MAROUBRA RUGBY LEAGUE FOOTBALL CLUB INC v MALO & Anor

Court of Appeal (NSW)|2008-03-07|Before: Mason P, Ipp JA, Tobias JA, Simpson J

Reported Decision: 69 NSWLR 496 Appeal Outcome: Special leave application refused with costs by the High Court - 7 March 2008

CITATION: MAROUBRA RUGBY LEAGUE FOOTBALL CLUB INC v MALO & Anor [2007] NSWCA 39 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Mason P at 1; Ipp JA at 57; Tobias JA at 58

Interpretation Act 1987, s34 LEGISLATION CITED: Supreme Court Act 1970, s85 Uniform Civil Procedure Rule 29.1(6)

Cross v Theiss Pty Ltd [2006] NSWSC 1455 Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Leach v The Queen [2007] HCA 3 Malo v South Sydney District Junior Rugby Football League Ltd & Anor [2006] NSWSC 1133 McDermott v Collien (1953) 87 CLR 154 CASES CITED: Muir v Council of Trinity Grammar School [2005] NSWSC 555 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Samad v District Court of New South Wales (2002) 209 CLR 140 Shire of Swan Hill v Bradbury (1937) 56 CLR 746 Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR 41-866; [2002] FCA 278 Swain v Waverley Municipal Council (2005) 220 CLR 517 Wilson v Anderson (2002) 213 CLR 401

MAROUBRA RUGBY LEAGUE FOOTBALL CLUB INC PARTIES: Harry Malo South Sydney District Junior Rugby Football League Ltd

Appellant: L King SC/ D Priestley COUNSEL: 1st Respondent: H Marshall SC/ T Jones 2nd Respondent: R A Cavanagh

Appellant: Thompson Cooper Lawyers Pty Ltd SOLICITORS: 1st Respondent: Maurice Blackburn Cashman 2nd Respondent: Rily Gray-Spencer

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 27 November 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40720/06

MASON P IPP JA TOBIAS JA

MAROUBRA RUGBY LEAGUE FOOTBALL CLUB INC v MALO & ANOR JUDGMENT 1 MASON P: The first respondent suffered spinal injury when he was tackled during a rugby league game played in July 1998. He was a member of the Maroubra Lions team playing in an A-grade reserve match against the Southeastern Rugby League Football Club. Only six members of the Maroubra Lions, including himself, attended for the match. Five extra players were recruited who had played in an earlier Under-19 match. The result was that the Maroubra Lions fielded a team of 11 players against Southeastern's full complement of 13 players. 2 The injury occurred during the second half of the match. It is not contended that the tackle was untoward. But it is alleged that the first respondent was prone to serious injury because he was particularly fatigued in the circumstances. He has sued the body that organised the competition, South Sydney District Junior Rugby Football League Ltd, the second respondent, and his own club, the Maroubra Rugby League Football Club Inc, the appellant. 3 Damages have recently been agreed, but liability is in issue. Proof of actionable negligence against either defendant will involve the assessment of medical evidence about the impact of fatigue. Questions will be agitated about the response that might reasonably have been expected from amateur sports administrators to the situation presented at the start of the game. 4 The first respondent alleges that there was negligence in the failure to prescribe rules to prevent matches taking place where a team was unable to field a full side. He says that he was forced to shoulder a greater than appropriate share of the burden of play. The appellant and the second respondent will dispute these matters. They will also contend that, if there was negligence, it was not causative of the injury. They will argue that injury could have happened at any time, in any tackle, and regardless of the super-added fatigue factor that the first respondent claims was present here. 5 Contributory negligence and voluntary assumption of risk have also been raised. 6 There is an added complication. The proceedings were instituted against the second respondent in 2001, but the appellant was only joined as a party in 2004, after the commencement of the Civil Liability Act 2002. The appellant has invoked ss5I and 5L of that Act. This will require consideration of the statutory concepts of "inherent risk", "obvious risk" and "dangerous recreational activity". The second respondent's liability, on the other hand, is governed by common law principles. 7 After damages were agreed the first respondent sought trial by jury. The appellant opposed this mode of trial. Simpson J ordered that, subject to the first respondent complying with certain formalities, the proceedings were to be tried by a jury (see Malo v South Sydney District Junior Rugby Football League Ltd & Anor [2006] NSWSC 1133). 8 An application for leave to appeal was listed with expedition because the trial is set down to commence in April 2007. The Court heard full argument as on an appeal and, when judgment was reserved, granted leave to appeal.

Some general propositions 9 By the time that these proceedings were launched in the Supreme Court against the appellant the long-standing entitlement to trial by jury in civil proceedings at common law had been removed. Even the more Janus-faced statutory framework discussed in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 had been put aside. 10 Section 85 of the Supreme Court Act 1970, inserted in January 2001, relevantly provides: Trial without jury unless jury required in the interests of justice: (1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise. (2) The Court may make an order under subsection (1) that proceedings are to be tried with a jury if: (a) any party to the proceedings: (i) files a requisition for trial with a jury, and (ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005 , and (b) the Court is satisfied that the interests of justice require a trial by jury in the proceedings. (3) The rules may prescribe the time within which a requisition must be filed for the purposes of subsection (2) (a). … (5) In any proceedings in which the Court has ordered a trial by jury, the following questions of fact must be tried without the jury: (a) questions of fact on a defence arising under section 63 (5) or 64 (1) (c) of the Workers' Compensation Act 1926 or section 151Z (1) (e) of the Workers Compensation Act 1987; (b) any other question of fact ordered by the Court. 11 Uniform Civil Procedure Rule 29.1(6) provided a time limit referable to s85(3) that was not complied with. However, Simpson J made an order extending time for compliance and this is not in dispute. The matter at issue is whether an order should have been made at all. 12 The current s85 commenced operation on 18 January 2002. There is a transitional provision stating that s85's predecessor continues to apply in relation to proceedings commenced but not finally determined before the commencement of the new provision (Supreme Court Act, Fourth Schedule, Part 12, cl 19). All parties have conducted the matter on the basis that the current s85 governs the situation as between the appellant and the first respondent; and that the issues as between the first and second respondents will be tried by whatever mode is chosen. 13 Some aspects of s85 are clear. The general rule for non-defamation matters is that proceedings in any Division of the Supreme Court are to be tried without a jury. The Court has a power to order otherwise. 14 There was little debate about whether the power in s85(2) is in the nature of a discretion or a duty to act if the conditions in subs(2) are satisfied (see Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, Samad v District Court of New South Wales (2002) 209 CLR 140, Leach v The Queen [2007] HCA 3 and cf the "may" in s85(2) with the "must" in s85(5)). Whatever its nature, the power is only available to be exercised if the conditions in subs (2) are met. The presently relevant condition is that the Court must be satisfied that the interests of justice require trial by jury. 15 Subsection (5) means that the presence of particular complex factual issues does not necessarily preclude an order for trial by jury, because those issues can be tried without the jury. 16 Unlike its predecessor, s85 states a general rule that civil proceedings in the Supreme Court are to be tried by judge alone (cf s17 and the Third Schedule as to criminal proceedings). The power (or perhaps discretion) to order otherwise is only engaged if subs(2) is complied with. A party must take the initiative by filing a requisition for trial with a jury and paying the prescribed fee, but the Court must also be satisfied that the interests of justice require a trial by jury in the (particular) proceedings. 17 In light of the terms and structure of subs(2) it is clear that the "interests of justice" refer to considerations going beyond the private interests of the parties, a fortiori the private interests of one of the parties. This was also noted in Parliament when the Bill, (then referring to the requisitioning party satisfying the Court that there was a "special need" for a jury trial), was altered to its present party-neutral form (Parliamentary Debates, Legislative Council, 13 December 2001, p20287; Legislative Assembly, 14 December 2001, pp19899-19900). 18 A party's self-interested right to requisition for trial by jury is not to be endorsed in order to advantage that party. The Court must be positively satisfied that the disinterested interests of justice require departure from the general rule of trial by judge alone. 19 So long as it remains focussed on the statutory test, the Court may have regard to the incidents of the two different modes of trial both generally and in their application to the particular proceedings. But it must not lose sight of the fact that, as a general proposition, "[i]n a system of justice providing those two modes of trial it must be assumed that each is a satisfactory mode of trial and one which is calculated to produce a fair trial of the action according to law." (Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 410 per Winneke CJ, for the Full Court). 20 Our attention was drawn to the remarks of the Attorney General, Mr Debus, when moving the second reading of the Courts Legislation Amendment (Civil Juries) Bill 2001 (Parliamentary Debates, Legislative Assembly, 28 November 2001 pp 19038-19040). The speech discloses that the mischief perceived by the Government was that jury trials can be more costly and time consuming than trials before a judge alone. The relevance of these factors as the basis of the present s85 stands in marked contrast to the situation prevailing under its predecessor (see Pambula District Hospital at 402-4, 412-13). 21 But it is not possible to give any weight to the Minister's later statements about the intention of the Government as to how the new legislation will operate. Statutes are made by Parliament and not the Government. The language of an enactment is the means of determining the "intention" of the Legislature (Wilson v Anderson (2002) 213 CLR 401 at 418[8]-[9]). The circumstances in which useful and legitimate light can be cast upon statutory language by reference to what is said in debates in Parliament is limited (Interpretation Act 1987, s34). My views on this topic are set out in more detail in a recent speech (Legislators' Intent: How judges discern it and what they do if they find it, Institute of Advanced Legal Studies, London, 2 November 2006: http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_mason021106 ). 22 Apart from the difficulties of principle involved in construing legislation by reference to statements of government intention made in a second reading speech, there is particular need for caution in the present case in that s85 does not use the language of "special need". This was the language of the Bill at the time of the second reading speech in which Mr Debus said that "it is intended that these amendments will restrict the use of civil juries to those cases where a special need is demonstrated". The Attorney recognised that the Bill was not prescriptive about the requisite "special need" because it was intended that each case would be considered on its merits. He thought it likely that juries would be employed in, for example, civil actions where there may be questions of fraud or even major issues of credibility involving either the plaintiff or the defendant. The Bill was amended in Committee by removing the "special need" criterion and replacing it with the present language referring to the interests of justice. 23 We were referred to two decisions by judges of the Common Law Division, apart from the one under appeal, involving an application for trial by jury under the present statutory regime. They were Muir v Council of Trinity Grammar School [2005] NSWSC 555 (Hall J) and Cross v Theiss Pty Ltd [2006] NSWSC 1455 (Adams J). Simpson J in the present case and Adams J in Cross generally followed Hall J in Muir. I too have been assisted by his Honour's analysis, but respectfully disagree with it in certain respects detailed below. 24 In Muir, Hall J said (at [10], ninth dot point, emphasis added): The inquiry under s85(2)(b) accordingly requires the identification of specific factors which indicate, in particular proceedings, that the former mode of trial [ie trial by jury] is warranted in the interests of justice. In other words, it is incumbent upon an applicant seeking an order under those provisions to establish a substantial reason which would both justify and warrant a departure from what is now the normal method or mode of trial in civil proceedings.

Simpson J in the present case (at [16]) endorsed this reasoning, as did Adams J in Cross at [7]. 25 There is, in my view, a subtle but significant distinction between circumstances "warranting" a course of action and circumstances "requiring" it. I am not suggesting that the applicant for jury trial must show ineluctable necessity, but the statutory language of "require" connotes that which is obligatory, not that which is authorised. To speak of something being "warranted" smacks of the latter without the added stricture of the former. 26 When he came to summarise his views, Hall J concluded (at [10], thirteenth dot point) that s85(2)(b) involves (emphasis added): an evaluation as to whether the proceedings raise questions that ought to be resolved by a jury employing the commonsense and values of the average jury person .

Simpson J indicated (at [19]-[20]) that she approached the section on the same basis. 27 Once again, I would respectfully disagree with Hall J, while recognising that his Honour may not have intended to depart from the statutory mandate when he spoke of this evaluation. In my opinion, consideration about whether questions "ought" or "ought not" to be resolved by a jury involves an unwarranted departure from the statutory language. The departure becomes dangerous when it is accompanied (as it was in varying ways in the three first instance decisions referred to) with reasoning that proceeds from the assumed rationale of jury trial at common law and balances the perceived advantages of jury trial against the perceived disadvantages of trial by judge alone. 28 Each judge drew support from the remarks of Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR 41-866; [2002] FCA 278. His Honour was addressing an application pursuant to s86A of the Trade Practices Act 1974 to remove proceedings from the Federal Court of Australia to the Supreme Court of New South Wales on the ground that it was, in the language of s86A(2)(b), "otherwise in the interests of justice" to do so. It was alleged that Channel 7 had broadcast information in its current affairs program "Today Tonight" that contained false representations. There were also claims in defamation. Channel 7 sought transfer of the proceedings to the Supreme Court so that it could have trial by jury. In refusing the application, Tamberlin J said at [15]: So far as a jury is concerned, I recognise the force of considerations which favour a jury hearing in some cases as expounded in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 ff. However, on questions of identification, I am not persuaded that the questions raised in this case have any particular features which mandate determination by a jury. This is 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. This is a case where assessments have to be made as to what representations were in fact conveyed by the statements and conduct in question concerning Stalyce and its coolants. There is no reason in principle why a Judge cannot decide such questions in a satisfactory manner. The determination of whether alleged imputations are conveyed by statements or conduct is a process which can be determined by a Judge alone. The case has a strong commercial element to it and is by no means dissimilar to cases heard on almost a daily basis in the Court concerning Trade Practices litigation under Part V of the TPA.

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) 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. 33 With respect to the Attorney General's views when addressing the differently worded Bill, I do not think that the presence of fraud allegations or major credibility issues will suffice. Judges can and do decide such matters frequently. Unlike juries, their reasons are fully exposed, thereby aiding appellate accountability, itself a matter that serves the interests of justice. This is not to deny that the combination of serious credibility issues and something more (for example, a serving judge as a potential witness) might require trial by jury in the interests of justice. 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. 35 It is the judge, not the jury, who decides whether a duty of care exists and what is its scope. (Simpson J's remark (at [26]) that juries have "long been accustomed to determining complex issues of fact and law" was a slip.) While the jury determines factual issues, including questions of breach in negligence, that task proceeds in accordance with the law as directed by the judge. In negligence, it is concerned with what is reasonable in the circumstances, in light of the evidence presented. The verdict has no precedential value (Swain v Waverley Municipal Council (2005) 220 CLR 517 at 589). 36 A juror has no authority to disregard instructions because he or she is unhappy with the morality of the groundrules. Moral, ethical or social values are only pertinent so far as they address the task at hand. They should be clearly identified if they are to be taken into account as part of the reasoning towards satisfaction that s85(2)(b) is met.

The decision of Simpson J and the challenges to it 37 The learned primary judge set out the statutory provision, noting that the force of the word "require" in s85(2) must not be overlooked. She observed that the relative recency of the provision meant that there was little judicial guidance on its application. 38 Simpson J noted the decision in Muir. She added (at [16]-[17]): 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." 39 Her Honour observed (at [19]) that what she described as "the s85(2) discretion" was stated in very general terms. She continued (at [19]-[20]): 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 Muir at [10]] 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. 40 I have already flagged the question whether subs(2) confers a discretion. I find it unnecessary to decide this point in the present case. 41 I respectfully disagree with the approach adopted in [19] of her Honour's reasons. Hall J's "general test" should not be applied in preference to the statutory language, for reasons that I have endeavoured to point out. And the invocation of "general community contemporary values" is not the touchstone that enlivens the power. I shall indicate below why, in my view, the particular "community" values perceived to be involved in the present case were not of a type that required trial by jury in the interests of justice. 42 The nub of her Honour's reasons for making the order based upon implicit satisfaction that the interests of justice required a trial by jury in the proceedings appear at [23] and [29] where it is stated: 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. …

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). What the judge had in mind about community activity takes colour from her earlier summary of the plaintiff's argument, expressed at [18] in these terms: 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. 43 The judge weighed the opposing arguments based on the complexity of the legal issues and she rejected as irrelevant or of little weight two specific arguments advanced by the first respondent (see [25]-[28]). 44 The appellant treats s85(2) as involving a discretion, but submits that, in addition to departing from the statutory test in her general approach, the judge erred in three points:

(1) It was wrong in fact and irrelevant to label the proceedings as "novel";

(2) It was wrong in fact and irrelevant to place weight upon an amateur rugby league competition as "a quintessentially community activity" ; and

(3) The judge erred in not treating the legal complexities of the proceedings as a material consideration. 45 It is convenient to address the first two matters together. 46 A challenge concerning the exercise of a broad statutory power may often be addressed, not by considering the outer limits of the power, but by determining that particular considerations are extraneous to the power (see generally Shire of Swan Hill v Bradbury (1937) 56 CLR 746 at 757-8). 47 In my view, the matters relied upon by her Honour were of this type. I would uphold the challenge based on the first two matters. 48 Para [23] of her Honour's reasons shows that the "novelty" and "community" factors were related in her thinking. This is perfectly understandable, given that there is nothing novel about cases involving serious injury in contact sports. Obviously much depends on the level of generality at which the question is posed. But since a jury verdict has no precedential effect, the "novelty" of the context adds nothing to deciding whether the interests of justice require the participation of jurors. 49 Nor can I accept her Honour's analysis of the "community activity" aspect. Members of the general community are undoubtedly involved in amateur sport and the issues raised in these proceedings can be expected to attract public attention. But the things that interest the public in 2007 are not the matters that will require close attention when the circumstances of this 1998 accident come to trial. A key matter that will have to be addressed at the trial is the reasonableness of the conduct of the defendants as bodies administering the conditions in which amateur rugby league football is conducted. Negligence will have to be determined as at 1998, based on the evidence, having regard to what was known and what ought to have been known at that time and the standards and practices at that time of administrators similarly placed. 50 Furthermore, there is a significant distinction between participation in a sport or observation of it, on the one hand, and its administration, on the other. Determining compliance with the standard of reasonable care of a sports administrator will need to be informed by the evidence, not the perceptions of persons standing on the sporting sidelines as it were. I do not for a moment deny that large numbers of people are involved in amateur sports administration at the local level. But the fact that they are involved with "community facilities" (Simpson J at [23]) is not really to the point, although her Honour's reasoning is not confined to this observation. 51 In any event, I fail to see how community involvement in amateur sports administration could in itself lead to a court being satisfied that the interests of justice require a trial by jury. Members of the public have daily contact with roads and footpaths and many of them are ratepayers who may have a financial concern in the way in which local council's conduct their affairs. But these matters could not conceivably, standing alone, enliven the interests of justice to require trial by jury in preference to trial by judge alone in such matters. Sadly, cases involving injuries arising out of amateur sports injuries are quite commonplace. There is nothing that creates the reality or perception that the interests of justice would be undermined by judicial determination of such matters. 52 I therefore find that the power was not engaged. 53 It is unnecessary to consider the third complaint beyond stating that the judge did take legal complexities into consideration. 54 Neither below nor in this Court was it suggested that the trial of the proceedings as between the plaintiff/first respondent and the second respondent might proceed by jury independently of the issues as between the plaintiff/first respondent and the appellant. This, notwithstanding that the proceedings were commenced against the second respondent (the first defendant below) before the 2001 amendments concerning trial by jury came into effect. The different situation of the second respondent accounts for the passive stance it adopted before Simpson J and its relatively taciturn approach in this Court, quietly supporting the appellant in its opposition to the order made at first instance.

Disposition 55 In my view, the power to order trial by jury was not engaged in this case. The trial judge erred in being satisfied that it was. Considering the matter afresh, I do not have that satisfaction, to put it at its lowest. 56 I propose the following orders:

Appeal allowed. 2. Set aside the orders of Simpson J made on 30 October 2006 directing trial by jury. 3. First respondent to pay the costs of the appellant and of the second respondent of the motion so far as referable to the application for trial by jury and of the proceedings in the Court of Appeal, second respondent's costs to be assessed as on a submitting appearance. First respondent to have a certificate under the Suitors' Fund Act 1951. 57 IPP JA: I agree with Mason P. 58 TOBIAS JA: I agree with Mason P. **********

13/03/2007 - Omission of word in Appellant's name - Paragraph(s) Heading

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