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[1993] HCA 23
High Court of Australia
1989-12-15
McHugh JJ, Dawson JJ, Gaudron J
Original judgment source is linked above.
High Court of Australia Mason C.J. Deane, Dawson, Gaudron and McHugh JJ. Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23
ORDER Appeal allowed with costs. Set aside the orders of the Court of Appeal of New South Wales and in lieu thereof order that the appeal to that Court be dismissed with costs.
1993, April 21 Mason C.J., Deane and Dawson JJ.
The facts and the relevant provisions are set out in the reasons for judgment prepared by Gaudron J.
The primary question is whether the word "tried" in s. 79A of the District Court Act 1973 NSW ("the Act") means "determined" or whether it means "heard and determined", thereby designating the entire mode of trial of the question or questions which are the subject of the order. If "tried" designates the mode of trial in the sense just stated then there is the question whether the power conferred by the section can only be exercised prospectively, that is, before the commencement of the trial. That is the view which has been taken by the New South Wales Court of Appeal in relation to s. 79A and in relation to its equivalent, s. 89 of the Supreme Court Act 1970 NSW, in a series of cases [1] .
In the context of a provision which states that an action shall be tried by a jury or without a jury, it is natural to read the provision as one that prescribes the mode of trial which includes the hearing as well as the determination of the issues in the action. So also when a provision states that the issues in an action shall be tried by a jury or without a jury. But it does not follow that the word "tried" has that meaning when it is used in a provision like s. 79A which is making special provision with respect to any or all of the issues in an action.
In that context, the word "tried" may mean no more than "determined" [2] . In this respect, it is to be noted that the provisions of the Act use both the expressions "tried" and "determined". Section 77(1) provides that the judge "shall determine all questions of law" and s. 77(2) provides that the judge "shall, subject to subsection (5), determine all questions of fact unless a jury has been summoned". On the other hand, s. 77(3) provides that, subject to ss. 78 and 79, "an action shall be tried without a jury unless the Court makes an order to the contrary". Section 77(4) enables the Court to "order that any question of fact in an action be tried before any other question of fact in the action". Section 77(5) provides that issues of fact arising on certain defences "shall be tried without the jury". And s. 78(1) provides that a party may, by taking certain prescribed steps, "require that a jury be summoned to try the action". Section 79 empowers the Court in a certain class of case to make an order "that the action be tried with a jury". When account is taken of these provisions, we are compelled to conclude that the word "tried" in s. 79A means "heard and determined". Likewise, the word has the same meaning in s. 79 and "try" has a similar meaning in s. 78(1). Indeed, it seems that the words "determined" and "heard and determined" have been used in the Act interchangeably and, as a consequence, in s. 77(1) and (2) "determine" should be understood as "hear and determine".
The next question is whether the power conferred by s. 79A, when so understood, is capable of being exercised after the commencement of the trial. The respondent's argument is that the power to order that "questions shall be [heard and determined] without a jury" is one that must be exercised prospectively, that is, before a hearing has commenced. That argument is not without force. However, we do not consider that it should prevail. The words of s. 79A are very general and are not limited to circumstances as they stood before the commencement of the trial. The section should be construed liberally in conformity with its terms free from unexpressed limitations [3] . The fact that the section is remedial and is designed to give the court procedural flexibility which, in appropriate situations, will produce beneficial consequences is an added reason for giving to it the full scope which the natural and ordinary meaning of its words supports.
Although there are situations in which the Court can determine in advance of the trial that it is desirable to dispense with trial by jury in relation to any or all issues of fact, there are other situations in which the desirability of taking that course will become apparent only after evidence has been led at the trial. It would not be right to confine the grant of power in general terms to exclude the latter situations from its operation when the section has a remedial purpose.
Section 79A does not expressly empower the trial judge, on making an order under the section during the course of a trial, to determine the questions ordered to be tried without a jury by reference to the proceedings, in particular the evidence, that have already taken place at the trial. The absence of authority for the trial judge to act in that way is relied upon by the respondent as a ground for confining the scope of the power. However, it seems to us that, once it is accepted that the power is exercisable during the course of a trial, the section necessarily contemplates that the trial judge may, in an appropriate case, determine the questions the subject of an order under s. 79A by reference to what has already taken place and will take place at the trial. It would be artificial in the extreme to interpret the power without regard to considerations of time and convenience and the desirability of avoiding unnecessary expense that would have been present in the minds of those who framed the section.
The position may be tested by asking: what happens when the trial judge, towards the end of a trial, orders that one of a number of questions of fact be tried without a jury? If the respondent's argument be correct, the trial judge has no alternative but to undertake a separate trial of that issue of fact in which relevant evidence already called must be re-called. How that separate trial is to be accommodated to the trial of the action by the jury, still in progress, less that one question, is a problem not easily resolved. This problem disappears once it is recognized that the trial judge who has, along with the jury, heard the evidence already given has authority to determine the question by reference to that evidence. Because the trial judge has heard that evidence, when the question is ultimately determined it can be said that the trial judge has heard and determined the question. This approach is supported by s. 77(5) of the Act, which requires that certain issues of fact be "tried without the jury", although a jury has been summoned. This section contemplates that the judge and jury would hear all the evidence, but that the issues of fact referred to by the sub-section would then be determined solely by the judge. There could be circumstances in which the interests of justice require that evidence be led afresh or supplemented by further evidence after an order under s. 79A is made [4] . Such matters can, however, be dealt with by appropriate directions given by the trial judge at, or subsequent to, the time when the order is made. It has not been argued that the respondent in the present case sustained any prejudice by reason of the absence of any such direction.
All that remains is to dispose of the argument that the power conferred by s. 79A could not be exercised after the trial terminated with the discharge of the jury. For our part, we do not see any reason why the power cannot be exercised after a jury has been discharged. For example, it might be exercised with a view to a fresh trial before a judge alone on all questions or before a judge on one or more questions and a jury on the remaining questions.
However, to say that does not dispose of the narrower point that the trial judge cannot determine all the issues of fact once he or she discharges the jury because that act terminates the trial. In a case in which, during a trial before judge and jury, the trial judge proposes to order that all questions be tried without a jury, it would be natural to make an order under s. 79A before discharging the jury. In that situation, it would be evident that the discharge of the jury does not bring the trial to an end because the order under s. 79A has provided for the continuation of the trial without the jury. And there will be other situations, such as the present case, where it will be evident that the discharge of the jury is not an end in itself but is merely an incident in the trial process precisely because it is contemplated that the trial will continue before the judge alone. Here the trial judge discharged the jury in the expectation, if not with the intention, of making an order under s. 79A and determining the issues himself. He had indicated at the very beginning of the trial that he proposed to take this course if the case did not conclude within the time stipulated. The course followed by the trial judge may be open to criticism on the ground that it did not accord to the jury the respect and consideration which a jury is entitled to receive from every court. It did not however either result in any miscarriage of justice or vitiate the trial judge's award of damages.
This appeal arises out of the hearing, at Singleton, of a negligence action brought in the District Court of New South Wales. In that action, the appellant, Mr. Patton, claimed that he became deaf as the result of the failure of his former employer, the defendant in the action and the respondent to this appeal, to provide a safe work environment.
When the matter was called on, application was made for the jury to be dispensed with on the ground that the case was one of complexity involving technical evidence. That application was refused. But, in refusing the application, the trial judge, Judge Denton, indicated that there would be difficulties if the case did not conclude that week - apparently, his Honour was required to sit in Sydney for the following several weeks - and that, by Friday, the case might have reached a stage such that "the course of discharging the jury and hearing the rest of it myself may be the only practical course open".
The course foreshadowed by the trial judge involved a complete waste of the jury's time. Common courtesy suggests that, unless it could confidently be predicted that the case would finish by Friday, other arrangements should have been made for its hearing. But that aside, neither counsel for Mr. Patton nor counsel for the defendant then suggested that that course could not be taken. And, if it could not, everyone's time, as well as the costs involved, stood at risk of being wasted.
By Friday, it was obvious that the case would not finish that day. The jury was discharged. The plaintiff's case was close to complete and the trial judge directed that the case should continue before him on the basis that he would determine all factual issues. He held, contrary to a submission then made on behalf of the defendant, that that course was authorized by s. 79A of the District Court Act 1973 NSW. He continued with the hearing and, in due course, found for Mr. Patton and entered a verdict in the sum of $36,469.
The defendant appealed to the Court of Appeal of the Supreme Court of New South Wales. All grounds were rejected save one to the effect that s. 79A of the District Court Act did not authorize the course taken by the trial judge. The Court of Appeal held that, unless the parties consented to some other course, it was necessary, once the jury was discharged, for the trial to start afresh. Mr. Patton now appeals to this Court.
It is provided by sub-ss. (1) and (2) of s. 77 of the District Court Act that, in an action in that Court, all questions of law are for the judge to determine, as are all questions of fact "unless a jury has been summoned." Section 77(5) provides that, where a jury has been summoned, issues of fact arising under certain workers' compensation provisions [5] are, nonetheless, to be determined by the judge. Subject to procedural requirements, s. 78 authorizes a party to an action in which the amount claimed exceeds $5,000 (other than an action to which s. 79 applies) to require a jury to be summoned. Section 79 is concerned with running down cases and provides, in sub-s. (1), that in such cases "the Court may, on the application of any party, and shall, on the application of all parties, make an order (which may be made on terms) that the action be tried with a jury". It is in that context that s. 79A provides:
In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury. 1. ss. 63(5) and 64(1) of the Workers' Compensation Act 1926 NSW and s. 150(1)(e) of the Workers Compensation Act 1987 NSW.
The language of s. 79A leaves no room for doubt that an order may be made to the effect that all questions of fact are to be tried without a jury notwithstanding that a jury has been summoned under s. 78 or an order made for trial by jury under s. 79. And nothing in the language of s. 79A suggests that the power to make an order to that effect can only be exercised before the trial commences or before some other power is exercised in relation to the trial, in particular, the power to discharge the jury. However, the Court of Appeal has decided, in a number of cases, that s. 79A and a similar provision in the Supreme Court Act 1970 NSW, namely, s. 89(1), do not apply once the trial has commenced and, in particular, do not apply if the jury has been discharged.
Leaving aside some difference in arrangement and subject to one matter to which reference will shortly be made, the Supreme Court Act makes provision, in ss. 85, 86, 87 and 89, to the same effect and in substantially the same terms as ss. 77, 78, 79 and 79A of the District Court Act. The one difference is that provision is made in s. 89 of the Supreme Court Act with respect to cases to which s. 88 of that Act applies. Section 88 requires that issues of fact on a charge of fraud against a party, or on a claim for defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage [6] are required to be tried with a jury. It is in that context that, so far as is presently relevant, s. 89 of the Supreme Court Act provides:
(1) In any proceedings on a common law claim (except proceedings to which section 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury.
(2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where:
(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury; or
Decisions under s. 89 of the Supreme Court Act and s. 79A of the District Court Act
The powers conferred by s. 89 of the Supreme Court Act were first considered by the Court of Appeal in G & J Shopfittings & Refrigeration Pty Ltd (In liq) v Lombard Insurance Co (Aust) Ltd [7] . That was a case in which a claim of fraud was made against a party and was, thus, governed by ss. 88 and 89(2) of that Act [8] . However, it was determined on a basis that is equally applicable to s. 89(1). It was said in that case that "[t]ypically, the presentation of a case before a jury, as the tribunal of fact, is different from the presentation of evidence in the same case before a judge, sitting alone" [9] . And, in that context, it was held that "had it been intended that a judge under s. 89(2) should have power, notwithstanding the commencement of a trial, to dispense with the jury and thereafter to proceed on the basis of the evidence which had been placed before the jury, it is reasonable to contemplate that Parliament would have specifically so provided and in terms which would address the risk of injustice that could arise from such a change of tribunal" [9] . And the Court of Appeal held in Borg Warner Australia Ltd v Simmons [10] that that reasoning applied to s. 89(1).
The reasoning in G & J Shopfittings is not confined to cases involving the discharge of the jury. It extends to every jury case so that, if correct, the power conferred by s. 89(1) of the Supreme Court Act and by s. 79A of the District Court Act cannot be exercised, even with respect to discrete factual issues, once the trial has commenced. And the Court of Appeal held to that effect in relation to s. 79A in Langford v Turnbull [11] .
In G & J Shopfittings, the Court of Appeal drew attention to the difference between an order dispensing with a jury and an order for the discharge of a jury [12] . Clearly, s. 79A of the District Court Act and s. 89(1) of the Supreme Court Act are concerned with the former and not the latter as is, perhaps, indicated by the heading to s. 79A of the District Court Act which reads "Power to dispense with jury" [13] . However, that heading is not a complete description of the power conferred by that section. The power is one to order that "all or any questions of fact be tried without a jury" and, thus, the section envisages that, notwithstanding that the proceeding is before a jury, some questions of fact may be determined by the trial judge.
Doubtless there are jury cases in which it is possible, before the trial begins, to isolate particular issues of fact which, as discrete issues, should attract an order under s. 79A of the District Court Act or under s. 89(1) of the Supreme Court Act. But, there will also be cases - perhaps, very many cases - in which the desirability of some issue being isolated for decision by the trial judge will only become apparent once the trial has commenced. As was acknowledged in G & J Shopfittings [14] , issues sometimes emerge for the first time at trial, whether as the result of amendment of the pleadings or otherwise. Considerations of convenience, thus, suggest that, in the absence of clear words to that effect, s. 79A and s. 89(1) should not be construed as conferring a power which cannot be exercised if the trial has commenced.
Moreover, a power vested in a court should not be construed as subject to a limitation not revealed by the ordinary meaning of the words by which that power is conferred [15] . A court must exercise its powers judicially and, in the case of discretionary powers, in accordance with those general principles which govern the exercise of judicial discretion. A general discretionary power which, if exercised one way rather than another, might, in certain circumstances, involve an injustice, should not be approached on the basis that Parliament intended that it not extend to any circumstance in which injustice might, conceivably, occur. Rather, it should be approached on the basis that it was intended that it be exercised for the ends of justice and in accordance with legal principle [16] .
A broad judicial discretion is properly confined by identification of the matters which are extraneous to the power and the exposition of those which are relevant to the power and the way in which they bear on its exercise. But there is no warrant, either as a matter of logic or as a matter of convenience, for "plac[ing] conditions upon a free discretion entrusted by statute [to a court] where the conditions are not based upon statutory enactment" [17] . Thus, it is legitimate to say of the power conferred by s. 79A of the District Court Act that, ordinarily, it should not be exercised if the evidence might have been presented differently in an action tried by judge alone. It is not, however, correct to read s. 79A as though it contains a proviso that it not be exercised if the trial has commenced. The decision of the Court of Appeal in this case cannot be supported on the basis of the reasoning in G & J Shopfittings.
The effect of an order for the discharge of the jury
Counsel for the respondent sought to support the order of the Court of Appeal on the basis that, on discharge of the jury, the trial was brought to an end and, save for a subsequent trial to commence afresh, there was nothing on which the order purportedly made by the trial judge under s. 79A of the District Court Act could operate. Given that the power is one that can be exercised during a trial, the somewhat surprising consequence of that argument, if correct, is that under s. 79A an order may be made dispensing with the jury and the jury thereafter discharged, but not the reverse.
It was no doubt correct in the past to say that, on the discharge of the jury, the trial came to an end. And it is correct to say the same today with respect to those cases where the only permitted mode of trial is trial by jury. That is because, once the jury has gone, there is no means, short of another trial, by which the requirement for trial by jury can be satisfied. But the position is different if the relevant law, instead of imposing an absolute requirement for trial by jury, provides that, if so ordered, trial shall be by judge alone. In that case and assuming an order to that effect, the statutory requirement can be satisfied even though the jury has been discharged. In a legal context of that kind the question is whether the relevant law extends to permit the making of an order following the discharge of the jury. And, if it does, there is no basis for treating the trial as ended merely by reason that the jury has been discharged. Rather, a provision of that kind would necessarily require that the trial be treated as continuing on foot until the making of some other order. Thus on this aspect of the case, it is not sufficient for the respondent to assert that the trial came to an end when the jury was discharged. Rather, it is necessary to show that, properly construed, s. 79A of the District Court Act does not apply in a case where the jury has been discharged.
As already indicated, there is nothing in the language or context of s. 79A of the District Court Act which suggests that the power which that section confers must be exercised, if at all, before the jury is discharged. And, as with the earlier question whether it could only be exercised pre-trial, there will be cases in which considerations of convenience will favour the making of an order of the kind contemplated by s. 79A even though the jury has been discharged. Indeed, so much appears from the decisions of the Court of Appeal on this topic [18] . Given these considerations and the approach which I have earlier indicated should be taken to the construction of provisions vesting powers in a court, there is no basis for reading s. 79A as though subject to a proviso that the power not be exercised following the discharge of the jury.
Section 79A of the District Court Act permitted of the course taken by the trial judge. It was not suggested that, if that were so, the discretion conferred on the trial judge miscarried in any way. Presumably, that is because of the unusual circumstances of the case where, at the outset and in consequence of the trial judge's failure to make suitable arrangements for its hearing, the parties were made aware of the course that might be taken and, it may be assumed, conducted the case with that in mind. The appeal should be allowed, the orders of the Court of Appeal set aside and, in lieu, the appeal to that court should be dismissed.
The question in this appeal is whether, after discharging a jury in a civil case, a judge of the District Court of New South Wales has power to continue to hear the action himself or herself and rely on evidence which has been tendered in the proceedings before the jury. In my opinion, even if the trial of an action before a jury has commenced, s. 79A of the District Court Act 1973 NSW gives the judge power to make an order that all questions in the action be tried without the jury. If such an order is made, the judge may also order that any evidence tendered in the trial before the jury can be used in the trial without the jury.
The appellant (the plaintiff) brought an action against the respondent (the defendant) for damages for injury suffered as a result of the alleged negligence of the defendant, its servants or agents. The action came on for hearing in the District Court of New South Wales before Judge Denton and a jury. Before the hearing commenced, an application was made to dispense with the jury which had been summoned. His Honour rejected the application. He said:
I see no reason why we should not start the case with a jury but if it becomes apparent that the case cannot finish I will consider then what I can do. It is impossible to predict at the present time what stage we will reach by then.
When it became apparent that the case would not conclude by the end of the week, his Honour decided to discharge the jury. His Honour said that "there seemed to be no point in keeping [the jury] in attendance" given that the matter could not be resumed until some time later. He then stated that he could either abort the trial or continue the trial at a later date and decide the issues of fact himself. The defendant objected to the second alternative but it was supported by the plaintiff. His Honour then ordered, pursuant to s. 79A of the District Court Act, that all questions of fact should be tried by himself. Section 79A provides:
In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury.
(1) In an action the Judge shall determine all questions of law.
(2) In an action the Judge shall, subject to subsection (5), determine all questions of fact unless a jury has been summoned.
(3) Subject to sections 78 and 79, an action shall be tried without a jury unless the Court makes an order (which may be made on terms) to the contrary.
(4) The Court may order that any question of fact in an action be tried before any other question of fact in the action.
(1) In any action (other than an action to which section 79 applies), where the amount claimed exceeds $5,000, any party may, within the prescribed time, by filing a requisition for trial with a jury and paying the fee prescribed by the regulations made under section 150 require that a jury be summoned to try the action, and a jury shall be so summoned.
(1) In any action to which this section applies, the Court may, on the application of any party, and shall, on the application of all parties, make an order (which may be made on terms) that the action be tried with a jury.
In the present case, the jury had been summoned under s. 78. After hearing further evidence at a later date, his Honour entered judgment for the plaintiff, awarding him $36,469 damages. In finding a verdict for the plaintiff, his Honour relied on evidence which had been given in the action before the jury was discharged.
On appeal to the Supreme Court of New South Wales Court of Appeal, Priestley J.A., with whom Clarke J.A. and Hope A.J.A. agreed, found that, without the consent of the parties, the trial judge had no power to discharge the jury and to continue to hear the matter himself. Relying upon the decision of the Court of Appeal in G & J Shopfittings & Refrigeration Pty Ltd (In liq) v Lombard Insurance Co (Aust) Ltd [19] , his Honour found that the power vested by s. 79A "could not be used as an incident to the trial ended by the discharge " (emphasis in original) [20] . The Court ordered that the appeal be upheld, the judgment below set aside, and the action reheard.
Section 79A authorizes the making of an order for a question or questions to be tried without a jury even though the Court has commenced to hear evidence. As long as the order is made in the action, it is within power. Nothing in the terms of s. 79A indicates that it should be read as if it commenced with words such as "Before the jury is empanelled" or "Before any evidence is taken". Situations will frequently arise during the course of civil jury trials where it will become obvious that it would be contrary to the proper and efficient administration of justice for the jury to decide all questions of fact in the case. A common example is where an amendment to the pleadings is permitted.
It is not to be supposed that the legislature intended that all questions in an action are to be tried and determined by the jury although it becomes manifest during the course of the trial that the length of the trial will be unduly prolonged or that it is otherwise inimical to the administration of justice to continue with a jury trial of a particular question or questions. Legislation conferring power on a court to make an order in relation to proceedings in its jurisdiction should be construed as generously as the words used will permit [21] . No justification exists for fettering the grant of a curial power which is expressed in unconditional terms and which was intended by Parliament to confer "a broad discretion to dispense with civil juries where that would be in the interests of justice" [22] .
The principle which is the basis of this Court's decision in Knight v FP Special Assets Ltd [23] is apposite to the construction of s. 79A. In Knight, the Court had to determine whether a provision in the Rules of the Supreme Court of Queensland enabled the making of an award of costs against a person not a party to the proceedings. Mason C.J. and Deane J. said [24] :
According to their natural and ordinary meaning, the words of the rule are sufficiently expansive to enable the Court to make an order for costs against a person, whether that person is formally a party to the proceedings or not. The jurisdiction and the discretion thereby conferred are not limited. Because they are not limited it is easy to postulate a variety of circumstances where an exercise of the jurisdiction against a non-party would be extravagant and unjust. However, the existence of that possibility provides no justification for the imposition by the courts, by way of implication, of an arbitrary limitation upon the general jurisdiction conferred by the rule. [T]he court will and should develop principles governing the exercise of the discretion which will ensure that the jurisdiction is not exercised in such a way as to give rise to abuse. Gaudron J., in agreeing with the judgment of Mason C.J. and Deane J., stated [25] : Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse. These statements of principle demonstrate that an enactment conferring a power upon a court to make orders in proceedings in that court should be construed as broadly as the words will permit. A limitation should not be implied unless it is obviously required by the object, words or context of the provision. 1. (1992) 174 C.L.R. 178. 2. ibid., at p. 185. 3. ibid., at p. 205.
In G & J Shopfittings, however, Kirby P., with whom Hope and Meagher JJ.A. agreed, found that, once a civil trial before a jury had commenced in the Supreme Court, s. 89(2) of the Supreme Court Act 1970 NSW did not confer power on a judge of that Court to dispense with the jury and try the case on evidence received before and after the discharge of the jury. Kirby P. said [26] :
If it had been intended that s. 89(2) would authorize the judge, once a trial had commenced, to receive, over objection, the evidence taken before the jury, it might have been expected that the Act would have specifically so provided. It does not.
Typically, the presentation of a case before a jury, as the tribunal of fact, is different from the presentation of evidence in the same case before a judge, sitting alone. Not only will the presentation of witnesses and style of advocacy be different. Different decisions may be taken as to the calling of witnesses, the examination and cross-examination of witnesses and the tender of documentary material. In these circumstances, a trial conducted upon the footing that the tribunal of fact is a jury may result in evidence being adduced which is different from that which would have been adduced at a trial by a judge sitting alone. Of course, the issues for trial remain the same. The substance of the evidence will therefore usually be the same. In some cases the differences in the evidence that would be called would be slight or insignificant. But in other cases it would be substantial.
His Honour concluded [26] : For the saving of time, which was an understandable concern of Smart J., the Supreme Court Act 1970 should perhaps be amended to permit a judge in particular circumstances and on particular conditions to dispense with a jury once a trial has started and thereafter to proceed to try the case on the same evidence as the tribunal of fact. But the Act does not presently so provide. In my opinion it is not legitimate, in the context in which it appears, to attempt to derive such a power from s. 89(2). 1. (1989) 16 N.S.W.L.R., at p. 371. 2. (1989) 16 N.S.W.L.R., at p. 371.
However, as I have already noted, nothing in s. 79A indicates that the Court's power under that section is limited to those cases where a hearing has not commenced. The words of the section are broad and without qualification. They do not make any distinction between actions which have, and actions which have not, commenced.
It follows that Judge Denton had power to make an order under s. 79A that all questions of fact be tried without a jury even though the hearing of the action had commenced. Once such an order was made, the jury had no function to perform and the judge was bound to discharge them. However, Judge Denton discharged the jury before he made an order under s. 79A. He discharged the jury because he had a commitment "to deal with proceedings relating to a criminal trial to commence in the near future involving twenty-three accused persons". The proceedings were to commence on the following Tuesday. They do not appear to be the trial itself but some interlocutory matter. Whether that ground was a proper exercise of his discretionary power to discharge the jury may be doubted. However, it is unnecessary to decide that question; counsel for the defendant did not submit to this Court that the order discharging the jury was beyond power or otherwise erroneous. Indeed, he said that it was not submitted that his Honour erred in discharging the jury or that it was not open to the plaintiff to make an application under s. 79A. The vital question is whether, having discharged the jury and made an order under s. 79A, the judge had power without the consent of the parties to determine the case on evidence given before, as well as after, the jury was discharged.
Counsel for the defendant contended that the trial judge "erred in deciding to "continue the further hearing" as if it had been before the judge alone from the beginning of the trial without the consent of the parties". Particular emphasis was placed on the words "be tried" in s. 79A. Counsel for the defendant contended that it was a necessary consequence of the use of the words "be tried" that all evidence relied on in relation to the question or questions of fact to be tried without a jury had to be tendered in that trial, that is to say, after the s. 79A order has been made. He pointed out that before the jury was discharged, all questions of fact were being tried by the jury (s. 77(2)); they were not being tried by the judge. He then contended that the questions of fact which Judge Denton ultimately determined did not commence to be tried by him until the s. 79A order was made. However, after that order was made, no attempt was made to tender in the trial without a jury the evidence which had been tendered before the jury. How then, it was argued, could the learned judge without the consent of the defendant act on evidence which had not been tendered in the trial before him?
In the circumstances of this case where the trial judge had heard all the evidence, the argument for the defendant appears highly technical. Actual prejudice to the defendant was not suggested. The argument relies on the distinction between the determination of the questions and the trial of those questions, a distinction which s. 77 of the Act clearly draws. That is to say, the defendant contends that the order which is made under s. 79A is not an order for the determination of the question or questions of fact, but an order for the trial of the question or questions without a jury. Hence all evidence relevant to the trial of the question or questions must be tendered in that trial.
Technical though the argument may seem in the circumstances of this case, its strength lies in the absence of any express power entitling the judge to make use of evidence given before the jury was discharged. Indeed it was the absence of such power which led the Court of Appeal in G & J Shopfittings [27] to conclude that s. 79A did not authorize an order dispensing with the jury "once a trial has started and thereafter to proceed to try the case on the same evidence as the tribunal of fact".
In my opinion, counsel for the defendant was correct in contending that the question or questions of fact, the subject of a s. 79A order, do not commence to be "tried without a jury" until the order is made. The order operates prospectively. Once it is made the judge is authorized to try the question or questions and to receive evidence relevant to the question or questions. But by itself the order does not make the evidence given before the jury admissible in the trial of the question or questions without the jury. That is so, in my opinion, even when the jury is not discharged and continues to determine one or more of the questions in the case.
But it does not follow that the judge has no power to order that evidence given before the jury may be used as evidence in the trial without a jury. Section 79A confers a special jurisdiction on the District Court which enables a judge of that Court to order that a question or questions of fact be tried without a jury notwithstanding that the action is being, or has been part, heard by a jury. Once jurisdiction is conferred on a court, it may and should exercise that jurisdiction when it is appropriate to do so. If no procedural machinery for the exercise of the jurisdiction has been prescribed, the court must provide such machinery as it can [28] . Every court has inherent power to lay down the procedure necessary for the exercise of a jurisdiction conferred on it [29] . Moreover, Pt 1, r. 5A of the District Court Rules provides:
(1) Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act or the civil procedure rules or by or under any other Act or that person is in doubt as to the manner or form of procedure, the Court may, on application by that person or of its own motion, give directions.
Neither the District Court Act nor its rules or practice prescribe any procedure to be followed when an order is made under s. 79A. Hence, to facilitate the exercise of the jurisdiction conferred by s. 79A, a judge of that court may prescribe the procedure to be followed in the action tried without a jury. If an order is made under s. 79A after a trial before a jury has commenced, the inherent power of the court as well as Pt 1, r. 5A of the District Court Rules authorizes the making of an order that evidence used in the trial before the jury may also be used in the trial of the question or questions without the jury.
In the present case, the learned trial judge did not expressly make an order that the evidence given before the jury could be used in the trial of the questions before him. However, after the jury was discharged his Honour made it clear that he intended to rely on the evidence given before the jury "since I have also been present and able to apprehend evidence given in that regard". Although no formal order was made, his Honour's intimation that he intended to use that evidence in the trial which was to be conducted before him was in substance a direction that the trial of the questions before him was to proceed on the basis that the evidence given before the jury was to be regarded as part of the evidence in the trial before him. Consequently, Judge Denton was correct in using the evidence given before the jury as evidence in the action tried by him.
The appeal must be allowed, and the judgment of Judge Denton restored.
Patton
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