MUIR v. THE COUNCIL OF TRINITY GRAMMAR SCHOOL [2005] NSWSC 555

Falamaki v. Wollongong City Council & Anor [2003] NSWSC 890 Acton Engineering Pty. Limited v. Campbell (1999) 103 ALR 437 CASES CITED : Darrell Lea (Vic.) Pty. Limited v. Union Assurance Society of Australia Limited Stalyce Holdings (Aust.) Pty. Limited v. Cetec Pty. Limited (20020 FCA 278

MUIR, William v. PARTIES : THE COUNCIL OF TRINITY GRAMMAR SCHOOL

Plaintiff: H.N. Kelly, SC COUNSEL : Defendant: J. Downing

Plaintiff: Hicksons SOLICITORS : Defendant: Colin Biggers & Paisley

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WILLIAM MUIR V. THE COUNCIL OF TRINITY GRAMMAR SCHOOL

1 HIS HONOUR: The plaintiff seeks an order that the proceedings be heard by a judge and jury and for that purpose has filed a notice of motion on 6 May 2005 seeking the following orders:- 1. Pursuant to Pt 2 Rule 3 of the Supreme Court Rules, the time for filing a requisition for trial with a jury, as prescribed by Part 34 Rule 3(2), be extended to …… 2005 (precise date not specified). 2. Pursuant to s.85 of the Supreme Court Act and Part 33 Rule 3 of the Supreme Court Rules, a jury be requisitioned for the hearing of this matter on 5 September 2005. 2 It is the second of these two orders that was the focus of the submissions of the parties. 3 The notice of motion is supported by the affidavit of Michael David Hunt sworn 19 May 2005. That affidavit annexes relevant medical reports by specialist medical practitioners who have examined the plaintiff. The reports provide relevant information in relation to the nature of certain alleged assaults and their effect upon the plaintiff.

Jury trials: a change in the law 4 In former times, there was a long-standing right to a jury trial in a civil action in New South Wales. In Falamaki v. Wollongong City Council & Anor [2003] NSWSC 890 (a case involving a requisition for a trial with a jury), the Court (O'Keefe, J.) observed at [26]:- "The determination of issues of fact by juries in common law actions for negligence was the norm for the greater part of the life of the Supreme Court. Such a mode of trial has a very long history in our system of law. Indeed the method of trial in civil cases in England up to 1854 was by jury. As Lord Denning, MR. pointed out in Ward v. James (1966) 1 QB 275 at 290, there was no other mode of trial available. Such a mode of trial was described by Blackstone as 'the sacred bulwark of the nation' (Commentaries, Book IV, 349-350); ( Wilson v. NSW Land and Housing Corporation [2002] NSWSC 506, 6 June 2002, unreported))." 5 However, the right to trial by jury was in due course circumscribed by the Supreme Court Act 1970 (ss.85-89). Those provisions of the Act mandated a trial of most civil actions by a judge sitting without a jury. However, the Act provided that, if a requisition was filed within the specified time, then a jury trial could be obtained as a right. 6 The Courts Legislation Amendment (Civil Juries) Act 2001 (assented to on 19 December 2001) and which commenced on 19 January 2002, effected a repeal of the provisions of ss.85-89 and new provisions (s.85) were introduced. Section 85 provides:- "1. Proceedings in any Division are to be tried without a jury unless the Court orders otherwise." 7 The power of the Court to order trial by jury in a civil case (other than for defamation) is now dependent upon the Court in accordance with s.85(2)(b) being:- "satisfied that the interests of justice require a trial by jury in the proceedings". 8 There are two things to be noted about these provisions. Firstly, they provide a discretion in the Court to permit jury trial, but only in limited circumstances. Secondly, the provisions effectively place an onus upon an applicant seeking a trial by jury to establish that, in the circumstances of the litigation, the "interests of justice" "require" a trial by jury. 9 Against this background it is clear that for an applicant to satisfy the threshold established by the new provision, it is necessary that he or she establish relevant circumstances concerning the plaintiff's cause of action that indicate that the interests of justice do "require" such trial by jury. 10 In the construction and application of the provisions of s.85(2)(b), the following matters are noted:-

• The provisions apply to civil proceedings, namely, proceedings on a common law claim other than defamation proceedings (s.86(1)).

• The party seeking an order that proceedings be tried with a jury is required to make an application for an order to that effect and to satisfy the Court, whether on the face of the pleadings alone, or by the pleadings and evidence, that the facts and circumstances warrant an order.

• The provisions do not, in terms, require a party seeking a trial with a jury to establish a special need for a jury trial.

• The expression "interests of justice" is a broad one and is one that enables all relevant factors to be taken into account. (An observation to the same effect has been made with respect to the provisions of s.44 of the Corporations Act which deals with the power to transfer civil matters to another court having jurisdiction "where it appears to the Court that, having regard to the interests of justice, it is more appropriate …" : s.42(2). See Acton Engineering Pty. Limited v. Campbell (1999) 103 ALR 437 where the broad nature of the term "interests of justice" was discussed by Davies, J.)

• The expression "the interests of justice require" is one that appears in a number of statutory contexts. In s.128(5)(b) of the Evidence Act, for example, privilege in respect of self-incrimination in other proceedings , provision is made where a Court "is satisfied" of a number of matters set out in s.128(5) for the Court to require the witness to give the evidence. The section includes as one matter for consideration: "(c) the interests of justice require that the witness give the evidence."

• In relation to the latter provision, it has been said that the onus is upon the party seeking to have the witness compelled to give the evidence to satisfy the Court that the interests of justice "require" (as distinct from a less demanding term like "favour" ) such evidence: Uniform Evidence Law, 6th 3d, Stephen Odgers at para.1.3.13040.

• In relation to the provisions in s.128(5)(c) of the Evidence Act 1995 , it is said there is no presumption as to what the interests of justice do require. I am of the opinion that a similar point may equally be made in relation to the provisions of s.85(2)(b) of the Supreme Court Act.

• In a system of justice providing two modes of trial, namely, trial by judge and jury and trial by judge without a jury, it must be assumed that each is a satisfactory mode of trial and calculated to produce a fair trial of the action according to law: Darrell Lea (Vic.) Pty. Limited v. Union Assurance Society of Australia Limited (1969) VR 401 per Winneke, CJ., Pape and Stark, JJ. at 410.

• The inquiry under s.85(2)(b) accordingly requires the identification of specific factors which indicate, in particular proceedings, that the former mode of trial 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

• Central to the inquiry under these provisions is the nature of the factual and legal issues involved in the proceedings. Insofar as such issues they may involve and require consideration or determination of general community contemporary values, it may, in such cases, be said that the interests of justice require a trial by jury in the proceedings: see Stalyce Holdings (Aust.) Pty. Limited v. Cetec Pty. Limited (2002) FCA 278 (Tamberlin, J. [15]) wherein it was observed that questions raised in a case involving moral, ethical or general social values may mandate determination by a jury.)

• Civil cases involving serious allegations involving criminal conduct may, in certain classes of case, be seen as raising issues that traditionally attract the role of a jury in deciding matters that potentially involve serious findings against a defendant or defendants.

• In context, the term require is not equivalent in, in my opinion, to necessity or the concept inherent in the word essential . It must be accepted that a judge alone is capable of hearing and determining any form of civil proceedings including, in particular, any common law claim. Accordingly s.85(2)(b) implicitly involves a broader concept than capacity to determine a claim and allows for the identification of particular matters that constitute a substantial reason or warrant for departing from the normal method or mode of trial.

• Accordingly, s.85(2)(b) does not involve a prescriptive threshold test which is capable of simple application. It does involve 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. 11 It is necessary in the present application to examine the plaintiff's pleaded cause of action. 12 The proceedings were commenced by way of statement of claim filed on 15 May 2003. The claim is based upon unusual and, it must be said, grave circumstances alleged to have taken place whilst the plaintiff was a school student at Trinity Grammar School, Summer Hill. The plaintiff alleges that at the material times he was a boarder in Year 10 at the school and that on a date in May 2000, after the commencement of the second term he was sexually assaulted by two fellow students who are named. Further sexual assaults are said to have occurred in June and July/August 2000. In all, it is alleged that on approximately 25 occasions during the year 2000 the two students concerned physically assaulted the plaintiff and sexually abused him. 13 The plaintiff alleges that, as a result of the assaults, he has suffered physical, psychological and/or psychiatric injury. 14 The plaintiff's cause of action is framed in negligence. The particulars of negligence are set out in paragraph 12 of the Statement of Claim and which I reproduce:- "(a) failed to provide any or any adequate supervision of the Boarding House, in particular, its dormitory and other areas during recess and other times outside school hours when the plaintiff and the aforementioned Charlie Raper, James Slattery and other students required supervision (b) failed to ensure the safety of the occupants of the defendant's premises, in particular, the plaintiff; (c) allowed the production or manufacture of implements such as dildos in the Design & Technology classroom; (d) failed to provide any or any adequate supervision of the boarding students; (e) failed to provide safe suitable and properly trained personnel to fulfil the duty of care and control and supervision owed to the plaintiff; (f) failed to observe the plaintiff was in a position of peril in the circumstances; (g) failed to devise and implement an incident policy where in students such as the plaintiff could immediately report any assaults, sexual or otherwise, on their person; (h) failed to implement an appropriate policy for best practice in the field of student residential care; (i) expose the plaintiff to a risk of injury which could have been avoided by reasonable care; (j) failed to take any or any adequate precautions for the safety of the plaintiff; (k) failed to develop and implement management systems and procedures which set out the specifications for proper and adequate supervision of students whilst attending school; (l) failed to ensure that the boarding houses were provided with sufficient staff and resources to adequately supervise the school pupils who were in attendance." 15 The following observations I consider to be relevant to the cause of action pleaded in the statement of claim.

• The factual matrix relied upon by the plaintiff involves an allegation of criminal conduct by third parties, namely, two fellow students.

• There is no allegation of any criminal conduct or improper conduct by any employee of the defendant.

• The essential allegation made against the defendant is a breach of duty in terms of an alleged lack of supervision and/or adequate supervision or management of the boarding house and other areas during recess and at other times outside school hours.

• The specific allegations relied upon by the plaintiff against the defendant, accordingly, relate to the failure to supervise, to formulate and implement incident policies for the reporting of assaults and other misconduct, the failure to exercise reasonable care including, in particular, the failure to develop and implement management systems and procedures for the supervision of students attending the school. 16 It can be seen from the above that, whilst the circumstances out of which the plaintiff's cause of action is said to arise are, as I have previously described them, grave and unusual, and on that account mark the proceedings as qualitatively different from most negligence actions, they do not, however, involve issues of contemporary community values, or for example, issues of an ethical, moral or social nature, requiring consideration and determination of members of the community serving as jurors in the trial. 17 Mr. Kelly of counsel, who appeared on behalf of the plaintiff/applicant, sought to argue that in a case in which ethical, social or moral values are involved, it is appropriate that the proceedings be heard and determined by a jury. In this respect, reference was made to the decision of the Federal Court of Australia (Tamberlin, J.) in Stalyce (supra). However, as I have earlier noted, the allegations of the assault and abuse of the plaintiff are not allegations made against servants or agents or the defendant. The proceedings are distinguishable from those, for example, where plaintiffs have instituted proceedings against institutions whose employees or members have sexually abused persons placed in their trust. There is no concept in these proceedings of conduct involving abuses of trust of one kind or another. 18 In all the circumstances, I do not consider that it has been established in these proceedings that the interests of justice require a jury trial for the reasons I have outlined. 19 Accordingly, the application is dismissed. I order the plaintiff to pay the defendant's costs of the motion. **********

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