(The force of the word "require" is not to be overlooked.)
14 The relative recency of the enactment of the section means that there is, to date, little judicial guidance on its application. It has, however, been considered by Hall J in Muir v The Council of Trinity Grammar School [2005] NSWSC 555. That was a case in which a former schoolboy sued the administrators (the Council) of the school he had attended, alleging that while a student he had been repeatedly sexually assaulted by other students. The plaintiff's allegation against the Council was that it failed to discharge its duty to provide supervision and protection of students so as to prevent events of the kind the plaintiff alleged had occurred.
15 In that respect the claim there made had some parallels with the present case.
16 Hall J refused the application. In doing so, his Honour made a number of observations about the construction and application of s85(2)(b) which I have found helpful in my consideration of the same issues. In particular, his Honour held (I paraphrase and adapt) that the onus lies upon the applicant for trial by jury to establish that the interests of justice so require (a conclusion with which I respectfully agree); that the use of the word "require" demonstrates that the legislature intended to impose a more demanding test than, for example, the use of the word "favour" might have done, but that it does not impose a test of necessity or essentiality; that the inquiry by the court requires the identification of specific factors (that is, a substantial reason) that indicate that jury trial is warranted and justified in the interests of justice.
17 If I read his Honour's judgment correctly, at the heart of his approach to the section was the notion that the sort of circumstance that may call for (require) jury trial is a case that may involve consideration or determination or application of general community contemporary values, or "moral, ethical or general social values". The latter two phrases were drawn from a decision of Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd [2002] FCA 278, on an application in the Federal Court for transfer to this Court of proceedings that included (but were not limited to) a defamation claim, on the basis that a jury trial was more readily available in this Court. Tamberlin J rejected the application, saying that the case did not have features that mandated trial by jury, it not being 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."
18 A forceful argument was mounted on behalf of the present plaintiff to this effect. The plaintiff's claim involves the administration of a local amateur sporting competition. It involves the community at a fundamental neighbourhood level. Accordingly, it is appropriate for the community, through the jury process, to be engaged in the determination of the claim.
19 While I accept that the tests referred to by Tamberlin J and Hall J in the two judgments to which I have referred are relevant, and identify considerations relevant to the exercise of the s85(2) discretion, the test so stated is not an exhaustive one. The discretion conferred is stated in very general terms. There is nothing in the section which would permit the conclusion that it is only where "general community contemporary values" are involved, or which raise issues of "moral, ethical or general social values" that an order may be made. A more general test was mentioned by Hall J in the following terms:
"[The application of s85(2)(b)] … does involve an evaluation as to whether the proceedings raise questions that ought to be resolved by a jury employing the common sense and values of the average jury person."
20 I also approach the section on this basis. The legislature did not intend entirely to preclude jury trials in civil cases. If that had been its intention there would have been no call for the enactment of subs(2). The power conferred by subs(2) is a real one, with real content, intended to be used in appropriate cases. The availability of jury trial in appropriate circumstances is not illusory, and the power conferred upon the court is not to be interpreted as illusory. It would be erroneous to treat the section as though (whether by reason of the use of the word "require" or otherwise) there are no, or virtually no, circumstances in which an order would be appropriate. In other words, the section must be approached and construed on the basis that it was genuinely intended that there would arise some cases in which the presumption otherwise enacted by s85(1), for trial of civil proceedings without a jury, is to be overridden.
21 During the course of argument I pressed senior counsel for the fourth defendant (in whose argument counsel for the first defendant concurred) for an illustration of a case that, on the approach to the section that he proposed, might warrant an order under s85(2). Initially, he adverted to the facts pleaded in Muir, suggesting that, if the alleged perpetrators in the sexual assaults had also bee sued, then that would be such an instance. I disagree with this proposition. Had the alleged perpetrators been sued, the proceedings would have involved questions of fact, demonstrating no apparent reason why the now preferred mode of trial ought to be varied.
22 After having time to give more detailed consideration to the question, senior counsel suggested that cases of a kind concerning eligibility of a particular painting or artist to qualify as winner of an art prize such as the Archibald might be another. I pay tribute to his ingenuity, and that may well be a good example. Whether such a case would justify an order for a jury trial would, of course, depend upon the nature of the issues raised in the proceedings. But I do not believe that the circumstances in which a jury trial might be ordered are limited to cases of such an unusual nature.
23 The plaintiff's proceedings against the two defendants are, so far as I am aware, quite novel. They raise issues concerning the extent to which the administrators of local community clubs ought to be held liable for injury resulting from their management decisions. They raise questions concerning the standard of care demanded of administrators of such community facilities.
24 Contrary to my initial view, I have concluded that there is substance in the argument advanced on behalf of the plaintiff.
25 Senior counsel for the fourth defendant pointed to a number of circumstances which, he contended, militated against an order for jury trial. In doing so, he placed heavy reliance upon the construction of the section taken by Hall J in Muir. I have already made it plain that while I have no disagreement with that approach, I do not read it as laying down a single "community values" test. Further, senior counsel pointed to the complex legal issues which will be involved, resulting from the different legal regimes which will govern the plaintiff's cases against the two defendants; and from the issues of contributory negligence and volenti.
26 Juries have, however, long been accustomed to determining complex issues of fact and law. It is the task of the trial judge, with the assistance of counsel, to formulate the questions for determination in such a way as to make them comprehensible by a jury. I do not regard the potential complexities in this case as being of such moment as to dictate, or even support, refusal to make an order.
27 It is appropriate here to observe that I reject as not relevant one argument advanced on behalf of the plaintiff. This was that, while the defendants have expressed themselves as determined not to engage in settlement negotiations, the prospects of a trial by jury is likely to enhance settlement prospects. In my opinion, this, when properly analysed, merely seeks to make capital out of the unpredictability of a jury verdict, in such a way as to be potentially unfair to the defendants. I disregard it as a consideration.
28 A further argument put on behalf of the plaintiff also has little weight. This is that, the plaintiff's claim being somewhat novel and unusual, a result in his favour from a jury would command more public confidence than a similar verdict delivered by a judge. I have very real doubts that this is so. Should the plaintiff be successful in his claim against either or both of the defendants, there may or may not be public comment on or criticism of the verdict. But it is unlikely (as past experience shows) that a distinction would be made between a judge and a jury verdict. Further, a judge's decision would have to be supported by detailed reasons explaining the result, something which is available for examination and analysis by those outlets of the media or members of the public who saw fit to undertake that task. Such is not the case with a jury verdict.
29 As I have said, I have come to the view that, largely because the issues are novel, and involve an examination of the limits of liability of those who administer a quintessentially community activity, it is appropriate to make an order under s85(2). It is, therefore, also appropriate to grant the plaintiff the extension of time he requires. The orders I make are: