable to sustain injury.

(vii) Failure to provide the plaintiff with secretarial assistance."

The statement of claim was not served until 1990. When it was served, the Australian Government Solicitor, acting for ie Commonwealth, sought additional particulars of the opponent's allegations of negligence.

By letter of 8 October 1990, the solicitor for the opponent gave additional particulars in a letter to the Australian Government Solicitor. The following particulars were given in answer to the questions just stated:

"10(1) Nature of conditions of employment. First symptoms experience in 1984. Motor vehicle accident on the way to work on 19 June 1986.

I pause to say that, at that stage of the pleading and particularisation of the claim, it would have been reasonable for the Commonwealth to have assumed that the case which was being brought for the opponent was a case of negligence arising out of the nature and conditions of the opponent's work.

The matter then seems to have proceeded at a fairly languid pace. Perhaps that is more a feature of the jury list in this Court than of any lack of diligence on the part of the parties. Be that as it may, on 9 March 1994 the solicitor for the opponent wrote to the Australian Government Solicitor, giving certain further particulars of what the opponent would be alleging at the trial:

"Tn early April 1984 the plaintiff will allege that when lifting the IBM golf ball typewriter she experienced an acute pain in her neck. That was the first occasion on which she experienced any problem with her neck. The plaintiff will allege that she in fact on that occasion suffered an injury.

We give you notice that we will be amending our statement of claim to allege the injuries suffered early in April 1984, and we will present the document to you in the next few days."

This statement was reiterated in a further letter of 6 April 1994 in which the solicitors for the opponent stated that they proposed to seek leave to amend the statement of claim at the hearing of this matter. They stated:

"These amendments would not require you to amend your grounds of defence."

By letter of 19 April 1994, the Australian Government Solicitor responded to these intimations with the following statements:

"You refer to proposed amendments to the statement of claim by way of further particulars of negligence and by way of a further allegation regarding a discrete injury suffered in early April 1984.

Please be advised that the defendant will not consent to either the proposed amendment to the particulars nor to the proposed amendment to include the further incident. In any event the further incident has long been statute barred."

At about this time, that is to say after 19 April 1994, and as the Court has been informed, during May 1994, the solicitors for the opponent served on the Australian Government Solicitor a report from Dr Neil Adams. This was described as an "analytic product and legal liability evaluation". The report has been placed before the Court. Although the Court has not, in the nature of the present application, had time to examine the report at any length, it would appear that it refers to the incident involving the IBM golf ball typewriter in April 1984 alleged in the letter of 9 March 1994. It is said that this report effectively put the Commonwealth on notice of the possibility, at least, that the opponent would be seeking, at the trial, to pursue the claim of negligence in relation to the incident of April 1984.

However, on 26 August 1994, as the matter was approaching the call-over for the fixing of the hearing, the solicitors for the opponent wrote to the Australian Government Solicitor in these terms, relevantly:

"We didn't press on to amend the statement of claim because we are comfortable that the injury suffered by our client has been pleaded."

In September 1994 the matter was duly called over. The date for the hearing of the trial was fixed as Monday, 7 November 1994. The proceedings were listed to be heard before a jury pursuant to a requisition which the Commonwealth earlier filed, requiring that the matter should proceed for jury trial. The Commonwealth's right to have that mode of trial was not contested. See Supreme Court Act 1970, s86(1).

THE PRIMARY JUDGE DISPENSES WITH A JURY OVER OBJECTION

On 8 November 1994 the matter was duly listed before Leslie AJ. A jury were in waiting. However, at the outset of the proceedings events occurred which now bring the matter before this Court. The claimant sought an adjournment of the proceedings to a later date to permit it to investigate fresh matters, being the matters referred to in the report of Dr Adams. The opponent sought leave to file an amended statement of claim. That amended statement of claim has been handed to the Court. It is clear that the opponent now intends to seek, at the trial, to rely upon the frank injury in April 1984. Senior counsel for the opponent made

this plain to this Court. He recognised, as he was obliged to do, the difference between a claim concerning work conditions only and a case relying on a frank injury occurring in a specific incident.

Leslie AJ therefore had a considerable problem. A jury of four persons was empanelled. His Honour proceeded to determine what should be done in the circumstances of the applications. He decided that the appropriate course to adopt was to permit the matter to proceed to a hearing at a later date, but to proceed without a jury. He said that "in the exercise of the Court's discretion" he would order that the facts be tried without a jury and that the trial be stood over, apparently part heard before himself, to be heard on 28 November 1994 when he would be sitting alone.

In the course of giving his reasons Leslie AJ said:

"By requisition, the Commonwealth has required a trial by jury. The Commonwealth has declined to explain its choice of forum, which appears to be inconsistent with its public Acts relating to the conduct of civil claims, particularly those relating to personal injury in the service of the Commonwealth.

The worker claims that this form of trial is oppressive to a litigant of her comparatively modest forensic capacity. It further appears that a prolonged examination of documents and a scientific investigation are both required and cannot conveniently be made with a jury."

COMPLAINTS ABOUT THE REASONS GIVEN FOR THE PRIMARY JUDGE'S ORDER

On the summons for leave to appeal to this Court the Commonwealth complained that the discretion of the learned judge had miscarried because he took into account five irrelevant considerations. Thus it was said that it was irrelevant for his Honour to refer to the allegedly inconsistent public Acts of the Commonwealth. It was conceded for the opponent that this was indeed irrelevant. However, it was said that it was merely a passing statement and did not significantly affect his Honour's discretion. I would be prepared to regard it as such.

Then it was said that it was irrelevant to refer to the "forensic capacity" of the opponent. I take. this to be referring to nothing more than the modest economic means of the opponent, and the inconvenience which an adjournment and delay of the trial would occasion her. I do not regard this as an irrelevant matter for his Honour to take into account in the circumstances then facing him.

It was then said that the reference to the prolonged examination of documents was not proved by the evidence which was before his Honour. His Honour did have the report of Dr Adams. It does contain some scientific material. The Court was informed that Leslie AJ was told that there were large files of documents held by the opponent, said to be four volumes of materials, which were retained by the opponent over the very long period that this matter was awaiting trial.

The existence in the case of documents and the prospect of their detailed examination is a matter which may properly be taken into account in determining whether a matter is unsuitable for jury trial and whether, in those circumstances, the jury should, in effect, be dispensed with so that the trial may proceed without a jury. I would not regard that consideration as an irrelevant one. Nor do I think that strict proof of the documentation that would go before the jury was necessary in a discretionary procedural application of the kind that was before Leslie AJ.

Next, it was said that it was irrelevant for his Honour to have considered the fact that scientific examination would be required which could not conveniently be made with a jury. The "scientific examination" referred to was the

examination of ergonomic evidence supplemented by medical examinations. I would not myself have thought that to be a reason for dispensing with the jury and requiring that the matter be tried without a jury. Juries, both civil and criminal in this State, must frequently take into their consideration detailed and sometimes quite complex scientific data. Such is the nature of decision-making in any modern society. However, there is no doubt that there was material before Leslie AJ which would have permitted him properly to conclude that it would be more convenient for the matter to proceed without a jury in this particular case.

A PARTY ENTITLED TO JURY TRIAL IS NOT OBLIGED TO EXPLAIN ITS CHOICE

I would therefore not regard any of the foregoing complaints as reasons to warrant the interference of this Court.

The nub of the application however, is to be found in his Honour's reference to the failure of the Commonwealth to explain its choice of forum. I remind myself that was his Honour said was:

"The Commonwealth has declined to explain its choice of forum."

With every respect to his Honour, it appears that his Honour has here taken into account an irrelevant matter. The Commonwealth was entitled to requisition a jury. That is an entitlement which is afforded to it by the law of this State. Such a right has been afforded in a case such as the present, by Parliament, although it has been known for a long time that jury trial has elements of delay and expense and other possible or perceived disadvantages for particular litigants.

This Court in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (CA) explained the principles that are to be applied in considering an application that a matter should proceed without a jury. Properly, there must be considerations peculiar to that mode of trial in the particular case. They may not be considerations which, in effect, challenge or reject the very mode of jury trial which Parliament has sanctioned and, in the residual cases, afforded as a privilege to litigants in this State. See ibid 403.

With respect to his Honour, it does appear that, when referring to the fact that the Commonwealth had declined to explain its choice of forum, he effectively reversed the onus which rested upon the person who sought (a jury having been requisitioned), that the matter should proceed without a jury. I do not regard the reference to this consideration as irrelevant to the exercise of his Honour's discretion. On the contrary, it was the first of the reasons which his Honour advanced for coming to the conclusion which he did.

It was said for the opponent that the Commonwealth itself was in default. Certainly, the Commonwealth had a general notification from the solicitors for the opponent of the possible change in the structure of the opponent's case. But it was entitled, having regard to the earlier withdrawal by the solicitors of their application, to assume that the opponent would rely only on the complaint as formally pleaded and particularised.

Then it was said that the adjournment which would be occasioned by the delay which would be necessitated to permit the Commonwealth to investigate the frank injury case would, unless the jury were dispensed with, occasion serious injustice to the opponent which Leslie AJ was simply striving to avoid.

The Court can take notice of the fact that, unless the matter were to proceed before a Judge sitting alone, it would be unlikely that the opponent's trial would come before the Court until well into 1995. This inconvenience to the opponent is certainly a matter proper to be taken into account in determining, in the end, what should be done. But it was important, as it seems to me, that his Honour

should keep separate the consideration of what should be done in the circumstances on the opponent's application to amend the statement of claim and particulars, and the application to proceed without a jury. In referring to the failure of the Commonwealth to justify its choice of "forum", as it was put ("mode of trial" as it should more accurately have been stated) his Honour took into account a consideration which I consider to be legally irrelevant and, with respect, wrong.

CONCLUSION: THE DISCRETION MISCARRIED - JURY RESTORED

The issue which is then presented is whether this Court should say that excising the consideration which was irrelevant, the same result would in any case be arrived at. This Court has said many times that it sits not to review the reasons of judges as such, but their orders. I have given consideration to whether I would feel able to determine the application to dispense with the jury. However, I do not consider that this is a matter that should detain this Court. It appears to me that this is a matter that should be properly considered in the Division with the element which was irrelevant excised from the consideration of the primary judge in resolving the two applications made.

The result is that it is my opinion that the following orders should be made:

3. Set aside the order of Leslie AJ dispensing with the jury in the trial between Marilyn Gay Cook and the Commonwealth of Australia;

4. Order that any application to order that the proceedings be heard without a jury be returned to the Common Law Division for determination by a Judge of that Division;

5. Order that the costs of the summons and of the appeal be borne by the opponent/respondent but that the opponent/respondent have, in respect of the cost of the appeal, a certificate under the Suitors' Fund Act 1951; and

6. Order that the costs of the proceedings before Leslie AJ be costs in the proceedings so returned to the Common Law Division.

Meagher JA I regret that I disagree with the learned President. I would dismiss the summons with costs. I appreciate that Mr Acting Justice Leslie made a reference to the claimant failing to explain why it had requisitioned a jury, and he should not have done so. Nonetheless, if one excises that consideration from his reasons it seems to me one must come to the same result as his Honour did.

His Honour regarded it as vital, as do I, to preserve the plaintiffs right to an early hearing, a right which the defendant's negligence has put in jeopardy. For those reasons I would disagree with his Honour the President's ruling.

Sheller JA I agree with the reasons given by the President and with the ordershe proposed.

Kirby P: The orders of the Court are accordingly, by majority, as I have provided.

3. Set aside the order of Leslie AJ dispensing with the jury in the trial between Marilyn Gay Cook and the Commonwealth of Australia;

4. Order that any application to order that the proceedings be heard without a jury be returned to the Common Law Division for determination by a Judge of that Division;

URJ COMMONWEALTH OF AUSTRALIA v COOK (Sheller JA) 7

5. Order that the costs of the summons and of the appeal be borne by the opponent/respondent but that the opponent/respondent have, in respect of the cost of the appeal, a certificate under the Suitors' Fund Act 1951; and 5 6. Order that the costs of the proceedings before Leslie AJ be costs in the proceedings so returned to the Common Law Division.

Counsel for Claimant/Appellant: CC Branson QC/RB Wilson

Counsel for Opponent/Respondent: CE O'Connor QC/T Gotterson Instructed by: Dunhill Madden Butler