DUBBO STOCK & STATION AGENTS PTY LTD v LAWS

LOWER COURT District Court JURISDICTION : LOWER COURT 56343/02 FILE NUMBER(S) : LOWER COURT McLoughlin DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40467/04 DC 6343/02

SHELLER JA GILES JA McCOLL JA

Tuesday, 21 September 2004 DUBBO STOCK & STATION AGENTS PTY LTD v LAWS Judgment 1 SHELLER JA: On Tuesday, 18 May 2004 the matter of Laws v Dubbo Stock & Station Agents Pty Ltd was called on for hearing in the District Court in Sydney before Judge McLoughlin and a jury. The plaintiff, Robert James Laws, sued the defendant, Dubbo Stock & Station Agents Pty Ltd, to recover damages for injury said to have been suffered by the plaintiff at work on 12 February 2001. The statement of claim was filed in the District Court on 21 November 2001. 2 The trial Judge asked how long the matter was going to take and was told "about six days". The trial Judge observed that it had been listed for three days and that he was only available until Friday, as he had a criminal matter commencing on that day. Counsel agreed that it was at best unlikely that the trial would be finished in three days. Asked by the trial Judge if he was prepared to dispense with the jury, Mr Letherbarrow SC, who appeared for the plaintiff, said that he was but Mr Neil QC, who appeared for the defendant, said that his instructions were not to dispense with the jury. He would take some further instructions but doubted whether the matter, even then, would be finished in three days. Later the Judge was told that the defendant wished to maintain the jury. 3 The trial Judge asked if the matter would take six or seven days and was told by Mr Letherbarrow that he did not believe it would take as long as that. Mr Letherbarrow indicated that an application might be made on behalf of his client to dispense with the jury. A little later the trial Judge said: "That's the difficulty, gentlemen. The court has put three days aside in compliance with the request of the parties. As a jury matter, how long would it take?" Mr Neil said: "I think the estimate given earlier, of something in the order of six or so days, is reasonable, and I don't think we'd save a huge amount with a judge." Mr Letherbarrow estimated it would finish within five days reasonably comfortably. Mr Neil said five to seven days. The parties were informed there was no judge available to hear the matter as a jury matter that day. Mr Letherbarrow told the trial Judge that there was reason for urgency namely, that the plaintiff was in need of bi-lateral hip replacements said to be a direct result of the workplace accident. For two and a half years the plaintiff had received no compensation and he had broken up with his wife who had been supporting him. 4 The application to dispense with the jury came on for hearing on Wednesday, 19 May 2004. At this time, Mr Letherbarrow pointed out, what had not previously been noticed, that the requisition for trial with a jury, which the defendant had forwarded to the court on 26 February 2002 and the filing fee for which had been received by the registrar on 4 March 2002, was not served on the plaintiff's solicitor until 19 July 2002, one day out of time; see Pt 12 r 5 of the District Court Rules as then in force. The defendant did not suggest otherwise. The plaintiff pressed its motion to dispense with the jury and the question of costs was argued. The submissions to Judge McLoughlin are important because they indicate the time counsel thought would be required for the hearing with a jury and without a jury. 5 In the course of argument, it was acknowledged that both parties had been responsible for giving incorrect information to the court to the effect that the trial with a jury would conclude in three days. In the course of argument, the Judge said: "Why shouldn't the matter go to Dubbo? I mean, it will get on much faster there." His Honour said: "I may adjourn briefly and I'll just make some inquiries from the appropriate registrar as to the availability of Dubbo with or without a jury. " This interchange followed: "NEIL: Yes, they're imminently [scil eminently] for a jury. HIS HONOUR: There are a number of judges who can decide those matters. NEIL: True, your Honour, true, but [that] brings us back to the old conundrum; what's the difference in jury and non jury? Its peers; a trial of peers. HIS HONOUR: In a case like this I would have thought about four days." 6 His Honour took a short adjournment. When he returned the transcript records: "NEIL: Your Honour, here's the document - I've put without prejudice, if your Honour doesn't mind. HIS HONOUR: Certainly. The end result would be with expedition in this court as a long matter of jury callover or non-jury callover would put you into June callover which would give you a date about the middle of next year. The normal course would be September callover which would give you a date towards the end of next year. Dubbo we can get you in in October this year. LETHERBARROW: With some priority, your Honour, or just one at the back of the list? HIS HONOUR: Whatever priority that could arrange. The Dubbo District Court is in fact sitting this week, but there are 20 matters there and we won't disturb Judge English's list. NEIL: I'll leave this to the plaintiff, your Honour, because I know there are difficulties with lists and so on, but we will not stand in the way of either approach. HIS HONOUR: My prima facie view is because of the conduct of the parties, Mr Neil, is to send it to Dubbo without a jury. I think that's more likely to get on. I'll give reasons if required. If there hadn't been a wrong allocation of time given I would not have been quite so -- NEIL: Your Honour, I understand what your Honour is saying. I would ask for reasons because I might be -- HIS HONOUR: Certainly, Judge O'Connor is the trial judge in October, at this point in time, in Dubbo. NEIL: Does your Honour know the dates in October by any chance? HIS HONOUR: Commencing 11 October for three weeks. So I think there's much likely of it [scil much more likelihood of its] being accommodated as a non-jury matter than it would be as a jury matter because I would think a jury matter would add four to five days to the six days. LETHERBARROW: Your Honour, from the plaintiff's perspective if it were to go to Dubbo under those circumstances as a non-jury matter, we would agree with that course." 7 Various arguments were advanced for and against dispensing with the jury and his Honour gave judgment. At the beginning of his reasons, his Honour said: "Before a jury was empanelled it was indicated that the matter would not take the three days as was indicated at callover by both parties, but with a jury probably seven days." 8 The trial Judge set out the history of the matter and said of the late service of the requisition: "That puts it one day outside the rule of [sic] requirement. Of this of itself is a minutiae of detail and in normal circumstances would bring with it the court's indulgence to waive any failure to so comply. This matter brings to the fore, the difficulties in the future court management of it. It if had have been indicated at callover on 03/02/04 when the hearing date of 18 May was allocated that the matter would take six or seven days, the matter would have been then put into a long matters callover. There have been from 3 February to now at least one if not two dates for long matters callovers. Long matters are matters of five days or more. If the registrar had have [sic] been alerted to the fact this was a long matter and the matters of urgency now referred to, it could have been included in the March callover and allocated a hearing date towards the end of this year instead of 18 May."

His Honour continued: "In the court only having now been told of the significant change in estimated length of trial, matters of serious concern are the future management of the matter. The next callover in this court, which is full, for long matters is 21 June. With orders of expedition it could be included in that callover, but it would be expected it would not be allocated a hearing date as a long matter until May-June 2005. If expedition were not ordered, the matter would be in a September 2004 callover which would allocate a hearing date about 12 months thereafter. Most of the witnesses in this matter would appear to live in and around Dubbo. The plaintiff's cause of action arises that he was employed by the defendant within the Dubbo saleyards. From Mr Letherbarrow SC for the plaintiff's indication and address, the accident occurred when the plaintiff was required to take stock from one yard to another, after a gate had been opened to allow the stock to move freely between yards. The gate was then closed without warning by a co-worker of the plaintiff - that is, a fellow employee of the defendant - causing the stock to turn and move quickly back towards the plaintiff, whereby he attempting to extricate himself from their path, twisted and fell and suffered the injuries complained of. There are further difficulties that arise in the question of causation as has been indicated by Mr Letherbarrow in his address; that is, that the plaintiff has injuries to two hips. The question as to whether the back injury or this incident caused injury to the two hips, whether there are degenerative processes in play or whether a fight in which the plaintiff was involved at a subsequent time have caused and/or contributed to the plaintiff's current hip condition are matters for determination. A number of the medical practitioners are in the Dubbo area, although the defendant has indicated it would call a number of doctors from Sydney, principally those doctors who would appear to have significant medico-legal practices. If the matter were transferred to Dubbo, the District Court will next sit in Dubbo on 11 October 2004 where three weeks have been allocated for matters to be determined in that court. It would be expected that this matter, with some priority, would be determined by the trial judge within that period without a jury. It is not certain that with a jury that the same result would be achieved. In my view, the issues of this matter, when I accept what senior counsel for both parties say that a non-jury matter would be six days, I would expect that as a jury matter it would to 10 or 11 days." 9 It is not clear on what basis the trial Judge estimated a jury trial of ten or eleven days. The estimates from counsel were of six or seven days for a jury trial. 10 A little later his Honour continued: "One of the matters at issue is the plaintiff claims that he needs now two hip replacements urgently. Further, that he had received support of his wife financially, emotionally and physically until a recent time when he and his wife have parted. He is now, it is said in the affidavit, in fairly desperate circumstances and needs the matter to be disposed of expeditiously; or findings made as to whether he has the entitlements which he claims as quickly as possible." 11 The trial Judge cited Combined Excavations and Supplies v Bowis [2000] NSWCA 298 and in particular from the judgments of Spigelman CJ and Davies AJA, who formed the majority. Heydon JA dissented. His Honour cited the following passage from the judgment of Davies AJA, who said: "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 s79A 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 is appropriate".

The trial Judge continued: "In my view this is such an appropriate case; not necessarily for the matters advanced by Mr Letherbarrow SC for the plaintiff. I find a jury properly instructed would be well able to determine the application of the Workers Compensation Act , sections 151G and 151H and 151Z of that legislation. I would also expect a jury properly instructed could deal with the difficulties of causation that may arise in this case. The real difficulty that I see arises because of the conduct of both parties, is the question of the future case management and the need for this matter to be disposed of as expeditiously as it can. For those reasons, I am of the view that in normal circumstances if that which had occurred had not occurred, I would accede to the defendant's motion. For the proper expeditious disposal of this matter, my view is the jury should be dispensed with and the defendant's motion refused."

The defendant's motion was to extend the time for service of the jury requisition. 12 His Honour went on to express the view that the venue should be changed to Dubbo and the matter set down for hearing in the Dubbo District Court sittings commencing on 11 October 2004. He directed the matter have expedition and requested the Registrar to give the matter as much expedition as he could. 13 The principal question for determination on this application by the defendant/claimant for leave to appeal is whether Judge McLoughlin erred in the exercise of his discretion when dispensing with the jury. It was agreed if leave were granted that the appeal should be heard concurrently. The authority most relied on for explaining how that discretion should be exercised is Pambula District Hospital v Herriman (1988) 14 NSWLR 387. In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 the minority, Kirby and Callinan JJ, said at 504 [72]: "The simple propositions for which Pambula stands are that, under the Act, a plaintiff who has lawfully requisitioned a jury does not have to justify retention of the jury; that the state of the court's list does not, as such, authorise depriving a party entitled to a jury of that right; and that to sustain a discretionary order dispensing with the jury something more than the general features of the jury trial (implicit in the statutory retention of that mode of trial) must be shown. A party applying for such an order must demonstrate grounds in addition to 'considerations of a universal character relevant to jury trials as such' ( Pambula at 407). As Samuels JA expressed it, 'singular circumstances' and '[s]pecific difficulties' must be shown which, in the particular case, make it appropriate to proceed in a non-jury trial and thus to dispense with the jury (at 413)." 14 The majority in Gerlach, Gaudron, McHugh and Hayne JJ, merely remarked at 486 [14]: "It is, therefore, unnecessary to consider whether what are said to be the principles established by the Court of Appeal's decision in Pambula District Hospital v Herriman are consistent with the many decisions of this Court that deal with the construction of provisions in the form of s79A of the District Court Act ." 15 Judge McLoughlin carefully weighed up what he considered had to be taken into account in determining the application to dispense with the jury. He referred to s79A of the District Court Act 1973 which had been omitted from the Act as from 18 January 2002 by the Courts Legislation Amendment (Civil Juries) Act 2001 (Act No 124 of 2001), a matter to which I shall return. He was not persuaded that the nature of the case itself requiring the application of sections in the Workers Compensation Act 1987 or difficulties of causation, were such that a jury properly instructed could not deal with them. The decisive matters were what he described as "the question of the future case management and the need for this matter to be disposed of as expeditiously as it can". 16 I do not think the reference to future case management concerned the court's general management of its caseload. It referred to what was to be done with a particular case, given the need for it to be disposed of expeditiously because of the plaintiff's circumstances earlier described. These were matters specific to the case. In part, they flowed from the failure of the parties to give to the court at an early stage an accurate estimate of the length of hearing. 17 I have no difficulty, particularly in light of what was said by Davies AJA in Combined Excavations in the passage quoted by the trial Judge, in concluding that in this case there was a sufficient specific reason to exercise the discretion to dispense with the jury. However, one matter remained unclear in relation to both future case management and expedition. The trial Judge seemed to have proceeded by accepting "what senior counsel for both parties say, that a non-jury would be 6 days," and his own expectation that "as a jury matter it would be 10 or 11 days". As I have said, on the material before us, the estimates for a jury trial were six to seven days. It is hard to see on what basis his Honour expected it to be so much longer. Senior counsel for the defendant seriously doubted whether with or without a jury the trial would finish in three days and said "I think the estimate given earlier, of something, in the order of 6 or so days, is reasonable, and I don't think we'd save a huge amount with a judge". 18 Further, Judge McLoughlin said that in the three weeks allocated for the Dubbo sittings on 11 October 2004 it would be expected that the matter with some priority would be determined by the trial judge within that period without a jury. It was not certain that with a jury the same result would be achieved. That seemed to be based upon his acceptance that as a non-jury matter the trial would take six days and as a jury matter ten or eleven days. The ten or eleven days did not accord with counsels' estimates. 19 At the end of the oral submissions in this Court on 3 September 2004, Mr Neil suggested that a letter be obtained from the Registrar of the District Court at Dubbo about the listings for the civil sittings commencing in that Court on 11 October 2004. The Court said it would find this helpful and Mr Neil was given until 4 pm on Monday, 6 September 2004 to obtain this information. 20 On 6 September 2004 there was produced by the defendant/claimant a copy of a facsimile sent to the Registrar of the Dubbo District Court asking for confirmation of the following: "a. On 11 October 2004, a Civil sittings commences in Dubbo for 3 weeks. b. At present no Jury has been summonsed. c. A Jury Panel can be made available provided you have notice in writing by facsimile. d. Please also advise as to the amount of time required for notices to prospective Jurors." 21 The response from the Registrar was as follows: "a. Yes. b. No. c. The Sheriff's Office at Dubbo (Inspector G Smith) has advised that a Jury can be called if the requisition is received 2 weeks out from the sittings (and in respect of the sittings of 11 October, 2004 by Friday, 24 September, 2004 to Team Leader, Jury Services Ph: (02) 9209 8209, Fax: (02) 9287 7260). d. As per above, 2 weeks out from the sittings." 22 Also on 6 September 2004 there were sent to the Court what were described as "Additional Opponent's Submissions". These referred to the terms of ss78 and 79 of the District Court Act which, like s79A had been omitted, as from 18 January 2002 by Act No 124 of 2001. The plaintiff/opponent submitted that the defendant/claimant had not been entitled to requisition a jury at all. All three sections were found in subdivision 8 of Division 3 of Pt 3 of the District Court Act. Act No 124 of 2001 inserted into Schedule 3 of the District Court Act "Savings and transitional provisions consequent on amendments to this Act", after Part 4, "Part 5 Provision consequent on enactment of Courts Legislation Amendment (Civil Juries) Act 2001" as follows: "8 Application of amendments A provision of subdivision 8 of Division 3 of Part 3, as in force immediately before its amendment by the Courts Legislation Amendment (Civil Juries) Act 2001, continues to apply in relation to actions commenced but not finally determined before the commencement of that amendment as if the provision had not been amended." 23 Before its omission, s78 (1) of the District Court Act provided that in any action (other than an action to which s79 applied) where the amount claimed exceeded $5,000, any party might, within the prescribed time by filing a requisition for trial with a jury and paying the fee prescribed by the regulation made under s150 require that a jury be summoned to try the action, and that a jury should be so summoned. Section 79(1) provided that in any action to which that section applied, the Court might on the application of any party make an order that the action be tried with a jury. Until the Workers Compensation Legislation Further Amendment Act 2001 (Act No. 94 of 2001) came into force, s79(2) provided that subject to ss(4), s79 applied to any action in which, in summary and relevantly, the claim involved the use of a motor vehicle. Section 79(4) then provided: "This section does not apply to an action for damages in respect of the death of or bodily injury to any person where the action is based upon an act, neglect or default of the defendant for which, if proved, the defendant would, as the employer of that person and not otherwise, incur liability to the plaintiff."

Thus, with s79 in that form, s78(1) applied to these proceedings because the action was one described by s79(4) and was not, to use the heading of s79, a motor accident case, to which s79 applied. 24 Act No 94 of 2001 was assented to on 6 December 2001 and came into operation on 1 January 2002. Schedule 1 "Amendments relating to common law damages" 1.3 "District Court Act 1973 No 9" of Act No 94 of 2001 amended the District Court Act by inserting in s4(1) a definition of "work injury damages claim" as meaning "a claim for an award of damages to which Division 3 (Modified common law damages) of Part 5 of the Workers Compensation Act 1987 applies". Schedule 1 1.3 went on to amend s79 of the District Court Act, first, by inserting at the end of s79(2)(a): "(a1) Damages are claimed under a work injury damages claim"

and, secondly, by omitting s79(4). 25 The effect of this was that s79 applied and hence s78 did not apply to any action in which damages were claimed under a work injury damages claim. Thus, if at any time these amendments applied to these proceedings, s78 did not. 26 However, submissions filed on behalf of the defendant/claimant on 9 September 2004, referred to amendments to the Workers Compensation Act designed to save actions commenced before the amendments made by Schedule 1 of Act No 94 of 2001 from their operation. 27 Schedule 4 of Act No 94 of 2001 was headed: " Amendments relating to savings and transitional matters Workers Compensation Act 1987 No 70 … [6] Schedule 6 Part 18 clause 3 (4) Omit the heading to the Part. Insert instead: Part 18C Provisions consequent on enactment of 2001 amending Acts"

A new clause 9 was inserted headed "Amendments relating to common law damages" which included sub-clause (1) as follows: "(1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment." 28 The plaintiff/opponent submitted in writing that the amendments made by Act No 94 of 2001, 1.3, being amendments to the District Court Act, were not the subject of the transitional provisions which related only to provisions of the Workers Compensation Act. I do not agree. 29 The amendment to the District Court Act was by Schedule 1 of Act No 94 of 2001. That amendment does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment. 30 I am satisfied that this belated investigation of the legislation leaves quite clear the position which was understood, though not expressed by the Judge, that ss78, 79 and 79A applied in a way which permitted the defendant to requisition for a trial by jury under s78. 31 The material before us suggests that the trial might conveniently have gone forward as a jury trial at the Dubbo sittings in October. The material before Judge McLoughlin did not support the view that a jury trial would take as long as his Honour expected. Thus, his Honour in considering the specific need for expedition as a basis for dispensing with a jury did so on a factual premise which was not in accord with counsels' estimates and to which counsel had not had the opportunity to respond. I think leave to appeal should be granted, and the appeal allowed. In the circumstances, his Honour's order dispensing with the jury should be discharged. 32 Like Judge McLoughlin, I agree that the late service of the requisition on the plaintiff's solicitor should not stand in the way of the trial proceeding by jury and accordingly the time for service should be extended up to and including the date of service on the plaintiff's solicitor. The proceedings have been remitted for hearing at the Dubbo sittings. It will, of course, be a matter for the judge in charge of those sittings, assuming that the Sheriff's Office at Dubbo receives the jury requisition within time for a jury to be summonsed, to determine how the matter should proceed and consider any further application for dispensing with a jury. The costs of the application for leave to appeal and the appeal should be paid by the plaintiff/opponent, who should have a certificate under the Suitors' Fund Act 1951.

Orders 33 I propose the following orders: 1. Grant leave to appeal; 2. Appeal allowed; 3. Set aside the order of Judge McLoughlin of 19 May 2004 dispensing with the jury and refusing the defendant/claimant's application for an extension of time within which to serve on the plaintiff/opponent's solicitor the notice of requisition; 4. Extend the time for the defendant/claimant to serve the notice of requisition on the plaintiff/opponent's solicitor up to and including the date of such service; 5. The plaintiff/opponent to pay the defendant/claimant's costs of the application for leave to appeal and of the appeal and to have a certificate under the Suitors' Fund Act 1951. 34 GILES JA: I agree with Sheller JA. 35 McCOLL JA: I agree with Sheller JA.

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