Deka v Johns [2009] VSC 296

2 The relevant facts of the case can be summarised as follows:

(a) The plaintiff sustained injury in a motor vehicle accident on 2 May 2006.

(b) On 11 August 2008, the plaintiff issued a writ in the major torts list seeking trial by judge alone at Melbourne.

(c) On 18 September 2008, the defendant filed a defence notwithstanding that she had not filed an appearance to the proceeding.

(d) On 12 September 2008, Kaye J made orders in the major torts list as to the future conduct of the proceeding.

(e) The interlocutory steps were completed and, of note, a mediation was held on 28 April 2009.

(f) The defendant, having appreciated that she had filed neither an appearance nor a notice requiring trial by jury, on 5 May 2009 took both those steps.

3 The defendant now contends: firstly, that she has complied with the rules and that the jury notice given on 5 May is valid compliant with r 47.02(1), the appearance having been entered in accordance with r 8.07. Secondly, that alternatively, if she does not persuade me as to the validity of that contention that there is an overriding discretion reposed in the Court, to order trial by jury pursuant to r 47.02(2).

4 The plaintiff opposes the application, and says that it is far too late for the defendant to seek a jury trial given that this matter has been to a mediation, and will be placed in the list of cases to be fixed by the Associate Justice this afternoon for trial. Secondly, that reliance on r 8.07 produces a bizarre outcome inconsistent with the tenor of r 47.02(1).

5 It was accepted by the plaintiff that, notwithstanding the absence of any affidavit material, the failure by the defendant to file the jury notice and the appearance was an oversight on the part of the defendant's solicitors.

6 I summarise the principles relevant to this application as follows:

(a) Subject to compliance with the procedures laid down by the rules of Court, a party is entitled to seek trial by either jury or judge alone as provided by r 47.02.

(b) For the right to a trial by jury to be enlivened, it is necessary for the party seeking a trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b). Otherwise the trial will be, as the rule provides, before a judge sitting alone (absent an order of Court to the contrary).

(c) Where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial unless the Court is persuaded to dispense with the jury. Notwithstanding the right of the parties to seek trial by either judge sitting alone or by jury, there resides in a Court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties.[1]

(d) A Court may, at any stage of a proceeding, direct a trial with or without a jury if it is satisfied that it should do so.[2]

(e) The onus in persuading a Court to dispense with the mode of trial determined by the operation of the rules rests upon the party making that application. A Court will not lightly make such an order given the right of the other party to seek a particular mode of trial (be it by judge alone or by jury). There must be a special reason to persuade a Court to dispense with the mode of trial sought by a party who has properly invoked the rules of the Court.

7 Bearing those principles in mind, I turn to the two submissions made on behalf of the defendant. Firstly, in relation to her reliance upon r 47.02(1) in juxtaposition with r 8.07; which deals with "late appearance":

"(1) A defendant may file an appearance at any time, but after judgment an appearance shall not be filed without the leave of the Court.

(2) A defendant who files an appearance after the time for appearance stated in the writ or originating motion shall, unless the Court otherwise orders, have the same time for serving a defence or for any other purpose as if the defendant had filed an appearance on the last day so stated."

8 Whilst I accept that on a literal reading of r 8.07 and the application of r 47.02, the defendant may in theory be entitled to give the jury notice in the form it has, it produces, in my view, a totally unsatisfactory and, indeed, bizarre result. If the argument be correct, a party who has overlooked filing an appearance could at any time prior to the hearing, indeed during the course of the trial, given the terms of r 8.07, file an appearance and give a jury notice purportedly in accordance with r 47.02.

9 The true purpose, in my view, of r 47.02 is to ensure that where a party files an appearance regularly in accordance with order 8 (as opposed to an extraordinarily late appearance under r 8.07) then that party is entitled to give notice that a jury is required in accordance with r 47.02.

10 This assumption, in my view, has the great attraction of commonsense, as it means that the parties then know at the commencement, or soon thereafter, of the proceeding, that the trial will be either before a judge sitting alone or a jury, and can then conduct their interlocutory steps and their preparation for the trial accordingly; including, importantly, negotiations between the parties.

11 I reject the defendant's argument that the notice was validly given. I do not believe, notwithstanding the terms of r 47.02 and r 8.08, that a notice can be given in the circumstances which pertain in this case. Even if I was persuaded that the rule, if so interpreted, should be applied, I would, for the reasons I shall set out in a moment, exercise my discretion and order trial by judge alone.

12 I turn to the second basis of the defendant's application, and that is that under r 47.02(2), I should exercise my discretion and permit a trial by a judge sitting with a jury of six.

13 The principles I have set out previously make it clear that once a party has chosen the mode of trial in accordance with the rules, then that mode of trial has been regularly invoked. There must be a special reason to disentitle, or deprive that party of the mode of trial it has chosen. This, it seems to me, is particularly so where a case has proceeded for nearly nine months without any suggestion that it be conducted in a different form.

14 In this case, I am conscious that not only have interlocutory steps been undertaken, but also that a mediation has taken place; all with the plaintiff having the understandable expectation that the trial will be heard by a judge alone.

15 I do not regard an "oversight" (not rectified for approximately eight months) as sufficient special reason to deprive the plaintiff of her right to trial in the mode that she has selected. I should record that I accept that it was an oversight, and I also accept that there was no strategic plan devised by the defendant in relation to this application. Notwithstanding those observations, it is the plaintiff's right to have the mode of trial that she has chosen, and the defendant having failed, in my view, to comply with the rules, has not demonstrated a special reason sufficient to satisfy me that the trial be by judge and jury of six.

[1] See Dunning v Altmann [1995] VicRp 41; [1995] 2 VR 1, 6, 17.

[2] See Pezzimenti v Seamer [1995] VicRp 42; [1995] 2 VR 32, 38, 40.